Patty v. Goolsby

• Decision Date: 07 November 1888
• Citation: 9 S.W. 846,51 Ark. 61
• Parties: PATTY v. GOOLSBY
• Court: Arkansas Supreme Court

9 S.W. 846

51 Ark. 61

PATTY v. GOOLSBY

Supreme Court of Arkansas

November 7, 1888

APPEAL from Little River Circuit Court, R. D. HEARN, Judge.

Affirmed.

Compton & Compton, for appellants.

1. Under the laws of Arkansas the land, though after-acquired passed by the will. Review the common law rule, 11 Mod., 148; 1 Salk., 238; 4 Burrow, 1960; 3 Atk., 798; 7 Term Rep., 419 which was followed in many of the American courts, (5 Johns Chy., 441; 5 Peck, 112; 6 N.H. 47; 4 Kent Com., 11 Ed. marg. p. 510 note; 1 Redfield on Wills, 3 Ed., pp. 387, 332 and notes), but contend that in most of the states it has been changed by statute, and in others, the reason of the rule having ceased the rule has also ceased. See also the Stat. Henry viii, c. 1 and 34 Ib., c. 5; Stat. at Large (Eng.) vol. 5, pp. 1, 136; 2 Chitty, Blackstone, marg. p. 314; Co. Litt., 392.

This rule was unsatisfactory, but was too well established to be overturned by judicial decisions. 3 Dougl., 366; 4 Burr., 1960, but was changed by 1 Vic., ch. 26; 4 Kent. Com. (11 Ed.) marg. p. 500 and note; Theobald Wills (3d Ed.) pp. 603, 609; Hawkins on Wills, (2 Am. Ed.) marg. p. 18. The rule also abolished in America. See note to Hawkins on Wills, 2 Am. Ed., marg. p. 18.

This common law rule never prevailed in this state, the reasons upon which it was founded being taken away by the earliest legislation of the state. Act 30 Nov., 1837; Bunch v. Nicks, 50 Ark. 367; Mansfield's Digest, secs. 639, 644, 642 and 6490.

The several items of the will taken together, manifestly show the intention of the testator to give his entire estate to his wife during life or widowhood, with full power to sell and dispose of same if deemed best. No intention to limit the power of disposal to the life interest of the wife is expressed and none can be implied. Such a limitation would have been, in the highest degree, impracticable and unwise; and could not have been intended by the testator.

2. And even if it could be held that the lands did not pass by the will, they, nevertheless, belonged to the estate of the testator, and it is insisted that his wife, in the exercise of the general power conferred on her to dispose of any part of the estate, had the right to sell and make a valid title to the lands, whether they passed by the will or descended to the heirs.

3. The heirs, as alleged in the answer, stood by when the sale was made, one of them assisting in making it, and made no objection to, but acquiesced in the sale, are now estopped to set up title to the lands. Bigelow on Estoppel, 3 Ed. pp. 515, 517, and authorities cited in note 7. 1 Story's Eq. Jur., 5 Ed., sec. 385.

Dan W. Jones, for appellees.

The will conferred only a life estate upon Elizabeth, the widow, with remainder in fee to the children of the testator.

The will is to be construed as a whole, so as to carry into effect the intent of the testator. 18 Wall. 493; 49 Ark. 128.

The power of disposal was limited to the personal property, and if applicable to the realty at all, was limited to her life interest. Giles v. Little, 104 United States, 291; also 6 Pet., 68; 93 United States, 326; 13 Vesey, Jr., 445; 36 Ill. 355.

2. The widow could sell no greater interest than she acquired under the will. Authorities supra.

3. The facts alleged do not create an estoppel. Herrmann on Estoppel, secs. 410, 414; 36 Ark. 96, 114; 15 Id., 55, 62.

CLARK, SP. J. BATTLE, J., did not sit in this case.

OPINION

CLARK, SP. J.

This is an action of ejectment brought by the appellees, heirs at law of Peter R. Goolsby, against Owen W. Patty and Robert L. Moore, to recover the following lands, to-wit: The east 1/2 of s. e. 1/4 and w. 1/2 of s. w. 1/4 of section 16, in t. 12 s., in r. 29 w., in Little River county, Arkansas.

There was a complaint and answer, an amended and substituted complaint and answer. The court sustained a demurrer to the answer to the amended and substituted complaint and the defendants rested and appealed. There was a jury trial as to the value of the improvements and the rents and profits, and exceptions to the verdict, but this is made no question here.

