406 , B4U.M y. Fox. U92
BAUM . V. FOX:. OpiniOn deliVered March: 9,. 193.6. 1. WILLS— CONSTRUCTION.—The cardinal Tule. in the .construction of • ,wills is to , ascertain theintent of the testator and give, it effect, . • unless he . has attempted to aceomplish a purpose or to make a • disposition of property contrary to some Tule , of law. 2:. WILLS—ESTATE .CONVEYED.—Whene yer an estate in lands is Created' by' a will; it will be deenied an estate in fee simple' if a' ' less 'estate is not clearly indicated. • • 3.. WILLSCONSTRUCTION—A will must he construed as a whole. 4. WILLS---coNsTRUCTION.--,-Where a; will 'devised land to a widow, without qualification, and later provided that on the widow's death all property should be divided among the, testator's children, except that one 'of t m he not receive her share ' Until ' she wag 45 years old, siich child, though . ' niore' than 45 yeaTs old, is not entitled to sue 'for her share during 'the widow's lifetime: 5. APPEAL AND ERROR — TRIAL IN EQUITY CASE.—On .apPeal in.a chancery proceeding, the chancellor's decree will be . affirmed .if rect, though based on , untenable ground.. • Appeal fro • m Arkansa Chandery 'Court, . Southern District ; . 1-1-arvey L. Lucas, Chancellor ; affirmed. • • •• Suit by Emma Pearl . Baum against Clarenee:Fox and others. From a' 'decree for defendants plaintiff . •has appealed. G. W. Botts, for appellant.' •• George. E. Pike; for.appellee& • • • MEHAFFY, ,J'ohn. T. -Wright, of 'DeWitt; Arkan-sas, died in 1926 and left'surviving him his widow, Sarah H. Wright ; his son, W . ' J. Wright; and-three-daughters, Nellie McAdam g ; Mary -B....Gresham, *and . Emma Pearl Bailin: On September 14; 1921, John T: Wright made a' will as follows, omitting the formal parts :.• ; • `;`•I, John P. Wright,' being . of. sound mind and good understanding, do make and declare this .to be my last will and testament. I wish , to bequeath .to my beloved wife, Sarah H. Wright, my hOuse and three lots, corner of South Fourth and AiorriSOri Street; No. 723: Also my liberty bonds and one note in First National Bank, and mortgage given to both wife and I by Mr. B. H. Turner, and my other moneys that may be received after all debts are paid. If she needs any assistance in man-
ARK.] BA:UM v. Fox: 407 aging the property; I appoint mY son; 'W./ J: 'Wright, to assist to the best of his ability. A_fter . death Of the said Sarah H.,Wright.after. the debts are..paid . all property and moneys are to. be . equally divided among my • four children: . . • . • "W. J. Wright, Mary. B. Gresham, • Nellie .McAdams. •"Except Pearl. Baum not to receive .lier share' until she is 45. years . of age to .be kept in trust for her until then. '"John T.,Wright?? This action was brought by appellant in the Arkan7 sas Chancery •Court oh April 6, 1934, fOr:the purPose of having the: will ,construed and for appellant's : part of the estate.. • . Clarence 'Fox and Tee Fox, his wife, ; Were 'made defendants becauSe :theY were indebted ' to: Wright and had •given to him their. promissory notes. ApPellant alleged that Sarah H. Wright and 'other appellees had 'Used the estate for their. benefit; and .that under the* will she . was entitled to , ohe-fourth 6f it 'When she became 45 years: old. Appellees filed answer denying, the material allegations ih the comPlaint. .They also filed,ademurrer which was not passed on by the. court. , • It was agreed that Sarah. H. Wright; : the widow •of John T. Wright, was 83. years of age, a.nd that thi letter's of administration . or:executorship had been issued, and no bond. filed, .a.nd that Sarah H... Wright had received and collected . all the moneys :which had been, paid pr , realied: ,the estate,. and , converted, same to. her. own us.e . and benefit. There wa.s .110 other evidence introduced. . • . . • The court below decided that. Sarah H. 'Wright.took a life estate, and that she had the right to . use the .same or .so, much thereof as may. be necessary for her.benefit and Support. : The cohrt also found . that the..appellant 'was not entitled to' receive any: part or. 'parcel , of the estate at this time, and that the suit. was prematurely brought as to her .rights under. the will, , holding that she was not entitled:to any part of :the estate; until the death
408 BAUM V. Fox. [192 of Sarah H. Wright, although the court found that she was more than 45 years old. There is no dispute about the validitY of the will, and the only question is whether, under the terms of the will, appellant is entitled to any part of the estate until the death of Sarah IL Wright. The cardinal rule of construction of wills is to ascertain the intent of the testator and give it effect, unles the testator has attempted to accomplish a purpose or make a disposition of property contrary to some rule of law. "The.intention of a testator is to be collected from the whole will, and from a consideration of all the provisions of the instrument, taken together, rather than from any particular form of words. The intention is not to be gathered from detached portions alone, and the court should not consider merely the particular clause of the will which is in dispute." 28 R. C. L. 215, 216. The first paragraph of the will bequeaths to Sarah H. Wright all of the property of the testator without any qualification at all. We hold this to be not a life estate, but an estate in fee simple. The paragraph has another clause as follows : "After the death of the said Sarah H. Wright after the debts are paid all property and money are to be equally divided among my four children:" The following clause , is added: "Except Pearl Baum not to receive her share until. she is . 45 years of age to be kept for her until then." The rule with reference to conveying or creating a fee simple is stated in R. C. L. as follows : "By the earlier common law it was an established rule that a devise of lands without words of limitation conferred on the devisee an estate for life only. An exception was soon recognized in the.case of a will, so that an estate in fee could be given without the use of the technical words required in a conveyance or deed, the .. ift in such a case being known as an executory devise. Modern legislation has largely . abolished the former rule so that words of -inheritance or perpetuity are no longer necessary to devise a fee . , and whenever an estate in lands is created by a will, it will be deemed to be fl,n estate in fee simple,
