Gibbons v. Ward

• Decision Date: 02 November 1914
• Docket Number: 217
• Citation: 171 S.W. 90,115 Ark. 184
• Parties: GIBBONS v. WARD
• Court: Arkansas Supreme Court

171 S.W. 90

115 Ark. 184

GIBBONS v. WARD

No. 217

Supreme Court of Arkansas

November 2, 1914

Appeal from Garland Chancery Court; J. P. Henderson, Chancellor affirmed.

Decree affirmed.

Rector & Sawyer, for appellants.

1. The will was republished by the codicil and made to speak as of the date of the codicil, and will and codicil must be construed as one instrument. (2) The will and codicil so construed as one will be so construed as to prevent intestacy, or even partial intestacy; the devise did not lapse. After careful search we find but one case identical with this, and if accepted as authority, it absolutely confirms our contention. 6 Dana (Ky.) 5154; see also Redfield on Wills 371 (1864); 30 Neb. 149; 27 Am. Stat. 391; 28 N.Y 375; 64 Am. Dec. 731; 64 N.E. 1038; 98 Mass. 65; 199 N.Y 569; 2 F. 138; 90 Ark. 155; 179 U.S. 606; 1 Underhill on Wills 455; 104 Ark. 448; 35 Am. St. 855. The word "heirs" is not always to be construed as a word of limitation. 8 Pa. (8 Barb.) 498; 1 Sanc. Law Rev. 307; 2 Dem Sur. 570; 1 Bush. 522; 68 Ark. 371. The Galloway v. Darby case (105 Ark. 561) does not control here. 6 Dana (Ky) 51-54.

2. When the language of a will admits of two constructions, one of which would render it void and the other valid, it is to be presumed that the testator's words were used in the sense which would give them legal effect. 35 N.Y. 162; 49 Am. Dig. 1058-9; 9 N.J.Eq. 21; Am. Dig. 1021.

3. Proof of the situation and circumstances of a testator and his family, or his property and legatees, etc., are always admissible to aid in a proper construction of the will. 44 Am. St. 87; Am. Dig. pp. 1127-1134; Cent. Ed., Am. Dig., vol. 49, pp. 1058-9, and cases; 24 Tex. 643; 25 Ga. 352; 55 N.C. 420; etc. The testimony is conclusive that the intention was that the wife's side should share in the distribution. Where words are used which show that a technical meaning was not intended, or the peculiar circumstances demonstrate clearly that the words were meant otherwise than in the technical sense. then it should be so construed by the courts.105 Ark. 567.

M. S. Cobb, for Isabella Phillips, appellee.

1. Every point raised is controlled by Galloway v. Darby, 105 Ark. 558, unless the codicil takes it out of the rule. The question of partial intestacy and as to whether lapsed and void devises fall into the residuary clause; the intention of testator and all others, except this one, have been settled. 105 Ark. 555.

2. 6 Dana (Ky.) 51-54 is not an authority under the facts here. Kirby's Dig., § 8022. There are many exceptions to the rule that revival or republication by codicil brings the will down to the date of republishing, etc. Republication does not revive a devise or bequest which has lapsed by death. 52 Pa.St. 326; 8 Id. 498; 4 T. R. 601; 40 Cyc. 1221; 14 Pick. (Mass.) 318; 48 S.W. 263. A legacy or devise lapses when the legatee or devisee dies before the testator. 105 Ark. 563.

3. As to revivor of lapsed devises, etc., by republication of a will by codicil see 52 Eng. Reprint 1094, 567; 61 Id. 627.

J. W. Denby and J. H. Denby, pro sese.

1. The property given to Mary E. Skeif by the will lapsed on her death, but the property did not fall into the residuum and pass to the residuary legatees. 105 Ark. 558; 223 Ill. 535; 7 Eng. Ann. Cases 126. The presumption against intestacy is not stronger than the rule requiring express words, or necessary implication to disinherit an heir. 228 Pa.St. 248; 77 A. 450; 20 A. & E. 1288. The presumption is that testator intended that his property should go where the law casts it, and to interrupt the law of descent should require plain words to that effect. 12 Ga. 155; 56 Am. Dec. 451; 24 Ga. 372; 2 Woerner on Adm. (2 ed.) § 418; 1 Jarm. on Wills 532; 49 Me. 288-291.

2. A general residuary clause will not dispose of a lapsed interest in the residuary estate. 201 N.Y. 1089; 94 N.E. 990; Underhill on Wills 541; 125 S.W. 1178; 60 Ky. 155 (Metc.) . When a devise fails because of lapse * * * the property devolves on the heirs as intestate real property. 125 S.W. 1178.

OPINION

KIRBY, J.

