GtbipeiN Smith, Chief Justice.
Appellants, as heirs of Orville Jennings, question the Chancellor’s decree respecting the will of Dr. Roscoe G-reene Jennings, of Little Rock. The will was probated April 25,1899.
The controversy relates to Paragraph XI. Appellants contend that a trust was created and that title to Lots 4, 5 and 6, Block 115, City of Little Rock, is burdened with such trust. Because Paragraph IV of the will first mentions Block 115, the entire document must be considered. It is copied in the margin.1
The testator was survived by Ms wife and three children : Octavia, Crews, and Orville, all adults. Appellants are the widow and children of Orville. Appellees are the children of Octavia.
Record title to Block 115 was in Dr. Jennings’ wife, G-ertrude, when the testator died. In addition to this realty Dr. Jennings owned 1071.5 acres of rural realty and personal property worth about $2,000. Testimony disclosed that shortly after Dr. Jennings died the widow and children met and heard the will read. It is not shown that Gertrude voiced objections to ■ any of the testamentary provisions.
On May 12,1899, — shortly after the will was admitted to probate, but before an inventory had been filed — Gertrude executed warranty deeds to nine lots in Block 115. These conveyances were: To Orville, Lots 7, 8, and 9; to Octavia, Lots 10,11, and 12; to Crews, Lots 4, 5, and 6. Concurrently each grantee quitclaimed to Gertrude Lots 1, 2, and 3. These deeds were recorded May 27, 1899.
As executrix Octavia filed an inventory May 24,1899. The rural land was listed, but the city lots were not. Debts accounted for -more than half of the country acreage. The remaining 401.5 acres were conveyed to Gertrude July 11, 1899. Quitclaim deeds executed by the three children state that the purpose was partition.
The executrix and the other children appear to have been at odds for several years. It was contended that the executrix had not fairly accounted for the personal property. However, the record shows that Orville — the chief objector — formally withdrew his exceptions to the account on November 18, 1905.
Crews died in California April 15, 1925. To secure personal loans he had executed four mortgages on Lots 4, 5, and 6. These were either made directly to Octavia or the obligations were assumed by her. There were several transactions between Octavia and Crews. These involved conveyances of partial interests; but ultimately Crews executed full conveyances to Octavia.
When Crews died his body was cremated. The ashes were sent to Octavia, who retained the nrn in a closet as a silent reminder of former days.
Orville died Oct. 28, 1933, and the appellants claim through him. Octavia died in 1948; and, as heretofore stated, the appellees are her children.
The Instant Suit — Questions Involved. — The suit resulting in this appeal was filed ag’ainst Octavia’s administrator Nov. 23, 1949. The demand was for an accounting of rents and profits derived from the lots and for a decree vesting in the plaintiffs a half interest. The Chancellor concluded that the claims were without equity.
The basic question is, What title did Crews acquire through the deed from his mother, filed May 27, 1899? Appellants think that Crews was the beneficiary of a trust by the clear language of Paragraph XI of the will and that Octavia was charged with the duty of administering the trust property for Crews ’ benefit. A fiduciary relationship was violated, they say, when Octavia purchased the subject-matter. It is also asserted that she concealed the fact of Crews’ death and that for this reason pleas of limitation are inapplicable.
Beliance is placed on the wording of Paragraph XI and its position in the will in relation to other provisions. Attention is directed to the fact that Orville objected to his sister’s conduct in handling the estate; that he excepted to a settlement made by the executrix with the widow, and it is argued that the widow elected to take under the will rather than against it. For these reasons and from supporting collateral conduct it is believed by appellants that Octavia’s status was that of a trustee, and that the interests now contended for should be decreed.
Weight of the Evidence. — A great deal of the testimony was from recollection necessarily affected by the erosion of time. Each contestant seeks to attach importance to isolated comments said to have been made half a century ago; and each interprets silence or an absence of affirmative action by interested parties in a manner favorable to the theory sought to be sustained.
Appellants ’ position depends upon one incident — the asserted failure of Gertrude to object to that portion of the will declaring that Block 115 had been conveyed to her as a temporary expedient. It is insisted that the execution of deeds affecting Block 115 was a means of carrying into effect provisions of the will, in contradistinction to a family settlement; but, they say, even if a family settlement had been consummated the active trust solemnly created by the will was not destroyed.
