Parker v. Walls , 75 Ark. 86 ( 1905 )

Hire, C. J.,

(after stating the facts.) . The executors, appellants here, insist that the last clause of the deed constituted a testamentary gift to the children of Walls, and, not being executed as wills are required to be executed, was void, and, if valid as a testamentary gift, was revoked by the subsequent will. It is also contended that it is void for want of consideration, and that this clause is repugnant to other parts of the deed. The court views the deed differently. Walker’s will leaves the impression that he was not a young man, and his life estate in some lots (not shown to be improved) in an addition to the town of Clarendon could not have been of great value. Walls owned the fee in the lots, incumbered with Walker’s life interest, and Walker conveyed this life interest to Walls in consideration of $400 cash which was then received by him. Then it is further understood as part of the same transaction that on the death of Walker his estate should pay the children or heirs at law of Walls the sum of $400. Evidently, this is a repayment to Walls of the $400 advanced for Walker’s life interest. In other words, Walker had the use and enjoyment of $400 without interest for his life in exchange for his life interest in the lots. Then the $400 are to be returned by mutual agreement with each party to Walls’s children, instead of to Walls. This is more in the nature of a gift from Walls to his own children than a gift from Walker to Walls’s children. The deed was not revocable, and conveyed present interest, and Walker received in return the present use of money; this money was to be returned at Walker’s death to Walls’s children. Even if construed as a gift to them by Walker, it was a present conveyance, and the enjoyment postponed to his death, and such deeds are upheld. Bunch v. Nicks, 50 Ark. 367; Cribbs v. Walker, 74 Ark. 104.

Viewing the deed from any point of view, it presents a valid claim in favor of Walls’s children against Walker’s estate, and the judgment is affirmed.

Mr. Justice Battue dissents.