*1 a mere inference cause. probable from a want of are tbe law; jury and as not presumption of fact and law, a matter of an inference as to draw such bound evi- weight tbe amоunts instruction on to an weight are of sufficient them what facts dence to tell effect is Kable the inference.” To the same warrant 12 A. L. R. 1227. 204 W. S. Carey, Reversed.
Collie
Tucker.
5-1650
Opinion 3, 1958. *2 appellant. Glover, Lawson E. for appellee. Gilliam, William C. George tes- Robert Lee Collie died J. Smith, Rose July
tate on F. widow, Collie, and his Sarah requires died intestate on December case 19, 1957. This a construction of will the husband’s in оrder deter- disposition person- mine the ultimate certain real and property al that Mrs. Collie received from husband’s estate and still held The her, at the time of own death. appellаnts, who are the husband’s collateral con- heirs, given only tend that Mrs. Collie was a life estate with a power and that at her death the devolu- property dispute tion by of the now in was controlled appellees, her husband’s will. The Mrs. Collie’s collat- eral heirs, contend that she estate in fee simple, property pass so that the should to them under the laws of descent and distribution. The trial court, construing petitions Collie’s will in connection with filed by appellants, held that Mrs. Collie had owned the property in fee. upon case turns the construction of these two The
pаragraphs in the will of Lee Robert Collie: payment my “Third. any, After the debts, if my expenses hereby give, funeral I devise and be- queath my my prop- said wife, Sarah F. all of Collie, erty, personal real, аnd mixed of whatsoever kind of may possessed, which I die including seized and our place home Malvern, bank Ark., stock, notes and mort- gages any and all other al- kinds, all though specifically not herеin mentioned. In as much as my I have no children and said wife has aided me to ac- cumulate only just what we have feel that it is right, that should she outlive all I me, have should be ab- solutely my hers, that is will. my my
“Fourth. inwill casе wife should not dispose my property during use and of all her lifetime, undisposed shall of, leave whatever she that equally my heirs.” heirs and between her divided this case rightly concluded court upon vеry facts, similar decision, is controlled our S. W. Bramble, 81 Bernstein v. residuary devised his 1028. There the LRANS simple in the and, forever,” “in estate his widow fee provide attempted next sentence of his widow had distribution оf during her will. or her lifetime being incon void, limitation over was was held In dis the widow. devise to sistent with the cussing gov pointed out a number of authorities we *3 entirety, erning construed in its If the will, distinction: taker to for the intendеd first shows that the testator subsequent simple, lan an in fee then estate property disposition attempting guage of direct the to undisposed remaining taker of at the death of the first testator will shows that the however, is void. the If, only a life estate with taker to have intended the first disposition, power the then direct the a of undisposed property remaining of the of at tenant. deаth of the life present property to his
In Collie left all his the case that it should unmistakable direction wife and added the expression “absolutely In view of this clear hers.” prop- widow own the of erty outright intention that his would Collie’s attempted merely life, of the instead are will- limitation over ing be declared void. We must that was announced rule of set aside the to and that been adhered to ever in the Bernstein case has since. appel upon by principally
The four cases relied harmony with deci are not out of the Bernstein lants Ark. Lenon, Rock v. 186 them, In Little sion. two America v. 54 and United States 460, 287, S. W. 2d original devise Ark. W. 2d Moore, 664, 124 S. we will, a codicil to the stressed was modified gives making a rise codicil that the mere fact change intention. in the testator’s the inference of a Robinson, two, the other Jackson In 125 S. W. Cline, W. 2d S. Piles language testamentary insufficient was 2d 129, the the sub- taker; first so create estate sequent inconsistent with the over was not limitation gift. first appellants thе issue is also contended during conclusively adjudicated the ad- case was this Lee estate. F. Col-
ministration Robert Collie’s Sarah filing lie was the executrix of her husband’s ‘‘ account final she a statement am inserted legatee sole of said and am the as- entitled all of will during my sets of lifetime.” The said estate for and approving court order recites that the account Mrs. Collie is entitled to all the in her hus- dispose estate, band’s chooses, use and of as she that the remainder not de- of at her death shall according scend to the terms of will “to their Collie’s ’’ lawful heirs. legal It is evident that Mrs. misunderstood Collie misconception effect of her husband’s will, and approving embodied the order her final account. Since this order was also order final distribution, *4 containing (b) all the recitals enumerated in subsection appellants of 1947, § Ark. Stats. 62-2902, that the insist (d) requires subsection the statute of that the order be given conclusive effect. agree
