148 Ark. 290 | Ark. | 1921
(after stating the facts). In Heiseman v. Lowenstein, 113 Ark. 404, the court held that a mere power given to a trustee, under a will, to sell and convey the trust property, does not include the power to mortgage it. The court, however, in that case adhered to the cardinal principle that, in construing a power, the intention of the donor is of paramount importance and recognized that the power to sell in connection with other language used may include the power to mortgage. All the provisions of the will should be construed together in order to give effect to the manifest intention of the testator, as shown by the language of the will in the light of the surrounding circumstances.
Applying this test to the will in the present case, we are of the opinion that the intent of the testator was to give his son, as trustee under the will, power to mortgage the property as well as to sell and convey it. The terms of the will show that the testator reposed great confidence in his son. It gave him power to sell the real estate if it should prove unprofitable and invest the proceeds in other property. Then he uses this language: “I give and bequeath to said John P. Fergusson, as trustee, full power and authority to sell, and dispose of any and all of the property bequeathed to him, and to manage, handle, and deal with the same as in his discretion may seem best. He is to hold the same for the use and benefit of his children, John Wright Fergusson and James McFerrin Fergusson, and all other children which may hereafter be born to him.”
The power to manage and deal with the land for the benefit of the sons of the trustee and the grandsons of the testator was the primary object of the creation of the trust and the paramount duty of the trustee. The father confided the full management and control of the property to his son for the benefit of his grandchildren, and left him to use his best judgment and discretion in the matter. Under the power conferred by the will, if he. thought it would be to the advantage of the children for him to sell and dispose of the land, he had the power to do so. In connection with the power to sell and dispose of any or all of the property, he was given the power to manage, handle, and deal with the same as in his discretion may seem best. This included tbe power to improve and operate tbe farm and necessarily called for tbe exercise of discretion in the premises. In tbe exercise of this discretion appellee deemed it to tbe advantage of tbe beneficiaries that be procure tbe necessary funds to operate tbe farm by mortgaging tbe land. Tbe language used shows that tbe testator intended to invest tbe trustee with broad and discretionary powers in tbe control and management of tbe property in order to make tbe land productive and profitable to the objects of bis bounty. Otherwise, tbe trustee might be compelled to sell tbe land for tbe payment of tbe debts already incurred, even though this course would be ruinous to tbe best interests of all parties concerned, and even though it might be greatly to tbe advantage of tbe beneficiaries for tbe trustee to retain tbe management of tbe farm and incur further indebtedness in making tbe present crop. These views are supported by tbe following cases: Hamilton v. Hamilton (Iowa), 128 N. W. 380; Kent v. Morrison (Mass.), 10 L. R. A. 756; Faulk v. Dashiell, 62 Tex. 642, 50 Am. Repts. 542; Lardner v. Williams, 98 Wis. 514; re Phillip Lueft, Jr. (Wis.), 7 L. R. A. (N. S.) 263; Roberts v. Hale, 124 Iowa 296; Funkhouser v. Porter (Ky.), 107 S. W. 202; Loebenthal v. Raleigh, 36 N. J. Equity 169, and Hamilton v. Mound City Mutual Life Ins. Co., 3 Tenn. Chy. Repts. 124.
It follows that the decree must be affirmed.
