23 Ark. 378 | Ark. | 1861
delivered the opinion of the court.
In June, 1855, in Union county, Nathaniel W. Robinson made his last will, from which the following is takeh:
Item 3. All the balance of my property, tegroés, ready money, and estate of whatever kind which I may be possessed of, or that may be due and coming to me from my grandfather’s estate in the State of Georgia, or in any way coming from my father or mother, I give to my beloved daughter, Fanhy E. Robinson, together with any mutual offspring that may ever exist between myself and beloved wifé.
The fourth, fifth and sixth items of the will provide for its execution, .for the guardianship and education of the daughter and other possible children, and aré followed by the seventh item in these words:
Item 7. It is also my desire that if my said daughter, Fanny E. Robinson, or any mutual offspring that may exist between myself and beloved wife, depart this life before arriving at the years of maturity, or without an heir at death,-in that event, all the property which may have been inherited through me in any way, shall be inherited by my beloved father, and in case of his dissolution before any of these circumstances occur, then, and in that event, the same I bequeath to my beloved wife, Nancy Ilobinson, my beloved brothers, Isaac T. Robinson and James G. Robinson, and sister Mary Ann Rebecca Robinson, all as upon the same equality of inheritance.
The testator died in the month after he made the will, the daughter, Fanny E. Robinson, being his only child. In October of the same year she died, and Benjamin P. Robinson, the father of the testator and executor of the will, claimed the property given to the daughter in the third item of the will to be vested in himself by the seventh item of the will.
And upon settlement of his executorship, Benjamin P. Robinson obtained an order from the Probate Court of Union county vesting the amount of money and slaves remaining in the hands of the executor, as appeared by his settlement, as his own property, as residuary legatee of the whole estate of Nathaniel W. Robinson. This was in October, 1857, and in September, 1858, Nancy S. Robinson, the widow oí Nathaniel W. Robinson,-filed her bill on the chancery side of the Union Circuit Court, in which, as the heir of her daughter, Fanny E. Robinson, she claimed that the money and slaves, and effects in the hands of Benjamin P. Robinson, which came to him as the executor of Nathaniel W. Robinson, should be transferred to her.
The court sustained her bill in adjudging that Fanny E. Robinson took an absolute interest in the property mentioned in the third item of the will, that Nancy S. Robinson was the heir of her daughter, and in decreeing that Benjamin P. Robinson pay to her the amount of money in his hands, as the executor of Nathaniel W. Robinson, as shown by his. account current filed at the October term, 1857, of the Probate Court, tSld that be should deliver to her the slaves, with hire, that belonged to the estate of Nathaniel W. Robinson. Benjamin P. Robinson appealed from the decree, and during the pendency of the appeal in this court, Nancy S. Robinson has married, and her husband, Caldwell Bishop, has been admitted as a party, with his wife, to defend fhe case here.
After the death of Nathaniel W. Robinson, his widow, with her daughter, removed to Louisiana, and there the daughter died; but whether the domicil of the daughter were the residence of her mother, or that of her guardian, where her interest, as her father’s legatee, was, is immaterial in this case, as the mother, by the law of Louisiana, as well as of this State, was entitled to the money and slaves of her deceased daughter. And the question simply is, whether under the third item of the will, the daughter took an absolute interest in the personal property therein mentioned. The affirmative of this has been settled upon a full consideration of this subject as presented by this will, and by the will of John Pollard, construed in Slaughter vs. Slaughter, just decided, and we hold, without hesitation, that Benjamin P. Robinson did not obtain title to the money and slaves in his hands as executor of Nathaniel W. Robinson, by the seventh item of the will, as that was an illegal attempt to limit property to Benjamin F.- Robinson that had already been given to and was absolutely vested in Fanny E. Robinson. Denson vs. Thompson, 19 Ark. 69, may be mentioned as another recognition by this court of Moody vs. Walker that was not referred to in Slaughter vs. Slaughter. See, also, Massey vs. Parker, 2 M. & R. 184; Cuthbert vs. Purrier, 1 Jac. 417; Jackson vs. Ball, 10 Johns. 20; Jackson vs. Robins, 16 Jhs. 590.
We prefer to construe the will under consideration from its own terms, rather than to take the deposition of its draughtsman as declaratory of the intention of the testator. We are not oyrvinced of the propriety of the mode of interpretation insisted on in this court.
The limitation over in this will, as in the will of John Pollard, was not void for being too remote, for in each case it was dependent upon a definite failure of issue. And though in this case the failure of issue was accomplished in the next October, while in Slaughter vs. Slaughter, sixty-five years elapsed before the death of Elizabeth Pollard, and she then left Catherine Slaughter living, a surviving grandchild of John Pollard, each limitation was to take effect upon the death of a person alive when the wills were made. A failure of issue is taken to be indefinite, not according to the course of after events, but as the possibility thereof may exist at the death of the testator. Clare vs. Clare, Cas. temp. Talbot 26; Patterson vs. Ellis, 11 Wend. 299; Hawley vs. James, 16 Wend. 171; 4 Kent 283; Ibbetson vs. Ibbetson, 10 Sim. 515.
We also think that the words in this will “heir at death,” and in the will of Pollard “ die without heir,” are to be taken in their general acceptation, by which heir would mean child or descendant. Cox vs. Britt, 22 Ark.
The decree of the court below is affirmed.