68 Ark. 409 | Ark. | 1900
(after stating the facts.) The first question presented by this appeal arises on the contention that the complaint in this case was multifarious. But we agree with counsel for appellant that “no bill is multifarious which presents a common point of litigation, the decision of which will affect the whole subject-matter and settle the rights of all the parties.” Kelley v. Boettcher, 85 Fed. Rep. 55; Curran v. Campion, ib. 67; Bliss on Code Pleadings, § 110. All the defendants in this case derive title to the real estate claimed by them from the estate of Henry C. Dade through conveyances made by Elizabeth Dade under power conferred upon her by the will of Henry C. Dade. The determination of the question of whether Mrs. Dade had under the will power to convey the fee or only an estate for her life will settle the rights of all the parties, so far as the legal title to the land is concerned, and for that reason they were all properly joined in this action. The will which we are called upon .to construe contains the following provision: “I do hereby ordain, constitute and appoint my wife, Elizabeth Dade, my sole executrix and sole trustee of my estate, whether of moneys, credits or effects, and the sole guardian of my children, * * * without requiring of her, my said wife Elizabeth Dade, security for the same; with power to sell any and every portion of said property, and reinvest the money arising from said sale again, whenever she may find it advantageous so to do for the best interest of my children aforesaid, except all slaves which I am possessed of at this time or may hereafter own; making use of the proceeds of said property for her own maintenance and the education and support of my children during her natural.life, to be equally divided amongst them, share and share alike, at her death.”
A consideration of the entire will convinces us that the power to sell conferred upon the trustee, Mrs. Dade, embraced all the.property of the estate, both real and personal. A different construction would lead to the conclusion that the testator only intended to dispose of his personal property by his will, whereas it seems more reasonable to believe that, in referring to his estate and making his wife trustee thereof with power to sell, he intended to dispose of his entire property. But the language of the will above quoted did not confer upon Mrs. Dade, the trustee, an estate in her own right, either for life or in fee. The testator does not bequeath or devise his property to his wife, but appoints her executrix and trustee of his estate, with power to sell any and every portion of the property and reinvest the proceeds whenever she may deem it for the best interest of the children to do so. If she held an estate in this property under the will, it was not for herself, but as trustee of her children. The beneficial interest which she obtained in the property devised only extended to a maintenance out of the income or proceeds of the property. It is not her property which she is authorized to sell and reinvest, but the property of the children which she held as trustee. It would seem unreasonable to believe that the testator, in making provision that the trustee might sell this property for the purpose of reinvestment, intended she should only sell a life estate therein. We therefore conclude that the power given was an absolute power to dispose of all the interest owned by the testator. If the will had devised to the executrix an estate for life in the lands, in her own right, with the power to dispose thereof, we might, as this court did in Patty v. Goolsby, 51 Ark. 61, infer that the power of disposal referred to the estate of the executrix, and not to the remainder left to the children. But no estate is conferred upon the executrix in her own right by the will. As before stated, she is appointed trustee of the property, with power to sell and invest for the children, giving to her the right to use so much of the income or proceeds of the property as might be necessary for her own maintenance. The beneficial interest which she obtained in the property devised only extended to a maintenance out of the income or proceeds of the property.’ For this reason, we do not think the rule laid down in Patty v. Goolsby applies in this case, and we hold that Mrs. Dade had, under the will, power as trustee to make an absolute disposition of the property devised.
It was the manifest intention of the testator that his property should, after the termination of the trust conferred upon Mrs. Dade, be equally divided among his children, and the will directed that she might make this division before her death. But it is clear that she had no right to prefer one child to another in such division nor could she do so by a pretended sale or gift of the property to one child in preference to another. There is some evidence tending to show that Mrs. Dade did attempt to confer an undue portion of the property upon her daughter, Mrs. Williams, but the evidence on that point is not very clear, and we are not called upon by the pleadings to go into a discussion of that question in this case, a question with which a large number of the defendants, who are not children or heirs of the testator, have no connection, and in which they have no interest.
For this reason, the decree of dismissal entered by the chancery court must be affirmed, but the decree below is modified, so that this dismissal may be without prejudice to any future action by plaintiff against Mrs. Williams or other children and heirs of Henry C. Dade, to secure an equal distribution of the land or distribution of the property devised by him.
