Jenkins v. Packington Realty Co.

• Decision Date: 16 February 1925
• Docket Number: (No. 170.)
• Citation: 268 S.W. 620
• Parties: JENKINS v. PACKINGTON REALTY CO. et al.
• Court: Arkansas Supreme Court

Page 620

268 S.W. 620

JENKINS v. PACKINGTON REALTY CO. et al.

(No. 170.)

Supreme Court of Arkansas.

February 16, 1925.

Appeal from Jefferson Chancery Court; Jno. M. Elliott, Chancellor.

Suit by Nathan T. Jenkins against the Packington Realty Company and another. From decree dismissing his complaint for want of equity, plaintiff appeals. Affirmed.

F. G. Bridges, W. T. Wooldridge, and U. J. Cone, all of Pine Bluff, for appellant.

Rowell & Alexander and Coleman & Gantt, all of Pine Bluff, for appellees.

McCULLOCH, C. J.

Nathan Jenkins, the grandfather of appellant, Nathan T. Jenkins, was, at the time of his death in the year 1868, the owner of a tract of land in Jefferson county, near the city of Pine Bluff, containing 445 acres, and he left his last will and testament, whereby he devised the east half of said property as follows:

"I will and devise the east half of my said plantation to my son James Hayes Jenkins and his wife Josephine, to hold, use and occupy and enjoy for and during the term of their natural lives, for the support and education of their children, and after their death to be equally divided between their children share and share alike."

The west half of said plantation was, by the terms of said will, devised to the testator's son William H. Jenkins and his wife, Sarah Jenkins —

"to hold, use and occupy and enjoy during the term of their natural lives for the education of their children, and after their death to belong to their children, share and share alike."

James Hayes Jenkins, the son of the testator, intermarried with Josephine Mitchell on December 12, 1866, and there was one child born of the issue of that marriage — a son, Hazel Brunson Jenkins, who was born March 19, 1872, and died August 26, 1913. James Hayes Jenkins had six children by a former marriage, five of whom were living at the time of the death of the testator, and one died a few years later, leaving four, including appellant, and two of them conveyed to appellant whatever interest they might have in the lands in controversy. Josephine Jenkins and her son, Hazel Brunson Jenkins, executed to appellee Packington Realty Company a deed conveying their interest in the property, and subsequently that grantee executed to appellee Bain Manufacturing Company a deed conveying 15 acres of the land. James Hayes Jenkins died on January 3, 1878, and Josephine Jenkins died on June 18, 1922. This action was then instituted by appellant against appellees, Packington Realty Company and Bain Manufacturing Company, in the circuit court of Jefferson county setting forth the above facts, and praying for the recovery of an undivided three-fourths interest in said property, and for rents and profits by way of damages. The cause was transferred to the chancery court on the answer and cross-complaint of each of the appellees, praying that their title be confirmed. The chancery court on hearing the cause rendered a decree dismissing appellant's complaint for want of equity, and he has prosecuted an appeal to this court.

It is the contention of the appellant that the words "their children" as used in the will of Nathan Jenkins included the children of James Hayes Jenkins by his first marriage, and did not include Hazel Brunson Jenkins, who was not born until after the death of the testator, that the effect of the language was to devise a remainder in fee to the said children of James Hayes Jenkins.

On the other hand, it is contended by appellees that the language of the will did not include the children of James Hayes Jenkins by the former marriage, but only included the issue of James Hayes Jenkins and his wife, Josephine, that the remainder in fee became vested in Hazel Brunson Jenkins; and that it passed under the conveyance of the latter to appellees. The appeal calls for an examination of the questions thus raised.

There is a division in the authorities bearing on the interpretation of the language of this will. Counsel for appellant cite authorities which support their contention that the words "their children" include the children of a former marriage, but we are of the opinion that this view is contrary to better reason as well as to the weight of authority. Crapo v. Pierce, 187 Mass. 141, 72 N. E. 935; Crandall v. Ahern, 200 Mass. 77, 85 N. E. 886; Hersam v. Ætna Life Ins. Co., 225 Mass. 425, 114 N. E. 711; Ætna Mutual Life Ins Co. v. Clough, 68 N. H. 298, 44 A. 520; Evans v....