Williams v. Williams
| Decision Date | 09 February 1925 |
| Docket Number | 158 |
| Citation | 268 S.W. 364,167 Ark. 348 |
| Parties | WILLIAMS v. WILLIAMS |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Chancery Court; J. V. Bourland, Chancellor affirmed.
Decree affirmed.
Hill & Fitzhugh, for appellant.
The chancellor's holding that the clause of the will providing that the property should be for their absolute use and benefit for her lifetime limited the grant to a life estate in the widow, with remainder over to such children as might be born, and, on failure of issue, that the property would revert to the heirs of the testator, was erroneous. The property was given to the wife and unborn children for their joint use during her lifetime. The absolute fee vested immediately in the mother and children, and was not a gift to the wife for life with remainder over to the children. 90 Ala. 131; 98 Ga. 381; 58 N.J.Eq. 166; 99 N.C. 222; 100 Va 552. The will in this case vested the fee in the widow subject to be opened up to let in after-born children, if any, and if children should be born, then the widow and children should share the property as tenants in common, or on failure of issue, the fee vests in the widow. 56 S.E. 473; 3 Pick. (Mass.) 360; 21 Ala. 682; 7 Lea 207; 35 Ga. 40; 50 N.C. 88; 2 Stran. 1172. A will will always be construed so as to avoid intestacy, if the language will permit. 40 Cyc. 1410; 83 N.Y. 170; 7 N.Y. 725. The presumption is that the testator disposed of his entire estate and fixed the channel in which the property should pass. Life estates are not favored in law. There is no reason to believe that the testator intended to give only a life estate in his property, or that he was not making final disposition of his estate. The collateral heirs of M. A. Williams, if they ever had any interest in this property, are barred either by limitations or laches. In this case there was litigation in which the defendants agreed that the chancery court might determine the question of the title to the property. The court passed upon that question in March, 1908, and its decree was never appealed from, the plaintiff holding under said decree since that time. The term "heirs of her body," as used in the will, means children and not heirs in its technical sense. The words "heirs" or "heirs of her body" are primarily words of limitation and not of purchase; ordinarily "children" is a word of purchase and not of limitation. 21 C. J. 931; 2 Underhill on Wills, § 651; 21 Ala. 458; 13 Cyc. L. & P., 660; Devlin on Deeds § 864; Kerr on Real Property, § 335; Jones on Real Property, § 231. Further, on the question of the legal effect of the will as vesting an immediate estate in fee on the death of the testator in the wife, and such children as might then be in existence, and subject to be opened and let in other children that might be born to her at a later date, see 131 Ind. 381; 91 Ala. 631; 150 Ala. 211; 99 Ala. 60 51 Cal. 352; 52 Ga. 425; 74 Ga. 467; 91 S.C. 300; 3 Baxter 370. A will will not be construed to create an estate tail where any other reasonable construction can be placed thereon. 21 C. J. 923; 260 F. 423. If the language of the will does not vest title in fee in Mrs. Williams and her children, then it vests the fee in her alone. 129 Ark. 155; 58 Ark. 303; 141 Ark. 484; 146 Ark. 160.
Evans & Evans, for appellee.
