Archer v. Palmer

167 S.W. 99, 112 Ark. 527, 1914 Ark. LEXIS 277
CourtSupreme Court of Arkansas
DecidedApril 20, 1914
StatusPublished
Cited by32 cases

This text of 167 S.W. 99 (Archer v. Palmer) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Archer v. Palmer, 167 S.W. 99, 112 Ark. 527, 1914 Ark. LEXIS 277 (Ark. 1914).

Opinion

Hart, J.

Appellant instituted this action in the chancery court against appellees, and the object and purpose of the action is to. construe the will of James M. Archer. On the 20th day of January, 1906, James M. Archer executed his will, and so much of it as is necessary to determine the issues raised by the appeal is as follows:

“I hereby will and bequeath to my adopted son, Granville McClellan Archer, the sum of five hundred dollars in cash, to be paid him by my executrix within one year after my death.
“Third. I hereby will and bequeath to my beloved wife, Laura O. L. Archer, all of the remainder of my estate of which I may die seized or possessed of either in law or equity, real, personal or mixed, for and during her natural life, and at her death to descend three-fourths to my adopted son, Granville McClellan Archer, and the remainder, one-fourth, to my beloved niece, Freddie Kay Palmer.
“Fourth. I hereby direct, that my beloved wife, Laura O. L. Archer, shall have full power and authority to sell and dispose of any and all property, both real, personal and mixed in such manner as she may desire of which I may die seized. ’ ’

James M. Archer died on the 20th day of January, • 1908, and his will was duly admitted to probate. His estate consisted of both personal and real property. After paying the legacy left to appellant, Laura O. L. Archer, the widow of James M. Archer, took possession of both the real and personal property left by the said James M. Archer, and during her lifetime conveyed it to appellees. She died in June, 1912, and after her death appellant claimed that the property vested in him by virtue of the terms of the will of James M. Archer. Appellees claimed that they were the owners of the property by virtue of the conveyances made to them by Laura O. L. Archer in her lifetime. The facts above stated were set out in. appellant’s complaint, and the will was made an exhibit to the complaint. The prayer of the complaint was that the court adjudge the rights of the parties under the will of James M. Archer, and that judgment be rendered in favor of the appellant, decreeing a title to him in said property, and that the decree be declared a lien upon the property in the hands of the appellees as being held in trust by them for appellant. The court sustained a demurrer to the complaint, and dismissed it for want of equity. The case is here on appeal.

The only question sought to be raised by the appeal is the construction of the will of James M. Archer. Counsel for appellees seek to sustain the decree of the chancellor on the authority of Bernstein v. Bramble, 81 Ark. 480, and contend that under the rule announced in that case, the widow of James M. Archer took an estate in fee-simple to the property devised under the will. We do not agree with them in this contention. In that case the property was devised to the first taker in fee-simple with limitation over to another at the former’s death, and the court held that the limitation over was void for repugnancy. There the will plainly gave to the wife of the testator an estate in fee-simple, and in such case the absolute right of ownership in the wife carried with it full power of disposing of the property. The attempt of the testator to control the course of the descent of his property, after giving the fee to his wife, was repugnant to the estate given her, and, on that account, void. The will under consideration did not purport to give the wife a fee-simple estate; and we do not think the case cited has any bearing on the construction of the will under consideration. The will under consideration gave to the widow of the testator his property for and during her natural life and at her death to descend three-fourths to his adopted son, and the remainder, one-fourth to a niece. A subsequent clause of the will gave to his wife full power and authority to sell any and all of the property.

It is contended by counsel for appellant that where a power of disposal accompanies a devise of a life estate, in all cases the power is limited to such disposition as the tenant for life can make. To sustain their position, they cite the case of Patty v. Goolsby, 51 Ark. 61. They insist that that case conclusively establishes the position which they have assumed; but we do not agree with them in their contention. It must be admitted that there is some language in the opinion which might be construed in that way; but in oases involving the construction of a will, the language of the opinion must be construed with reference to the language of the will. Each case depends to a great extent upon the peculiar words used by the testator in the will under consideration. In cases of wills, such construction is to be given as will carry into effect the intention of the testator, and such construction as will, if possible, give force and meaning to every clause of the will. In the case of Patty v. Goolsby, supra, under the first clause of the will, the testator gave to his wife all his property “to have and to hold during her natural life or until she may think proper to marry, with full power to sell and dispose of such property as she may think proper.” The second clause of the will is as follows : “ It is my desire that at the death of my said wife, all my worldly effects be equally divided between my children.” By subsequent provision of the will', he provides that his children should be educated during their minority, and that his wife should pay strict attention to their instruction, and that the means be provided from his-estate for that purpose. The court in that case held that the wife took a life estate in the property with a remainder over to his children at her death, and that, under the terms of the will, she had only power to dispose of her life estate. It will be noted that the power of disposition in that case was given in the same clause as that which devised to her the property for her natural life, and in immediate connection with the devise of the life estate, thereby indicating that the power of disposal be limited to the life estate. In other words, the court held that by the terms of the will, the widow took a life estate, and that since the power of disposition was annexed to the devise of the life estate, its presence did not give the widow an unlimited power of disposition, but was restricted to the life estate. It is evident from a careful reading of the opinion that the court did not intend to hold that in all cases where the testator devised property to one person for life with remainder over, and also gave the first taker the power to dispose of the whole estate, such power would be limited to a disposal of the life estate. The court based its decision on Giles v. Little, 104 U. S. 291, and quoted with approval from that opinion as follows:

“The authorities are adverse and show that when a power of disposal accompanies a bequest or devise of a life estate, the power is limited to such disposition as a tenant for life can make unless there, are other words clearly indicating that a larg’er power was intended.” So that it will be seen that the effect of that decision is that the testator may devise property to one person with remainder over, and in addition give to the life tenant the absolute and unqualified power of disposition of the whole estate where the language of the willelearly indicates that such absolute power of disposition was intended. So, too, in the case of Douglass v. Sharpe, 52 Ark.

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Bluebook (online)
167 S.W. 99, 112 Ark. 527, 1914 Ark. LEXIS 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/archer-v-palmer-ark-1914.