Galloway v. Darby
Decision Date | 18 November 1912 |
Citation | 151 S.W. 1014,105 Ark. 558 |
Parties | GALLOWAY v. DARBY |
Court | Arkansas Supreme Court |
Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.
Decree reversed, and cause remanded.
Rose Hemingway, Cantrell & Loughborough, for appellant.
1. The court had jurisdiction, plaintiff being in possession. 50 Ark. 562.
2. On the death of the devisee, Mrs. Darby, in the lifetime of the testatrix, the devise lapsed and passed to the residuary legatee. Jarman on Wills, p. 617, 1 Am. Ed; 18 A. & E. Enc of L. 748; 2 Redf. on Wills, 157; 2 Williams on Ex. 496. The rule is changed as to a child or descendant by § 8022 Kirby's Dig. Mrs. Darby was not a descendant. For constructions of similar statutes, see 18 A. & E. Ency. Law 756; 89 Ind. 529; 7 N.J.Eq. 462; 1 Bradf. Sur. (N. Y.) 314; Words of inheritance are not necessary in deed, but otherwise as to wills. 49 Ark. 125; 3 Id. 422.
3. Where a gift is to a person, his heirs, etc., the term "heirs and (or) assigns," in a will is used, merely as words of limitation, never as words of substitution. Jarman on Wills, 618, No. 338; 18 A. & E. Ency. Law 754; Redf. on Wills 436, 1 S. 324, (2-160); Willis, 293; 67 Conn. 249; 83 Ind. 339; 80 Me. 290; 108 Mass. 382; 158 Id. 411; 159 Id. 280; 162 Id. 59; 27 Abb. N. C. (N. Y.) 437; 3 Dem. (N. Y.) 43; 113 N.Y. 396; 60 Tex. 426; 2 Williams on Ex. 327; 3 Jarman on Wills, 700, section 838.
4. On lapse of devise property goes to residuary legatee and not to the heirs. 2 Jarman on Wills, p. 365, § 762; Underhill on Wills, p. 79, § 62; 2 Redf. on Wills, p. 116; 113 N.Y. 522; 129 Mass. 97; 45 N.Y. 254; 51 Ark. 61; 131 N.Y. 237; 88 Id. 560; 113 N.Y. 115; 141 Id. 29; 144 Id. 621; 32 Hun 10; 16 Vis. 451; 4 Id. 709; 24 N.J.Eq. 512; 63 Hun 352; 113 N.Y. 123.
5. The distinction between devises and legacies at common law has been abolished. 51 Ark. 61; 55 N.J.Eq. 189; 127 Cal. 90; 53 Nev. 354; 79 Ind. 167; 7 Met. (Mass.) 141; 91 Mass. 283; 16 Hun. 76; 45 N.Y. 245; 141 N.Y. 29; 67 Conn. 249, 34 A. 1106; 5 Lea 653; 89 Ind. 529; 54 Me. 291; 152 N.Y. 475; 13 Rich. Eq. (S. C.) 104; 5 Dutch. (N. J.) 345; 88 Pa.St. 474; 147 Id. 67.
J. A. Comer and John McClure, for appellees.
1. A "residuum" caused by a lapsed devise can not be called or treated as a "rest and residue of an estate." 1 Swanston (Eng. Ch.) 570; 23 N.Y. 312; 71 N.Y. 346; 62 Oh. St. 414.
2. In the construction of residuary clauses of a will, if there be a doubt about what the testator intended should pass, the doubt should be resolved in favor of the heir at law. 1 Hill (S. C.) 96; 10 Ohio 334; 62 Conn. 142.
3. Courts are not at liberty, in the absence of words showing such intent, to presume the testator intended to pass the lapsed lands away from the heir. 6 Paige Ch. (N. Y.) 611; 1 Willes Rep. (Eng. Ch.) 296; 3 Harr. & McHenry (Md.) 333; 4 Paige Ch. (N. Y.) 117; 13 How. (U.S.) 390; 86 Pa. St. Yard v. Murray; 1 Swanst. Eng. Ch. 570; 23 N.Y. 312; 79 N.Y. 346; 62 Oh. St. 414; 2 Blackstone 737; 6 Conn. 304; 36 Pa.St. 113; 3 Manf. (Va.) 77; 62 Conn. 142; 94 Md. 463 etc. The doubt should be resolved in favor of the heir at law. Cases supra; 1 Hill Ch. (S. C.) 96; 19 Oh. 334; 18 How. (U.S.) 300; 16 Vesey Jr. 451. Patty v. Goolsby is not an authority in this case.
4. The rule as to lapsed devises of real estate at common law is noted in 1 Underhill on Wills, § 335. All other writers concur. The land goes to the heir at law. 6 Paige. Ch. 611, 113 N.Y. 354; 1 Willes E. Ch. 296; 6 Conn. 304; 18 R. I. 68; Ambler 325; Fortescue 182.
OPINION
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, towit:"
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, towit:" (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 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:
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 (6 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...
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