LeFlore v. Handlin

• Decision Date: 08 May 1922
• Docket Number: 346
• Citation: 240 S.W. 712,153 Ark. 421
• Parties: LEFLORE v. HANDLIN
• Court: Arkansas Supreme Court

240 S.W. 712

153 Ark. 421

LEFLORE v. HANDLIN

No. 346

Supreme Court of Arkansas

May 8, 1922

Appeal from Sebastian Chancery Court, Fort Smith District; J. V Bourland, Chancellor; affirmed.

Decree affirmed.

James B. McDonough, for appellants.

The chancery court had jurisdiction to construe the will. 97 Ark 588; 104 Ark. 439; 113 Ark. 404.

The appellants were grandsons of Ida L. Foucar and were each entitled to $ 5,000 under the will. There was a devise to each grandson of the testatrix.

In the construction of wills the rule is: It is the intention which the testator expressed in the will that controls, and not that which he may have had in mind. 110 Ga. 707; 36 S.E. 409; 50 L. R. A. 361; 107 Ill.App. 313; 204 Ill. 588; 68 N.E. 515; 110 La. 279; 34 So. 443; 66 Me. 360; 81 Md. 347; 32 A. 316; 126 N.Y.S. 277; 107 Va. 383; 59 S.E. 384; 91 Va. 286; 21 S.E 464; 83 Va. 724; 3 S.E. 387; 61 W.Va. 262; 56 S.E. 473.

A will should be given such a construction as will dispose of the property in a just, natural and reasonable manner. 27 Conn 134; 26 Ind. 511; 97 Me. 449; 54 A. 1068; 97 Me. 449; 200 N.Y. 159; 93 N.E. 488; 48 Am. Rep. 364.

Where the meaning of a devise is uncertain, the law will adhere as closely as possible to the rules of inheritance. 26 Pa. S.Ct. 443. An heir is not to be disinherited except by express words or by necessary implication. 36 S.E. 364. The law does not give to one relative of the same degree an advantage over the other. 94 Ind. 359; 59 A. 731; 53 Mich. 10; 67 N.Y.S. 925.

The will must be considered as a whole. 11 Ark. 54.

In case of conflicting clauses, the last clause must control. 113 Ark. 497; 115 Ark. 400.

Warner, Hardin & Warner, for appellees.

The intention of the testatrix must be gathered from all parts of the will, and such construction given as best comports with the purpose and intention of the testatrix. 90 Ark. 152; 98 Ark. 553; 113 Ark. 414; 116 Ark. 332; 13 Ark. 513; 31 Ark. 580; 73 Ark. 56; 98 Ark. 561; 104 Ark. 439; 105 Ark. 448; 111 Ark. 54; Gist v. Pettus, ms. op.

A will is not affected by any mistake of law or fact which induced the testator to make it; and a court can not amend or modify it so as to conform to what the court imagines the testator would have done but for such mistake. 2 Pom. Eq. Jur. (3rd Ed.) § 871; 16 S.E. 489; 32 Ala. 551; 25 S.E. 590; Rood on Wills, § 165.

The intention of the testator as expressed in the will must prevail if consistent with the rules of law. 31 U.S. 68; 116 Ark. 537; 146 Ark. 193; 116 Ark. 573.

The word "said" is a word of reference to what has already been spoken or specified, and referred to the grandsons, Edouard LeFlore and Chester Harwood LeFlore. 122 Ark. 336; 50 N.E. 135; 8 N.J.L. 182; 49 N.E. 87; 97 Ind. 497.

OPINION

WOOD, J.

Mrs Ida L. Foucar died testate at San Francisco, California, on February 1, 1920, having executed her will on the 27th day of February, 1918. The second clause of the will is as follows: "Second: I give and bequeath unto my son Louis LeFlore, of Stigler, Oklahoma, and to his children living at the time of my death, the sum of one hundred ($ 100) dollars each. I purposely make no further provision for my said son Louis LeFlore, nor for any of his children, because my said son Louis enjoyed a larger share of his father's estate than either of my other two sons hereinafter mentioned and provided for, and because his present financial condition is materially better than that of either of his said two brothers." In the third clause the testatrix states the reason for not making any provision for her husband. In the fourth and fifth clauses she bequeaths to her two sons, Frank T. LeFlore and Chester H. LeFlore, the sum of $ 10,000 each, and provides for the manner of succession in case of their death before her own. In the sixth clause she bequeaths to Frank A. Handlin, trustee, all the residue of her estate to be held by him for certain uses and trusts, which we will specify in paragraphs or items numbered from one to nine inclusive.

and (2) confer upon the trustee the power to handle the property bequeathed to him; to invest the income therefrom upon such terms as he thinks advisable, and to pay the taxes, insurance, etc.

