Galloway v. Darby

• Decision Date: 18 November 1912
• Citation: 151 S.W. 1014
• Parties: GALLOWAY v. DARBY et al.
• Court: Arkansas Supreme Court

151 S.W. 1014

GALLOWAY v. DARBY et al.

Supreme Court of Arkansas.

November 18, 1912.

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

Action between D. F. S. Galloway against James Darby and others. From a judgment for defendants, plaintiff and defendant W. A. Galloway appeal. Reversed and remanded, with directions.

Rose, Hemingway, Cantrell & Loughborough, of Little Rock, for appellants. James A. Comer and John McClure, both of Little Rock, for appellees.

McCULLOCH, C. J.

The merits of this controversy involve the construction of the last will and testament of Elizabeth S. Shall, who died in the city of Little Rock on March 23, 1908, the owner of a large estate, consisting mostly of valuable lands, city and farm property. The will was executed January 17, 1898, and on April 14, 1905, she added a codicil. The preamble or introductory clause of the will reads as follows:

"I, Elizabeth S. Shall, of the city of Little Rock, county of Pulaski, State of Arkansas, being in good bodily health and of sound and disposing mind and memory, calling to mind the frailty and uncertainty of human life, and being desirous of settling my worldly affairs and directing how the estate with which it has pleased God to bless me, shall be disposed after my decease, while I have strength and capacity so to do, do make and publish this, my last will and testament, hereby revoking and making null and void all other last wills and testaments, by me heretofore made; * * * as to my worldly estate and all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to-wit:"

In item 1 the testatrix gave to appellant, D. F. S. Galloway, who was her grandnephew, her home in the city of Little Rock, and all its contents, furniture, paintings, silver, etc., horses, carriages, and harness, and also certain other lots of real estate in said city, and a tract of land in Pulaski county containing 180 acres.

In item 2 she gave to her nephew W. A. Galloway two lots in Little Rock, and a certain tract of land in Pulaski county.

In item 3 she gave to her niece Elizabeth S. Darby a farm in Pulaski county known as the "Shall place," containing about 786 acres. The language of that devise is as follows: "I give, devise and bequeath to my niece, Elizabeth S. Darby, the place known as the `Shall place,' consisting of about 786 acres of land in Pulaski County, State of Arkansas, to-wit:" (Here follows description.)

In item 4 she gave two lots in the city of Little Rock, and a farm in Pulaski county known as the "Beasley place," to her niece Mary A. Eanes for life, with remainder over to D. F. S. Eanes, a grandnephew of the testatrix.

In item 5 she gave to her said grandnephew D. F. S. Eanes three lots in the city of Little Rock, the property being left in trust to D. F. S. Galloway as trustee for the benefit of said D. F. S. Eanes until the latter should come of age.

In items 6 and 7, respectively, she bequeathed sums of money to a friend and to a certain church in Little Rock.

Item 8 contained the following residuary devise and bequest: "I give, devise and bequeath to my grandnephew, David F. Shall Galloway, all the rest and residue of my estate not hereinbefore specifically devised and bequeathed, whether real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease."

After the residuary clause the will reads as follows:

"The property herein devised and bequeathed in items four and five to my grandnephew, David F. Shall Eanes, shall, in the event of his death without issue of his body him surviving, vest in fee-simple in his mother, my niece, Mary A. Eanes, her heirs and assigns.

"All the property herein devised and bequeathed, unless otherwise and specifically stated, shall vest in the devisees, their heirs and assigns in fee simple, and the property devised and bequeathed to my nieces is to be their sole and separate property and free from the control and debts of their said husbands, together with the rents and profits of the same."

By her codicil the testatrix revoked the devise to appellant, D. F. S. Galloway, as to some of the said lots given to him in the will, and devised the same to Elizabeth S. Darby in fee simple. The codicil made certain other changes not material to this controversy. Elizabeth S. Darby died prior to the death of the testatrix, and the controversy in this suit is as to the devolution of the property devised to her in the will and codicil.

