Wyman v. Johnson

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

59 S.W. 250

68 Ark. 369

WYMAN v. JOHNSON

Supreme Court of Arkansas

October 27, 1900

Appeal from Lee Chancery Court, EDWARD D. ROBERTSON, Chancellor.

Judgment affirmed.

McCulloch & McCulloch, for appellants.

The heir is not held to be disinherited, unless the intent to do so is clear in the will. 1 Redfield, Wills, p. 434; Schouler Wills, § 545. The rule in Shelley's case is in force in Arkansas. 51 Ark. 61; 58 Ark. 303. This rule is applicable in the construction of deeds as well as wills. 64 Pa.St. 9; 101 N.C. 162; 62 Ill. 88; 127 Ind. 42; 109 Ind. 476; 80 Ga 367; 9 Yerg. 400; 13 Pa.St. 344; 53 Pa.St. 211.The word "heirs" has a fixed legal meaning. 53 Ark. 255.This rules applies to the construction of wills as well asother writings. 3 Ark. 147; 13 Ark. 88; 23 id. 179; 49 id.125; 58 id. 303. The rule established in 3 Ark. 117 is sustained by text writers and cases outside of this state. 1 Redfield Wills, 433; 2 Washb. Real Prop. 603; 1 Jones, Conv. § 232; 5 Barn & A. 621; 2 Bligh, 56; 101 N.C. 162; 62 Ill. 88; 127 id. 42; 11 L.R.A. 670 and notes; 8 Humph. 624; 102 N.Y. 128; 99 Ind. 190; 109 Ind. 506; 79 Pa.St. 333; 64 id. 9; 30 N.E. 1077; 37 id. 569; 86 Va. 550; 44 S.W. 399; 3 L.R.A. 209; 45 L.R.A. 95; 2 Redfield, Wills, p. 67385; 36 L.R.A. 186; 23 S.W. 72. The construction of the word "heirs" applies with equal force to the validity of the device 99 Ind. 190; 37 N.E. 569; 2 Washb. Real Prop. p. 165; 1 Pick. 27; 46 Pa.St. 200. The devises cannot be held as trusts created in Johnson and Mrs. Gibson, or her husband, for the benefit of their heirs.1 Perry, Trusts, § 83; Schouler,Wills, § 591-2-3; 2 Redfield,Wills, p. 400-1-2; 72 N.W. 631; 92 Tenn. 559; 130 N.Y. 29;42 Ark. 51; 2 Washb. Real. Prop. p. 699; 98 Tenn. 353. Theshares of the children ascend to the father in fee. Sand. & Hill's Dig., 2479; 15 Ark. 555; 19 Ark. 396. Section 699, Sand. & H. Dig., applies to all voluntary conveyances of real estate and to mortgages and deeds of trust. 43 Ark. 504; 65 Ark. 129. In a devise the rule is, unless the contrary intention is clearly apparent, that the gift is presumed to be intended for only those of the class who are in being at the death of the testator. Schouler, Wills, § 563; 1 Dembitz, Land Tit. pp. 129, 661, 662; 2 Powell, Devises, p. 302; 11 Allen, 36; 47 Md. 513; 4 Paige, 52; 7 Ohio Dec. 105; 40 Ark. 11; 173 Ill. 529. The doctrine of subrogation is peculiarly a creation of equity, and should be applied in this case. 39 Ark. 531; 45 Ark. 149; 47 id. 421; 50 Ark. 361; 13 S.W. 12; 40 id. 541.

Norton & Prewitt and Fletcher Rolleson, for appellees.

The word "heirs" is to be taken as a mere description of a class of persons who are to take the estate. 5 N.E. 652. When heirs are not to take by descent, but under the will, the rule in Shelley's case does not apply. 1 N.E. 202; Jones, Real Prop. § 610; 26 N.E. 895. The word "heirs" was not used in its technical sense. 19 N.E. 868, 24 N.E. 63. The word "heirs" is frequently construed as a word of purchase. 10 L.R.A. 165; 3 Edw. Ch. 270; Schouler, Will, § 548; 49 Ark. 125; 4 N.E. 167; 127 Ill. 42; 109 Ind. 159; id. 476; 26 N.E. 56. The devise is to the "heirs" as first takers, and not to a person "and his heirs." 2 Vent. 311; 1 P. Wms. 229; 99 Ind. 192; 51 Barb. 137; 86 Penn St. 386. An immediate gift to the heirs of "A," who is reeognized in the will as living, is presumed to be a gift to those persons who would be his heirs if he were dead. Schouler, Wills, p.611, note 4; Hawkins, Wills, p. 92; 3 Sandf. Ch. 65. In construing a will the primary intention of the testator should be ascertained and followed. 1 Dembitz, Land Titles, § 89; 22 N.E. 933. There being no devise of a freehold estate, the rule in Shelley's case does not appply. 4 Kent, § 221; 1 Jones, Real Prop. § 610. In construing the words of a devise, the whole should be taken together. 49 Ark. 128. That an intent may be reached, which implies a trust, a trust will be implied. 31 Ark. 588; Perry, Trusts §§ 112-117; Schouler, Wills, §§ 595-6. Where right of possession accrues, the gift is said to rest in possession. 9 N.E. 214; 26 N.E. 56. A gift to testator's heirs vests at testator's death; if to the heirs of A, at A's death. Schouler, Wills, § 563; 44 Ark. 476. Rate of interest allowed was erroneous. 39 Ark. 547-8.

OPINION

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 nay 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 and the husband of the latter joining with them) borrowed the sum of $ 3,000 of the Globe Investment Company, and to secure the same gave a deed of trust on said plantation, and this debt and deed of trust subsequently became the property of the appellants, Wyman et al., the Globe Investment Company claiming to have had no notice of any defect in the title of said grantors in the deed of trust, and Samuel H. Johnson and S. A. Gibson continuing in possession. These, as mortgagors, paid the interest on said secured debt, as it accrued, until the institution of this suit.

There was a mortgage debt on the plantation, made by the testator in his lifetime, which amounted to the sum of $ 431, when this $ 3,000 was borrowed, and by agreement of the parties this mortgage debt was settled out of the $ 3,000 by the Globe Investment Company at the time of making the loan. Nothing was ever paid on this $ 3,000 by the debtors, or any one for them, either to the Globe Investment Company, or its assigns, except the interest aforesaid. This is a bill filed in behalf of the said children of Samuel H. Johnson and Edna Gibson, then surviving, on March 18, 1896, by their next friend, John M. Johnson, who was the active executor of the will, and nephew of the testator; the administration, however, having been closed, as we infer.

The main question involved is as to the estate of these grandchildren and their parents, given by the third and fourth clauses or paragraphs of...