Wyman v. Johnson

• Decision Date: 27 October 1900
• Parties: WYMAN et al. v. JOHNSON.
• Court: Arkansas Supreme Court

59 S.W. 250

WYMAN et al. v. JOHNSON.

Supreme Court of Arkansas.

October 27, 1900.

Appeal from Lee chancery court; Edward D. Robertson, Chancellor.

Action by John M. Johnson, as next friend, of the children of Samuel H. Johnson and Edna Gibson, against Wyman and others. From a judgment in favor of plaintiff, defendants appeal. Modified.

McCulloch & McCulloch, for appellants. Norton & Prewett and Fletcher Roleson, for appellee.

BUNN, C. J.

Joseph M. Johnson, a citizen of Lee county, died on the 28th day of July, 1887, the owner of a plantation in said county and a small amount of personal property, all of which last was absorbed in the course of the administration of his estate. He made his last will and testament on the 27th day of September, 1886, and after his death this was duly probated. This suit was brought by the grandchildren of the testator, who are named as beneficiaries in the will, to have the same construed, and to set aside as invalid a certain deed of trust made by their parents, wherein the plantation was conveyed, and for general relief. The parts of the will involved in this discussion are as follows, viz.: "(2) I want M. J. Johnson, my faithful friend and sister-in-law, to have and be supported out of my effects so long as she shall live, should she not otherwise have a sufficient support. (3) I want half of all the property that I now own, or may own at my death, to be set apart for the benefit of the heirs of my son Samuel H. Johnson. My son Samuel H. Johnson can have and control said property during his natural life, but said property shall not be subject to the debts of Samuel H. Johnson. If at his death his wife shall be living, she can control the property as long as she remains the widow of Samuel H. Johnson. (4) I want the remaining half of my property at my death to be set apart for the benefit of the heirs of Edna Gibson. I want S. A. Gibson, the husband of my daughter Edna Gibson, to hold and control said property as long as he remains her husband, but said property shall not be subject to or be taken for his debts. Now, if my daughter should die, and her husband, S. A. Gibson, should marry again, then said property shall be taken charge of by the executors of this will, and used for the benefit of the heirs of Edna Gibson. (5) I want the executors of this will (before my estate is divided) to pay John M. Johnson, B. F. Johnson, and Nannie J. Sapp the sum of one hundred dollars each. (6) I leave my dutiful son, Samuel H. Johnson, and my beloved nephew John M. Johnson, and my son-in-law, S. A. Gibson, executors of my will." It is suggested in argument that the very language of this will shows that its author was an ignorant or unlearned person, and this is true, but it bears no internal evidence of a want of common sense. It is, at all events, sufficiently explicit, we think, as an expression of his will, to show the real intention and wishes of the testator. After the death of the testator the property remained undivided, both as between the two sets of grandchildren per stirpes and also as between these grandchildren individually in respect to each half, and remained in the control and management of Samuel H. Johnson and S. A. Gibson until taken possession of by the receiver appointed by the court in this case. Samuel H. Johnson had six children, viz. Virginia V., born January 31, 1881, died November 20, 1896; Nannie, born September 29, 1882, died June 18, 1896; Joseph L., born April 1, 1879; George W., born May 30, 1884; Ada Belle, born March 26, 1889; and Edward, born October 19, 1893. The last four still live. The first two died without issue, unmarried and intestate, and after the death of the testator, leaving their father, the said Samuel H. Johnson, surviving them as their sole heir at law. Ada Belle and Edward were born after the death of the testator. Joseph L. and George W. are therefore the only ones of the children of said Samuel H. Johnson who were born prior to the death of the testator, and still survive. Mrs. Edna Gibson sometimes called Curmiller Gibson, had two children only, both still living when this cause was determined in the lower court, and both born prior to the death of the testator; by name Joseph and Fannie Gibson. Acting, apparently, upon the belief that they held the fee in the respective halves set apart to their children by the will, Samuel H. Johnson and Mrs. Edna Gibson, the wife of the former...