[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 952, 955, 957; Dec. Dig. § 439.*]

gage.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 614-620; Dec. Dig. § 151.*]

A testator owning chiefly real estate and some personal property of speculative value, who directed his executors to pay specified sums to trust companies, to pay specified sums in installments to beneficiaries named, with gift over on their death, and who directed the executors to close up the estate as speedily as possible, created a trust for the benefit of the bene

ficiaries named.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1579-1581; Dec. Dig. § 672.*]

4. EXECUTORS AND ADMINISTRATORS (§ 137*)— POWERS-SALE OF LAND.

An executor has no power to sell the land of his testator, unless directed to do so by the will, either expressly or by necessary implication.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 557-559, 6062; Dec. Dig. § 137.*]

5. EXECUTORS AND ADMINISTRATORS (§ 138*)— POWERS-SALE OF LAND.

A testator, who directs his executor to dispose of his real estate, thereby confers on the executor power to execute the requisite deeds of conveyance.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 560-566, 568575; Dec. Dig. § 138.*]

6. EXECUTORS AND ADMINISTRATORS (§ 138*)POWERS-SALE OF LAND.

Any words in a will which show an intention to confer on the executor power to sell real estate and execute the requisite deeds, or any form of a will which imposes duties which cannot be performed without a sale, necessarily creates a power of sale.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 560–566, 568575; Dec. Dig. § 138.*]

7. EXECUTORS AND ADMINISTRATORS (§§ 138, 151*) POWERS SALE OF LAND MORT

GAGES.

--

Where the bulk of the estate of a testator, who directed his executors to deposit specified sums with trust companies to pay to named beneficiaries, was real estate, and the testator directed the executors to close up the estate as speedily as possible, so that the creditors and beneficiaries might promptly receive what was due them, the executors had power to sell, but not to mortgage, the estate.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. $$ 560-566, 568575, 614-620; Dec. Dig. §§ 138, 151.*]

8. EXECUTORS AND ADMINISTRATORS (§ 151*)— POWERS-MORTGAGES.

A mere power of sale of real estate conferred on executors by will does not include a power to mortgage.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. 88 614-620; Dec. Dig. § 151.*]

9. EXECUTORS AND ADMINISTRATORS (§ 151*)— POWERS-Mortgages.

-POWERS-SALE OF LAND.

Where an executor authorized by will to sell real estate exercises the power of sale of land incumbered by a lease made by testator, the sale must be made subject to the rights of the lessee.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 577; Dec. Dig. § 142.*]

Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor.

Suit by A. M. Heiseman and another, executors of Abe Stiewel, deceased, against Mrs. Emilie Lowenstein and others, for the construction of the will. From a decree sustaining a demurrer to the complaint, plaintiffs appeal. Reversed and remanded, with directions.

Appellants, as executors of the will of Abe Stiewel, deceased, instituted this action in the chancery court against appellees, who are devisees and legatees under the will. The object of the complaint is to have a construction of the will and the directions of this court as to the duty and power of the executors in selling, mortgaging, and leasing the lands of their testator. Abe Stiewel died in Little Rock, Pulaski county, Ark., on the 25th day of August, 1913, and the will was duly admitted to probate, and appellants qualified as executors under the will. The will is as follows:

"1. I desire that all of my debts shall be paid in full.

2. It is my desire that my sister, Mrs. Emilie Lowenstein, in addition to insurance for one thousand ($1,000.00) dollars in the Order of B'nai Brith, which she holds on my life and money she has on deposit with me, shall receive from my estate the sum of twenty thousand ($20,000.00) dollars and interest in the manner herein provided for, as follows, to wit: That is to say, the executors of my will shall cause to be deposited in a proper and solvent trust company the sum of twenty thousand ($20,000.00) dollars at the best rate of interest they can obtain therefor to the credit of said Emilie Lowenstein conditioned that she shall not draw exceeding the sum of two hundred ($200.00) dollars per month so long as she may live or the said fund may last; said money to be so deposited as soon as an order, if required, can be obtained from the probate court having jurisdiction of my estate to do so.

