{ "id": 1485057, "name": "Mack, Executor, v. Rittenhouse", "name_abbreviation": "Mack v. Rittenhouse", "decision_date": "1943-06-28", "docket_number": "4-7108", "first_page": "39", "last_page": "45", "citations": [ { "type": "official", "cite": "206 Ark. 39" }, { "type": "parallel", "cite": "173 S.W.2d 1002" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "191 S. W. 34", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "126 Ark. 503", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1551735 ], "opinion_index": 0, "case_paths": [ "/ark/126/0503-01" ] }, { "cite": "218 S. W. 210", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "142 Ark. 201", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1590563 ], "opinion_index": 0, "case_paths": [ "/ark/142/0201-01" ] }, { "cite": "13 S. W. 2d 810", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "179 Ark. 30", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718649 ], "opinion_index": 0, "case_paths": [ "/ark/179/0030-01" ] }, { "cite": "113 S. W. 361", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "97 Ark. 588", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1318789 ], "opinion_index": 0, "case_paths": [ "/ark/97/0588-01" ] }, { "cite": "19 L. R. A., N. S., 176", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "113 S. W. 640", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "88 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1517138 ], "opinion_index": 0, "case_paths": [ "/ark/88/0001-01" ] } ], "analysis": { "cardinality": 694, "char_count": 13743, "ocr_confidence": 0.486, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.05561965195654264 }, "sha256": "5d7f7fbefbe40e86698a86b37894a88c7f7b485125f91e42d4700d08b0f648ec", "simhash": "1:8097d8ec6595a9c0", "word_count": 2369 }, "last_updated": "2023-07-14T15:20:24.664732+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Mack, Executor, v. Rittenhouse." ], "opinions": [ { "text": "Griffin Smith, Chief Justice.\nIn March, 1942, Lottie Earle, realizing the certainty of death, directed in an appropriately executed will, that her son, Herman Rittenhouse, have the annual rental income from her real estate, in monthly payments \u201cafter necessary expense is taken out for upkeep, taxes, insurance, etc.\u201d\nTo persons, institutions, and for a personal purpose expressed in the fifth item, sums aggregating $7,400' were bequeathed, inclusive of an \u201cadditional\u201d $500 for legal services incident to closing the estate. The eighth section designated G. F. Mack and O. T.. Ward executors \u201cto carry out the directions contained herein, and as directed by the court.\u201d The second, third, fourth, fifth, sixth, and seventh sections are copied in the margin.\nFollowing the testator\u2019s death in August, 1942, the executors filed their inventory showing real estate valued at $8,200 and personal property amounting to $4,167.42, inclusive of a $500 note, $91.42 in hank deposit, and $2,100 postal savings. An appraisement reduced estimated value of the real property by $600, and the personal property by $384.\nAfter appraisal, Bittenhouse took possession of a part of the personalty. Thereupon the executors petitioned probate court for an order citing Bittenhouse to show cause why he should not surrender the property. It was alleged to be worth $1,092, and included, in the main, household \u00e1rticles and appurtenances; also an automobile. There was an alternative prayer that Bitten-house be charged with the appraised value of the withheld property. A second allegation was that Bittenhouse had possession of real property worth $1,000. It was sought by the petitioners (in event the court allowed Bittenhouse to retain possession of the realty) to have the rental value declared, to the end that the executors might take credit on monthly remittances to the respondent as contemplated in the second section of the will.\nThe court held it did not have power to authorize Rittenhouse to keep the personal property and be charged with its. equivalent in money. A monthly allowance of $20 was made in'Rittenhouse\u2019s behalf. The executors complied with the order for payment, but filed suit in replevin for the personalty. The action is pending in circuit court.\nIn October Rittenhouse petitioned probate court to direct the executors to make larger payments, contention being that they had more than $600 on hand; that unsold cotton and corn were worth in excess of $550', and that a business house in Rector brought monthly rental of $28, \u201cmaking an annual income in excess of $1,486.\u201d On this petition the court found that Rittenhouse, as the only heir of Lottie Earle, was entitled to all rents and profits flowing from the estate. Furthermore, that he was entitled to possession, custody, and control, and to take and hold it, manage it, and receive all proceeds 'except such sums as might be necessary to pay taxes and insurance. The executors were ordered to pay Rittenhouse all money they held except what was necessary to complete payment of 1942 taxes. They were enjoined from disturbing Rittenhouse in his possession.\nTo. sustain the judgment appellee insists that the will vests a fee title in him. Appellants think a trust in the executors was created and that probate court was without jurisdiction. They cite Frank v. Frank, 88 Ark. 1, 113 S. W. 640, 19 L. R. A., N. S., 176; Williamson v. Grider, 97 Ark. 588,113 S. W. 361. Appellee believes the case is' controlled by Wallace v. Wallace, 179 Ark. 30, 13 S. W. 2d 810.