138 Ark. 362 | Ark. | 1919
(after stating the facts). The only question presented by the appeal is as to the proper construction of the will set out in our statement of facts. It is shown in the proof that the property in controversy is that mentioned in the will. The particular clause of the will, the construction of which is involved, provides that the property in question should be given to Sarah Ryan, the wife of John H. Ryan, the testator, during her life and then to “go to A. A. Ryan, heir of J. H. Ryan, and at his death go to his heirs.”
The decision of the chancellor was based upon the theory that the language of the will calls for the application of the rule in Shelley’s Case and therefore vests in A. A. Ryan an estate in fee simple.
In Hardage v. Stroope, 58 Ark. 303, the court held that under the section of our Digest adopting the common law of England, so far as applicable, the rule in Shelley’s Case is in force in this State, except in so far as it has been repealed by the section abolishing fees tail. Judge Battle, who delivered the opinion of the court, quoted with approval Kent’s abridgement of Mr. Preston’s definition of the rule in Shelley’s Case. It is as follows:
“When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his'body, as a class of persons to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.”
In that case the court also held that in the application of the rule the presumption is, that the testator uses the word “heir” in its primary legal sense; that is as a word of limitation. Under this and subsequent decisions of our court it is settled that the rule in Shelley’s Case is one of law and not merely one of construction. So when the words of the limitation bring a case within the rule, the intention of the testator is presumed to be in accordance with that which the law implies from the use of words having a fixed and definite meaning. The language used in the present case is within the very words of the rule, for where the devisee under the will takes an estate of freehold and in the same clause of the will an estate is limited, either mediately or immediately to his heirs the words, “the heirs” are words of limitation of the estate and not words of purchase. In the present case there are added no qualfying or explanatory words which are repugnant to the acceptance of the word “heir” in its strict legal sense. There are other clauses of the will in which the testator devises his property to his other children by name in which he calls them his heirs. In some of these provisions the devise is to the child by name with the added words “heir of John Ryan.” In others the devise is to the child by name with the added words “heir of John Ryan and at her death it goes to her heirs.” There is nothing in these added words or in the whole language of the will to show that the testator intended to use the word “heir” in its common or restricted sense to denote children and thereby form a root of a new succession instead of using the word in its primary legal sense which would embrace the whole line of heirs.
We think it is clear that the language used in the will brings the case within the operation of the rule in Shelley’s case and that when so construed the will of J. H. Ryan gave the lots in controversy to A. A. Ryan in fee simple. See Galloway v. Darby, 105 Ark. 558.
The decision of the chancellor was therefore correct and will be affirmed.
