Fleming v. Blount

• Decision Date: 19 May 1941
• Docket Number: 4-6362
• Citation: 151 S.W.2d 88,202 Ark. 507
• Parties: FLEMING v. BLOUNT
• Court: Arkansas Supreme Court

151 S.W.2d 88

202 Ark. 507

FLEMING v. BLOUNT

4-6362

Supreme Court of Arkansas

May 19, 1941

Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor reversed.

Decree reversed and cause remanded.

Harrelson & Harrelson, for appellant.

Dennis W. Horton and Roy D. Campbell, for appellee.

OPINION

SMITH J.

The decision of the question presented on this appeal is determined by the construction of the last will and testament of John Homer Blount, which, in its entirety, reads as follows:

"Last Will and Testament of John Homer Blount.

"In the name of God amen; Being of sound mind and disposing memory I make this my last will and testament.

"Item (one) I desire at my death should I owe any debts to be paid out of my fraternal insurance.

"Item (two) I give and bequeath to my son, J H. Blount, Jr., one-third of my real estate and one-third of my life insurance, fraternal insurance and one-third of my personal property.

"Item (three) I give and bequeath to son, John Scott Blount, one-third of real estate and one-third of my life insurance, fraternal insurance and one-third of my personal property.

"Item (four) I give and bequeath to my daughter, Elizabeth Louise Blount, one-third of my real estate and one-third of my life insurance, fraternal insurance and one-third of my personal property.

"Item (five) I desire and will that none of my real estate shall be divided or sold before the year 1950, and if either of the above named children break or attempt to break this will of mine he or she shall be disinherited and be given the amount of ten dollars, instead of one-third interest in my estate as named herein above.

"Item (six) My object in having the real estate remain intact until 1950, is to make each child invest his or her income from this will to acquire his or her individual property.

"Item (seven) In the event that I should die before either of the above children graduate from college course, each of the above named children shall be allowed one-third of the income from my estate to go to school at least nine months every year until each one has completed a college course. In the event that either child fails or refuses to go to school until he or she has completed the college course named heretofore, then he or she shall not be allowed one-third interest or any part of the income heretofore named for educational purposes.

"In case either of said children should die, then the other two are to share equally in the division of my estate and if any two should die, the living child shall have the entire estate.

"We the undersigned witnesses to the foregoing will do truly certify that the testament the said John Homer Blount signed said will in the presence of each one of us, all of us being together at the time, and declared the same to be his last will and testament and requested each one of us to witness the same and we each severally signed the same as witnesses in the presence of each and in the presence of the testator.

"Witness our hands this, the first day of August, 1919.

"Witnesses:

"John Homer Blount,

"J. O. Winford,

"M. P. Remley."

At the time of the execution of this will the testator was a widower, and none of his three children--two sons and a daughter--had completed their education to the satisfaction of their father. He later married, and was survived by these three children and his second wife, to whom no child was born.

These children, who are now of full age, and the widow entered into a contract with appellant to convey a tract of land owned by the testator at the time of his death. An abstract of the title to the land disclosed this will, upon which the title depends, and appellant declined to accept the tendered deed upon the ground that it would not convey the merchantable title for which the contract of sale provided. Suit was brought to enforce this contract, and a demurrer to the complaint was overruled and appellant was directed to accept the deed tendered and pay the purchase price, from which decree is this appeal.

It is not contended that this will was revoked by the marriage of the testator subsequent to its execution under the provisions of § 14520, Pope's Digest, for the reason that no issue was born to the second marriage. But the will does not exclude the widow from the interest she would have taken had her husband died intestate. The devisees, however, take subject to the will, modified, as it must be, by the subsequent marriage of their father. The insistence is that the widow and these devisees, together, take the entire fee simple title, and that as all of them joined in the execution of the deed tendered there is no one who may complain of its sufficiency, for the reason that, subject to the payment of the debts as provided in item one (all of which have been paid), the children, as devisees under items two, three and four, take title in fee simple, subject only to the marital rights of the widow.

To sustain this contention the case of Bernstein v. Bramble, 81 Ark. 480, 99 S.W. 682, 8 L. R. A., N. S., 1028, 11 Ann. Cas. 343, is chiefly relied upon. The will there construed read in part as follows: "All the rest, residue and remainder of my estate, real as well as personal, and wheresoever situated, I hereby devise, give and bequeath to my beloved wife, Minna Elle, to have and to hold the same in fee simple forever. But in the case of the death of my beloved wife it is my will that all the estate then remaining and not disposed of by her by a last will or other writing shall pass to my said brother, Mortiz Elle, and my sister, Henriette Bernstein, or their heirs in equal parts."

It was there held that the property mentioned was devised to the first taker in fee simple, and that the limitation over to another at the former's death was void for repugnancy. This rule of construction, while hoary with age, is one which usually operates to defeat the intention of the testator when the will is read in its entirety and the intention of the testator gathered from its four corners.

But the authority of that case need not be impaired to ascertain the testator's intention in the present case. There, the testator devised to the first taker title in fee simple, to be held forever. Not so here. Subject to and after the payment of his debts, the testator designated the quantum of his estate which each of his children should take, each a third, both of his real estate and personal property. But for what purpose and upon what condition? We must read the will in its entirety to find the answer to that question and to determine just what the estate and interest is which items two, three and four devise.

It was said in the case of Piles v. Cline, 197 Ark. 857, 125 S.W.2d 129, as has been said in many other cases, that, in construing a will it is the duty of the court to ascertain, from a consideration of the language employed in the will, the intention of the testator, and to give effect to that intention, and, in so doing, the will should be read in its entirety and effect given, if possible, to all the language employed. In this Piles case, it was further said: "Wills cannot ordinarily be written in a single sentence, and we must, therefore, read a will in its entirety and give effect, if we may, to all the language which the testator has employed. When we have done so, if the intention of the testator is clear, we have only to declare the intention thus expressed. If, however, the language of the will is ambiguous and the intention of the testator is not clear, we must invoke the aid of settled rules of construction with reference to which the will is said to have been written, although, in fact, the testator may have been wholly ignorant of these rules of construction. The application of these rules of construction may, in some instances, operate to defeat the actual intention of the testator, but, if so, the fault lies with him in failing to clearly express his intention."

In the Bernstein case, supra, Judge BATTLE quoted from Underhill on the Law of Wills, vol. 2, § 689, as...