Smith v. Estate of Smith

• Decision Date: 13 July 1987
• Docket Number: No. 87-133,87-133
• Citation: Smith v. Estate of Smith, 732 S.W.2d 154, 293 Ark. 32 (Ark. 1987)
• Parties: Lowe SMITH, Appellant, v. The ESTATE OF Sadie Hill SMITH, Appellee.
• Court: Arkansas Supreme Court

Page 154

732 S.W.2d 154

293 Ark. 32

Lowe SMITH, Appellant, v.The ESTATE OF Sadie Hill SMITH, Appellee.

No. 87-133.

Supreme Court of Arkansas.

July 13, 1987.

Baim, Gunti, Mouser, Bryant & DeSimone by Noel F. Bryant, Pine Bluff, for appellant.

No Attorney Retained or Brief Filed for appellee.

HAYS, Justice.

Appellant, Lowe Smith, and his wife, Sadie Smith executed a mutual will on July 27, 1985 which provided that each would leave his or her property to the survivor.The will specifically described real property and generally described personal property and provided that on the death of the survivor the real and personal property should be divided equally among two children and seven grandchildren, the appellees.

Sadie Smith died on April 1, 1986 and her will was admitted to probate on May 23, 1986.Appellant filed a petition to construe the will, requesting that it be found that the will imposed no restriction on the sale, transfer or other alienation of the real or personal property.

The probate judge found that appellant had a life estate in the property and the will gave him no right to convey by deed, will or trust, any part of the estate except the interest of a life tenant.It is from that order that appellant brings this appeal.

The pertinent provisions of the will are these:

II

We intend that this be a mutual will, which will is executed on July 27, 1985, and pursuant to an agreement between us to make mutual wills, each leaving his property to the survivor and each agreeing that the survivor leaves his property to the heirs listed in Paragraph V below.

III

We give and devise the following real property to the survivor:

[land description]

IV

We give and bequeath all of our personal property, including money and household furniture and any other form of personal property to the survivor.

V

Upon the death of the survivor, the real property listed in Paragraph III and the personal property listed in Paragraph IV shall be divided in interest in nine equal parts, share and share alike, between our two children, [names of children] and our seven grandchildren, [names of grandchildren].

Appellant argues that the bequest to him in Paragraph III and IV are gifts in fee simple and that the language in Paragraph II and V is not sufficient to limit the gift to a life estate.

The law is clear on this issue, when construing a simple will.First, whenever an estate in lands is created by a will, it is deemed to be an estate in fee simple, if a lesser estate is not clearly indicated.Ahrens v. McNutt, 250 Ark. 941, 467 S.W.2d 721(1971).Here, the devise of the real property and the bequest of personal property did not indicate clearly any lesser estate than fee simple in Paragraph II, III or IV, so under the rule both would be deemed to be absolute.

Next, we must consider the effect on such a gift, of subsequent gifts in the will:

It is the rule that where property is given in clear language sufficient to convey an absolute fee, the interest thus given shall not be taken away, cut down or diminished by any subsequent vague and general expressions.If it is clearly the intention of the testator that the devisee shall own the fee simple, his subsequent language, directing that what remains of the property at the death of that devisee shall devolve upon a particular person or class of persons, will not cut down the fee to a life estate.The fee, being vested by express and appropriate words, will not be diminished by subsequent words of a vague and general character which are absolutely repugnant to the estate granted.Ahrens, supra.

While this rule of construction is well established, we have not before considered it within the context of a joint will.¹We are persuaded that the contractual nature of a joint will alters the rule.See79 Am.Jur.Wills, § 768 et seq.

In United States v. 1,453.49 Acres of Land, 245 F.Supp. 582(S.D.Iowa1965) a will was construed under Iowa law.The court dealt with the rule stated above within the context of a joint will It is considered that the contractual element which enters into a joint will is the distinguishing feature of the mutual will. ...[I]n a will of the kind here considered there is a contractual element, and that a subsequent provision devising a remainder,...