Letzkus v. Nothwang

• Decision Date: 08 February 1926
• Docket Number: 160
• Citation: 279 S.W. 1006,170 Ark. 403
• Parties: LETZKUS v. NOTHWANG
• Court: Arkansas Supreme Court

279 S.W. 1006

170 Ark. 403

LETZKUS v. NOTHWANG

No. 160

Supreme Court of Arkansas

February 8, 1926

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

Decree affirmed.

T. E Helm, for appellant.

Lee Miles, for appellee.

OPINION

SMITH J.

Jacob Frederick Nothwang died testate, and by his will devised his entire estate, real and personal, to his two sons, David Henry and Frederick. The testator was a widower at the time of his death, and the two sons named were his sole heirs-at-law.

By paragraph 1 of the will certain lots in North Little Rock were given to David Henry, together with certain personal property, and by paragraph 2 certain other lots in North Little Rock were given to Frederick, together with certain personal property. There is nothing in either paragraph restricting the estate devised, and, construed by themselves, those paragraphs would give to the devisees named the fee simple title in severalty to the lots devised to them respectively, beyond question.

Paragraph 3 of the will reads as follows: "Any and all other property of which I may die possessed, real, personal and mixed, I give to my said sons David Henry Nothwang and Frederick Nothwang, share and share alike."

Paragraph 4 reads as follows: "All the property I give to my said sons, as above set out, is given, however, subject to the following express condition, that is, each of my said sons shall hold his respective share herein conveyed to him for the period of ten years before he shall be permitted to mortgage or in any manner incumber or to sell or convey any part thereof, except the cash money which may be remaining belonging to my estate, after the payment of my said debts and funeral expenses, which money shall be paid to my said sons as above provided, as soon as the same can reasonably be done after my death, and with the further understanding that my said sons may have and enjoy the income from my said real estate and Liberty bonds as the same accrues, and with the further direction that, if any of said Liberty bonds mature during the said ten years, the proceeds from the same shall be loaned on real estate security at the best rate of interest obtainable, and my said sons permitted to have the income from the same during said ten years. At the end of the said ten years, it is my desire that each of my said sons shall have absolute control of the property herein conveyed to him for such uses and purposes as he may see fit. I trust that they may make the best use of this property."

The will was duly probated. There are no creditors, and on April 13, 1924, which was after the will had been probated, David Henry died intestate, without issue, never having been married, and leaving as his sole heir-at-law his brother Frederick.

On November 1, 1924, Frederick contracted to sell to appellant one of the lots devised to him, and a lot devised to his deceased brother, on which a down payment was made, and the balance of the purchase money to be paid on approval of the title. No objection to the title was made except that 10 years had not expired since the date of the will, and the purchaser, for that reason, questions the right of Frederick to convey.

Suit to compel specific performance was brought, and the sole question raised on this appeal is the effect of paragraph 4 of the will on the right to convey, the ten years not having expired.

In the case of Booe v. Vinson, 104 Ark. 439, 149 S.W. 524, a testator had devised his estate to the two persons who, in the absence of a will, would have been his sole heirs-at-law. Each devisee was given $ 1,200 per annum "for the maintenance of both of them as long as they shall live", with the proviso that "at their death it is my desire that what is left, if anything, be used for charitable purposes."

In construing this will it was held, first, that the devise and bequest to charity named no special beneficiary, and indicated no plan or scheme for carrying out the purpose of the will, and gave to no one the discretion to determine who the beneficiary should be, and upon this finding it was adjudged that the bequest to charity was too vague and indefinite to admit of judicial administration, and was therefore void, and must fail.

It was next contended by the executors of the will in that case that the testator had provided only an income for the lives of the beneficiaries, while on behalf of the beneficiaries it was contended that, the provision for charitable purposes being...