Hendriksen v. Cubage

• Decision Date: 27 February 1956
• Docket Number: No. 5-863,5-863
• Citation: 225 Ark. 1049,288 S.W.2d 608
• Parties: Polly Anna HENDRIKSEN, Appellant, v. Granville CUBAGE, Trustee, et al., Appellees.
• Court: Arkansas Supreme Court

Page 608

288 S.W.2d 608

225 Ark. 1049

Polly Anna HENDRIKSEN, Appellant, v. Granville CUBAGE, Trustee, et al., Appellees.

No. 5-863.

Supreme Court of Arkansas.

Feb. 27, 1956.

Rehearing Denied April 16, 1956.

Earl E. Hurt, Caddo Gap, Alfred Featherston, Murfreesboro, for appellant.

Witt & Witt, Mount Ida, Wootton, Land & Matthews, Hot Springs, for appellees.

WARD, Justice.

This litigation involves the construction and effect of numerous deeds with respect to two hundred acres of land in Montgomery County intended for a recreation and reunion site for the lineal descendants of Drs. A. B. Clingman and Alfred Jones, now deceased.

Appellant, a daughter of Granville Jones, (who in turn was the son of the said Alfred Jones) instituted this suit in the Chancery Court of Montgomery County against certain Trustees of the Clingman-Jones Family Corporation to recover an undivided one-half interest in the two hundred acres under the terms of her father's will. The trial court dismissed her complaint, and also made certain findings in favor of the defendants, as later noted from which findings and decree the appellant prosecutes this appeal.

A historical background to this litigation is necessary to an understanding of the issues, and it can be briefly stated since there is no dispute about the essential facts.

Early in the year 1923 several of the descendants of Clingman and Jones decided to purchase some land for the purpose above mentioned, and pursuant to that purpose two hundred acres were purchased from J. R. Vaught and wife. The deed, dated September 3, 1923, was regular in form and the grantees were 'Granville Jones, Isaac Jones, and Granville Cubage, Trustees'. We will refer herein to this deed as 'Deed No. 1'. The proof shows that the above grantees were to hold the land in trust for the descendants and for the purpose heretofore mentioned.

Following the execution of the above deed, two more conveyances of the same land were made, but these two deeds need be mentioned only briefly since, with one exception noted later, they have little bearing on the questions here involved. On September 16, 1924 the above named Trustees conveyed the land to Isaac J. Jones in order to facilitate borrowing money to build a dam on the property, but this venture did not materialize at that time. We refer to this deed as 'Deed No. 2'. Later, at one of the numerous annual reunions of the families, it was decided to give Granville Jones (father of the appellant), a retired lecturer, the right to live on and use the proceeds of the land so that he might engage in writing at his leisure. For the above purpose Isaac Jones conveyed the land to Granville Jones, as directed by the family representatives. This is referred to as 'Deed No. 3'.

It appears that no one objected to Granville Jones having the use of the land for the purposes above mentioned, but one Trustee in particular thought such privilege should be differently conveyed. This result was sought by the execution of 'Deed No. 4'. Consequently, on May 28, 1927, Granville Jones and his wife, Jessie Lyon Jones, executed a deed to 'Granville Jones, Isaac Jones, Arthur Jones, Claude Jones, and Guilford Jones, as Trustees for themselves and other lineal descendants of Drs. A. B. Clingman and Alfred Jones, deceased, and to the successors of said Trustees', conveying said land. Following the description, the deed reads:

'With full right to any one of said lineal descendants to establish on said lands a summer cottage and use the same with all privileges thereto appertaining under such rules and regulations as may be prescribed by the said trustees, but specially reserving to the grantors, Granville Jones and Jessie Lyon Jones, all profits arising from concessions, summer resort privileges and other commercial and industrial use of the said land and of a dam and lake thereon known as 'Sylvan Lake' and other improvements heretofore placed on the said land of Granville Jones together with any future improvements incident to such use as a summer resort, when such improvements shall have been approved by a majority of the grantees as such Trustees, conditioned that no sale, transfer or assignment of these reservations, privileges and sources of revenue shall be made by the said Granville Jones and Jessie Lyon Jones, or either of them, without the approval of a majority of said Trustees expressed in writing'.