Execution of the Deeds — Intentions of the Parties. — ■ When consideration is given to conduct of the parties and their actions during the interval more probably productive of assent or dissent, it seems apparent that the widow and the heirs did not execute the deeds in question for the purpose of adhering to the will; nor are we persuaded that Gertrude recognized the will and was compelled to make an election of inconsistent courses. The will, though probated, was ignored. The deeds apportioning Block 115 made no reference to the will; nor' was the conveyance to Crews encumbered by reservations. Had a trust existed evidence of its breach would have been available when the deeds were recorded. This is true because each participant in the patrimonial bounty was familiar with the will and with provisions of the deeds. As a matter of law they would be charged with knowledge that deeds executed in derogation of their trust rights were written monuments regarding existing purposes.
After a lapse of five decades it is not safe to uproot these factual transactions in order to give effect to asserted intentions upon the one hand and possible reservations upon the other. What problems faced these parties, what motives swayed them, or what prompted their decisions — these are matters of enshrouded conjecture. In reviewing inter-party actions consummated so long ago, there is no assurance that we would not be doing a greater wrong in sustaining the trust theory than in leaving the claimants’ predecessors where they placed themselves through actions indicative of thoughtful volition.
Clearly the record title to Block 115 was in Gertrude. She was not compelled, by the will’s recitals alone, to convey it or to observe any directions pertaining to a disposal of it. The fact that she divided the block among the children and accepted benefits in return is not conclusive of the proposition that the will was accorded validity. Existence of the will, the circumstance that it was probated, and failure to object — these things did not affect Gertrude’s title. Were she at this time seeking some benefit inconsistent with division of the property a different situation might arise; but this is not a controversy directly concerning her.
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GtbipeiN Smith, Chief Justice.
Appellants, as heirs of Orville Jennings, question the Chancellor’s decree respecting the will of Dr. Roscoe G-reene Jennings, of Little Rock. The will was probated April 25,1899.
The controversy relates to Paragraph XI. Appellants contend that a trust was created and that title to Lots 4, 5 and 6, Block 115, City of Little Rock, is burdened with such trust. Because Paragraph IV of the will first mentions Block 115, the entire document must be considered. It is copied in the margin.1
The testator was survived by Ms wife and three children : Octavia, Crews, and Orville, all adults. Appellants are the widow and children of Orville. Appellees are the children of Octavia.
Record title to Block 115 was in Dr. Jennings’ wife, G-ertrude, when the testator died. In addition to this realty Dr. Jennings owned 1071.5 acres of rural realty and personal property worth about $2,000. Testimony disclosed that shortly after Dr. Jennings died the widow and children met and heard the will read. It is not shown that Gertrude voiced objections to ■ any of the testamentary provisions.
On May 12,1899, — shortly after the will was admitted to probate, but before an inventory had been filed — Gertrude executed warranty deeds to nine lots in Block 115. These conveyances were: To Orville, Lots 7, 8, and 9; to Octavia, Lots 10,11, and 12; to Crews, Lots 4, 5, and 6. Concurrently each grantee quitclaimed to Gertrude Lots 1, 2, and 3. These deeds were recorded May 27, 1899.
As executrix Octavia filed an inventory May 24,1899. The rural land was listed, but the city lots were not. Debts accounted for -more than half of the country acreage. The remaining 401.5 acres were conveyed to Gertrude July 11, 1899. Quitclaim deeds executed by the three children state that the purpose was partition.
The executrix and the other children appear to have been at odds for several years. It was contended that the executrix had not fairly accounted for the personal property. However, the record shows that Orville — the chief objector — formally withdrew his exceptions to the account on November 18, 1905.
Crews died in California April 15, 1925. To secure personal loans he had executed four mortgages on Lots 4, 5, and 6. These were either made directly to Octavia or the obligations were assumed by her. There were several transactions between Octavia and Crews. These involved conveyances of partial interests; but ultimately Crews executed full conveyances to Octavia.
When Crews died his body was cremated. The ashes were sent to Octavia, who retained the nrn in a closet as a silent reminder of former days.
Orville died Oct. 28, 1933, and the appellants claim through him. Octavia died in 1948; and, as heretofore stated, the appellees are her children.
The Instant Suit — Questions Involved. — The suit resulting in this appeal was filed ag’ainst Octavia’s administrator Nov. 23, 1949. The demand was for an accounting of rents and profits derived from the lots and for a decree vesting in the plaintiffs a half interest. The Chancellor concluded that the claims were without equity.
