Cook v. Worthington , 116 Ark. 328 ( 1915 )

Wood, J.,

(after stating the facts). (1) The will, ■so far as appellants are concerned, is void for uncertainty.

“To the validity of every disposition,” says Mr. Jarman, “as well of personal as real estate, it is requisite that there be a definite subject and object; and uncertainty in either of these particulars is fatal.” 1 Jar-man on Wills, p. 454, chap. 14.

(2) Now an inspection of the sections of this will will discover that no devise or bequest of all or any portion of the estate of Wm. H. Cook was made to the appellants. After giving $5 each, the language of section two does not give or bequeath to the appellants the remainder of ¡the estate and have them to share alike in that. It is manifest from the whole instrument that the deceased did not intend to will to appellants his entire estate, for it provides for the payment >of debts and funeral expenses, and a legacy of $5 each to his niece and his two Worthington nephews. So, it could not be construed that-W. H. Cook intended that the appellants should share and «'hare alike in his whole estate. No language is used in the instrument by which it can be ascertained what portion of his estate W. H. Cook intended to go to the. appellants. The will couid reasonably be construed as indicating an intention upon the part of the deceased to will to appellants an interest in his estate. This is shown by the use of the words “to share,” which means ‘ ‘ to partake of, ’ ’ ‘ ‘enjoy with others, ” “to have a portion ■of.” Webster’s Dictionary, “Share.” And it could he also construed that he meant that the appellants should1 all •have an equal share, or like .share, but as to what portion or as to what character of the estate, whether real or personal, is not mentioned in the instrument, and it is impossible to ascertain from the language employed as to what the intention of the maker of the so-called will was in these particulars. The subject of the alleged bequest, in other words, is too vague and indefinite to constitute .a valid will. “Where the intended subject-matter of disposition consists of an indefinite part or quantity, the gift necessarily fails for uncertainty.” 1 Jarman on Wills, p. 457.

Now, it would be entirely within the province of the court, in arriving at the intention of the deceased' Cook, to.transpose the words “out of my estate” from the first section to the second section, and have the second section read, “to my cousin, T. D. Coók, and my friends, Willie Short and Cleveland Short, share and share .alike out of my estate, ’ ’ if such transposition would 'discover the intention of the testator. But even with the words ‘ ‘ out of my estate,” so transposed, the subject of the alleged disposition would be in as hopeless confusion as ever1 because of vagueness and uncertainty both as to What portion as well as the character of the estate was intended to be disposed of. If the words “out of my estate” were •so transposed we might say that it was the intention of W. H. Cook that appellants should share and share alike “out of his estate.” We know from dispositions made of other portions of the estate that he did not intend for appellants to share the whole of the estate. Then, what portion did he intend that they should “share and share alike?”

(3) Over and over again we have said that the rule in the construction of wills is to give effect to what appears to be the intention of the testator in view of all the provisions of the will. See Campbell v. Campbell, 13 Ark. 513; Cockrill v. Armstrong, 31 Ark. 580; Bloom v. Strauss, 73 Ark. 56; Parker v. Wilson, 98 Ark. 561; Booe v. Vinson, 104 Ark. 439; Galloway v. Darby, 105 Ark. 558; Webb v. Webb, 111 Ark. 54; Gist v. Pettus, 42 Ark. Law Rep. 406.

(4-5) But this court has held steadily to the rule, which is 'Sustained by the authorities generally, that the intention of the testator must be gathered from the language, when unambiguous, used in the instrument itself, and not from oral testimony. See Robinson v. Bishop and Wife, 23 Ark. 378. Where there is an obvious clerical misprision in the use of a word, or where the words, by reference to 'the context, can better effectuate the intention of the maker by transposition to other parts of the instrument without destroying the sense, or where there is an obvious omission of a word or words, shown by reference to the other words used, then the rules of construction will permit the court to transpose or to supply these in order to effectuate the manifest purpose of the maker of the instrument, when ascertained from the instrument taken as a whole. But further than this the court will not go.

The rule and the reason for it is stated by Mr. Jar-man as follows: “The most unbounded indulgence has been shown to the ignorance, uniskilfuluess and negligence of testators; no degree of technical informality, or of grammatical or orthographical error, nor the most perplexing confusion in the collocation of words or sentences, will deter the judicial expositor from diligently entering upon the task of eliciting from the contents of the instrument the intention of its author, the faintest traces of which will be sought out from every part of the will, and the whole carefully weighed together; but if, after every endeavor, he finds himself unable, in regard to any material fact, to penetrate through the obscurity in which the testator has involved his intention, the failure of the intended disposition is the inevitable consequence. Conjecture is not permitted to supply what the testator has failed to indicate; for as the law has provided a definite successor in the absence of deposition, it would be unjust to allow the right of this ascertained object to be suspended by the claim of any one not pointed put by tbe testator with equal distinctness. The principle of construction here referred to 1ms found expression in tbe familiar phrase, that the heir is not to be disinherited unless by express words or necessary implication.” 1 Jarman on Wills, p. 453. 'See also, 2 Jarman on Wills, pp. 2205-6.

And, as expressed by Mr. Jarman in another place, in arriving at the testator’s intention as the governing principle, “the judges submit to be bound by precedents •and authorities in point; and endeavor, as we have seen, to collect the intention upon grounds of a judicial nature, as distinguished from arbitrary occasional conjecture.” 2 Jarman on Wills., pp. 2205-6, quoted in Webb v. Webb, supra. Other authorities to the same effect are cited in the brief of counsel for the appellees.

Our conclusion is that the instrument under review was void as to the lannelffints. and that is all we are called upon to decide. The judgment is therefore affirmed.

Kikby, J., dissents.