\nIn the Wallace case section four of the will was: \u201c It is my desire and I do hereby will that my two plantations situated in Howard ;County, Arkansas, and known as the McDaniel and Block farm, be held intact and in trust for my legal heirs for the term of twenty-five years after my death.. The manager or superintendent of said farm is to use my office or residence in Saratoga, Arkansas, as a residence or business office, the net proceeds of the rental of said farm to go to my legal heirs each year. After the twenty-five years have expired, said lands may be sold or divided for the benefit of my said heirs.\u201d\nW. P. Wallace, a brother of the testator, conveyed his land interest. His son brought suit to have the will construed, alleging he was entitled to one-sixth of the sale price of lands mentioned in the paragraph we have quoted. In the alternative, he asked that the McDaniel and Block farms be held intact and in trust for twenty-five years for the benefit of those who should at the expiration of that time be heirs of his uncle.\nThe two questions discussed in the appeal from a decree sustaining a demurrer to the complaint were: (1) Did the appellant have a right to maintain the action? (2) Did paragraph four create an enforcible trust that could not be terminated until twenty-five years had expired? The appellant contended he was a contingent remainderman, and [under- the rule of cases cited at pages 33 and 34 of the opinion] entitled to maintain the' action.\nOur decision refers to statements appearing inTiedeman on Real Property, and to other authorities. It quotes the recognized rule that \u201ca remainder is a residue of an estate in land, depending upon a particular estate, and created together with the same.\u201d \u201cThe testator,\u201d says the opinion, \u201cdesired that his farms be held intact, and he merely expressed a wish that his heirs might see proper to do so.\u201d\nThe gist of the decision, as it affects the instant controversy, is expressed in the succeeding sentence:\u2014 \u201cOf course, equity would not permit a trust to fail for want of a trustee, hut here no trust has been created.\u201d\nIt was then held that the language of section four did not create a remainder either vested or contingent; that the words \u201cit is my desire and I do hereby will\u201d were synonymous with \u201cdesire and wish\u201d; hence, precatory. Result was influenced by failure of the testator to name a trustee, although the executor was given power to appoint an overseer, or a manager.\nBlack v. Bailey, 142 Ark. 201, 218 S. W. 210, was cited as a case holding that a will which provides that a named trustee should hold the property \u201cwith full power and-authority to handle, manage, and control [the estate as in the judgment of the trustee may seem best] \u201d for use and benefit of the testator\u2019s children, did not vest legal title in the trustee. After commenting that in the Black-Bailey decision it was held that beneficiaries might terminate the trust, the Wallace opinion says-. \u201cSo here all the legal heirs are sui juris. The appellees are the sole legal heirs interested in the litigation, .' . . and with their consent the property may be sold and a good title conveyed by them.\u201d\nThat brothers and sisters of the testator, \u201cliving at the time of his death,\u201d together with Mrs. Sallie Wallace, should take the fee to the two farms, was held to have been the intent of Josiah IT. Wallace when he made the will. A reference in Williams v. Norton, 126 Ark. 503, 191 S. W. 34, is to decisions of Virginia and Georgia to the effect that \u201can heir can be disinherited only by express devise or necessary implication, so strong that a contrary intention- cannot be supposed; . . . the heir cannot be disinherited unless the estate is given to somebody else.\u201d\nTested by the foregoing rules, what were the intentions of Lottie Earle ?\nIn the first paragraph of the will (not set out in the footnote) she expressed a desire that funeral expenses of Herman Rittenhouse \u201cbe paid out of my estate, if his estate is not sufficient to pay such expenses, and if my estate will afford such expense.\u201d This desire \u2014 granting that a mere wish is expressed and that the words are precatory \u2014 is nevertheless clearly indicative of a realization that the son might die without sufficient assets to meet burial requirements, and in that event, her property \u2014 assets in the hands of executors \u2014 is to be used to meet the emergency. If the purpose had been to vest the estate at once, other language would have been used.\nThe second paragraph bequeaths to Herman annual income from rents \u2018 \u2018 of my real estate and business houses.\u201d\nOther bequests (section two) are to designate persons and institutions. These, with the provisions of sections five and six, aggregate $6,700.\nAgain, construing her own will, the testatrix says (section six): \u201cI have provided herein that my son shall have the net, annual income, payable monthly from the rents of my real estate and buildingsTo protect Herman, even at the expense or inconvenience of those who stand to profit by express bequests, the donor added, \u201c. . . and no part of which shall\u2019be sold until his death, for the purpose of paying bequests.