Hurst v. Hilderbrandt
| Decision Date | 12 November 1928 |
| Docket Number | 255 |
| Citation | 10 S.W.2d 491,178 Ark. 337 |
| Parties | HURST v. HILDERBRANDT |
| Court | Arkansas Supreme Court |
Appeal from Lawrence Chancery Court, Eastern District; A. S. Irby Chancellor; reversed.
Decree reversed and cause remanded.
Smith & Blackford, for appellant.
W M. Ponder and H. L. Ponder, for appellee.
On October 29, 1905, Isham J. Bagley executed and delivered to his wife, Nancy Elizabeth Bagley, a deed to a large body of land in Lawrence County, Arkansas, and certain lots in Walnut Ridge, the habendum clause of said deed being as follows
Isham J. Bagley died intestate October 22, 1910, and Nancy Elizabeth Bagley died March 27, 1928. Ed Bagley, son of Isham J. Bagley, died, and left surviving as his only child and heir at law Harry Bagley, who died prior to the death of Nancy Elizabeth Bagley, and left surviving him his two minor children and only heirs at law, the appellants, Harry Joseph Bagley and Bettie Ruth Bagley. Harry Bagley and his wife, Josephine Bagley, on the 10th day of November, 1924, executed and delivered to the appellee, J. F. Hilderbrandt, their warranty deed to "all my interest, as the son of and heir of Ed Bagley, deceased, who was the son of I. J. Bagley, who is also deceased, and who was my grandfather; and I further state that I am the sole and only heir at law of Ed Bagley, deceased, being an undivided one-fourth interest in the following lands, lying in the county of Lawrence and State of Arkansas, to-wit" (describing lands).
This conveyance was made for a consideration of $ 2,000 by Harry Bagley to his maternal grandfather, the appellee, J. F. Hilderbrandt. After the death of Nancy Elizabeth Bagley, suit in partition was instituted to divide the land, in which the appellants, Joseph and Bettie Ruth Bagley, appeared by their respective mothers as next friend, and complained that the deed from their father, Harry Bagley, to the appellee, J. F. Hilderbrandt, was void for the reason that Harry Bagley had only a contingent remainder in the lands of his grandfather, by virtue of the clause in the deed heretofore mentioned, and not a vested remainder, and could not therefore convey anything by his said deed. The chancery court held that Harry Bagley acquired a vested remainder interest in and to a one-fourth interest in the land described in his grandfather's deed, and that therefore his deed to the appellee, Hilderbrandt, conveyed a good title to his vested interest in remainder, which ripened into an absolute title in fee on the death of Nancy Elizabeth Bagley.
It therefore becomes necessary for us to decide only one question. Was Harry Bagley a vested remainderman or a contingent remainderman under the deed from his grandfather, Isham J. Bagley, to his grandmother, Nancy Elizabeth Bagley, after the death of said Isham J. Bagley?
The subject of vested and contingent remainders has formed the basis of prolific decisions of courts of last resort text-writers and annotators. We will not undertake an extensive review of the cases touching on this subject, not even those of out own court. It is a fundamental rule of construction of both deeds and wills to ascertain the intention the grantor had in mind, as to the course he desired his property to take, from the language used in the instrument, and to give effect to such intention, if it may be done without doing violence to the law. As said by this court in Booe v. Vinson, 104 Ark. 439, 149 S.W. 524: "The purpose of construction of a will is to ascertain the intention of the testator from the language used, as it appears from the consideration of the entire instrument, and, when such intention is ascertained, it must prevail, if not contrary to some rule of law; the court placing itself as near as may be in the position of the testator when making the will." And it is also a rule that the law favors the early vesting of estates, and that, if a deed or a will is susceptible of a dual construction, by one of which the estate becomes vested and by the other it remains contingent, the...
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... ... concerned, and as defined in McCarroll v ... Falls, 129 Ark. 245, 195 S.W. 387, and ... Hurst v. Hilderbrandt, 178 Ark. 337, 10 ... S.W.2d 491, there could be no vested remainder in the ... children of Clara M. and Elizabeth G. Frank, who ... ...
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...the right of disposition thereof is concerned, and, as defined in McCarroll v. Falls, 129 Ark. 250, 195 S. W. 387, and Hurst v. Hilderbrandt, 178 Ark. 337, 10 S.W.(2d) 491, there could be no vested remainder in the children of Clara M. and Elizabeth G. Frank, who have never married, and are......
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