Wise v. Craig

• Decision Date: 21 November 1949
• Docket Number: No. 4-8967,4-8967
• Citation: 226 S.W.2d 347,216 Ark. 144
• Parties: WISE et al. v. CRAIG et al.
• Court: Arkansas Supreme Court

Page 347

226 S.W.2d 347

216 Ark. 144

WISE et al. v. CRAIG et al.

No. 4-8967.

Supreme Court of Arkansas.

Nov. 21, 1949.

Rehearing Denied Dec. 19, 1949.

Bridges, Bridges, Young & Gregory and John Harris Jones, Pine Bluff, for appellants.

Reinberger & Eilbott, Pine Bluff, for appellees.

McFADDIN, Justice.

This appeal necessitates construction of the will of Mrs. Jane A. Slaton, who died in 1909 survived by a son and daughter. The portions of the will germane to this case are lettered by us as paragraphs A, B, C and D for convenient reference, and read:

'A. I have heretofore deeded to my son Marshall H. Slaton some of my lands and for this reason, and for other reasons which I deem it unnecessary to state here, but which he will no doubt fully understand. I do not will to my said son any part of my property, and I do not wish him to be an executor of this will.

'B. Subject to the payment of my just debts and funeral expenses I will devise and bequeath to my daughter, Sallie K. Hooker, all my property of every kind, real, personal and mixed to have and to hold said personal property absolutely and to have and to hold said real estate during her natural life. At present she has no children but if she should die leaving children or other descendants it is my will that said land shall go to her said children or other descendants share and share alike, per stirpes, in fee simple.

'C. If my said daughter should die leaving no issue her surviving then it is my will that said lands shall go in remainder in fee simple share and share alike to my following named nephews and nieces, namely: Mrs. Sallie Craig, Dr. Marshall McGehee (of Ga.), Frank O. McGehee, Mrs. Mattie M. Park, Mrs. Sallie Hunt and Miss Mamie M. McGehee, the first three above named being the children of my deceased brother Samuel M. McGehee and the last three being the children of my deceased brother the Rev. J. W. McGehee.

'D. In case any of my said nephews and nieces are dead at the time of the death of my daughter Sallie, then the descendants of such deceased devisee shall take such share as would have gone to such nephew or niece if living.'

No child was ever born to Sallie K. Hooker, and in 1947 she died without issue. All of the six named nephews and nieces died prior to the death of Sallie K. Hooker; so we are concerned with the rights of those who claim as descendants of the six nephews and nieces named in paragraph C of the will.

1. Mrs. Sallie Craig left children who are some of the appellees.

2. Dr. Marshall McGehee left children who are some of the appellees.

3. Frank O. McGehee left children who are some of the appellees.

4. Mrs. Mattie M. Park left no children or issue; but her heirs at law are the appellants.

5. Mrs. Sallie Hunt left three children, being the appellants, Sara Hunt Wise, Mary Hunt Huddleston and Martha Hunt.

6. Miss Mamie M. McGehee left no children or issue, but her heirs at law are likewise the three appellants. ¹

After the death of Sallie K. Hooker, the real estate of Mrs. Slaton was sold by order of the court in this proceeding; and the distribution of the proceeds is the present controversy. It is conceded that appellants, as the descendants of Mrs. Sallie Hunt, are entitled to her portion of the proceeds; but appellants contend, inter alia, that the remainder (under paragraphs C and D of the will) vested in the six nephews and nieces immediately on the death of Mrs. Slaton, and that appellants, as the heirs at law of Mrs. Mattie Park and Miss Mamie McGehee, are entitled to receive the portions that would have gone to Mrs. Park and Miss McGehee. Appellees contend that the remainder (under paragraphs C and D of the will) was contingent and did not vest until the death of Sallie K. Hooker; and that since Mrs. Park and Miss McGehee predeceased Sallie K. Hooker and left no descendants, the interest of Mrs. Park and Miss McGehee lapsed and the proceeds of the property should be divided into four main portions, instead of six. This interpretation would give the appellants together one-fourth of the estate, whereas the appellants contend that they are entitled to one-half of the estate. The chancery court held with appellees; and this appeal challenges that holding.