The basic question is, What title did Crews acquire through the deed from his mother, filed May 27, 1899? Appellants think that Crews was the beneficiary of a trust by the clear language of Paragraph XI of the will and that Octavia was charged with the duty of administering the trust property for Crews ’ benefit. A fiduciary relationship was violated, they say, when Octavia purchased the subject-matter. It is also asserted that she concealed the fact of Crews’ death and that for this reason pleas of limitation are inapplicable.
Beliance is placed on the wording of Paragraph XI and its position in the will in relation to other provisions. Attention is directed to the fact that Orville objected to his sister’s conduct in handling the estate; that he excepted to a settlement made by the executrix with the widow, and it is argued that the widow elected to take under the will rather than against it. For these reasons and from supporting collateral conduct it is believed by appellants that Octavia’s status was that of a trustee, and that the interests now contended for should be decreed.
Weight of the Evidence. — A great deal of the testimony was from recollection necessarily affected by the erosion of time. Each contestant seeks to attach importance to isolated comments said to have been made half a century ago; and each interprets silence or an absence of affirmative action by interested parties in a manner favorable to the theory sought to be sustained.
Appellants ’ position depends upon one incident — the asserted failure of Gertrude to object to that portion of the will declaring that Block 115 had been conveyed to her as a temporary expedient. It is insisted that the execution of deeds affecting Block 115 was a means of carrying into effect provisions of the will, in contradistinction to a family settlement; but, they say, even if a family settlement had been consummated the active trust solemnly created by the will was not destroyed.
Execution of the Deeds — Intentions of the Parties. — ■ When consideration is given to conduct of the parties and their actions during the interval more probably productive of assent or dissent, it seems apparent that the widow and the heirs did not execute the deeds in question for the purpose of adhering to the will; nor are we persuaded that Gertrude recognized the will and was compelled to make an election of inconsistent courses. The will, though probated, was ignored. The deeds apportioning Block 115 made no reference to the will; nor' was the conveyance to Crews encumbered by reservations. Had a trust existed evidence of its breach would have been available when the deeds were recorded. This is true because each participant in the patrimonial bounty was familiar with the will and with provisions of the deeds. As a matter of law they would be charged with knowledge that deeds executed in derogation of their trust rights were written monuments regarding existing purposes.
After a lapse of five decades it is not safe to uproot these factual transactions in order to give effect to asserted intentions upon the one hand and possible reservations upon the other. What problems faced these parties, what motives swayed them, or what prompted their decisions — these are matters of enshrouded conjecture. In reviewing inter-party actions consummated so long ago, there is no assurance that we would not be doing a greater wrong in sustaining the trust theory than in leaving the claimants’ predecessors where they placed themselves through actions indicative of thoughtful volition.
Clearly the record title to Block 115 was in Gertrude. She was not compelled, by the will’s recitals alone, to convey it or to observe any directions pertaining to a disposal of it. The fact that she divided the block among the children and accepted benefits in return is not conclusive of the proposition that the will was accorded validity. Existence of the will, the circumstance that it was probated, and failure to object — these things did not affect Gertrude’s title. Were she at this time seeking some benefit inconsistent with division of the property a different situation might arise; but this is not a controversy directly concerning her. An election by the widow to observe or reject the will would be pertinent if some advantage flowing to her were being sought. Appellants claim through Crews, and his rights became fixed when the deeds dividing Block 115 were recorded.
Appellants cite a number of authorities emphasizing the rule that beneficiaries of an active testamentary trust cannot, by agreement, destroy the trust and acquire the corpus. This is generally true. But here the alleged trust property was not ostensibly held by the testator at the time of his death. Instead, it was the individual property of one of the devisees. This devisee was not divested of title by the declaration in the will, but her right to hold to the exclusion of the remaining devisees was questioned. There was no legal reason the area of possible controversy could not be resolved by agreement —-that is, by division of the property. Such a division did not involve the destruction of a trust for the very sufficient reason that the trust did not attach to property not owned by the testator, hence the devisees and the widow were at liberty to settle any questions of disagreement unless prohibited by law or by something a court of equity would have the right to say was contrary to public policy.
Result is that the deed from Gertrude to Crews conveyed a fee simple title. Having acquired such title, Crews could deal with the property as he chose. Octavia acquired it from Crews free of trusteeship.
Affirmed.