146 Ark. 193 | Ark. | 1920
It is conceded by counsel on both sides that the only issue to be decided is whether or not the property has legally passed to James Avery under the will referred to in the statement of facts. In the first place, it is contended by counsel for the plaintiffs that the will of Dinah Averitt-did not give *199
to Harry Moore the power to dispose of the property in question. Counsel relies upon the cases of Patty v. Goolsby,
"Second. I give, bequeath and devise all the rest and residue of my estate owned by me at the time of my death, real, personal and mixed, to my mother, Charlotte D. Turner, to have, hold, use and enjoy during her natural life, it being my desire that she shall have the absolute right to sell or incumber it without any restrictions whatever."
The clause in the instant case which we have copied in our statement of facts, and need not repeat here, in plain language gives Harry Moore the power by his last will and testament to dispose of the property in question. It first gives it to him for his natural life, and, in the event of his dying without heirs of his body surviving him, then the property shall go to such persons as Harry Moore by his last will shall direct and appoint.
Having decided that the will of Dinah Averitt gives to Harry Moore the power to dispose of the property, we come to the question of whether or not the will of Harry Moore devised the property to James Avery. "We think it does.
It is contended by counsel for plaintiffs that it does not, because the devise shown by the first clause of the will is, "All of my property, real, personal and mixed, * * I will and devise to my friend and relative James Avery," etc. In construing a will the paramount rule is to arrive at the .intention of the testator, and this must be done from the language used, where it is plain and *200
free from ambiguity. Parol evidence is admissible in this class of cases, to the same extent as in other cases, in aid of the construction of written instruments, when the language used is doubtful, or susceptible of two meanings, and no further. You may show the conditions as they exist at the time of the execution of the will and the surrounding circumstances, so as to place the court in the position of the testator. Fitzhugh v.Hubbard,
There is nothing in the language of the will indicating a contrary intention on his part.
It follows that the decree must be affirmed.