In construing the will of Mrs. Slaton, we are to decide: (I) the meaning of the word 'descendants' as used in paragraph D of the will; (II) whether the remainder to the nephews and nieces (as mentioned in paragraphs C and D) was a vested or contingent remainder; and (III) whether conveyances between the parties during the lifetime of Sallie K. Hooker constitute a 'practical interpretation' to be followed in this case.

I. Descendants. Mrs. Slaton used this word several times in her will. In paragraph B she said in two instances, 'children or other descendants' in referring to her daughter, Sallie K. Hooker. In paragraph C, again speaking of her daughter, Mrs. Slaton used the expression 'no issue her surviving.' Finally, in paragraph D, Mrs. Slaton, in speaking of nephews and nieces, said, 'the descendants of such deceased devisee.' With these instances in mind, it is clear that Mrs. Slaton used the word 'descendants' as being the children or the issue of the person designated. Such is the generally accepted meaning of the word. Webster's New International Dictionary defines a descendant as 'one who descends, as offspring, however remotely.' Bouvier's Law Dictionary defines descendants as: 'Those who have issued from an individual including his children, grandchildren and their children to the remotest degree.' ²

We hold that the 'descendants' of deceased nephews and nieces in paragraph D of Mrs. Slaton's will do not refer to any children of any brothers and sisters of such deceased devisee, but refer only to children or issue of such deceased devisee; and since Mrs. Park and Miss McGehee died without descendants or issue, the share of such deceased devisees cannot pass to appellants as devisees under the will, because they are not 'descendants' of Mrs. Park or Miss McGehee.

II. Vested or Contingent Remainder. Appellants next claim that the estate that passed to Mrs. Park and Miss McGehee (as well as to the other four named nephews and nieces) under paragraphs C and D of the will was a vested remainder rather than a contingent remainder; and--appellants insist--that as a vested remainder the shares of Mrs. Park and Miss McGehee passed to the appellants as the heirs at law of such persons. We have many cases on contingent remainders. ³ To list all of them would require many paragraphs; to discuss all of them would be a work of supererogation. What Mr. Justice McHaney said in Hurst v. Hilderbrandt, 178 Ark. 337, 10 S.W.2d 491 is apropos: 'The subject of vested and contingent remainders has formed the basis of prolific decisions of courts of last resort, text-writers and annotators. We will not undertake an extensive review of the cases touching on this subject, not even those of our own court.'

Mr. Justice McHaney in Hurst v. Hilderbrandt, supra, then quoted with approval from 23 R.C.L. 500: "The broad distinction between vested and contingent remainders is this: In the first there is some person in esse known and ascertained who, by the will or deed creating the estate, is to take and enjoy the estate, and whose right to such remainder no contingency can defeat. In the second it depends upon the happening of a contingent event, whether the estate limited as a remainder shall ever take effect at all. The event may either never happen, or it may not happen until after the particular estate upon which it depended shall have been determined, so that the estate in remainder will never take effect." ⁴

Measured by the said test, quoted and approved by this court, it is clear that the remainder to the nephews and nieces under paragraphs C and D was a contingent remainder. In fact, it was an alternative contingent remainder, as stated in 33 Am.Juris. 611: 'Alternative remainders limited upon a single precedent estate are always contingent. Such remainders are created by a limitation to one for life, with remainder in fee to his children, issue, or heirs, and, in default of such children, issue, or heirs, to another or others * * *'

In Greer v. Parker, 209 Ark. 553, 191 S.W.2d 584, 585, we quoted the classic statement from Doe, Lessee of Poor v. Considine, 6 Wall. 458, 18 L.Ed. 869, as follows: "A. ...