116 Ark. 328 | Ark. | 1915
(after stating the facts).
“To the validity of every disposition,” says Mr. Jarman, “as well of personal as real estate, it is requisite that there be a definite subject and object; and uncertainty in either of these particulars is fatal.” 1 Jar-man on Wills, p. 454, chap. 14.
Now, it would be entirely within the province of the court, in arriving at the intention of the deceased' Cook, to.transpose the words “out of my estate” from the first section to the second section, and have the second section read, “to my cousin, T. D. Coók, and my friends, Willie Short and Cleveland Short, share and share .alike out of my estate, ’ ’ if such transposition would 'discover the intention of the testator. But even with the words ‘ ‘ out of my estate,” so transposed, the subject of the alleged disposition would be in as hopeless confusion as ever1 because of vagueness and uncertainty both as to What portion as well as the character of the estate was intended to be disposed of. If the words “out of my estate” were •so transposed we might say that it was the intention of W. H. Cook that appellants should share and share alike “out of his estate.” We know from dispositions made of other portions of the estate that he did not intend for appellants to share the whole of the estate. Then, what portion did he intend that they should “share and share alike?”
(3) Over and over again we have said that the rule in the construction of wills is to give effect to what appears to be the intention of the testator in view of all the provisions of the will. See Campbell v. Campbell, 13 Ark. 513; Cockrill v. Armstrong, 31 Ark. 580; Bloom v. Strauss, 73 Ark. 56; Parker v. Wilson, 98 Ark. 561; Booe v. Vinson, 104 Ark. 439; Galloway v. Darby, 105 Ark. 558; Webb v. Webb, 111 Ark. 54; Gist v. Pettus, 42 Ark. Law Rep. 406.
The rule and the reason for it is stated by Mr. Jar-man as follows: “The most unbounded indulgence has been shown to the ignorance, uniskilfuluess and negligence of testators; no degree of technical informality, or of grammatical or orthographical error, nor the most perplexing confusion in the collocation of words or sentences, will deter the judicial expositor from diligently entering upon the task of eliciting from the contents of the instrument the intention of its author, the faintest traces of which will be sought out from every part of the will, and the whole carefully weighed together; but if, after every endeavor, he finds himself unable, in regard to any material fact, to penetrate through the obscurity in which the testator has involved his intention, the failure of the intended disposition is the inevitable consequence. Conjecture is not permitted to supply what the testator has failed to indicate; for as the law has provided a definite successor in the absence of deposition, it would be unjust to allow the right of this ascertained object to be suspended by the claim of any one not pointed put by tbe testator with equal distinctness. The principle of construction here referred to 1ms found expression in tbe familiar phrase, that the heir is not to be disinherited unless by express words or necessary implication.” 1 Jarman on Wills, p. 453. 'See also, 2 Jarman on Wills, pp. 2205-6.
And, as expressed by Mr. Jarman in another place, in arriving at the testator’s intention as the governing principle, “the judges submit to be bound by precedents •and authorities in point; and endeavor, as we have seen, to collect the intention upon grounds of a judicial nature, as distinguished from arbitrary occasional conjecture.” 2 Jarman on Wills., pp. 2205-6, quoted in Webb v. Webb, supra. Other authorities to the same effect are cited in the brief of counsel for the appellees.
Our conclusion is that the instrument under review was void as to the lannelffints. and that is all we are called upon to decide. The judgment is therefore affirmed.