This appeal calls for the construction of the last will of Jeremiah W. Skeif, who died in Hot Springs, Arkansas, Garland County, the owner of a considerable estate. The will was executed on the 24th day of June, 1902, and thereafter the testator added a codicil, of date the 29th day of March, 1907.

The first clause of the will reads: "I, Jeremiah W. Skeif, of Hot Springs, County of Garland, and State of Arkansas, declare this to be my last will, hereby revoking all wills and testamentary papers at any time heretofore made by me.

"I. I direct all my just debts to be paid.

"II. I bequeath to my wife, Mary E. Skeif, all my household goods, furniture and other effects which at the time of my death may be in or about my dwelling house." In item III. he gave a certain lot, described, to the use of his wife, Mary E. Skeif, during her life and after her death to Andrew Jackson Dalton, his heirs and assigns forever.

In item IV. he devised another lot to the use of his wife, Mary E. Skeif, as in item III. for life and after her death to John H. Adams and his heirs and assigns forever. In item V. he gave two other lots to the use of his wife, Mary E. Skeif, during her life and after her death to Jeremiah Brown, his heirs and assigns forever. In item VI. he devised another lot to the use of his wife, for life and after her death to his two sisters, Isabel Phillips and Sallie M. Bohall, their heirs and assigns forever, in equal shares as tenants in common. Item VII, devised another lot to the use of his wife for life and after her death to Jeremiah Denby, his heirs and assigns forever. Item VIII. reads: "I devise to my wife, Mary E. Skeif, her heirs and assigns forever, the following described property situated in the city of Hot Springs," * * * (describing it) and I direct that my wife apply such part of the monthly income of the premises described in items III, IV, V, VI and VII, as shall be necessary to pay all taxes and assessments thereon, to keep and maintain reasonable insurance and all needful and necessary repairs; and in case of fire should destroy any part of said premises, that the insurance be applied to repair or rebuild the same.

"IX. I devise and bequeath all the residue of my real and personal estate, whatsoever and wheresoever, unto the said Andrew Jackson Dalton, John Adams, Jeremiah Brown, Isabel Phillips, Sallie M. Bohall, Jeremiah Denby and Mary E. Skeif, their heirs, executors, administrators and assigns, according to the nature thereof, respectively, in equal shares, for their absolute use and benefit."

Fred D. Ward and Andrew Jackson Dalton were named executors of the will. The codicil reads: "I, Jeremiah W. Skeif, aforesaid, do declare this to be a codicil to my last will, in addition to the said last will and as a part thereof." It then recites the fact that he has sold the property described in item III of the will, and "my said wife, Mary E. Skeif, being dead, I give and bequeath the following premises situated in the city of Hot Springs, county of Garland, and State of Arkansas, towit:" Then follows the description of lot three (3) block seven (7) of South Hot Springs and the west half of lot number four (4) and all of lot number five (5) in Orr's subdivision in 117, according to the official plat, to Andrew Jackson Dalton, his heirs and assigns forever.

The will was probated and suit was brought against the executors, the devisees of the will and the heirs of Mary E. Skeif to foreclose a mortgage, upon certain after-acquired real estate not included in the will. Pending that suit there arose a contention between the devisees in the will and the heirs of Mary E. Skeif as to the ownership of the funds in the hands of the executors and they filed an intervention and cross complaint in said suit making the devisees and her heirs parties, in which they allege that there is a disagreement as to the proper construction of said will as follows:

"It being claimed on the one hand that certain legacies and devises designated in said will in favor of Mary E. Skeif have descended to her heirs by reason of the death of the said Mary E. Skeif in the lifetime of the said Jeremiah W. Skeif, and on the other hand that said legacies and devises have lapsed and become residuary estate, " and ask for a proper construction of the will and directions as to how to distribute the estate. To their complaint separate answers were filed by the devisees and heirs of Mary E. Skeif.

Mary E. Skeif, the wife of the testator, died during his lifetime and he thereafter made a codicil to his will in which he recited her death and made other disposition of some of the property that had been devised to her and her heirs.

In Galloway v. Darby, 105 Ark. 558, 151 S.W 1014, the court considered the questions involved here and in an exhaustive opinion held that a legacy or devise lapses when the legatee or devisee dies before the testator and becomes part of the residuary estate, passing under the clause of the will disposing of the residuum. It was there said: "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," reciting also that the rule has been changed in this State by section 8022, Kirby's Digest, "in case of a devise to a child or other descendant of the testator, which does not lapse but vests as if such devisee or legatee had survived the testator and died intestate." In that case the testatrix devised her property, making certain specific devises, giving one farm to a niece, Elizabeth Darby, and to her heirs and assigns, in fee simple. She later made a codicil to the will revoking a...