Heiseman v. Lowenstein

• Decision Date: 15 June 1914
• Docket Number: 43
• Citation: 169 S.W. 224,113 Ark. 404
• Parties: HEISEMAN v. LOWENSTEIN
• Court: Arkansas Supreme Court

169 S.W. 224

113 Ark. 404

HEISEMAN v. LOWENSTEIN

No. 43

Supreme Court of Arkansas

June 15, 1914

[Copyrighted Material Omitted]

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.

STATEMENT BY THE COURT.

Appellants as executors of the will of Abe Stiewel, deceased, instituted this action in the chancery court against appellees, who are devisees and legatees under the will. The object of the complaint is to have a construction of the will and the directions of this court as to the duty and power of the executors in selling, mortgaging, and leasing the lands of their testator. Abe Stiewel died in Little Rock, Pulaski County, Arkansas, on the 25th day of August, 1913, and the will was duly admitted to probate and appellants qualified as executors under the will. The will is as follows:

"1. I desire that all of my debts shall be paid in full.

"2. It is my desire that my sister, Mrs. Emilie Lowenstein, in addition to insurance for one thousand ($ 1,000) dollars in the order of B'nai B'rith, which she holds on my life and money she has on deposit with me, shall receive from my estate the sum of twenty thousand ($ 20,000) dollars and interest in the manner herein provided for, as follows towit: That is to say, the executors of my will shall cause to be deposited in a proper and solvent trust company the sum of twenty thousand ($ 20,000) dollars at the best rate of interest they can obtain therefor to the credit of said Emilie Lowenstein, conditioned that she shall not draw exceeding the sum of two hundred ($ 200) dollars per month as long as she may live, or the said fund may last; said money to be so deposited as soon as an order, if required, can be obtained from the probate court having jurisdiction of my estate to do so.

"2. Should my said sister die before the said sum is exhausted then her son, Julius Frank, if living, shall receive five thousand ($ 5,000) dollars of said sum so remaining to be paid to him in like manner, that is, at the rate of two hundred ($ 200) dollars per month by said trust company, and the remainder of said sum of twenty thousand ($ 20,000) dollars shall be disposed of as hereinafter set forth.

"3. It is my desire that my sister, Mrs Fannie Shield, shall receive from my estate the sum of fifteen thousand ($ 15,000) dollars, and interest, in the following manner, towit: That is to say, the executors of my will shall cause to be deposited in a proper and solvent trust company the sum of fifteen thousand ($ 15,000) dollars, at the best rate of interest they can obtain therefor, to the credit of said Fannie Shield, conditioned that she shall not draw exceeding the sum of two hundred ($ 200) dollars per month so long as she may live, or the said fund may last, said money to be deposited as aforesaid as soon as an order, if required, can be obtained from the probate court having jurisdiction of my estate to do so, and if any part of said fund shall remain on hand at my sister's death, it shall be disposed of as hereinafter set forth.

"4. It is my desire that my sister, Mrs. Julius Meyer, shall receive from my estate the sum of fifteen thousand ($ 15,000) dollars free from the claims or control of her husband or her sons; said sum to be forwarded by my said executors to Rudolph Richard, of Selma, Alabama, son-in-law of said Mrs. Julius Meyer, as soon as the order, if required, of said probate court can be obtained so to do, conditioned that said Rudolph Richard shall deposit said money in some solvent trust company at a fair rate of interest, and that my sister, Mrs. Julius Meyer, shall not draw exceeding the sum of two hundred and fifty ($ 250) dollars per month so long as she may live or the said fund may last. Should my sister die before the said sum is exhausted, then her four (4) daughters named Lillian, Sadie, Gertie and Hulda, are to be the recipients of the two hundred and fifty ($ 250) dollars per month in lieu of their mother, until their death, or the fund is exhausted.

"5. It is my desire that my brother, H. I. Stiewel, in addition to any indebtedness he now owes me (which I hereby remit), shall receive from my estate the sum of ten thousand ($ 10,000) dollars, and interest, to be paid to him by my executors as follows, towit: That is to say, they shall pay to him the sum of five hundred ($ 500) dollars in cash and the sum of nine thousand, five hundred ($ 9,500) dollars shall cause to be deposited in a proper and solvent trust company at the best rate of interest they can procure therefor, to the credit of said H. I. Stiewel, conditioned that he shall not draw exceeding the sum of one hundred and fifty ($ 150) dollars per month so long as he may live or the said fund may last; said sum to be so deposited as soon as the order, if required, of said probate court can be obtained so to do. Should any of the said sum of nine thousand five hundred ($ 9,500) dollars and interest remain on hand on the date of his death, it shall be disposed of as hereinafter set forth.