The testator was extremely careful to limit his wife's interest in his property to her lifetime. In giving to her and the heirs of her body, he, under the law, gives her a life estate, and passes the fee to her descendants, and, in the event she has no descendants, then the fee would pass to the general heirs of the testator. C. & M. Dig. § 1499; 67 Ark. 517; 72 Ark. 336; 98 Ark. 570; 140 Ark. 109. As a further evidence of the intention of the testator, he says, in the same sentence of the will, and not in a separate paragraph, that the absolute use and benefit of the property for the lifetime of his wife shall be for herself and any persons who, at her death will answer the description of heirs of her body, and that this use and benefit shall be subject only to the payment of his just debts, etc. If, after creating an estate tail at common law, as this will does in Mrs. Williams and the heirs of her body, the will had further provided that the property conveyed should be for the absolute use of Mrs. Williams and the heirs of her body in fee simple forever, this would not enlarge the estate given her into a fee simple estate. 98 Ark. 570; 128 Ark. 149. Of the necessity to construe a will so as to give effect to the intention of the testator, where such construction is consistent with rules of law, see 141 Ark. 484; 143 Ark. 519; 146 Ark. 193; 151 Ark. 189; 153 Ark. 421; 148 Ark. 290; Id. 482; 145 Ark. 351; Thompson on Wills, § 236; 256 S.W. 355. Since the complaint shows that no persons have been born who can enjoy the property during the widow's lifetime, it follows that the will conveys to her the property of the testator for her absolute use and benefit during her lifetime. The fact that no persons have come into being, and that in all probability none will come into being, who can or will take the fee of the estate, cannot enlarge the gift of a life estate into that of a fee simple estate. 112 Ark. 527; 126 Ark. 53. It is true that the term "heirs of her body" or "heirs of the body" is sometimes used in the sense of "children," but, treating it so in this case, that does not help the appellant's contention, for, failing issue, the property must pass at her death to the collateral kindred of Williams. 4 Words & Phrases, 1st series, p. 3269; 72 Ark. 579; 75 Ark. 19; 49 Ark. 125. The clause in the will "to and for their absolute use and benefit for her lifetime" etc., show that the testator only intended that, whatever use or benefit of the property be devised out and to whomsoever he devised, this devise was only to last for the lifetime of Mrs. Williams. 17 R. C. L. 620; 28 R. C. L. 250; 149 Ky. 787, 149 S.W. 1019, L. R. A. 1917B, p. 45. As to the contention that, because there are no children of Mrs. Williams, there are no persons who can take as heirs of her body when she dies, for that reason the life estate created by the language used in the will must be construed as giving her an estate in fee simple, in the language of the Supreme Court of Missouri, "to state that argument is to destroy it." 258 S.W. 699 (Mo.). There may be partial intestacy. A testator may be intestate as to a portion of his property--may be intestate as to the fee in property--and where this appears from the will itself, no presumption against partial intestacy will be allowed to override and control the existing fact. 147 Ark. 568; 158 Iowa 759, 138 N.W. 911, 43 L. R. A. (N. S.) 562. See also, 43 F. 854; 145 U.S. 56; 64 Ark. 330; Id. 447; 87 Ark. 418; 96 Ark. 451; 105 Ark. 86. The will created no trust relation, and the chancery court of Logan County was wholly without jurisdiction to make the alleged construction of the will in the ex parte proceeding brought by Mrs. Williams. 104 Ark. 444 and authorities cited.
A life tenant cannot hold adversely to the reversioner or to the remainderman. 150 Ark. 607; 148 Ark. 219; 152 Ark. 452.
This suit was brought in the chancery court for the Fort Smith District of Sebastian County by Georgia R. Williams, widow of Mathew A. Williams, to confirm her title to certain lots in the city of Fort Smith owned by her husband at the time of his death. The complaint alleges that Mrs. Williams has title to the lots under the will of her husband, and that in an ex parte proceeding had in 1908 it was decreed that Mrs. Williams took a present absolute estate under said will. The present suit is an adversary one, the heirs at law of the testator being made parties by the service of process. These heirs appeared and demurred to the amended complaint, and their demurrer was sustained, and, as Mrs. Williams stood upon the sufficiency of the complaint, it was dismissed as being without equity, and she has appealed.
It appears from the allegations of the complaint that, in 1887, M. A. Williams, the then husband of the plaintiff, made a will. At the time of the execution of this will the testator and his wife had no children, although they had been married to each other for a number of years. The testator died in 1908, and no children had been born to him and his wife at the time of his death, and no children have been born to his wife since his death, and she has not remarried.
The will reads as follows: "This is the last will and testament of me, Mathew A. Williams, made this the thirtieth day of December, A. D. 1887, in Logan County, Arkansas, as follows:
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