Eagle v. Oldham

• Decision Date: 08 February 1915
• Docket Number: 173
• Citation: 174 S.W. 1176,116 Ark. 565
• Parties: EAGLE v. OLDHAM
• Court: Arkansas Supreme Court

174 S.W. 1176

116 Ark. 565

EAGLE v. OLDHAM

No. 173

Supreme Court of Arkansas

February 8, 1915

Appeal from Lonoke Chancery Court; John E. Martineau, Chancellor affirmed.

STATEMENT BY THE COURT.

The appellants brought ejectment against appellee to recover possession of three tracts of land situated in Lonoke County Arkansas. The parties to this litigation claim under the will of Gov. James P. Eagle, who died a widower and childless, and undertook, by his will, to dispose of all property owned by him. By clauses 4 and 5 of his will he devised to his brothers and sisters and their heirs, two large bodies of land, in the description of which several errors occurred. Among such errors were three descriptions, each of which would have covered a particular subdivision of a section of land.

The sixth clause of the will is as follows: "Sixth. For the love I have and bear for my beloved wife, Mary K. Eagle deceased, and for the love and good will I have for her brothers and sisters, W. K. Oldham, Kate Miller, Mag O. Doty Kie Oldham and I. B. Oldham, I will and bequeath to them, to be equally divided between them, the following described lands."

And among other lands there described were the following "The southwest part of section 31, one hundred and fifty acres; in township 1 north, range 8 west. The west half and the northeast northwest of section 5, one hundred and thirteen acres; the east part east half of section 1, one hundred acres, in township 1 south, range 8 west."

The will further recited that the testator had deeded to his wife during her lifetime his home in Little Rock, together with other lots in this city, and recited that Mrs. Eagle was possessed of $ 5,600 in cash, which the testator had divided equally between her brothers and sisters, and this statement of fact is followed by this recital: "In executing this will, it has been my purpose, after giving my brothers and sisters the advantage of the value of the property I inherited from my father's estate, to divide my estate equally between Mrs. Eagle's brothers and sisters and my brothers and sisters, taking into consideration the city property and the cash herein mentioned."

Other clauses of the will which are of importance in this case are as follows:

"Eleventh. That all lands owned by me at my death not mentioned in this will, moneys, notes, accounts and all other personal property that I may be possessed, including G. W. Reeves' life policy, shall be used in paying my debts and in settling the bequests provided for in this will."

"Twelfth. After settling all my debts and all the bequests made in this will, if there is a residue, it shall be equally divided between my brother, W. H. Eagle, or his heirs, the heirs of my sister, R. C. Long, deceased, my sister, Mary J. Jones, or her heirs, and my sister, Mattie A. Boyd, or her heirs."

Clause No. 13 of the will appointed appellee and R. E. L. Eagle and Robert S. Boyd, nephews of the testator, as executors, and another clause, also numbered 13, provided the amount of the bond which these executors should execute. Other clauses made munificent gifts of moneys to the church of which Governor Eagle was a member, and to the institutions of that church. The will was dated February 15, 1904, and was not attested by witnesses. The testator died on December 20, 1904, and the will was duly probated.

Notwithstanding the inaccuracies in the description of the lands devised to the Eagle heirs, those lands were taken possession of by them, and no question was then made as to the right of the Oldham heirs to take possession of the lands which they claimed had been devised to them, including the three tracts now in controversy, except the one hundred-acre tract. However, appellee took possession of that tract for himself and the other Oldham heirs, but upon the understanding that he would be responsible for the rents if the Oldham heirs were not entitled to them. In the administration of the estate of the testator it was not necessary for the executors to dispose of any of the lands mentioned in clause 11 of the will.

This suit was brought by the residuary legatees mentioned in the twelfth clause of the will as an action in ejectment against appellee, who was in possession, it being alleged that the lands were not mentioned in the will, and they, therefore, passed under the residuary clause. By mesne conveyances appellee had acquired the title of the other Oldham heirs to these lands. Appellee answered, and the cause was transferred to equity on his motion and over appellant's objection. The answer alleged, in substance, that the testator intended to, and did in fact, devise the tracts in controversy to the Oldham heirs, and there was prayer that the inaccuracies of description be reformed, and that appellee's title be quieted against any claim of appellants.

There is no real conflict in the evidence, and it appears that the facts are that Governor Eagle was much attached to the brothers and sisters of his deceased wife, and spent a considerable portion of his time at the home of appellee. That while Governor Eagle was a successful business man, of wide experience, he was not skilled in the use of land descriptions, and he is shown to have made a number of mistakes in the use of such descriptions in important legal instruments which he had prepared with care. Indeed, as has been stated, there were errors in the descriptions of the lands devised to the Eagle heirs as well as in the descriptions of the lands involved in this litigation.

