Walt v. Bevis

• Decision Date: 22 May 1967
• Docket Number: No. 5--4226,5--4226
• Citation: 414 S.W.2d 863,242 Ark. 644
• Parties: M. L. WALT et al., Appellants, v. William J. BEVIS et al., Appellees.
• Court: Arkansas Supreme Court

Page 863

414 S.W.2d 863

242 Ark. 644

M. L. WALT et al., Appellants, v. William J. BEVIS et al., Appellees.

No. 5--4226.

Supreme Court of Arkansas.

May 22, 1967.

Wright, Lindsey & Jennings, Little Rock, for appellants.

Joe P. Melton and Chas. A. Walls, Jr., Lonoke, and Stanley E. Price, and Walter R. Brown, St. Louis, Mo., for appellees.

FOGLEMAN, Justice.

This case turns upon the construction of the will of Samuel B. Kirk of Lonoke County who died January 27, 1890. Appellants contend that title to certain lands in Township One North, Range Nine West in Lonoke County, of which the testator died seized and possessed, vested in them as his nearest of kin upon the death of the last of Kirk's children without issue. They assert this claim under Item VIII of the will, contending that the will shows the intention of the testator to leave his children a defeasible estate in fee simple. In seeking to establish their title appellants find support in several items of the will so we will outline those items which are pertinent or to which specific reference is made by appellants.

LAST WILL AND TESTAMENT OF SAMUEL B. KIRK OF LONOKE COUNTY, ARKANSAS

ITEM III gives all personal property and all rents to the widow with full control and powers of disposition without accounting, directing her to maintain, educate and school their children until each shall have arrived at the age of maturity and to rent, lease and improve lands and collect rents from the real estate thereinafter 'given to my children until the youngest child shall have arrived at the age of maturity when the lands given the children herein shall be equally divided between them as hereinafter named;--the object of this item being to give my wife absolute control of all personalty and rents with the power of disposing of same as fully and completely as if the same originally belonged to her.'

'ITEM IV provides that at the death of his widow, the eldest son, Samuel H. Kirk, regardless of his age at the time, should be vested with the property and powers granted the widow and charged with the responsibilities assigned her, with the personal property to be divided among his children share and share alike when the youngest of his children should become twenty-one years of age.

ITEM V, omitting land descriptions, reads:

'I give and devise to my beloved children Samuel H. Kirk, Robert Kirk, Thomas F. Kirk and to any other children that may be born unto me hereafter, by my beloved wife Katie Kirk in common the following described lands lying and situated in Lonoke County, Arkansas to wit: (lands in Township One North, Range Nine West; lands in Township Two North, Range Nine West) and all other lands which I now as may hereafter own which I have not disposed of in this will either to my said children or to my dear wife to whom I give lands named in item Sixth of this will. I also give to my said children Block four (4) (Block 4) in Dismukes Addition of the Town of Lonoke, being in South West of North quarter of Section Nineteen in Township two North Range Eight West.'

ITEM VI devises certain lands to the widow and states, after describing them:

'which said lands she may sell convey and dispose of as she may see proper, and for any purpose she may see proper; but all of said lands not disposed of at her decease shall be equally divided between my children, then living, and their heirs share and share alike--that is to say to each of my children, then living one share, but if any of my children shall not be living, but shall have left children then the children of that one to take the share of the parent, but the division must not take place until the youngest of my children shall have arrived at the age of maturity.'

ITEM VII: 'It is my will and my desire that the lands which I have given to my children shall not be divided between them until the youngest shall have attained his or her majority.'

ITEM VIII: 'It is my desire, and I will that if any of my children shall die before attaining his or her majority and without any children surviving them, his or her interest shall be inherited in equal parts by the survivors i.e., his or her brothers and sisters and in case of the death of all children without issue, the property herein willed them and its increase both real and personal shall go to the nearest of kin of my side.'

ITEM IX: 'In case all of my children should die leaving no children surviving, and their Mother should survive them, then I devise direct and will that all the lands which I have herein willed to her which she has not disposed of at her decease shall return to my side of the house, and become the property of the nearest of kin.'