ARK.] BAUM V. Fox. 409 if a less estate is not clearly indicated. Especially when the testator shows that he desires not to die intestate, the courts will construe his will as creating a fee rather than a life estate, and thus avoid a partial intesta.cy ." 28 R. C. L. 237, 238. In this particular case, however, in order to determine whether the appellant is entitled to her share of the estate now, it is immaterial whether Sarah H. Wright took the fee or a life estate, because the appellant, under the terms of the will, was not to receive anything until the death of Sarah H. Wright. It is the contention of the appellant that she should receive her portion of said estate when she reached the age of 45 years, this being a later clause in the will. But the whole will must be construed together. Every part of it must be considered, and, when this is done, it was the manifest intention of the testator that Sarah H. Wright should receive the property, and, if . any part of it were left at her death, it was to be divided ainong the four children, with the provision however, that the appellant should not receive her share until she reached the age of 45. There is no conflict between this provision of the will and the other provisions. The children are not to receive anything until the death of Sarah H. Wright, and if the appellant was not 45 years of age at that time, then her share would be kept in trust for her until she reached that age. Appellant calls attention to the case of Little v. Mc-Guire, 113 Ark. 497, 168 S. W. 1084. The court in that case said : "If any conflict exists, it would be our duty to construe the last provision as controlling, but where all the provisions can be construed together without doing violence to the language of either, it is the duty of the court to do so. ." The rule is that, where different parts of a will are totally irreconcilable, the last overthrows the former, but that rule is never resorted to except for the purpose of escaping total inconsistency." The case of Cox v. Britt, 22 Ark. 567, cited and relied on by appellant, is to the same effect, so far as,Conflicting clauses are concerned, as the case of Little v. McGuire, supra. But the will in the Cox . case expressly limited
410 BAum. v. Fox: [19.2 the. estate. to the life of the :legatee. It . used. the term, " ` during my. natural life," but :the .court said ` `my " before the words-. "natural life" was undoubtedly a clerical mistake,- and to -give effect to the manifest inter', tion of the testatrix .as collected from the, context, must be read " , hey." That . is, it ,limited the estate to her natural life. . , . ,• • Appellant next, calls attention to, the , . case .of Mc-Kenzie v.. Roleson,. 28 Ark. 102... The eo,urt in that case said, in discussing the, repugnancy between..the provisions : ` There is certainly no • repugnancy between the provisions 'of the original will; , appointing . a trustee .and defining his duties; and the provisions of the codicil ap, pointing Ail, executor and , -directing . him to execute the will in • every . particular. " • Appellant next calls attention to 40 CyC.' 1180. This paragraph discusses inconSistent provisions of: a • will in the-disposition of property, but, :after 'stating the rule as to a codicil making a disposition of property inconsistent with the . disposition made' in the:will; the -paragraph reads : But in -order that s a, codicil shall . operate , as a revocation of any part of a will; in . the 'absence . Of express words to that effect,•its provisions must be . so inconsistent with those . of •the -Win as. to . eXcludd any . other 'legitimate inference than that of a change in- the testator's intention."-.. : • . • - • Appellant, calls attention to .Gis . t v. pettus;..115, Ark. 400, , 171 W.. 48, 0. The court in that case said . : "It is the rule_that. where :. property is 'given in clear language. sufficient to,..convey . an, absolute fee, the interest . thus given, shall not , be taken , away; cut down or diminished by any subsequent, vagu . e and general expressions. * * "If it is clearly the intention of the testator .that the devisee shall own the fee simple, his subsequent language directing that what yemains of the. property at the death of that , devisee . shall. devolve upon a particular person or. class of persons will not cut down the,fee This , case .. also. approves. the rule Jhat where there is an irreconcilable conflict, the last proVision .prevails. • ..Appellant . calls ,attention.to the .case of , j/prrocks v. kisIicpni, .139 Ark. 116, 213 S. W.; 372, That will pro-
41.1 vided that if Basham's son, by his own efforts aceumu-lated an''estate Of the 'value of $15,000 clear and Unin-• cumbered, or in any event when he shall have reached the age . of 45 . years, that estate- should be , turnecLoyer to hint.' It was perfectly clear in that will . that, if he:accumulated , the estate of $15,000, it should be turned' .ovei to him, but whether he did that or not; in any eVent it should be turned over . to hiin When he was ydar The will in the instant case provides that at tho deatli of Sarah Wright the ' property should be divided among the children,. but that Poarl 1 . 3aunrshould 'not receive her share until she was 45 years old. She cotdd . in no .event receive: it . before the death of Sarah H. ' Wright, and, if she died before appellant -Was , 45 years old; aPpellant could nof receive it until she became 45 . yearS old.. Holding, 'as we *do, that Sarah H.' Wright received the fee, it becomes unnecessary , to discusS the other, queStions referred to by counsel. ' Upon appeal in an equity case the . trial is de, novo, and if the decree is co?.. rect, it will be' affirmed, afthongli the . ehanceller , based his holding on the' wrong ground. Thi g court has said: . "Tlie eonrt was therefore in error in decreeing in favor' Of apPellees On 'this gro.und. Eut this' does net call for a reversal of the'decrees . if for . Other reasons they were correct." Murphy n v..' n MurphY, 165 Ark. 246, 262 S. W. 677. • We think the' decree of the' chancery'eoiirt.is COrrseC't, and it iS therefore affirmed.. JoHNscnv, 'C 'disSents.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.