National Bank of Commerce v. Ritter

• Citation: 26 S.W.2d 113,181 Ark. 439
• Decision Date: 31 March 1930
• Docket Number: 239
• Parties: NATIONAL BANK OF COMMERCE v. RITTER
• Court: Arkansas Supreme Court

26 S.W.2d 113

181 Ark. 439

NATIONAL BANK OF COMMERCE v. RITTER

No. 239

Supreme Court of Arkansas

March 31, 1930

Appeal from Poinsett Chancery Court; J. M. Futrell, Chancellor affirmed.

STATEMENT OF FACTS.

Appellant brought this suit in equity against appellees to subject an alleged interest of one of appellees in certain real estate to an execution of appellant.

E. A Ritter died testate in Poinsett County, Arkansas, and his will was filed for probate on May 9, 1921. After making several specific bequests, the paragraphs of the will necessary for a determination of the issue raised by the appeal read as follows:

"9. I give and devise and bequeath all of the residue of my estate, real and personal and mixed, wherever located, to C A. Dawson, L. V. Ritter, my son, Harry Ritter, my son, and Louis Ritter, my brother, as trustees, and I do hereby empower them as such trustees to continue the operation of all of my properties along lines of my policies as far as possible, only deviating therefrom in such cases as they may deem essential to the welfare of said properties, and I direct that said trustees shall pay over to my wife, Anna Ritter, the sum of three hundred ($ 300) per month out of the income arising from the operation of said properties, and after so doing I direct that the balance shall be divided into four equal parts and paid over one-fourth to my wife Anna Ritter, one-fourth to my son, Louis Ritter, one-fourth to my daughter, Mrs. Edna Newson, one-fourth to my son, Harry Ritter; settlements annually or so often as their necessities may require."

"10. I direct that the trusteeship hereby created shall extend throughout the lifetime of my wife, Anna Ritter, and at her death the same shall cease and terminate, provided my youngest son has attained the age of thirty years, if not, said trusteeship is to continue until my said youngest son has become thirty years of age, at which time the principal of my said estate shall be equally divided between my daughter and two sons, the issue of any deceased child to take the place of their parents, and share in said division per stirpes and not per capita, the interest of any child dying without issue prior to the termination of said trust shall lapse, and revert to the estate, and the income which would go to said child who may die without issue shall be equally divided among the survivors, or their children, such children to take per stirpes and not per capita."

Paragraph 11 of the will authorizes the trustees to make mortgages or deeds whenever necessary or to sell any of the real estate according to their best judgment. On the 14th day of May, 1928, appellant obtained judgment in the circuit against L. V. Ritter, a son of E. A. Ritter, and one of the legatees named in his will. An execution was issued on the judgment, and there was a return of nulla bona by the sheriff. Then the present suit was instituted in order to subject the interest of L. V. Ritter under the will to the payment of the judgment against him in favor of appellant. Anna Ritter, the widow of E. L. Ritter, deceased, is now living, and was made a party to the action. Harry Ritter, the youngest son of E. A. Ritter, is now thirty years of age, and is without issue. L. V. Ritter is married and has children.

The chancellor found the issues in favor of appellees, and it was decreed that the complaint of appellant should be dismissed for want of equity. The case is here on appeal.

Decree affirmed.

G. B. Segraves, for appellant.

J. G. Waskom and N. F. Lamb, for appellees.

OPINION

HART, C. J., (after stating the facts).

It is conceded that the only question presented by the appeal is whether L. V. Ritter has a vested interest under the terms of his father's will which may in equity be subjected to the payment of appellant's judgment against him. Counsel for appellant insist that the proper interpretation of the will is that L. V. Ritter took under the will a vested remainder upon the death of the testator, and that his interest could be sold under execution issued in favor of appellant under its judgment against him during the life estate of the widow. On the other hand, counsel for appellee insist that L. V. Ritter...