Gregory v. Welch

• Decision Date: 12 April 1909
• Citation: 118 S.W. 404
• Parties: GREGORY et al. v. WELCH et al.
• Court: Arkansas Supreme Court

118 S.W. 404

GREGORY et al. v. WELCH et al.

Supreme Court of Arkansas.

April 12, 1909.

Appeal from Pope Chancery Court; Jeremiah G. Wallace, Chancellor.

Action by A. F. Welch and others against C. H. Gregory and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

W. P. Strait, for appellants. Sellers & Sellers, R. B. Wilson, J. T. Bullock, and Brooks & Hays, for appellees.

McCULLOCH, C. J.

The question presented on this appeal is whether or not the seventh item of the last will of Hawkins Gregory devised an estate in remainder to the two persons therein named, which vested in them immediately on the death of the said testator. The seven items of the will are as follows:

"First. I give and bequeath to each one of my brothers and sisters, namely, Henderson, Robert, Hardin, Jones and Jedethum H. Gregory, Matilda Wooten and Elizabeth Davis, the sum of five hundred ($500) dollars in gold.

"Second. I give and bequeath to my beloved wife, Fannie A. Gregory, during her natural life, all my land. I also give to her all of my personal estate, except the sums specified in the first article. In the item of personal estate I include all of my notes and accounts.

"Third. I give to my wife's two daughters, Margarette and Georgia Griffin, my two three year old fillies, which they claim respectively.

"Fourth. I will and order that all my debts and funeral expenses be paid out of any currency that may be on hands.

"Fifth. I will that immediately after my death the sums bequeathed to my brothers and sisters be paid to them respectively on their receipting for same.

"Sixth. I hereby appoint Fannie A. Gregory and William Griffin to carry out the provisions of this will.

"Seventh. I will that after my wife's death all my land shall be given to her daughters, Margarette and Georgia Griffin."

It is contended that words sufficiently apt to express an intention of the testator to devise a vested estate in remainder were not used, and that the clause in question must be construed as "merely directory, and expressive of a desire only, that after the termination of the life estate given the widow, the land shall be given to Margarette and Georgia Griffin." It is the duty of courts to so construe a will as to give effect to the intention of the testator as expressed by the language used. Campbell v. Campbell, 13 Ark. 513; Cockrill v. Armstrong, 31 Ark. 580; Page on Wills, § 460. "The intent of the testator," said Chief Justice Marshall in Finlay v. King, 3 Pet. 346, 7 L. Ed. 701, "is the cardinal rule in the construction of wills; and, if that intent can be...