Williams v. Nichol

• Citation: 1 S.W. 243
• Parties: WILLIAMS and another <I>v.</I> NICHOL.
• Decision Date: 03 July 1886
• Court: Arkansas Supreme Court

1 S.W. 243

WILLIAMS and another

v. NICHOL.

Supreme Court of Arkansas.

July 3, 1886.

Appeal from Jefferson circuit court.

Suit in equity to obtain judicial construction of a will executed and probated in Tennessee, which bequeathed a sum of money to plaintiff, and charged the same against Arkansas lands devised to one of the defendants; also to enforce the trusts created by the will, and procure the removal of a trustee. Defendants were joint executors. One of them was devisee of the land charged with the payment of plaintiff's legacy, and the other was trustee named in the will for the purpose of collecting and investing said legacy for the use and benefit of plaintiff, uncontrolled by her husband. Both defendants denied the jurisdiction, claiming that all proceedings in Arkansas were merely ancillary to the principal administration in Tennessee, and that the courts of the latter had exclusive jurisdiction over the entire administration. Decree for plaintiff, and defendants appealed.

Sol F. Clark, Sam W. Williams, and Met. L. Jones, for appellants. U. M. & G. B. Rose and N. T. White, for appellee.

BATTLE, J.

Willoughby Williams died at his late residence, in the state of Tennessee, on the eighth day of December, 1882, leaving a last will and testament, which was duly admitted to probate in the state of Tennessee, and in the county of Jefferson, in this state. He devised, by his will, to his son McH. Williams, his plantation in Jefferson county, Arkansas, known as the "Bankhead Place," and charged it with legacies to his children and grandchildren as follows: He directed McH. Williams to pay to his son John H. Williams, as trustee for his daughter, Nannie W. Nichol, (the plaintiff,) wife of C. A. Nichol, the sum of $12,000, in four annual installments, from the date of testator's death, with 6 per cent. interest on the same from that date, and said John H. Williams was appointed trustee for the said daughter. Second. To pay to the children of testator's son Robert N. Williams the following sums, to-wit: To Jennie Williams, $1,000; to Morgan Williams, $1,000; and to the two younger children of said Robert, $2,000 each, on their arriving at 21 years of age. Such legacies were to bear interest from the death of the testator at 6 per cent. The will then proceeds: "I wish my son John H. Williams to accept the position of trustee for my daughter, Nannie W. Nichol, to receive the $12,000 and interest from my son McH. Williams, and invest it in a home for her when she and the said John H. may deem it best for her interest, or to invest the same in some good well-secured interest-paying first mortgage bonds; and the said legacy of $12,000, and whatever property it may be invested in, and all the profits and interest thereon, are to be received by the said John H. Williams, and held for her sole and separate use, and to be absolutely free from all the debts, contracts, and liabilities of her husband, C. A. Nichol, or any future husband she may hereafter have; the said interest and profits to be paid to her for that purpose by my said son John H. Williams, as received by him."

In another clause of the will the testator bequeaths 30,000 out of 40,000 shares which he held of the stock of the Memphis & Hopewell Real-estate Company, and directed it to be divided by his executors between his daughters, Mary Jane McNairy, Ellen W. Lewis, and Nannie W. Nichol, (the plaintiff,) share and share alike; the portion given to plaintiff, or the proceeds of any sale thereof, to be held by said John H. Williams, as her trustee, in the same manner, and with the same power of disposition, as directed in regard to the legacy of the $12,000; and in still another (the seventh clause) he devises his Memphis and Fort Pickering property, and any residuum of property of which he might die seized, to be sold by his executors, and the proceeds, after paying debts, to be equally divided between his children; and the share going to the plaintiff he directs to be held in trust by the said trustee, John H. Williams, in the same manner as the other bequests to her. John H. Williams and McH. Williams were nominated executors of the will, and, after the death of the testator, qualified as such.

