Black v. Bailey , 142 Ark. 201 ( 1920 )

Humphreys, J.

This suit was instituted by appellee John Mayne Bailey, trustee in the will of Dr. W. W. Bailey, deceased, against the other appellees and appellants to terminate the trust provided by the will and to construe the will as vesting a fee simple title to certain real estate in Fort Smith in the petitioner and other appellees, the only children and heirs of Dr. W. W. Bailey, and not a contingent remainder in said real estate in appellants, the only grandchildren of said testator.

In substance, it was alleged in the bill that the will vested in appellees a fee simple title to said real estate, subject to a trust imposed upon John Mayne Bailey to manage and control same for the benefit of the appellees until the testator ’s grandson, William Bailey Black, attained to the age of twenty-one years, or, in the event he should, die before attaining his majority, to continue the control and management of same for ten years thereafter, rendering to himself ten per cent, of the net income from the property for his compensation as trustee and the balance in equal parts, semi-annually, to himself and the other appellees; that, at the time of the death of the testator, a part of the real estate comprising the trust was producing considerable net income, but that the purposes of the trust had failed in that the property had not only ceased to pay any net income, but had failed to pay carrying expenses; that the property could not again be made self-sustaining and net-producing without an expenditure of large sums of money; that all the appellees were sui juris.

The other appellees answered, admitting all the allegations of the bill and joining with appellee, John Mayne Bailey, in his request for a construction of the will and termination of the trust.

Appellants, minors and the only grandchildren of the testator, after being properly summoned into court, filed answer by a duly appointed guardian ad litem, denying seriatim each material allegation of the bill and claiming an interest as contingent remaindermen in the real estate.

The cause was submitted to the court upon the pleadings, the will of Dr. W. W. Bailey and the evidence, upon which it was decreed that appellees took under the will an estate in fee simple in said real estate, and, being the owners of the beneficial as well as the legal title, this terminated the trust. From that decree an appeal has been prosecuted to this court.

Dr. W. W. Bailey was the owner of a large estate in Fort Smith. He died on September 15, 1913, being survived by the appellees, who were his only children and heirs. The appellants are his only grandchildren. On the 25th day of January, 1910, he executed his last will and testament, in which his son, John Mayne Bailey, was appointed executor, who probated the will and qualified as executor after the death of his father. Under his letters testamentary, he administered the will, and, upon final settlement, was discharged as executor. He continued to control and manage that portion of the estate placed in his care and control under the terms of the will until the present time. For a number of years,.the properly thus placed under his control in trust paid a net income, but thereafter not only ceased to pay a net income but was not self-sustaining, and, in order to make it a paying proposition, it would entail an expenditure of fifteen or twenty thousand dollars in the way of remodeling and repairing the rental property. No fund was provided under the will for such an expenditure. That portion of the will drawn in question for construction is designated by paragraphs 6 and 7, which are as follows:

Paragraph 6. “It is my will and my intention that, after my funeral expense and the expenses of my last sickness and all my just and lawful debts, and the distribution of gifts above made to my children, who are all the children I have, that all the rest, residue and remainder of my estate, which I may possess at the time of my death, both personal and real, except whatever interest I may have in the estate of my father, Joseph H. Bailey, shall be held in trust, by a trustee hereinafter named, until my grandchild, William Bailey Black, shall have become the age of twenty-one (21) years, my said estate, except whatever interest I may have in the estate of my father, Joseph H. Bailey, to be held in trust for the use and benefit of my children, Isabella M. Black, Kate T. Parker, William Worth Bailey, Jr., and John Mayne Bailey, they being all the children I have.

“If my said grandchild, William Bailey Black, should die before he attains the age of twenty-one years, then it is my will and intention, and I direct that said trust estate shall be extended for ten years after the death of said grandchild, provided he should die before he reaches the age of twenty-one years.

