O'Connor v. Rowland , 73 Ark. 422 ( 1904 )

Riddick, J.,

(after stating the facts.) This is an action of ejectment brought by plaintiff to recover an undivided interest in certain lands which belonged to her father, and which rvere devised by his will. The only question we need consider is whether Lafayette Brackville, a devisee under that will, and whose widow and heirs are defendants in this action, took an estate in fee or only a life estate in the land devised to him by the will.

An inspection of the will shows that no definite estate was given Lafayette Brackville. The testator by the first paragraph of the will devises to him certain land with the provision that his mother shall have full control and management of all the property during her life. In the fifth paragraph he directs that his home place shall be sold, and the proceeds applied to the improvement of this land, which he had previously devised to Lafayette. The sixth paragraph contains the declaration that this place, referring to the same land, “shall be an asylum for the Brackville family, with the exception of George Brackville.” After stating-his. reasons for excepting George from this provision of the will, the testator in the same paragraph directs “that if Lafayette should die I bequeath to Christiana J. Brackville and Flora Jane Brackville the place in section 17, township 2,” that being the land which he had previously devised to Lafayette without stating the nature of the estate devised. In other words, we have here a devise to Lafayette of certain land, no definite estate being given, and afterwards the provision that on his death the land should pass to two other children of the testator.

The law on this point is thus stated in a recent work by Prof. Gardner: “Where no definite estate is, in terms, given to the first taker, a limitation over upon his death is steadily construed as indicating an intent that such taker shall have a life estate.” Gardner on Wills, p. 473; Defreese v. Lake, 109 Mich. 415, 32 L. R. A. 744, 63 Am. St. Rep. 584, and other cases cited.

Following the rule above quoted, which is well established, we are of the opinion that Lafayette Brackville took by this will a life estate charged with the support of his mother, and that after his death the remainder in fee was devised to his sisters, Christiana and Flora Brackville. They died before Lafayette without issue, and their heirs are the same as the heirs of their father, John P. Brackville, one of whom is the plaintiff, who is entitled to her undivided interest, whatever that may be.

For the reasons stated, we are of the opinion that the court erred in sustaining a demurrer to the complaint. The judgment is therefore reversed, with an order that the demurrer be overruled, and for further proceedings.