Mrs. Nannie W. Nichol commenced this action in the Jefferson circuit court against John H. and McH. Williams, as executors, and in their own rights, and the other legatees and devisees named in the will. After setting out the foregoing facts in her complaint, she alleges "that the property mentioned in the seventh clause of the will has been sold as directed, the debts all paid, and each of the legatees mentioned in the seventh clause of the will have been paid their share of such proceeds; but that no part of the proceeds has been paid to the plaintiff, nor has she received anything on account of any bequest of the will; said John H. Williams declaring that nothing, by the terms of the will, is to be paid to her, but that all the moneys that came to his hands as trustee under said will is to be held by him for reinvestment, and that he is not authorized to pay to the plaintiff the interest accruing on the fund set apart in said will for her use and benefit. She alleges that said trustee has never taken any steps to collect any part of said money except by the sale of the property mentioned in the seventh item; that he has utterly neglected to take any steps towards carrying out the trusts devolved upon him, though often requested to do so; and that he had been acting as such trustee, and received money as such, without having given bond or other security, and that he is wholly insolvent. She prays that the will may be construed; that all its trusts for the benefit of the plaintiffs may be enforced against said land and other property, and against the trustee and the executors; and that if the court should be of opinion that any investment should be needed for the benefit of the plaintiff, under the provisions of the will, the court may proceed to have the same made under its own order and direction for the protection of the plaintiff; that the court may cause the interest and the increase that may be due to the plaintiff under the will to be paid her; that an account might be taken of whatever money or property she was entitled to under the will, and that all of her rights thereunder might be accurately settled and defined; that said trustee, Williams, might be removed, and another trustee appointed to act in his stead."

The defendant John H. Williams, in his own right, demurred to the complaint because the court did not have jurisdiction, and because it did not state facts sufficient to constitute a cause of action, which was overruled.

McH. Williams, in his own right, and as executor, filed an answer. "He admits the will, and its probate, as alleged. Says, in substance, that he was one of the executors appointed under the will, and a beneficiary; that he is advised that the estate or interest going to the plaintiff under the will was given to the defendant John H. Williams in trust, to be collected and invested for her by defendant, as trustee; and that there was no estate cast upon her by the will, except through the intervention of such trustee, and in the manner set out in the will; and that there is no power to set aside or adjust the will so as to avoid the terms and limitations of it as a devise. Defendant also says that two years had not elapsed after the death of the testator to the commencement of this suit, and he is advised that two years under the laws of Tennessee, must elapse before suit can be brought to cause the executors to account. Alleges that the claimant in the present case is a non-resident of Tennessee, and that there are other resident claimants against the estate, to-wit, Logan H. Roots and others, and they are entitled to five years to settle and adjust their claims before any equitable proceedings, except in the probate court of Tennessee, can be tried. Says that Lehman, Abraham & Co., of New Orleans, have a claim of $7,000, which has been duly presented and refused, and suit upon the same in the courts at Nashville, Tennessee, is now pending, and which cannot be adjusted or settled for the present. Says that the Hopefield stock at Memphis, mentioned in the will, has not been and cannot now be disposed of, but still exists as part of the trust, and the courts of Tennessee, at Nashville, are the proper courts to settle all the questions mentioned or shown in this action; that application upon all claims or legacies should be first made to the forum of the domicile; that there are other legacies charged on the lands mentioned in this suit in favor of the minor children of Robert N. Williams, and his widow and heirs; that he should be protected, and the trust estate so adjusted as to protect them and himself;" that he brings into court all sums due plaintiff, and asks the protection of the court.

Afterwards, McH. Williams filed a supplemental answer, in which he, in substance, states "that since his former and original answer he has paid to John H. Williams, the trustee named in the will, as declared in the pleadings in this case, not being restrained by the court, the money charged against the Bankhead plantation in favor of the complainant, and taken his receipt therefor; and he is informed and believes that the said John H. Williams, the trustee, has proceeded, in strict and apt compliance with the said trust in him so reposed by the will, to invest the fund so paid in good, well-secured, interest-paying first mortgage bonds, solvent, and in such form as to avoid any litigation, by lending the money to C. M. Neal, of Jefferson county, Arkansas, at 8 per cent. per annum, payable semi-annually, and by taking, for the purpose of securing the same, a first mortgage in favor of M. L. Bell, as trustee, on Lake Dick plantation, which is worth more than $30,000 in cash, which is duly recorded in Jefferson county; and that...