ITEM X: 'It is my will and desire that should my wife see proper to do so, she may sell and convey all the lands which I have given to my children in Township Two (2) north Range Nine (9) West and Block Four (4) in the Dismukes Addition to the Town of Lonoke said block being in the South West quarter of North West of Section Nineteen (SW 1/4 of NW 1/4 sec 19) Township Two (2) North Range Eight (8) West, Said Block and lands to be sold for the benefit of my said children, and she may convey the same in fee simple, the gift to my children of said lands being subject to this right and power of sale in my said wife their mother.'

ITEM XI: 'It is my will and desire and I do order that all the lands which I now own in Township, One (1) North Range Nine (9) West and all that I may die seized and possessed of in that Township and Range shall become the property of my children to be owned and enjoyed by them in common as their lands absolutely to be governed in the division thereof by the provision of Item Seven of this will.'

The paramount principle in will construction is to ascertain and declare the testator's intention. Copeland v. Harness, 238 Ark. 143, 379 S.W.2d 1. This must be done from the language used as appears from consideration of the entire instrument and all of its provisions, and comparison of its various clauses. See Booe v. Vinson, 104 Ark. 439, 149 S.W. 524; Murphy v. Morris, 200 Ark. 932, 141 S.W.2d 518; Morris v. Lynn, 201 Ark. 310, 144 S.W.2d 472; Layman v. Hodnett, 205 Ark. 367, 168 S.W.2d 819; Cox v. Danehower, 211 Ark. 696, 202 S.W.2d 200; Weeks v. Weeks, 211 Ark. 132, 199 S.W.2d 955; McLaren v. Cross, 236 Ark. 648, 370 S.W.2d 59. The will must be viewed from its four corners. Dyer v. Lane, 202 Ark. 571, 151 S.W.2d 678; Dickens v. Tisdale, 204 Ark. 838, 164 S.W.2d 990. If possible, it must be construed to give force and meaning to every clause and provision thereof. Archer v. Palmer, 112 Ark. 527, 167 S.W. 99; Prall v. Prall, 204 Ark. 1074, 166 S.W.2d 1028. It should be given that construction which best comports with the purposes and objects of the testator. Parker v. Wilson, 98 Ark. 553, 136 S.W. 981; Layman v. Hodnett, 205 Ark. 367, 168 S.W.2d 819.

When we view the will of Samuel B. Kirk from its four corners, considering its language and giving meaning to all of its provisions, it seems to us that there can be no question that Kirk clearly intended that his children have the lands in Township One North, Range Nine West in fee simple absolute. Reading of the various clauses indicates that he desired that these children be appropriately supported and educated until each had reached his or her majority and to this end desired that some person in whom he had confidence have uncontrolled discretion in the handling of personal property left by him and in the collection and application of rents from his lands. To this end he established something in the nature of a trust, of which his widow had control, if living, or his eldest son in case of her death. This made it inadvisable that there be any division of real estate during this period, so he expressed the desire that this not be done until the youngest child should attain his majority. In what seems to be an obvious effort to avoid intestacy he expressly provided for division when the youngest child reached the age of twenty-one years, making provision to pass any interest of a child who died before attaining his majority and without children surviving to his brothers and sisters and if all died without issue, to his nearest of kin. It is to be noted that Item VIII first treats of the situation if any of his children should die (1) before attaining majority and (2) without any children surviving him. It is only reasonable to believe that consideration of the language and the objects and purposes of the testator points to his intention that the nearest of kin would share only if all his children died before attaining majority and without issue. It does not seem reasonable that surviving brothers and sisters would not share in the interest of a deceased child unless he died before majority, but that the 'nearest of kin' would benefit if all children died without issue, regardless of age of the last one when he died. It is to be noted that he devised lands in Township Two North, Range Nine West to his children, as well as lands in Township One North, Range Nine West. He also devised to his children all lands owned by him which he did not specifically devise to them or to his widow. He further provided that all lands left to his widow remaining undisposed of by her at the time of her death should go to his children, share and share alike.

It is significant that the testator gave his wife the absolute power to convey lands left to his children in fee simple, except for lands in Township One North, Range Nine West, saying that his gift of other lands was subject to this power of sale. This clause is then followed by the provision that all lands owned by him in Township One North, Range Nine West 'shall become the property of...