Myar v. Snow

• Decision Date: 07 May 1887
• Citation: 4 S.W. 381,49 Ark. 125
• Parties: MYAR v. SNOW
• Court: Arkansas Supreme Court

4 S.W. 381

49 Ark. 125

MYAR v. SNOW

Supreme Court of Arkansas

May 7, 1887

APPEAL from Ouachita Circuit Court in Chancery, B. F. ASKEW, Judge.

Judgment affirmed.

H. G Bunn for appellant.

1. The language of the will does not create an estate tail, which under section 643 Mansfield's Digest, gives the tenant in tail a life estate merely. It gives Pauline an estate in fee. The limiting words are in another sentence, and following that of the devise. The limitation over is void, and the grantee had the absolute power of disposal. 100 N.Y. 287; 68 Me. 34 (28 Am. Rep., 1); 77 id., 423 (52 Am. Rep., 781); 15 S.C. 440; (40 Am. Rep., 703); 2 Mass. 56 (3 Am. Dec., 24); 28 Am. Law Reg., 531; 59 U.S. 202.

2. If the devise over is not a conditional remainder, as we contend it is, it is an executory devise, and the devise over is too remote. 3 Ark. 147; 23 id., 179; id., 356; 6 Johns, 54 (5 Am Dec., 188); 2 Rich. Eq., 142 (46 Am. Dec., 41); 7 Rich, Eq 105 (62 Am. Dec., 396); 3 Gray, 142 (63 Am. Dec., 725).

B. W. Johnson, for appellees.

Under section 2534 Mansfield's Digest, "In all cases not provided by this act the inheritance shall descend according to the course of the common law." This would have been a good devise over, to the children of Mrs. Snow at common law. 26 Mich. 18; 12 Wend. 83; 2 P. Wms., 471.

It was clearly the intention of the testator to give Pauline a life estate, remainder in fee to her "bodily heirs" or childdren, and he had the right to do so. 62 Ill. 83; 11 Wend. 379, 311, 361, 68 Ill. 594. The words "bodily heirs," "issue," and "children" are construed to mean the same, since the abolition of the rule in Shelley's case. 1 Grant's Cases, 60; 4 Pick, 198; 5 Pa. 461.

See, also, 38 Ark. 347.

OPINION

COCKRILL, C. J.

This is an action of ejectment, and the question is what estate did Pauline White, the mother of the appellees, take by the will of her father, William L. Bradley, made in 1858. He devised his entire estate to his wife for life and after her death provided it should go as follows:

"My step-son, Ira Nunn, to have one-fifth of the entire estate (except of the slaves), real, personal and mixed, to him and his heirs forever; but if he should die without direct descendants, then the whole of his share to go to my two daughters and their direct descendants; that is, children or grandchildren, to be held in the same manner as to sole and separate use as the shares of my property that I herein give and bequeath to them respectively."

"Item 4th. It is my will that my daughter, Louisa H. Powder, shall have two-fifths of my entire estate, real, personal and mixed, other than slaves, and she shall have one-half of my slaves, to have and to hold all that I give and bequeath to her, to her sole and separate use, not subject to the debts or contracts of her present husband or of any future husband she may hereafter marry, and at her death all the same to go to her bodily heirs, should she leave any, and if she should leave none, then the whole of her share to go to her sister Pauline, to be held by her and her bodily heirs in the same manner as the property I herein give to her."

"Item 4th. (2.) It is my will that my daughter, Pauline L. White, shall have the other two-fifths of my entire estate, except slaves, and the other half of all my slaves to be held by her and her heirs to her sole and separate use, clear from and not subject to the debts or contracts of any husband or husbands that she may hereafter marry. At her death all the same to go to her bodily heirs, should she leave any, but if she should leave none, then the same to go to her sister Louisa and her bodily heirs, to be held by her in the same manner as the property herein given her."

The case arises under the last quoted item of the will. Pauline White intermarried with David Snow, and in March, 1881, she and her husband executed a mortgage with power of sale upon a part of the lands she took under the will. She died in October of the same year, leaving the appellees, her children; and in 1886, the power of sale was executed, and the appellant, who was the mortgagee, became the purchaser and received a deed to the mortgaged premises. The action was brought by Pauline's children against him for the possession.

The general rule is that in a devise of lands to one without words of limitation, the devisee takes an estate for life only, but the intention of the testator to give a fee or a less estate, may be gathered from any part of the will. King v. Ackerman, 67 U.S. 408, 2 Black 408, 17 L.Ed. 292. Thus the language, "it is my will that my daughter Pauline shall have the other two-fifths of my estate," if standing alone, would have created, at common law at least, an estate for her life only, and the subsequent words, "to be held by her and her heirs," if read without reference to what follows, would be sufficient to vest in her a fee simple in remainder after her mother's life estate. But in construing the words of a devise the whole should be taken together. We are not to give an absolute technical meaning to one part of the language and then reject all other parts as inconsistent with it. As the former may be enlarged, so it may be restrained and qualified by what follows. Sisson v. Seabury, 1 Sumn. 235, 22 F. Cas. 238

Now, after the words last quoted, which if left without qualification, would have enlarged the life estate into a fee simple absolute, the testator has added, "At her death (Pauline's) all the same to go to her bodily heirs, should she leave any, but if she should leave none," then over. This clause in effect defines what is meant by the preceding use of the word "heirs" and is a restraint upon its general application. 1 Wash. R. P. 73, sec. 26; Hope v. Taylor, 1 Burr 268. The term "heirs of the body" has an appropriate technical meaning as words of limitation to designate heirs in succession, and it is always to be construed in that sense unless the context shows it was intended as a description of particular persons. Scisson v. Seabury, sup.; Moody v. Walker, 3 Ark. 147. In this connection it is said in Moody v. Walker that "when certain terms or words have by repeated adjudication received a precise, definite and legal, construction, if the testator in making his will uses such terms or similar expressions they should be construed according to their legal effect, for if this was not the case, titles to estates would be daily unsettled to the ruin of thousands." The learned counsel for the appellant concedes what seems to be inevitable under the rule announced in Moody v. Walker, and the cases following it (see Denson v. Thompson, 19 Ark. 66; Watkins v. Quarles, 23 Ark. 179; Slaughter v. Slaughter, 23 Ark. 356), that an indefinite failure of issue was intended by the testator in this case.

Testing the language by these principles we have a devise to Pauline in fee with remainder over upon an indefinite failure of issue. But this under the British statute inevitably created an estate tail (4 Kent Com., 274, 276; 2 Wash., R. P., 264; Moody v. Walker sup.; Doe v. Harvey, 4 B. & C. 610, S. C.; 10 E. C. L., 724; Bells v. Gillespie, 5 Rand. 273; Irwin v. Dunwoody, 17 Serg. & Rawle, 61; Caskey v. Brewer, 17 Serg. & Rawle 441), which under the statute of this State vests a life estate in the tenant in tail with remainder in fee simple in...