In this item the trustee is directed to use the income from the estate bequeathed to him, or such portions thereof as may be necessary, or even the corpus thereof, if required, for the maintenance and education of her grandson Edouard B. LeFlore, son of Frank T. LeFlore, and Chester Harwood LeFlore, son of Chester H. LeFlore, until they have reached their majority.

This item directs that, five years after the death of the testatrix, the trust shall terminate as to one-half of the trust property and the "same shall go and belong equally to Frank T. LeFlore and Chester H. LeFlore," her sons.

This item is as follows: "When each of my said grandsons arrives at the age of twenty-one years, my said trustee shall pay to my said grandsons, out of said trust fund, the sum of five thousand ($ 5,000) dollars, and said trust shall end and terminate as to the sum of five thousand ($ 5,000) dollars when each of my said grandsons respectively reaches the age of twenty-one (21) years, and I do hereby give and bequeath unto each of my said grandsons, upon his arriving at the age of twenty-one (21) years, the sum of five thousand ($ 5,000) dollars."

In this item the testatrix specifies that when her grandson, Chester Harwood LeFlore, reaches twenty-five years of age, the trust terminates as to one- half of the trust property then remaining after deducting therefrom the sum of $ 5,000 which is to be paid to her grandson, Edouard B. LeFlore, and her grandson Chester Harwood LeFlore then receives the remainder of the one-half of the trust property.

In this item it is provided that, when her grandson Edouard B. LeFlore reaches the age of twenty-five years, the trust shall terminate as to all the balance of the property, and she bequeaths the same at that time to him.

This item contains advice and suggestions to the trustee.

This item of the sixth clause of the will is substantially as follows: "Upon the death of either of the sons of the testatrix, his share shall be held by the trustee, subject to the trust, and shall be paid to the son of such decedent when said grandson reaches the age of 25 years; provided, if said grandson dies before reaching 25 years of age, leaving issue, such issue shall take and receive said share when said grandson would have reached twenty-five; provided further that, should Edouard B. LeFlore die before he is 25 without issue, his mother, if living, shall succeed to his share, and the trust shall terminate thereto; but if Chester Harwood LeFlore should die before he is 25 without issue, his share shall be held by the trustee for the benefit of Edouard B. LeFlore and shall be paid and delivered to him subject to the trust. If either of my said grandsons should die before becoming 21 or 25 years respectively, leaving issue him surviving, such issue shall take the share the parent would otherwise be entitled to, subject to the aforesaid trust, and at the time when the parent would have taken hereunder; provided, that if my said grandson Edouard B. LeFlore should die prior to reaching the age of 21 or 25 years, respectively, without issue him surviving, his father, if living, and if his father should have theretofore died, his mother, if living, shall succeed to the share or shares of my said grandson forthwith; and said trust shall terminate and end with respect thereto; provided, further, that if my said grandson Chester Harwood LeFlore should die prior to reaching the age of 21 or 25 respectively, without issue him surviving, his father, if living, shall succeed to the share or shares of my said grandson forthwith, and said trust shall terminate and end with respect thereto; but if his father shall have predeceased him, my said trustee shall succeed to the share or shares of my said grandson, to be held by my said trustee upon the uses and trusts aforesaid, and for the benefit of my grandson Edouard B. LeFlore, to be paid and delivered to him at the times and in the manner in said trust provided."

In the seventh and eighth clauses of the will the testatrix names Handlin as her executor, and, in the event of his death, she names whoever may be the president of the First National Bank of Fort Smith to succeed him, and directs that he may serve without bond, and confers upon him the power to handle the estate without obtaining an order of the court.

The concluding clause is a revocation of all other wills.

This action was instituted in the chancery court of Sebastian County by the appellants against the appellee as trustee and executor. The appellants contend, as shown by the allegations of their complaint, that under the will they are each entitled to the sum of $ 5,000 when they become twenty-one years of age. They alleged that the trustee does not so construe the will, and they prayed that the will may be construed as they contend, and that the trustee be directed to adopt such construction.

The appellee, in his answer, denied that the will should be construed as contended by the appellants, and admitted that he contends that it was not the intention of the testatrix to bequeath to the appellants any other sum or amount than the sum of $ 100 mentioned in the second clause of the will.

In addition to the will, the testimony of Louis LeFlore, the father of appellants, was heard. It was stipulated that the estate of the testatrix was of the value of $ 83,000; that Chester Harwood LeFlore, son of Chester H. LeFlore, was nineteen years of age on July 20, 1921, and that Edouard B. LeFlore, son of Frank T. LeFlore, was ten years of age on July...