Mercantile Trust Co. v. Adams

• Decision Date: 06 June 1910
• Parties: MERCANTILE TRUST COMPANY v. ADAMS
• Court: Arkansas Supreme Court

129 S.W. 1101

95 Ark. 333

MERCANTILE TRUST COMPANY v. ADAMS

Supreme Court of Arkansas

June 6, 1910

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

Decree affirmed.

Rose Hemingway, Cantrell & Loughborough, for appellant.

Wills should be so construed as to carry out the intention of the testator. 75 Ark. 19. The first taker under the will took only a life estate, and the fee passes to the person who would take as heir of the first taker. 44 Ark. 458; 58 Ark 403; 67 Ark. 517; 72 Ark. 336; 49 Ark. 125. Mrs. Bard's life estate was forfeited bye the tax sale to Mercer. Kirby's Dig., § 7132; 59 Ark. 364; 80 Ark. 583.

Bradshaw Rhoton & Helm, for appellees.

Section 735, Kirby's Digest, does not apply to wills. Id. § 738. Courts will, on discovering that they have rendered an opinion in conflict with a valid statute, correct the error. 59 Ark. 326; 33 Ark. 517; 35 Ark. 395; 37 Ark. 370. Alice Bard took the estate upon conditions subsequent. Tied. on Real Prop., §§ 451, 272; 1 Warv. on Ven. 451; 2 Ping., Real Prop. 739, 740. When the conditions are subsequent, the estate vests subject to be defeated. 26 Ark. 617; 3 Ark. 252; 50 Ark. 141. The word "heirs" is not necessary to convey a fee simple. Kirby's Dig., § 733. The gift is absolute, and the limitation over is void. 81 Ark. 480; 3 Ark. 187; 82 Ark. 209; Underhill on Wills, vol. 2, § 689; Page on Wills, § 684; 72 Ark. 296. The will did not create an estate tail. 51 Ark. 61; 52 Ark. 113; 61 Ark. 366; 58 Ark. 306; 67 Ark. 521.

OPINION

BATTLE, J.

We adopt appellant's abstract of the pleadings in this case which is as follows:

"Howard Adams, as trustee of the People's Savings Bank, commenced suit on March 18, 1908, in the Pulaski Chancery Court against W. D. Bard, Alice R. Bard, his wife, R. W. Porter, trustee for the Citizens' Investment & Security Company, as agents, P. H. Fullinwider and Smith, seeking to foreclose a mortgage executed by W. D. Bard and Alice R. Bard, his wife, to Howard Adams, as trustee, on the 21st of April, 1903. The property is described as lot 6 and the south half of lot 5, in block 23, city of Little Rock. The amount of the indebtedness was $ 2,300, due five years after date, with interest at the rate of 8 per cent. per annum. Service was had on the defendants.

"On April 1, 1908, the Mercantile Trust Company, as curator of the estate of William D. Bard, Jr., Mary Frances Bard, and Nancy Nichol Bard, children of W. D. and Alice R. Bard, filed its intervention and cross complaint in the cause against Howard Adams, as trustee for People's Savings Bank, W. D. Bard, Alice R. Bard and others, alleging that said William D. Bard, Jr., Mary Frances Bard and Nancy Nichol Bard were minors under the age of fourteen years, and heirs of the body of Alice R. Bard; that said minors were the owners in fee of lot 6 and the south half of lot 5 aforesaid, and that their mother, Alice R. Bard, was at one time the owner of a life estate therein; that said minors became seized of the fee by virtue of the provisions of the will of Elizabeth A. Crisman, which was executed by her on the 6th of August, 1896, and duly admitted to probate on the 3d day of December, 1896; that said will, among other things, provided as follows:

"'First. I give and bequeath to Alice R. Bard my residence in Little Rock, lot number 6 and the south half of lot number 5, in block 23, upon the following conditions: Said lots are not to be disposed of by the said Alice during her lifetime; and if she dies without heirs of her body, then said property shall go to my sister, Alice B Reid, if living, and, if dead, then to her two daughters, Maude and Alice; and I bequeath to said Alice R. Bard my piano, and if she die without heirs of her body said piano shall go to the said Maude and Alice Reid.'