"2. Should my said sister die before the said sum is exhausted then her son, Julius Frank, if living shall receive five thousand ($5,000.00) dollars of said sum so remaining to be paid to him in like manner, that is, at the rate of two hundred ($200.00) dollars per month by said trust company and the remainder of said sum of twenty thousand ($20,000.00) dollars shall be disposed of as hereinafter set forth.

"3. It is my desire that my sister, Mrs. Fannie Shield, shall receive from my estate the sum of fifteen thousand ($15,000.00) dollars, and interest, in the following manner, to wit: That is to say, the executors of my will shall cause to be deposited in a proper and solvent trust company the sum of fifteen thousand

($15,000.00) dollars, at the best rate of interest they can obtain therefor, to the credit of said Fannie Shield, conditioned that she shall not draw exceeding the sum of two hundred ($200.00) dollars per month so long as she may live or the said fund may last, said money to be deposited as aforesaid as soon as an order, if required, can be obtained from the probate court having jurisdiction of my estate to do so, and if any part of said fund shall remain on hand at my said sister's death it shall be disposed of as hereinafter set forth.

"4. It is my desire that my sister, Mrs. Julius Meyer, shall receive from my estate the sum of fifteen thousand ($15,000.00) dollars free from the claims or control of her husband or her sons; said sum to be forwarded by my said executors to Rudolph Richard, of Selma, Alabama, son-in-law of said Mrs. Julius Meyer, as soon as the order, if required, of said probate court can be obtained so to do, conditioned that said Rudolph Richard shall deposit said money in some solvent trust company at a fair rate of interest and that my sister, Mrs. Julius Meyer, shall not draw exceeding the sum of two hundred and fifty ($250.00) dollars per month so long as she may live or the said fund may last. Should my sister die before the said sum is exhausted, then her four (4) daughters named Lillian, Sadie, Gertie, and Hulda, are to be the recipients of the two hundred and fifty ($250.00) dollars per month in lieu of their mother, until their death, or the fund is exhausted.

"5. It is my desire that my brother, H. I. Stiewel, in addition to any indebtedness he now owes me (which I hereby remit), shall receive from my estate the sum of ten thousand ($10,000.00) dollars, and interest, to be paid to him by my executors as follows, to wit: That is to say, they shall pay to him the sum of five hundred ($500.00) dollars in cash and the sum of nine thousand, five hundred ($9,500.00) dollars shall cause to be deposited in a proper and solvent trust company at the best rate of interest they can procure therefor, to the credit of said H. I. Stiewel, conditioned that he shall not draw exceeding the sum of one hundred and fifty ($150.00) dollars per month so long as he may live or the said fund may last; said sum to be so deposited as soon as the order, if required, of said probate court can be obtained so to do. Should any of the said sum of nine thousand, five hundred ($9,500.00) dollars and interest remain on hand on the date of his death it shall be disposed of as hereinafter set forth.

"6. It is my desire that my nephew, Julius Frank, shall receive from my estate in addition to the legacy referred to in the second paragraph of this will the sum of one thousand ($1,000.00) dollars from my said executors as soon as an order, if required, can be obtained from said probate court to do so.

"7. It is my desire that my nephew, Albert Shield, and my niece, Carrie Shield, shall respectively receive from my estate the following sums, to wit: Albert Shield, one thousand ($1,000.00) dollars and Carrie Shield two thousand, five hundred ($2,500.00) dollars, from my executors as soon as an order, if required, can be obtained from said probate court to do so.

"S. It is my desire that my executors shall pay the following amounts respectively to my nephews and nieces hereinafter named in this paragraph as soon as the order, if required, of said probate court can be obtained to do so, to wit: One hundred ($100.00) dollars each to my niece, Edna Shield, my nephew Julius Shield, my nephew Morris M. Meyer, my nephew, Arthur Meyer, my niece, Elsie Richard (née Meyer).

