| Ark. | Jul 12, 1920
Appellants, children and sole heirs of S. A. B. Wiggins (nee Lane) and W. L. Wiggins, instituted suit against appellees in the Howard Chancery Court to obtain a construction of the last will and testament of Helen O. Lane, and to recover,- as devisees therein, a one-half interest in the west one-half, southwest quarter, section 12, township 9 south, range 27 west, in said county, with an accounting of rents.
Appellees filed an answer, denying that appellants owned any interest in the lands as devisees in the will-, and claiming title thereto through mesne conveyances from the- father and mother of .appellants. They also pleaded the statute of limitations and laches as additional defenses.
The cause was submitted to the court upon the pleadings, evidence adduced by the respective parties, a copy of the will and proceedings probating same and the deeds constituting the chain of title of appellees, upon which the court found that appellants had no title to the lands as devisees in the will and decreed a dismissal of appellants’ bill. Prom the decree of dismissal, an appeal has ' been duly prosecuted to this court..
The facts, in so far as we deem it necessary to set them out, are that Helen 0. Lane and S. A. B. Wiggins (nee Lane) sisters, acquired the land in question by joint purchase on September 25,1876. Pour years later, Helen made her last will and testament, containing the following paragraph:
“I give unto my sister S. A. B. Lane all my interest in the tract of land belonging to me and sister S. A. B. Lane, and at her death and at the death of my mother, if there be no issue, I give and bequeath unto my friend W. L. Wiggins all my interest in and to said lands.”
After the death of her sister, S. A. B. Lane intermarried with W. L. Wiggins, to whom the land in controversy was bequeathed upon the contingency of the death of the testatrix’s mother and that no issue was born to the devisee, S. A. B. Wiggins (nee Lane). Appellants were born to the union and are the only surviving heirs. Lula Haynes (nee Wiggins) was about 37 years old and Walter Wiggins 30 years old when this suit was instituted. -On the 18th day of October, 1883, W. L. and S. A. B. Wiggins, father and mother of appellants, conveyed said lands by warranty deed to the Hutchinsons, in which the following recital appears immediately after the description of the property: “It being the same land devised and bequeathed to the said S. A. B. Wiggins (born Lane) by her sister, Helen 0. Lane, by will.” Immediately upon the execution and delivery of the deed aforesaid, the Hutchinsons went into possession of the lands. They and their grantees, down to and including appellees, have remained in possession of the lands, and, from time to time, made valuable improvements thereon. During the entire time appellants resided in the vicinity of the lands. Lula Haynes (nee Wiggins) married when she was nineteen years of age and was a married woman at the time she joined with her brother in the institution of this suit. The testatrix died on September 29, 1880, her mother on the 9th day of November, 1882, W. L. Wiggins, the contingent legatee in the will, on October 31, 1913, and her sister, S. A. B. Wiggins (nee Lane), the devisee in the will, on the 15th day of January, 1918.
Appellants contend that the effect of the will was to devise to S. A. B. Wiggins (nee Lane) a life estate with remainder, or the fee simple title, to appellants-, who are the heirs of her body, upon the theory that the words “issue” and “heirs of the body” are equivalent. ' Conceding that the words are equivalent, still there are no words in the will indicating that a limitation over to the heirs of the body of S. A. B. Wiggins (nee Lane) was intended by the testatrix. No. reference was made in the will to either a life or remainder estate. The language used in the will does not restrict the use of the property by the devisee S. A. B. Wiggins (nee Lane) nor- limit a remainder to her issue or the heirs of her body. The absence of such a restriction or limitation was indicative of an intention by the testatrix to devise a fee-simple estate to appellants’ mother. It is manifest, however, that it was a defeasible estate in fee simple, subject to be divested or defeated by the failure of issue. This contingency never happened, as appellants themselves are the bodily heirs of S. A. B. Wiggins (nee Lane), the devisee in the will. This-interpretation is in accord with the acts and conduct of appellants’ ancestors, the devisees in the will. Only three years after the death of the testatrix, the devisees joined in a warranty deed conveying the entire estate to grantors in the chain of appellees ’ title.
No error appearing, the decree is affirmed.