It was, and is now, the contention of appellant that: (a) Deed No. 4 is void, as violative of the rule against perpetuities; (b) Her father, Granville Jones, therefore received a fee title to the land by virtue of deed No. 3, and; (c) Her father left her a one-half interest [also his wife a one-half interest] in the land by his last will which appears in the record. We are not in agreement with contention (b) above. Reserving, for the present, consideration of contention (a) above, it is clear from the testimony and the record, that appellant's father did not receive by deed No. 3 a fee title or a beneficial title. It is clear from the testimony that deed No. 3 was executed for the sole purpose of eventually achieving the results attempted in deed No. 4. Both deeds were executed on the same day, indicating again that Granville Jones was not to receive any beneficial title in the land by virtue of deed No. 3. The record conclusively shows that the Trustees considered Granville Jones as a mere conduit of the legal title. We agree, therefore, with the trial court that Granville Jones did not have a fee title in the land at the time of his death, and that consequently his will passed no beneficial or equitable title. Our conclusion would be the same regardless of the validity or non-validity of deed No. 4.

A short time before this suit was filed (and after appellant had filed and dismissed a similar suit) appellees organized a corporation called the 'Clingman-Jones Family Corporation'. The articles of this corporation appear in the record, and its purpose is expressed in the third paragraph:

'Second: The nature of the business of the corporation and the objects or purposes to be transacted, promoted or carried on by it, are as follows, to-wit: To acquire, own, manage and control all properties held in common by the lineal descendants of Drs. A. B. Clingman and Alfred Jones'.

In the record appears a deed, conveying said land, to this corporation. We designate this deed as 'Deed No. 5', and will discuss it later.

At the close of the hearing, the court, after dismissing appellant's complaint, made two principal findings in favor of the appellees. (a) Deed No. 4 was reformed, and (b) title to the land was quieted in the Clingman-Jones Family Corporation. We shall now consider these findings in the order named.

(a) We think it is not material to the final disposition of this case, but also think the court was justified in making the reformation. All the reformation amounted to was to more clearly define the purposes and manner in which the grantees in deed No. 4 were to hold the land, and to provide for the succession of trustees. All changes effected by the court were amply substantiated by the testimony.

(b) We have concluded that the court erred in quieting title in the new corporation, because we think deed No. 5 (from the Trustees in succession to the Clingman-Jones Family Corporation) violates the rule against perpetuities.

Apparently appellees were concerned that deed No. 4 might violate the rule against perpetuities, and so sought to evade that probability by the substitution of deed No. 5. We think no such result was achieved, and also think both deed No. 4 and deed No. 5 violate the rule. Since both deeds contain practically the same essential phraseology we will confine our consideration to deed No. 5.

In deed No. 5 (to the Family Corporation) there is a regular granting clause, and then, after the description of the land, there is a 'comma' and this paragraph:

'As a memorial, vacation, and reunion campsite for said lineal descendants, with full right of any one of said descendants to establish a summer cottage on said lands and use the same with all the privileges appertaining, under such rules as may be prescribed by the Directors of the Clingman-Jones Family Corporation'.

Before reaching a conclusion regarding the rule against perpetuities, we find it necessary to construe the effect of said deed No. 5 as a whole and in particular as to the language quoted above in an attempt to determine whether the deed vested a fee simple title in the Corporation, or whether the deed was in effect a conveyance in trust.

If, under this deed, the Corporation received a vested title in fee with the right to dispose of the land, we would be compelled to conclude that the rule was not violated.

After a careful consideration of the testimony relative to the purpose of the family organization, the Articles of Incorporation, and the language used in the deed to the Corporation, we are impelled to the conclusions hereafter set out.

By the use of the words 'lineal descendants' of Clingman and Jones in deeds No. 4 and No. 5 we do not think the Trustees or the family organization meant to refer only to persons then living but rather to those who might be later born. We get the impression from the undisputed evidence that the family had no intention of limiting the recreation and reunion project to those persons who were alive. In fact that is the very issue which prompts this litigation on the part of appellees. There has never been any contention that the living lineal descendants of Clingman and Jones did not have the right to establish and maintain a recreation and reunion project.

Likewise we can draw but one conclusion from the Articles of Incorporation, and that is that the sole purpose and power of the Corporation was to hold the land [in trust] for the 'lineal descendants of Drs. A. B. Clingman and Alfred Jones'. It is perfectly apparent that the Corporation would have...