"6. It is my desire that my nephew, Julius Frank, shall receive from my estate in addition to the legacy referred to in the second paragraph of this will the sum of one thousand ($ 1,000) dollars from my said executors as soon as an order, if required, can be obtained from said probate court to do so.

"7. It is my desire that my nephew, Albert Shield, and my niece, Carrie Shield, shall respectively receive from my estate the following sums, towit: Albert Shield, one thousand ($ 1,000) and Carrie Shield two thousand five hundred ($ 2,500) dollars, from my executors as soon as an order, if required, can be obtained from said probate court to do so.

"8. It is my desire that my executors shall pay the following amounts respectively to my nephews and nieces hereinafter named in this paragraph as soon as the order, if required, of said probate court can be obtained to do so, towit: One hundred ($ 100) dollars each to my niece, Edna Shield, my nephew, Julius Shield, my nephew, Morris M. Meyer, my nephew, Arthur Meyer, my niece, Elsie Richard (nee Meyer).

"9. I desire that my executors shall pay over to my niece, Elsie Richard (nee Meyer) for her three (3) children the sum of five hundred ($ 500) dollars as soon as they obtain the order, if required, of said probate court to do so.

"10. It is my desire that my nieces, Gertie Meyer, Lillian Meyer, Sadie Meyer, and Hulda Meyer, shall each receive from my estate the sum of twenty-five hundred ($ 2,500) dollars to be paid by my executors to Rudolph Richard, of Selma, Alabama, in trust for them, conditioned that he shall pay over said sum in such installments or manner as to him may seem best calculated to meet their needs. But in any event to be paid over on the marriage of each of them; in the event either of said nieces shall die before the said legacy shall be paid to her, the same shall go to the surviving ones among my said nieces. In the event of the marriage of any of said nieces, their husband shall have no control over said amount; should any of said nieces die before me, the sum so devised shall go as hereinafter provided.

"11. It is my desire that my niece, Carrie Mothner (nee Richard), shall receive from my estate the sum of twenty-five hundred ($ 2,500) dollars and interest in manner following, towit: My executors shall, as soon as an order, if required, of said probate court shall be obtained so to do, cause to be deposited in a proper and solvent trust company to her credit at the best rate of interest they can obtain the said sum conditioned that she may draw not exceeding one hundred ($ 100) dollars per month thereof so long as she may live or said fund shall last, and her husband shall have no control over the same, and if any of said amount is still on hand at her death, it shall be given to her children as if she was living.

"12. To my nephew, Morris S. Richard, I bequeath fifteen hundred ($ 1,500) dollars in addition to the indebtedness he now owes me (which I remit), and to my nephew, Sidney Richard, I also bequeath fifteen hundred ($ 1,500) dollars, which said sums my executors, as soon as an order can be obtained, if required so to do, shall cause to be deposited in some proper and solvent trust company at the best rate of interest they can obtain in the names of said nephews, respectively, conditioned that neither of said nephews shall draw exceeding fifty ($ 50) dollars per month of said fund, so long as they may respectively live or said fund may last. Should any part of either of said sums remain on hand at the death of either of my said nephews, it shall be disposed of as hereinafter set forth.

"13. My executors shall cause to be paid out of my estate to my sister-in-law, Mrs. Hattie Stiewel, in trust for her three children, the sum of twenty-five hundred ($ 2,500) dollars as soon as they can get an order, if required, of the said probate court so to do; in addition to said sum they shall cause to be deposited in some proper and solvent trust company the sum of ten thousand ($ 10,000) dollars at the best rate of interest they can obtain, and the said sum shall be paid pro rata to my nieces, Theresa and Sadie Stiewel, and my nephew, Morris Stiewel, so that each shall receive a third thereof when they shall become of age or marry; and if either before date of distribution shall die one before the other, the share of such one shall go to the others, the interest, however, accumulating on said amount may be used to defray expenses of the support and education of such children and may be paid over to their guardian or mother for this purpose.

"14. My executors shall, as soon as an order, if required, of said probate court can be obtained so to do pay to my four nephews, Harry Vernon Stiewel, Robert Stiewel, Louis Stiewel and Roy Julian...