It is the contention of appellant that both of the devises to Elizabeth S. Darby lapsed on account of her death prior to the death of the testatrix, and that that property fell within the residuary clause of the will. The chancellor decided that the devise to Mrs. Darby in the will did not lapse, but went to her children under the terms of the will, and that the devise to Mrs. Darby in the codicil lapsed, but did not fall within the residuary clause, and as to that the testatrix is deemed to have died intestate, and the property descended to her heirs at law. Appellant, D. F. S. Galloway, is not one of the heirs of the testatrix, so, under the decree, he gets none of the property in controversy, and he appealed to this court. W. A. Galloway, the father of D. F. S. Galloway, is one of the heirs, and is a party to this suit. He appealed from that part of the decree which holds that the property devised to Mrs. Darby in the will goes to her children.

The rule is established beyond controversy, except where changed by statute, that a legacy or devise lapses when the legatee or devisee dies before the testator. 17 Am. & Eng. Ency. of Law, p. 748, and authorities there cited. "The liability of a testamentary gift to failure or as it is generally termed lapse," says Mr. Jarman, "by reason of the decease of its object in the testator's lifetime, is a necessary consequence of the ambulatory nature of wills, which, not taking effect until the death of the testator, can communicate no benefit to persons who previously die." 1 Jarman on Wills (6th Ed.) p. 307. A statute of this state changes that rule as to a legacy or a devise to a child or other descendant of the testator, and provides that it shall not lapse, but that "the property so devised or bequeathed shall vest in the surviving child or other descendant as if such devisee or legatee had survived the testator and died intestate." Kirby's Digest, § 8022.

It is conceded that the devise to Mrs. Darby in the codicil lapsed, as decided by the chancellor, by reason of her death before the death of the testatrix, and the property either falls within the residuary clause of the will, if that clause is broad enough to include it, or descends to the heirs at law of the testatrix, as undisposed of property. That question will be considered later.

It is contended on behalf of appellees that the devise of the Shall place did not lapse, and that it was the intention of the testatrix to substitute the children of Mrs. Darby as devisees in the event of the latter's death before the death of the testatrix. This contention is founded on the general provision in the will that "all the property herein devised and bequeathed, unless otherwise and specifically stated, shall vest in the devisees, their heirs and assigns in fee simple." The argument is that there is presumed an intention not to permit the devise to lapse, and that the word "heirs" should be construed to mean "children," so that a line of succession should be prescribed in order to prevent lapse. There might be more reason for adopting that construction of the provision if it applied only to the devise to Mrs. Darby, but it applies to all of the property devised in the will except when "otherwise and specifically stated," and the fact that the provision is a general one materially weakens the basis for construing the word "heirs" to mean "children." We do not, however, mean to say that such would be the proper construction even if the provision applied only to the devise to Mrs. Darby. On the contrary, we are of the opinion that the words, "their heirs and assigns," were used in a technical sense to denote the character of the estate or extent of the interest to be taken by the devisees — that they are words of limitation, not words of substitution. The aim in construing a will is to correctly arrive at the intention of the testator, but the meaning is to be gathered from the language used. "The question in expounding a will is not what the testator meant, but what is the meaning of his words. The use of the expression that the intention of the testator is to be the guide, unaccompanied with the constant explanation that it is to be sought in his words and a rigorous attention to them, is apt to lead the mind unconsciously to speculate upon what the testator may have been supposed to have intended to say, instead of strictly adhering to the true question, which is what that which he has written means. The will must be expressed in writing, and that writing only is to be considered. And in construing that writing the rule is to read it in the ordinary and grammatical sense of the words, unless some obvious absurdity or some repugnancy or inconsistency with the declared intention of the writer to be extracted from the whole instrument should follow from the reading of it." 2 Williams on Executors, p. 327.

Cases are to be found where the word "heirs" in a will or deed was construed to mean "children." The following are among those cases: Wyman v. Johnson, 68 Ark. 369, 59 S. W. 250; Shirey v. Clark, 72 Ark. 539, 81 S. W. 1057. Other examples are found in the many cases cited by counsel for appellees. But words used in a will must be construed according to the technical legal meaning, unless explanatory words in the context qualify them or give them another...