Byrne v. Weller

• Decision Date: 14 December 1895
• Parties: BYRNE et al. v. WELLER et al.
• Court: Arkansas Supreme Court

33 S.W. 421

BYRNE et al. v. WELLER et al.

Supreme Court of Arkansas.

December 14, 1895.

Appeal from circuit court, Crittenden county, in chancery; James E. Riddick, Judge.

Bill by Emma M. Weller and others against Charles A. Byrne and others. From a decree for plaintiffs, defendants appeal. Reversed.

Watson & Fitzhugh and S. R. Cockrill, for appellants. Henry Craft, for appellees.

BUNN, C. J.

Appellees, the only surviving heirs at law of one J. W. Maddox, deceased, filed the complaint in this cause in the Crittenden circuit court, on the chancery side, against the appellants, the only surviving heirs at law of one Julia A. Waldron, deceased, formerly the wife and widow of said J. W. Maddox, she having died intestate. The subject-matter of the litigation is certain property of the estate of said J. W. Maddox, and, to determine the ownership of the same and for partition, the court was asked to construe the will of said J. W. Maddox. Appellants, defendants in the court below, demurred to the complaint; and, the same having fully set forth the provisions of the will and plaintiffs' claim thereunder, the only issue in the case was properly raised by the demurrer. The chancellor overruled the demurrer, and, defendants declining to plead over, decree went against them, and they appealed to this court.

The said J. W. Maddox made the following last will and testament (leaving out all that is not essential to this discussion), to wit: "Second. After the payment of my funeral expenses as well as my just debts, I give and bequeath to my beloved wife, Julia A. Maddox, my entire property and effects, of every character and kind, both real and personal, during her natural life to use and enjoy any and all the rents and profits, of every character and kind, lawfully arising therefrom. Third. It is my will that my lot, being a certain parcel or piece of ground situate, lying, and being in the city of Memphis, on the south side of Market street, being a part of lot known and designated on the original plan or plat of Memphis as lot number four hundred and seventy (470), [then follows a particular description of said part of said lot, by metes and bounds] shall at the death of my beloved wife, Julia A. Maddox, be by her, the said Julia A. Maddox, given to such of the then living children of my brother Henry S. Maddox and my sister Sophia Cole Graves as she, the said Julia A., in the exercise of her judgment, may deem best. It is my express wish that my wife, the said Julia A. Maddox, shall so dispose of this lot of ground among said children as she may desire. Fourth. It is my will that at the death of my beloved wife, Julia A. Maddox, my lot being part of lot No. 123 on Main street (west side), upon which a two-story brick house now stands, shall go and descend jointly to George R Byrne, the youngest brother of my wife, Julia A. Maddox, and Wesly Edmond Moore, son of George and Londora Moore, each to have and own an undivided one-half interest in the same; and in the event that either the said George R. Byrne or Wesly Edmond Moore, or both of them, should depart this life before arriving at the age of twenty-one years, then and in that event I wish my wife, Julia A. Maddox, to dispose of the interest of the children so dying, in this property, among the living children of my brother Henry S. Maddox and of my sister Sophia Cole Graves, in such parts and portions as she may desire. * * * Fifth. The remainder of my goods, chattels, and effects, of every character and kind, both real and personal, I will and bequeath to my beloved wife, Julia A. Maddox, to dispose of as she may choose and desire at her death. Sixth. I do hereby appoint my brother Henry S. Maddox, and my wife, Julia A. Maddox, my executor and executrix, to qualify without giving bond and security."

The particular question raised by the demurrer to the complaint is, was the estate of Julia A. Maddox in the "remainder" mentioned in the fifth clause of her husband's will an estate in fee, or for life only? In regard to the disposition of real estate, and of course of personal property, by will, no technical or particular words of conveyance are necessary, and any words denoting the real intention of the testator will be sufficient, unless they contravene some positive and established rule of construction; and in this state the liberal rule in favor of wills is much emphasized by the statute, which does away with the use of many technical words of the common law, even in conveyances by deed. We may also remark as preliminary to this discussion that the case of the appellants is somewhat aided by the fact that, under our conveyance laws, prima facie every conveyance is to be regarded as carrying the fee, unless express words of limitation to a less estate are used. The testator, in the second clause of his will, gave to his wife, Julia A. Maddox, a life estate in all of his property, real and personal. The reason of this is made apparent in the clauses following. The testator evidently intended that his wife should enjoy the use of his entire estate during her natural life, and being childless, and making certain special devises to the children of a brother and sister, he arranged that they should be postponed in enjoyment until the death of his wife. When making these special provisions for the children of his brother and sister, it occurred to him that these special legacies would not cover or take up all the estate, or might not, at all events. So he makes a disposition of this residue, or "remainder," as he calls it, in the fifth clause of his will. The contention of appellees, in effect, is that the devising words of this fifth clause amount to a reiteration of the general devise for life, contained in the second clause, in so far as concerns this residue; and that the grant of the power to dispose of it at her death is but a grant to dispose of by will; and that the disposition to take effect only after her death is a power or privilege in addition to the devise, — a mere power of appointment; and, this being so, that it necessarily follows that the whole clause, taken together, gives the wife but a life estate in the residue. But, according to the contention of the appellants, the testator here, in this fifth clause, makes a new disposition of this residue part of his entire...