\u201d But if it should be found that sufficient surplus money \u201cis on hand, not needed for expense of administration, the same shall be prorated [on bequests], the balance to be paid after the death of my son, from the sale of my real estate.\u201d\nThe seventh section provides that if \u201cfor any reason, \u201cmy estate\u201d is not sufficient to pay bequests, \u201cthen in that event the funds on hand shall be used to pay on said bequests prorata. \u201d\nFrom the Wallace case we deduce that an heir may be disinherited if the testator\u2019s implication is so strong as to show that intention, and if the estate is otherwise disposed of.\nHere bequests are explicitly made, payable from the testator\u2019s real estate \u2014 from.property not to be sold for that purpose, however, until the son dies. Herman is 'limited to the income, payable monthly. \u201cFunds on hand\u201d were directed to be paid prorata on the bequests.\nTo be paid by whom? By the executors, of course; by the representatives whom Lottie Earle selected as the repositors of her estate, to be held in trust for the ends so clearly set ont. Hence, the real property vested in such trustees, with life benefits to Herman.\nWe hold, therefore, that as to household effects of a 'miscellaneous nature not reasonably required to operate the farm, (no mention of these having been made in the will) Herman took as next of kin. As to cash assets not needed to successfully conduct farming operations, they are to be paid prorata on\u2019 bequests after a reserve has been set aside to meet requirements of paragraph five. Earnings of the real property, less taxes and insurance, should go to Herman, payable monthly. Upon Herman\u2019s death, if his estate is not sufficient to meet burial expenses, then such cost is payable by the trustees, in preference to beqhests. Thereafter the bequests, or bal-, anees thereon, are to be paid.\nBeversed and remanded with directions to proceed in a manner not inconsistent with this opinion.\n[Second Section]: I will that my son, Herman Rittenhouse, have the annual income from rentals of my real estate and business houses, in monthly payments, after the necessary expense is taken out for upkeep, taxes, insurance, etc.\n[Third Section]: I hereby give and bequeath the following amounts to the following persons and institutions, if the persons are still living at the time of my death, and if the institutions are in existence at the time of my death: To the Missionary Society of the First Methodist Church, Rector, Arkansas, $500; the First Baptist Church, Rector, Arkansas, $500; to Pansy Wright and her mother, Lina Wright, to be divided equally, $500; to Geneva Wright, $200; to O. T. Ward, for legal services for a long [period], heretofore rendered to me, $500; to Mrs. May Harkey, $1,000; to W. F. Harkey, $500; to Dr. O. H. Clopton for medical services and attention, $300; to Duff Moore, $200; to O. D. Duncan, $500; to Vernon Duncan, $500; to Mrs. Florence Holifield, $300_; to G. F. Mack for assisting- in closing up my estate, $500; to O. T. Ward an additional $500 for assisting in closing up my estate.\n[Fourth Section] : Should any of the above named persons be dead, or the institutions be out of existence at the time of my death, the part so bequeathed to them or any of thfem shall revert back to my estate, and be disposed of hereunder as otherwise provided for distribution of any surplus after said bequests are paid.\n[Fifth Section] : I will that my dog, Ruffles, be kept after my death, in my home by my son, Herman Rittenhouse, if he will do so, and that the sum of $500 cash be set aside out of my money account for her care, to be used at the rate of $100 per year if found necessary; but if the dog shall die before the said sum is expended, the remainder to revert to my estate for distribution as herein otherwise provided.\n[Sixth Section] : I have provided herein that my son shall have the net, annual income, payable monthly from the rents of my real estate and buildings, and no part of which shall be sold until his death, for the purpose of paying bequests, and if it is found that sufficient surplus money is on hand, not needed for expenses of administration, the same shall be prorated .on the above bequests, the balance to be paid after the death of my said son, from the sale of my real estate.\n[Seventh Section] : If for any reason my estate should not consist of sufficient amount of funds to pay all bequests herein made, then in that event the funds on hand shall be used to pay on said bequests, prorata. And if there should be a surplus after paying all of the bequests made, with costs of administration, and shall be allowed by the court, then such surplus shall be divided equally between the following-: The two Methodist Churches in Rector; the Rector Ladies\u2019 Club; the Rector Public Library, [and] the Rector Public Schools. '\nAll italics supplied.\nIt was directed that any surplus should go to other legatees.", "type": "majority", "author": "Griffin Smith, Chief Justice." } ], "attorneys": [ "E. G. Warel, for appellant.", "T. A. French', for appellee." ], "corrections": "", "head_matter": "Mack, Executor, v. Rittenhouse.\n4-7108\n173 S. W. 2d 1002\nOpinion delivered June 28, 1943.\nE. G. Warel, for appellant.\nT. A. French', for appellee." }, "file_name": "0039-01", "first_page_order": 59, "last_page_order": 65 }