“It is my will and my intention, and I hereby appoint my dearly beloved son, John Mayne Bailey, as trustee of my estate, with full power and authority to handle, manage and control my estate as such trustee, as in his judgment may seem best, for the use and benefit of my children, Isabella M. Black, Kate T. Parker, William Worth Bailey, Jr., and John Mayne Bailey, and their heirs, it being my intention that my said trustee, John Mayne Bailey, shall divide the rents and profits equally among my heirs at law, Isabella M. Black, Kate T. Parker, William Worth Bailey, Jr., and John Mayne Bailey, or their heirs, semi-annually, etc.”

Paragraph 7. “It is my will and intention and I do hereby give, devise and bequeath, at the expiration of the above and aforesaid trusteeship hereinbefore created, all of my estate, both real and personal, not hereinbefore disposed of, to my children, Isabella M. Black, Kate T. Parker, William Worth Bailey, Jr., and John Mayne Bailey, and to their heirs forever, share and share alike; provided that if any of my children should die before the expiration of the said trusteeship hereinbefore created, leaving issue, said issue shall only take the share that would go to my child if living.”

We are unanimously agreed that the language used in neither paragraph warrants the conclusion that it was the intention of the testator to create a contingent remainder in the trust estate in the appellants. The only language pointed out as indicating such intention on the part of the testator is found in paragraph 7, and is as follows: “Provided that if any of my children should die before the expiration of the above trusteeship herein-before created leaving issue, said issue shall only take the share that should go to my child if living.” The language just quoted is nothing more than a direction that during the continuation of the trust and before the termination thereof, in the event one of the testator’s children should die, his issue should inherit according to the law of descent and distribution. It was a mere declaration of law and not the expression of an intention to create a remainder interest in the grandchildren. It follows that by the will a fee simple title to the trust estate vested in the appellees, unless it can be ascertained from a reading of the two sections that it was the intention of the testator to vest the legal title to the trust estate in the trustee for the period of the trust. Had such intention been in the mind of the testator, it would have been very easy to vest the legal title in so many words in the trustee. Instead of doing so, paragraph 6 provided that the property in question should be held in trust by the trustee with power and authority to manage and control same according to his best judgment for the use and benefit of the testator’s children, naming them. The trust was created for the purpose of control and management, and not for the purpose of temporarily vesting the legal title to the property. The only attempt to vest the title occurs in paragraph 7, in which paragraph the title was vested in the four children, John Mayne Bailey, William Worth Bailey, Isabella M. Black and Kate T. Parker. It is apparent from a reading of both paragraphs that not only the beneficial interest was intended for the children by the creation of the trust, but that the title itself was to vest in his children and not in the testator’s trustee. We think the proper interpretation of paragraphs 6 and 7, when read together, is that it was the intention of the testator to vest the entire estate in his children with a postponement of their right to enjoy the possession thereof in severalty for a period of years, towit: until the testator’s grandchild, William Bailey Black, attained his majority, or, dying before attaining such age, for a period of ten years after his death.

There is no language or clause in the will to indicate that the purpose of the testator was to create a spendthrift trust. The only purpose seems to have been to hold the property intact for a period of years for the use and benefit of his children. It was producing a good income at the time of his death, and it was perhaps in his mind that it would continue to do so during the management and control thereof by his son, John Mayne Bailey. Conditions have arisen which were apparently not in the mind of the testator at the time he executed the will, or at the time of his death. No net profits can be realized on the property without very large expenditures, for which no fund was provided. No one, save the appellees, according to the interpretation placed upon the will by this court, has any interest in the property. They are all sui juris. A. continuation of the trust will perhaps work a confiscation of the property, or, at least, greatly burden it with incumbrances. It was manifestly not the intention of the testator that the property should be thus consumed. The whole estate having vested in the appellees, and all desiring a termination of the trust, we see no good reason why it should not be terminated. Such doctrine was clearly announced in the case of Booe v. Vinson, 104 Ark. 439.

No error appearing, the decree is affirmed.