"That on the 21st day of April, 1903, Alice R. Bard and her husband, W. D. Bard, executed a deed of trust to Howard Adams, as trustee, wherein they mortgaged only the life estate of the said Alice R. Bard in said property; that on the 25th day of May, 1904, Alice R. Bard and her husband executed a deed of trust to R. W. Porter, as trustee for the Citizens' Investment & Security Company for $ 500, and again on September 6, 1906, they executed a deed of trust to Porter, as trustee, for $ 318; that at the time of the execution of the deeds of trust Alice R. Bard was in possession

of the property, collecting the rents thereon, and was at the time of the filing of the intervention herein in possession of the same; that she suffered the property to forfeit for the nonpayment of taxes for the year 1904, and on the 20th of June, 1907, the property was sold by the clerk of Pulaski County to A. J. Mercer, who now holds a tax deed for the same; that Mercer was an employee of the People's Savings Bank, and through an agreement between him and the People's Savings Bank the property was permitted to forfeit for taxes and to be bought in by him in his own name, but that he was in truth acting as agent and in the interest of the People's Savings Bank; that the bank and Mercer intended thereby to acquire the fee simple to the lots and to hold the title to the same and thereby to defraud William D. Bard, Jr., Mary Frances Bard and Nancy Nichol Bard of their interest in the lots; that by reason of the forfeiture for the taxes of 1904, the sale and the deed of the clerk to Mercer, Alice R. Bard had forfeited her life estate to the property, and that the minors were then entitled to the immediate possession of the property and to redeem from the tax sale." Prayer "that the intervention be taken as a cross complaint against all of the plaintiffs and defendants; that the will of Elizabeth S. Crisman be construed, and that Alice R. Bard be decreed to have taken thereunder a life estate only, with a remainder in fee to the minor heirs; that the life estate be decreed to be forfeited and terminated by reason of the tax forfeiture and sale, and the minors be given immediate possession of the property and be permitted to redeem from the tax sale; that the deed to Mercer from the clerk of Pulaski County be set aside, and that the deeds of trust from Alice R. Bard and her husband to Howard Adams, as trustee, and to R. W. Porter, as trustee, be declared to be void as liens upon the property, and that they be removed as clouds upon the title," etc.

The appearance of all parties to this intervention and cross complaint was duly entered or service of summons had in the manner required by law.

Howard Adams, as trustee, demurred to this intervention and cross-bill upon two grounds: First, because he alleged that there was a defect of parties defendant made by the intervention, in that the minors had no interest whatever in the controversy. Second, because the intervention did not state facts sufficient to constitute a cause of action in favor of the Mercantile Trust Company as curator of the estate of the minors, in that the minors are shown by the intervention to have no interest whatever in the land in controversy under the will of Elizabeth A. Crisman.

Ruling upon the demurrer was reserved by the chancellor until final decision of the cause.

On the 13th of November, 1909, Howard Adams, as trustee, filed an answer to the intervention and cross complaint of the Mercantile Trust Company as curator, by which he denied that the minors were the owners in fee of the property, and that the minors became vested with any estate by virtue of the provisions of the will of Elizabeth A. Crisman; he admitted that Alice R. Bard was in possession of the property at the time of the making of the deeds of trust, and that Mercer held a tax deed to the property. He denied that the property was permitted to forfeit for taxes and to be bought in by Mercer by reason of the alleged agreement between him and the People's Savings Bank. He denied that by reason of the forfeiture of the property for taxes Alice R. Bard had forfeited her life estate in the property, and that the minors were entitled to the immediate possession thereof. He alleged that Alice R. Bard was not able to pay the taxes on the land, and suffered the same to become delinquent, and that the lands were about to be sold for taxes; that she asked the plaintiff to purchase the land at tax sale for her use and benefit in order to prevent the land from getting into alien hands; that said bank agreed to and did become the purchaser of the lands at tax sale, and directed that the deed be made to Mercer, its agent and representative; that Mercer holds the tax deed for the use and benefit of the plaintiff and Alice R. Bard; that the purchase at the tax sale was in fact a payment of the taxes by Alice R. Bard, and hence no forfeiture occurred.

On November 13, 1909, the Mercantile Trust Company filed an amendment to its intervention and cross complaint, by which it charged that it was provided in the will of Elizabeth A. Crisman that "said lot is not to be sold or disposed of by the said Alice during her lifetime," and that Alice R. Bard had no power to sell or to mortgage the same to Howard Adams, as trustee, or to any one else, and that the mortgagees acquired no right or interest in any estate which Alice R. Bard had in or to the property, and were not entitled to foreclose the mortgage.

On September 29, 1909, Howard Adams, as trustee, filed an amendment to his answer to the intervention and cross-complaint in which, he set up that the rents and proceeds from the property were being collected by the Mercantile Trust Company as curator upon the theory that, if the court should hold that the plaintiff had no right, title or interest in the lands, the moneys so received should be paid to the minors; but alleged that said minors had no interest in said fund, and that...