The undisputed facts upon which the sufficiency of the answer must be determined are as follows:

Peter R. Goolsby, father of the appellees, on the 14th day of May, 1862, he then residing in Columbia county and being seized and possessed of both personal and real estate, made and published his last will and testament. Afterwards, he moved to Little River county, where on the 23d day of December, 1869, he purchased the lands in controversy, and where, near ten years after, having executed his will, to-wit: on the day of March, 1872, he died, never having revoked or changed his said will.

The provisions of the will were as follows: "First: I give and bequeath unto my beloved wife, Elizabeth Goolsby, my entire estate of whatsoever kind it may consist, viz: All my negroes, lands, stock of all kinds, with all my debts due me in any way; also my household and kitchen furniture, to have and to hold during her natural life, or until she may think proper to marry, with full power to sell and dispose of such property as she may think proper; also to trade and buy such property as she in her judgment may think best."

Second: "It is my desire that at the death of my said wife, all my worldly effects be equally divided between my children."

Third: "If my wife should marry, it is my will and desire that my estate of all kinds whatsoever be equally divided between my wife and children, thereby each one to share each and each alike."

Fourth: "It is my will in the event that I die while my children are small or in their minority, that they be educated according to their ability and that my wife pay strict attention to their instruction and that the means be provided from my effects for that purpose."

Fifth: "It is my will and desire that my debts be paid out of the first moneys raised by my wife from the estate, and that she have full power to manage and control my whole estate until her death or until she may think proper to marry, without any further administration than to have this will properly recorded and proven according to law and the circumstances of the times."

Sixth: "It is my will that my beloved wife, Elizabeth Goolsby, be and she is hereby appointed executrix upon this my last will and testament."

After his death his wife caused the will to be proved up and probated and took possession of the estate, real and personal, including these lands, and proceeded to manage and control the same for the support of herself and the maintenance and education of the children, two of whom, Annie and Myrtie, were born after the execution of the will, until her death, which was before the commencement of this suit. In the meantime in order to pay for goods, wares and merchandise purchased for her own use and that of the children, and to carry on and cultivate the plantation, on which they resided as a family, she sold and conveyed the lands in controversy, on the 28th day of June, 1877, to defendant, Robert L. Moore, for the consideration of $ 800, which was paid. This deed conveys the property as her own in fee simple with full covenants.

There was no order of the court for the sale and the conveyance does not refer to the power of disposal in the will. Possession was given and subsequently Moore conveyed it to his co-defendant, Owen W. Patty.

It is obvious that the rights of the parties depend upon the construction and effect of the will. It is contended by the appellees:

1st. That these lands being after-acquired lands, did not pass by the will, and the testator, Peter R. Goolsby, dying intestate as to the same, they descended to the defendants as his heirs at law.

2nd. If they did pass, still the power of disposal contained in the will to Elizabeth Goolsby was limited by the estate granted to her, which was only an estate for life, subject to be divested upon her marriage, and dependent upon this estate the plaintiffs, the children, by the terms of the will took a vested remainder at the date of the will which came into being and they became fully seized upon the death of Elizabeth.

In the one case, therefore, they claim title by descent. In the other as devisees under the will.

It will be noticed here that the will purports to convey property in presenti and not such in terms as the testator should die seized of. But it is said that this is immaterial since it is the nature of a will to take effect only upon the death of the testator, and the testator is supposed always to refer to the condition of his affairs at the time of his death and to intend to convey such lands as he should die seized of.

While by the common law a will was generally construed to speak from the death of the testator as to personalty, it was not so as to real estate. For real estate to pass by will it was requisite that the testator should be seized at the time of making the will, and continue so seized to the time of his death, and it seems this rule was independent of any intention to convey such after-acquired property expressed in the will. The reason assigned was that a will was nothing more than a mode of conveying a particular estate and the testator could not convey property of which he was not seized.

This rule, though many times adversely criticized by eminent English judges, was never changed in England until the statute 1 Vict., c. 26, sec. 3, which took effect upon wills made subsequent to the year 1837. Schouler on Wills, secs 29, 486, and the English law in this respect has been recognized in most parts of the United States. But in later times it has been changed in most of the states, if not all of them, generally by statutes declaring that...