Powell v. Hayes

• Decision Date: 19 March 1928
• Docket Number: (No. 287.)
• Citation: 3 S.W.2d 974
• Parties: POWELL v. HAYES.
• Court: Arkansas Supreme Court

3 S.W.2d 974

POWELL v. HAYES.

(No. 287.)

Supreme Court of Arkansas.

March 19, 1928.

Appeal from Circuit Court, St. Francis County; W. D. Davenport, Judge.

Proceeding to probate a written instrument as a will by Annie Hayes, contested by Maggie Powell, administratrix, and others. The written instrument was rejected as a will by the probate court, and, from judgment of the circuit court on appeal of petitioner admitting the instrument to probate as a will, contestant named appeals. Affirmed.

This proceeding was commenced in the probate court by Annie Hayes offering for probate an instrument in writing purporting to be the last will and testament of E. P. Powell, deceased, which reads as follows:

"Death will of 1926 to Miss Annie Hayes as follows: One lot, number 12349 and 10 in section 19, arranged two and three including 82 acres of land of which I will to Miss Annie Hayes at my death for her faithfulness and service as an attendant doing her life. This will is not to be annulled and avoided should Miss Annie Hayes be faithful doing the life of giver, otherwise this will be annuled and avoided to the giver. The balance of my property to my wife and heirs as law provides. Given for consideration of the above mentioned statements under my hand and seal of notary this ____ 1926.

                                           "E. P. Powell."
                

Maggie Powell, the widow of E. P. Powell, deceased, had become administratrix of his estate. Maggie Powell, as administratrix of the estate of E. P. Powell, deceased, and as his widow, and George Powell, Robert Powell, Vernon Powell, Ernest Powell, and Roosevelt Powell, children and only heirs at law of the said E. P. Powell, were allowed to contest the probating of said alleged will. The probate court rejected the offer for probate of said instrument in writing as the last will and testament of E. P. Powell, deceased.

Annie Hayes duly appealed to the circuit court. In the circuit court the case was heard upon the instrument of writing in question and the oral evidence of witnesses introduced. Evidence was adduced in favor of the widow and children of said E. P. Powell, which tended to show that the description of the property in the devise to Annie Hayes was too indefinite to be located. On the other hand, evidence was introduced by Annie Hayes tending to show that said property devised to her was a farm upon which she lived at the time the testator made the will in question and at the time he died.

The judgment of the circuit court was that said paper writing should be admitted to probate as the last will and testament of E. P. Powell, deceased. The case is here on appeal.

Mann & Mann, of Forrest City, for appellant.

J. M. Prewett, of Forrest City, S. S. Hargraves, of Memphis, Tenn., and M. B. Norfleet, Jr., of Forrest City, for appellee.

HART, C. J. (after stating the facts as above).

The instrument of writing in question specifically names Annie Hayes as one of the devisees therein. The record shows that the widow of E. P. Powell, deceased, took out letters of administration upon his estate, and thereby in effect refused to offer the instrument of writing in question as his last will and testament. In such cases the general rule is that a devisee is an interested party, and may offer the will for probate. 40 Cyc. 1229; 1 Page on Wills (2d Ed.) § 535; and 28 R. C. L. 360, § 361.

Of course, the instrument in writing offered for probate should be of a testamentary character because only wills are entitled to be offered for probate under our statute. This brings us to a consideration of whether the instrument offered for probate is a will.

If it be conceded that the devise to Annie Hayes is too indefinite in description of the property to be capable of enforcement, still we think that, when the instrument is construed as a whole, and read in the light of the circumstances surrounding the testator when it was made, it is a will. It will be noted that the testator, after the devise to Annie Hayes, wills the balance of his property to his wife and heirs, as the law provides. This court has held that a will in which the testator provides for all of his children as a class without expressly naming them is a sufficient mention of his children within the statute providing that, when any person shall make a will, and shall omit to mention the name of a child, he shall be deemed to have died intestate as to such child. Brown v. Nelms, 86 Ark. 368, 112 S. W. 373.

In the alleged will under consideration in this case the testator gave the balance of his property to his wife and heirs, as the law provides. In its strict legal sense the word "heirs" signifies "those upon whom the law casts the inheritance of real estate." But this construction will give way if there be upon the face of the instrument sufficient to show that it was to be applied to children. Flint v. Wisconsin Trust Co., 151 Wis. 231, 138 N. W. 629, Ann. Cas. 1914B, p. 67, and...