Little v. McGuire

• Decision Date: 29 June 1914
• Docket Number: 69
• Citation: 168 S.W. 1084,113 Ark. 497
• Parties: LITTLE v. MCGUIRE
• Court: Arkansas Supreme Court

168 S.W. 1084

113 Ark. 497

LITTLE v. MCGUIRE

No. 69

Supreme Court of Arkansas

June 29, 1914

Appeal from Jackson Chancery Court; George T. Humphries, Chancellor reversed.

Decree reversed, and cause remanded.

Hawthorne & Hawthorne, for appellant.

1. An insane person who holds the legal title to lands may redeem within two years, but the statute is not broad enough to extend the right to an insane person who only has an equitable title, where the title is in a trustee. Kirby's Dig., §§ 7095, 5056.

2. When the trustee is barred by limitation, the cestui que trust is also barred. The trustee was barred by the seven years statute of limitations. 53 Ark. 358; Wood on Limitation § 208; 25 Cyc. 1010; 68 Tex. 150; 51 Ga. 139; 100 U.S 564; 14 P. 874; 20 S.W. 1065; 39 Tenn. 641; 26 S.E. 675; 48 Ky. 423; 55 S.W. 1029.

3. The legal title was in the trustee under the will. 78 N.E. 147; 77 Id. 142, and cases supra.

Stuckey & Stuckey, for appellee.

1. Appellee had the right to redeem within two years as an insane person. Kirby's Dig., § 7095; 97 Ark. 456; Kirby's Dig., § 7812; 39 Ark. 509. The case, 53 Ark 358, is not analogous.

2. The statute having never commenced to run against McGuire, an insane person, he is clearly entitled to redeem.

OPINION

MCCULLOCH, C. J.

This is an action instituted on behalf of a person of unsound mind to redeem lands from tax sale under a statute of this State which provides that "all lands, city or town lots belonging to insane persons, minors or persons in confinement, and which have been, or may hereafter be, sold for taxes, may be redeemed within two years from and after the expiration of such disability." Kirby's Digest § 7095.

Redemption from tax sales is allowed generally for a period of two years after sale, and the above quoted statute is an exception in favor of persons under disability.

The lands in controversy were sold for taxes in the year 1881, and this action was instituted on April 24, 1913, by a person of unsound mind, William E. McGuire, suing by his next friend.

The language of the statute is clear and explicit, and the question involved is whether or not appellee, who is conceded to be a person of unsound mind, was the owner of the land, within the meaning of the statute, at the time it was sold for taxes.

Appellee derives his rights by devise from one Elizabeth Crow, who died in the year 1880, leaving a last will and testament whereby she devised to appellee a beneficial interest in the lands in controversy for and during his life. There are several clauses of the will of Elizabeth Crow with reference to devises of property to appellee, who was her nephew. The language of each is as follows:

"I devise and bequeath to my nephew, William Ed McGuire, for the period of his natural life, all the lands owned by me (describing them), to hold the same for the period of his natural life, and at his death to descend to the heirs of his body lawfully begotten."

The instrument concludes with the following clause:

"It is further my will that all the property hereinabove decreed to my nephew, William Ed McGuire, shall be held, managed and controlled during the life of the said William Ed by the trustee hereinafter named, it not being my intention that he, the said William Ed, shall have the power to alien or to encumber the estate in the property I have bequeathed to him, and for this purpose I hereby appoint Robert Neill, of Batesville, trustee, to have and to hold the legal title to the property hereinabove bequeathed to said William Ed McGuire, with full power to control, rent, lease, and, if necessary, to sell and convey, the life estate of said William Ed McGuire in the property bequeathed to him, and to apply the proceeds to the support and maintenance of said William Ed McGuire so long as he shall live."

It is our duty to construe the whole will together for the purpose of ascertaining the true intent of the testatrix; and, when this is done, it is clear that the instrument conveys the legal title to the trustee for the benefit of appellee as beneficiary during his natural life, and it does not devise the legal title to appellee. When thus construed, the different clauses of the will are not in conflict with each other.

If any conflict exists, it would be our duty to construe the last provision as controlling, but where all the provisions can be construed together, without doing violence to the language of either, it is the duty of the court to do so.

The rule is that, where different parts of a will are totally irreconcilable, the last overthrows the former; but that rule is never resorted to except for the purpose of escaping total inconsistency. Cox v. Britt, 22 Ark. 567; McKenzie v. Roleson, 28 Ark. 102.

The case of Parker v. Wilson, 98 Ark. 553, 136 S.W. 981, is decisive of the present case on the point now under discussion. That case involved the construction of the will of a testatrix, whereby property was, in terms, conveyed to the...