We do not with this view. The cоurt was not upon validity para- called the determine the of fourth graph Collie’s for a decision of that issue was not essential to a distribution of the Ark. Stats., estate. (a) governing § 60-416. Subsection of § 62-2902, the contemplates distribution order, the that distributees of hearing the estate be such notice of the as the may questions pertaining court direct, to the end that conclusively to the distribution be sеttled adversary proceeding. In the case of Collie’s estate the only issue that could be determined when the final ac- proper making a in 1953 was that
count was filed physical estate. Even of the of the assets distribution paragraph valid, been had of Collie’s will if the fourth be would known in 1953 what it could not be undisposed or what death at the of Mrs. Collie’s date prove persons and Mrs. оf Mr. would then to be the heirs certainly the authorize statute does not Collie. The when at a court a conclusive determination time to make even cannot known and when the identity facts еssential We of the cannot be ascertained. distributees correctly interpreted when think statute Mrs. Collie the sole she stated in account she final that beneficiary being no other distribu- there estate, the issues tees under the terms of the will. As far as presented by concerned, were distribution order that statement was accurate. ap present plain heirs, the Mrs. Collie’s that by under
pellees, order the distribution bound are not parties judicata, they were not of res the doctrine princi they proceeding. concluded Nor are that representation, ple be said as cannot of virtual represented fairly as the same interest theirs Mrs. Collie proceeding. court Since the uncontested dis to use and was entitled that Mrs. Collie order recited pose was not she herself chose, as she unnecessary adversely how the recital affected at Her mis descend her death. would remainder unused antagonistic to the in fact of the will was construction appellees. manifestly un would be interest just, Brick Mixon v. Barton & we observed in Lbr. as apply the doc S. W. 2d Co., holding representation basis for virtual as trine of day appellees have had their court. these Affirmed.
Ward, J., dissents.
*5
(dissenting).
I Justice,
Associate
Ward,
Paul
dealing
many
with
of our court
testamen-
read
decisions
tary language
in
third and
that contained
similar to
paragraphs
I
in the will under сonsideration
fourth
am driven
to
conclusion that the law
is now a state
uncertainty.
majority
opinion certainly
does
nothing
clarify
uncertainty.
opinion
my
In
it is
put
desirable
end
this
confusion. I submit this
simply
only by
striсtly
can
adhering
be done
to a
rule of law relative to the construction of wills that has
clearly
repeatedly
been
announced
this court.
simple
briefly,
That
rule,
stated is that
should
the cоurts
determine the intent of the testator from
four cor
ners of the will. See:
v. Robinson,
Jackson
431,
195 Ark.
112 S.
417;
Cline,
W. 2d
Piles v.
2d
197Ark.
S. W.
857, 125
129; Ellsworth v.
Trustee,
Nat’l Bk.,
Arkansas
194 Ark.
Dyer
1032,
S. W. 2d 678;
Tisdale,
Dickens v.
204 Ark.
164 S. W.
2d
Chancey,
990; McLane v.
Adm., 211
S. W.
Thompson
2d 782, and;
Ark. Nat’l Bank,
Applying thе can be above rule one conclusion case, reached in and that is that Robert Lee Collie this prop- meant for and wife’s his heirs his heirs to have erty at her his wife death. The same rulе would likewise determine the effect to similar inwills the future. attempt
Any to make a the above distinction, under rule between the case under consideration and the Piles supra, majority casе, as the has tenuous and is done, uncertainty strained and lends confusion. itself to paragraph In first case the devise of fee inwas one qualification and the while in the second another, qualifi- case the of a devise sentence and the is one cation difference, is another sentence. This submit literary composition is one of rhetoric and which with many not an us is exact sсience. The difference is not one of which control substance should property. advocating
In am rule of intent I not un- mindful we has some instance limitations. For have said the intent must from the words be determined might of the will and not from have had what *6 in mind. was said in the Jackson the intent Also, case, as law rule of rule contrary (not must not some some no limitations, These however, construction). on the case under consideration. bearing Bollinger.
Black 5-1678 317 S. W. 2d Opinion delivered November 1958. Seamster, appellant. Reid & and Bernal Burge Frank Douglas, appellee. C. raised Appellees Associate Justice.
Paul Ward, but Company, 1956 Manila Gin and sold cotton them- for gin’s were to cash the checks unable this action price. against instituted purchase They operat- e. the two (i. partners owning Gin Company which Gin Com- Corning Bank at ing Gin), L. who connected business, did Black pany G. a creditor of Gin Com- with the Bank and also was