9. I desire that my executors shall pay over to my niece, Elsie Richard (née Meyer) for her three (3) children the sum of five hundred

| ($500.00) dollars as soon as they obtain the order, if required, of said probate court to do so. "10. It is my desire that my nieces, Gertie Meyer, Lillian Meyer, Sadie Meyer, and Hulda Meyer, shall each receive from my estate the sum of twenty-five hundred ($2,500.00) dollars to be paid by my executors to Rudolph Richard, of Selma, Alabama, in trust for them, conditioned that he shall pay over said sum in such installments or manner as to him may seem best calculated to meet their needs. But in any event to be paid over on the marriage of each of them; in the event either of said nieces shall die before the said legacy shall be paid to her the same shall go to the surviving ones among my said nieces. In the event of the marriage of any of said nieces their husband shall have no control over said amount; should any of said nieces die before me the sum so devised shall go as hereinafter provided. "11. It is my desire that my niece, Carrie Mothner (née Richard), shall receive from my estate the sum of twenty-five hundred ($2,500.00) dollars and interest in manner following, to wit: My executors shall as soon as an order, if required, of said probate court shall be obtained so to do, cause to be deposited in a proper and solvent trust company to her credit at the best rate of interest they can obtain the said sum conditioned that she may draw not exceeding one hundred ($100.00) dollars per month thereof so long as she may live or said fund shall last, and her husband shall have no control over the same and if any of said amount is still on hand at her death it shall be given to her children as if she was living. "12. To my nephew, Morris S. Richard, I bequeath fifteen hundred ($1,500.00) dollars in addition to the indebtedness he now owes me (which I remit), and to my nephew, Sidney Richard, I also bequeath fifteen hundred ($1,500.00) dollars, which said sums my executors, as soon as an order can be obtained, if required so to do, shall cause to be deposited in some proper and solvent trust company at the best rate of interest they can obtain in the names of said nephews respectively, conditioned that neither of said nephews shall draw exceeding fifty ($50.00) dollars per month of said fund, so long as they may respectively live or said fund may last. Should any part of either of said sums remain on hand at the death of either of my said nephews it shall be disposed of as hereinafter set forth.

"13. My executors shall cause to be paid out of my estate to my sister-in-law, Mrs. Hattie Stiewel, in trust for her three children, the sum of twenty-five hundred ($2,500.00) dollars as soon as they can get an order, if required, of the said probate court so to do; in addition to said sum they shall cause to be deposited in some proper and solvent trust company the sum of ten thousand ($10,000.00) dollars at the best rate of interest they can obtain, and the said and Sadie Stiewel, and my nephew, Morris sum shall be paid pro rata to my nieces, Theresa Stiewel, so that each shall receive a third thereof when they shall become of age or marry; and if either before date of distribution shall die one before the other, the share of such one shall go to the others, the interest, however accumulating on said amount may be used of such children and may be paid over to their to defray expenses of the support and education guardian or mother for this purpose.

"14. My executors shall, as soon as an order, if required, of said probate court can be obtained so to do pay to my four nephews, Harry Vernon Stiewel, Robert Stiewel, Louis Stiewel, and Roy Julian Stiewel, two hundred and fifty ($250.00) dollars each.

15. If any legatee shall die. before me the legacy left him or her by this will shall lapse.

"16. All sums or amounts not required to pay debts, cost of administration, executors and other expenses and all amounts or parts of my es

tate not above specifically devised, shall go to my heirs to correspond in the distribution thereof to the proportion which the several legacies above given bears to the entire value of my estate.

"17. I nominate as executors of this will and testament, A. M. Heiseman, Jacob Niemeyer, and Morris M. Cohn, and in case of death, or other disqualification or refusal of either of said persons to act as such then the remaining two may act and selecting a third person to act with them as such executor or two may act but not less than two executors shall act and

or

the sum of $5,000 is hereby set apart to be and constitute full compensation for all services performed by said parties as such executors; if they desire to charge that sum any part thereof. I desire that the said persons may act as such executors without being required to give bond as such as it is my desire that said executors shall close up the estate committed to their charge as speedily as possible so that the creditors of my estate, if there are any, and my legatees may promptly receive what is due to them.

