King v. Byrne

• Decision Date: 25 October 1909
• Citation: 122 S.W. 96,92 Ark. 88
• Parties: KING v. BYRNE
• Court: Arkansas Supreme Court

122 S.W. 96

92 Ark. 88

KING v. BYRNE

Supreme Court of Arkansas

October 25, 1909

Appeal from Lafayette Chancery Court; Emon O. Mahoney, Chancellor affirmed.

Decree affirmed.

D. L King, for appellant.

1. Under the will of Alexander Byrne, Francis Byrne took a life estate. Irene Lewis, mother of appellant, took one-fifth remainder and Blanche King, her only child, is the owner of said one-fifth of Alex. Byrne's estate. 22 Ark. 567.

2. As to Blanche King, under section 8020, Kirby's Digest Francis Byrne died intestate, there being no mention of her other heirs. 23 Ark. 569; 31 Id. 145; 87 Ark. 204-7; 86 Ark. 368.

3. The paragraph declaring her wish that her sons contribute to her grandchildren is advisory merely, not binding. 14 L. R. A 33.

L. A. Byrne, for appellees.

The will provided for all the children, and was effective as to the grandchildren, they being named as a class. 86 Ark. 369.

OPINION

BATTLE, J.

This suit was brought by Blanche King in the Lafayette Chancery Court against Lawrence A. Byrne, C. L. Byrne, J. V. Brame and Henry Moore, for the recovery of lands. She alleged in her complaint that Alexander Byrne died seized and possessed of personal and real property, and left a last will and testament, and thereby devised and bequeathed to his wife Francis Byrne, all his property for and during her natural life and one-fifth of his estate remaining at the death of Francis Byrne to his granddaughter, Irene Lewis, who died leaving the plaintiff, Blanche King, her only child and heir surviving; and alleged that Irene Lewis was the granddaughter of Francis Byrne, and that she (Lewis) died leaving plaintiff, her only child and heir surviving as before stated; that Francis Byrne made a will on the 4th day of September, 1888, without naming plaintiff or providing for her therein, which was duly probated and admitted to record, and that Francis Byrne died seized and possessed of certain real estate. She did not allege that any of the estate of Alexander Byrne remained after the payment of his lawful debts, or that she (plaintiff) was living at the time Francis Byrne executed her last will and testament. She asked for a decree for one-fifth of the real estate of which Alexander and Francis Byrne severally died seized and possessed.

The defendants answered and denied that any of the estate of Alexaner Byrne remained after the payment of his lawful debts, and that plaintiff was living at the time Francis Byrne executed her last will and testament.

Upon the final hearing of the cause, the court dismissed plaintiff's complaint for want of equity; and she appealed to this court.

It was not claimed or shown that any of the estate of Alexander Byrne, deceased, remained after the administration of his estate and the payment of his debts. We take that fact as conceded. It is not alleged or shown that plaintiff was living when Francis Byrne made her will. She claims that she is entitled to share in the property of Francis Byrne, deceased, on the theory that she died intestate as to her, Mrs. Byrne not having named or provided for her in the will, which, so far as it affects this cause, is as follows:

"3d. After all of my funeral expenses and debts have been fully discharged,...