Wallace v. Wallace

• Decision Date: 18 February 1929
• Docket Number: 178
• Parties: WALLACE v. WALLACE
• Court: Arkansas Supreme Court

13 S.W.2d 810

179 Ark. 30

WALLACE v. WALLACE

No. 178

Supreme Court of Arkansas

February 18, 1929

Appeal from Howard Chancery Court; C. E. Johnson, Chancellor affirmed.

Decree affirmed.

U A. Gentry and Feazel & Steel, for appellant.

W C. Rodgers, for appellee.

OPINION

MCHANEY, J.

Josiah H. Wallace, celibate, late of Saratoga, Howard County Arkansas, died testate, his will, omitting formal parts, and numbering the several paragraphs for convenient reference, being as follows:

"(1). I make the following special bequests: To my business partner, W. L. Ellis, Saratoga, Arkansas, and who has served me faithfully and efficiently for many years, and who is my beloved kinsman, I give and bequeath ten thousand dollars in cash and also the following real property: Lots 7 and 8, in block 11, in the town of Saratoga, Arkansas, being the lots on which the residence is located in which said Ellis resides. Also the storehouse and lots in Saratoga, Arkansas, Howard County, being a part of section 33, township 11, range 27 west, in said county, where the present storehouse has been situated since 1881, and known now as the W. L. Ellis & Co.'s store. (2). I also give and bequeath to my nephew, A. T. Wallace, to have in addition to his share in my estate, the following lands: The north half of the southwest quarter of section 17, township 12 south, range 27 west, and known as the Miller Place. Also the northeast quarter section 18, township 12 south, range 27 west, known as the Moore Place, containing 120 acres, more or less, situated in Hempstead County, Arkansas. (3). I also make the following bequest to Joe Duncan, Saratoga, Arkansas: Five thousand dollars in cash; to Hugh L. Toland, Ashdown, Arkansas, five thousand dollars cash; also to Geo. H. Bell, Nashville, Arkansas, five thousand dollars in cash; also to R. E. Major of Monroe, La., five thousand dollars in cash. (4). It is my desire and I do hereby will that my two plantations situated in Howard County, Arkansas, and known as the McDaniel and Block farm, be held intact and in trust for my legal heirs for the term of twenty-five years after my death. The manager or superintendent of said farm is to use my office or residence in Saratoga, Arkansas, as a residence or business office, the net proceeds of the rental of said farm to go to my legal heirs each year. After the twenty-five years have expired, said lands may be sold or divided for the benefit of my said heirs. (5). To fulfill a promise made to my beloved brother, D. P. Wallace, deceased, I hereby make his widow, Mrs. Sallie Wallace, of Nashville, Arkansas, one of my legal heirs, provided she is living at my death. (6). To my beloved old friend and kinsman, James W. Ellis, of Ozan, Arkansas, I give one thousand dollars in money, and to his wife, my beloved cousin, Carrie May Ellis, I give the like sum of money, provided they or either of them is living at the time of my death. (7). I hereby nominate and appoint my said kinsman and partner, W. L. Ellis, as the executor of this will and testament, and authorize him to appoint the overseer or manager of my two plantations, the McDaniel farm and the Block farm, in Howard County, Arkansas."

The above will was duly admitted to probate. The testator's collateral heirs consisted of his brothers and sisters living at his death, W. B. Wallace, W. P. Wallace, Alice M. Wallace, Lelia A. Roach and Pattie F. Weatherford, Mrs. Sallie Wallace, widow of D. P. Wallace, deceased, mentioned in paragraph 5 of the will, by which she was made one of the testator's legal heirs. W. P. Wallace conveyed all his interest in the land in question to the other heirs above named, and has no interest in this controversy. Appellant is the son of said W. P. Wallace, and a nephew of the testator. Appellees are all the heirs, except said W. P. Wallace.

Appellant brought this action to have the will construed. He alleged that he was entitled to a one-sixth interest in the proceeds of a sale of a portion of the land, mentioned in paragraph 4 of the will, to the Arkansas Portland Cement Company; that, by agreement with appellees, the portion of the sale price claimed by him had been deposited in escrow pending a determination of his rights, and that he had executed a deed to the purchaser. He prayed that the money in escrow be decreed his property, or, if it be held that he is not entitled thereto, that it was the meaning and intention of the testator, as expressed in paragraph 4 of the will, that the McDaniel place and the Block farm be held intact and in trust for 25 years after the death of the testator, and that said property be decreed to belong to those parties who may be the testator's legal heirs at that time and not to those who are the admitted legal heirs at this time. A demurrer to this complaint was interposed and sustained. Appellant declined to plead further, and his complaint was dismissed for want of equity.

Counsel for appellant say that only two questions are involved in this appeal. First, did appellant have the right to maintain this action? and second, did paragraph 4 of the will create an enforceable trust that cannot be terminated until the expiration of twenty-five years? They say that a negative answer to the first question would remove the necessity for an answer to the second. However, we think the second question must be answered, even though the first be decided against appellant, as it is important to the appellees to know whether they have title to the land mentioned in paragraph 4 of the will.

Appellant contends that he is a contingent remainderman, and that, under the authority of the case of Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, 128 S.W. 581, Ann. Cas. 1912A, 540; Horsley v. Hilburn, 44 Ark. 458; and Tatum v. Tatum, 174 Ark. 110, 295 S.W. 720, 53 A. L. R. 306, he had the right to maintain this action, having a contingent interest in the lands mentioned in § 4 of the will. In that section the testator said: "It is my desire and I do hereby will that my two plantations situated in Howard County, Arkansas, and known as the McDaniel and Block farm, be held intact and in trust for my legal heirs for the term of twenty-five years after my death. The manager or superintendent of said farm is to use my office or residence in Saratoga, Arkansas, as a residence or business office, the net proceeds of the rental of said farm to go to my legal heirs each year. After the twenty-five years have expired, said lands may be sold or divided for the benefit of my said heirs." It will be noticed that the testator used the term "my legal heirs" in two places, and at the end of the paragraph he used the term "my said heirs," which manifestly refers to the term theretofore used, "my legal heirs." The complaint charges that the testator's "legal heirs" were those persons heretofore named, brothers and sisters of the testator, including the widow of one brother, who was made a legal heir by the terms of § 5 of the will. Nowhere in the will is appellant referred to except in paragraph 2, where the testator said: "I also give and bequeath to my nephew, A. T. Wallace, to have in addition to his share in my estate, the following lands," describing them.

In a strict legal sense, a living person has no heirs. As said by this court in Gregley v. Jackson, 38 Ark. 487: "Laws of inheritance rest upon public policy, and, during the life of the person owning the property, may be changed at will. No one has a vested right to be the future heir of any person not already dead." * * * See also Carter v. McNeal, 86 Ark. 150, 110 S.W. 222.

In 29 C. J. 290 it is said: "In the strictly proper sense of the word, no one is an heir until after the death of the ancestor, and the word signifies one who has succeeded to a dead ancestor; it is used to express the relation of persons to some deceased ancestor, and cannot be applicable to one whose ancestor is living."

Appellant being the nephew of the testator and the son of W. P. Wallace, who conveyed his...