It appears that, notwithstanding the declaration of the testator of his intention to divide his estate equally between his heirs and those of his wife, after giving his heirs the benefit of the value of all property which he had inherited from his father, the lands given the Eagle heirs were, in fact, much more valuable than those given the Oldham heirs. This disparity in value is accounted for, in a measure, by the fact that the Oldham heirs took the residence in Little Rock and the Eagle "home place" in Lonoke County, to both of which places the testator was so attached that his estimate of market value may have been influenced by sentimental considerations. At all events, if the lands in controversy are not awarded the Oldham heirs, the testator's declared intention of dividing his lands equally will largely fail. The testator's "land book," together with a plat of his lands which he had, were offered in evidence, and also a plat of a survey of these lands which had been made after his death.

Affirmed. Motion for rehearing overruled.

Trimble & Trimble and T. D. Crawford, for appellants.

1. Equity had no jurisdiction to construe the will. 70 Ark. 432; 88 Ark. 1. Neither had it jurisdiction to reform the will. 15 Ark. 519; 80 Ark. 458; 86 Ark. 446; 34 Cyc. 924; Page on Wills, § 809; 22 Mo. 518, 66 Am. Dec. 630; Jones, Eq. 110, 59 Am. Dec. 602; 87 Kan. 597, 41 L.R.A. (N.S.) 1126; 28 Ala. 374; 56 Ia. 676; L. R. 3 Eq. 244; 117 U.S. 219; 3 Redf. Wills, 48; 119 Cal. 571; 39 L.R.A. 689; 6 Madd. 216; 196 Ill. 230; 122 Ind. 349; 17 Am. St. 349; 142 Ill. 214; 34 Am. St. 64; 73 Miss. 188; 55 Am. St. 527.

2. Extrinsic evidence is not admissible either to show a mistake in a will or to ascertain the correction. 2 Pomeroy, Eq. Jur., § 871.

Extrinsic evidence in the interpretation of wills is admissible, not to show what the testator meant, as distinguished from what his words express, but simply to show what is the meaning of his words. 55 Md. 575.

An alleged mistake in the description of land devised can not be corrected by the admission of extrinsic evidence, unless the language of the will itself furnishes the basis of the correction. 103 Ind. 281; 132 Ind. 186.

The intention of a testator can not be established by parol proof, but must be determined by the language he has used. 73 Ala. 235; 115 Ala. 328; 6 Conn. 270, 16 Am. Dec. 53; 50 Conn. 501, 47 Am. Rep. 669; 5 Fla. 542; 14 Ga. 370; 197 Ill. 398; 77 Ind. 96, 40 Am. Rep. 289; 103 Ind. 281; 6 B. Mon. 219; 66 Md. 193; 72 Md. 235; 9 Allen 109; 34 Mich. 250; 40 Miss. 758; 139 Mo. 456; 14 Johns. 1, 7 Am. Dec. 416; 90 N.C. 597; 3 Watts 240; 31 S.C. 606; 18 How. 385.

3. The first tract described in the will is "the east part, east half of section 1, 100 acres, in township 1 south, range 8 west." This description is defective in locating the land in range 8, instead of range 9, and also because the description "east part" of section 1, 100 acres, etc., is insufficient to identify the land. 48 Ark. 419; 80 Ark. 458; 60 Ark. 487; 34 Ark. 534; 41 Ark. 495; 3 Ark. 57; 30 Ark. 657; 11 How. 329.

The second tract "the northeast northwest of section 5,113 acres, in township 1 south, range 8 west," the testator did not own, and there is nothing in the will to identify the southeast quarter of the northwest quarter of that section, which he did own, if the incorrect description of the former tract should be stricken out.

The third tract, purporting to be devised to the Oldhams, viz., "the southwest part of section 31, 150 acres, in township 1 north, range 8 west," is open to the same objection of indefiniteness as the first tract above.

Moore, Smith & Moore, for appellee.

1. The rigid rule adopted in some of the early English cases of adhering literally to the terms of a will, has, in this country been relaxed in the interest of justice and for the purpose of carrying out the intention of testators. The courts that feel called upon to enforce the more rigid rule seek every means of avoiding its effect. Even under the Illinois rule as modified by expressions and rulings of the court, the testator's intention, in this case, as to the land in section 1, can be sustained by rejecting as surplusage the interlineation giving the township and...