Layman v. Hodnett

• Citation: 168 S.W.2d 819,205 Ark. 367
• Decision Date: 22 February 1943
• Docket Number: 4-6986
• Parties: LAYMAN v. HODNETT
• Court: Supreme Court of Arkansas

168 S.W.2d 819

205 Ark. 367

LAYMAN v. HODNETT

4-6986

Supreme Court of Arkansas

February 22, 1943

Appeal from Lafayette Chancery Court; Walker Smith, Chancellor affirmed.

Decree affirmed.

R. L Searcy, Jr., for appellant.

Cockrill Armistead & Rector, for appellee.

OPINION

ROBINS, J.

By complaint filed in the lower court the appellee, William E. Hodnett, executor and trustee under the last will and testament of Joseph Hodnett, deceased, who was a resident of Illinois at the time of his death, asked for a construction of this will as to the powers of the appellee thereunder: (1) to execute oil and gas leases upon certain lands in Lafayette county, Arkansas, owned by the testator at the time of his death, (2) to execute conveyances of minerals in and under said lands, (3) to execute deeds of conveyance covering said lands containing reservations of minerals thereunder, and (4) to sell and assign royalties payable under any oil and gas leases covering said lands; and the appellee also prayed that his action in executing certain oil and gas leases and conveyances of minerals and assignments of royalties upon these lands be approved by the court. All the living beneficiaries under the will of Joseph Hodnett were made parties defendant, and, as they were nonresidents of the state, service was properly had upon them by warning order, and a guardian ad litem was appointed for the minor defendants, Mary Layman, John W. Savage and Joseph H. Savage, who are grandchildren of the testator. All of the adult defendants entered their appearance, and the guardian ad litem filed an answer denying the allegations of the complaint. By the decree of the lower court it was found that the trustee had power under the will to sell and convey the minerals, including oil and gas, under the lands belonging to the trust estate, to convey said lands, reserving the minerals thereunder, to execute oil and gas. leases, and to sell and assign the royalties and rentals payable under such leases; and the court also ratified and approved the oil and gas leases and conveyances of interests in oil and gas produced under various portions of the lands owned by the testator, which had been theretofore executed by the trustee. The guardian ad litem for the minor defendants has appealed from this decree, but no appeal therefrom is prosecuted by any of the adult defendants.

The rule is well settled in this state that a court of equity has power and jurisdiction to construe a will where such will creates a trust. Davis v. Whittaker, 38 Ark. 435; Williamson v. Grider, 97 Ark 588, 135 S.W. 361; Heiseman v. Lowenstein, 113 Ark. 404, 169 S.W. 224; Phillips v. Phillips, 143 Ark. 240, 220 S.W. 52; LeFlore v. Handlin, 153 Ark. 421, 240 S.W. 712; Gaines v. Arkansas National Bank, 170 Ark. 679, 280 S.W. 993. Jurisdiction of the chancery court of the county in which the lands involved in the trust are situated is not affected by the fact that the owner thereof was a resident of another state, and that the estate is being administered under the direction of the court having probate jurisdiction at the domicile of the decedent. While the courts of some states hold otherwise, it is well settled in this state that the law of the situs of the real property controls the construction of wills by which same is devised. In Arkansas law of Conflict of Laws, by Leflar, § 157, the rule is thus stated: "The Arkansas decisions have consistently followed the view that the law of the situs governs the effect and interpretation of wills of land. The problem has arisen three times in connection with wills made by Tennessee domiciliaries devising Arkansas lands, and each time Arkansas law has been deemed controlling. The strongest holding was in Bowen v. Frank, in which a Tennessee judicial decision interpreting the very will in question was held to be irrelevant. The Arkansas court said (at 179 Ark. 1004 at 1010): 'The decisions of the Supreme Court of Tennessee, where the testator resided at his death, construing his will disposing of lands there and in this state, are without authority, of course, for the disposition of the lands here, and are not to be regarded, unless in harmony with the rules of construction for wills disposing of property in this state as applied by our own court.' The Arkansas position as to wills of land could scarcely have been made clearer. Where wills of movables are concerned, there is not so much divergence of view in the authorities. It is generally agreed that the law of the testator's domicile governs. . . ." By the will under consideration here Joseph Hodnett, after making certain specific bequests, devised and bequeathed to his son, the appellee, all of his property, both real, personal, and mixed, as trustee for the widow, children and grandchildren of the testator. By this will it was provided that the trustee was "to have and to hold all my real...