"18. Should my estate be insufficient in amount to pay all of the legacies above mentioned after payment of expenses, debts, and executors and costs, the legacies shall be proportionately reduced."

The following facts were proved: The appraised value of the estate left by the testator is about $200,000. The debts owed by the estate amount to about $100,000. The testator left very little cash, and his estate comprised both real and personal property, but consisted chiefly of real estate. His personal property consisted chiefly of stocks in certain corporations. He owned 3,150 shares of Arkansas & Arizona Copper Company stock; 326 shares of stock in the National Copper Mining Company; 70 shares of stock in the Ozark Diamond Company; and 310 shares of stock in the Southern Trust Company of Little Rock. The evidence shows that this stock could not be disposed of to advantage by public sale, as required by statute. Part of the real estate owned by the testator is situated on Second and Main streets, in the city of Little Rock, for which he paid $75,000. The present value of it is estimated at $135,000. On the day Mr. Stiewel died, he made an agreement with the Bankers' Trust Company, whereby he agreed to give it a lease of that property for a period of 30 years at a rental of 6 per cent. on a $150,000 valuation for the first 10 years, 6 per cent. on a valuation of $160,000 for the next 10 years, and 6 per cent. on a valuation of $170,000 for the third 10 years. By the same document he gave the bank an option to buy the property for the sum of $150,000, provided it exercise the option within one year. It was also provided that Stiewel should have the right to sell to any other purchaser if he desired to do so, with the privilege to lessee of having the right to buy at the same price. After Stiewel's death, his heirs and legatees named in his will, who are appellees in this action, executed a document whereby they ratified and carried into effect the said agreement. The evidence shows that this property cannot be sold to advantage at public sale. It also shows that the other

real estate mentioned in the will cannot be sold to advantage at public sale.

The chancellor sustained a demurrer to the complaint of appellants, and the case is here on appeal.

Morris M. & Louis M. Cohn, of Little Rock, for appellants.

HART, J. (after stating the facts as above). [1] In the case of Williamson v. Grider, 97 Ark. 588, 135 S. W. 361, the court said:

"Where a trust is created by a will, a court of equity has jurisdiction to construe the will. This power is incident to the jurisdiction which courts of chancery have over trusts." And this upon the theory "that 'as chancery' will compel the performance of trusts, so it will assist the trustees and protect them in the due performance of the trust, whenever they seek the aid and direction of the court as to its establishment, management, and execution.'" So, also, in the case of Davis v. Whittaker, 38 Ark. 435, the court said:

"Such suits *

*

are within the ordinary jurisdiction of courts of equity. They are commonly entertained at the suit of the executor or trustee seeking the advice, aid and protection of the court in the execution of the trust," etc.

[2] In regard to the construction of wills, in the case of Parker v. Wilson, 98 Ark. 553, 136 S. W. 981, the court said:

"The power of one, legally competent to make a will, to dispose of his property as he sees fit, subject to the restrictions provided by the statutes, is a legal incident to ownership. In construing the provisions of a will, the intention of the maker is first to be ascertained, and, when not at variance with recognized rules of law, must govern. The intention of the testator must be gathered from all parts of the will, and such construction be given as best comports with the purposes and objects of the testator, and as will least conflict.”

See, also, Gregory v. Welch, 90 Ark. 152, 118 S. W. 404.

[3] Tested by these principles, we think the will in question created a trust. The testator was a business man of long experience and knew the extent of his indebtedness and the amount and kind of property held by him. He knew that he had very little cash on hand and that his estate consisted for the most part of real property and the balance of personal property of speculative value. After the payment of his debts, he directed that legacies should be paid by his executors to certain of his relatives; that these legacies should be paid in cash, and the amount thereof should be deposited in trust companies to be paid to the legatees in the manner directed by the will.

The seventeenth clause of his

will provided that:

mitted to their charge as speedily as possible His executors "shall close up the estate comso that the creditors of my estate, if there are any, and my legatees may promptly receive what is due to them."

The testator also recognized that his whole estate might be insufficient for the purpose of paying his debts and the specific legacies provided in the will; for the last clause of his will provides: