Harrington v. Cooper , 126 Ark. 53 ( 1916 )

Hart, J.

(after stating the facts). (1) In construing the provision of a will, the intention of the maker is first to be ascertained, and, when not at variance with recognized rules of law, must govern. The intention of the testator must be gathered from all parts of the will, and such construction be given as will, if possible, give force and meaning to every clause of the will. Parker v. Wilson, 98 Ark. 553; Archer v. Palmer, 112 Ark. 527.

The particular clause of the will whose construction is involved by this appeal reads as follows:

“I give to my beloved wife, Mary Jane Wood, during natural life and to our daughter, Georgia Anna Wood, that portion of the tract of land on which we reside, lying north and east of Jacks Creek containing about five hundred acres, including the dwelling and gin house and other improvements as a joint support for my wife and at the death of my wife I desire and intend that my daughter, Georgia Anna Wood, shall take in her own right the entire interest should she survive her mother and should my said daughter, Georgia Anna Wood, die childless then in that case the whole shall revert to my estate and be equally divided between my other children or their descendants of the same, the children of such as may be dead taking the interest that the parent would be entitled to if living.”

It is the contention of counsel for appellants that under section 735 of Kirby’s Digest they became, under the will, the owners in fee of the lands in controversy subject to a life estate therein in their mother. We do not agree with their contention.

(2-5) Bearing in mind the settled rules of construction of wills just referred to and that the law favors the vesting of estates as early as possible, it will be seen that the first part of the clause just quoted gives to the wife of the testator a life estate in the property and that that part which reads “and at the death of my wife I desire and intend that my daughter, Georgia Anna Wood, shall take in her own right the entire interest should she survive her mother,” devised to the daughter a fee simple estate to take effect on the death of her mother. It will be noted that this clause is followed by a defeasance clause which reads as follows: “And should my said daughter, Georgia Anna Wood, die childless and in that case the whole shall revert to my estate and be equally divided between my other children and their descendants of the same, the children of such as may be dead taking the interest that the parent would be entitled to if living.”

It seems clear that the defeasance relates to the time of the death of the mother of 'appellants. That is the time fixed for- her remainder interest to take effect. The words “die childless” mean without having had or without leaving a child. In this way and in no other can every clause of the will be harmonized and have force and effect. It is perfectly clear that the testator intended that his daughter, Georgia Anna, should take a fee simple when he used the words, “shall take in her own right the entire interest,” and it is also clear that he intended the estate to vest when her mother died by using the words, “should she survive her mother.” The last clause already quoted by using the words “die childless,” etc., means that if Georgia Anna should die without having a child or leaving a child before her mother’s death, that the whole shall revert to the testator’s estate and be equally divided among the testator’s other children. In short it meant that the remainder in fee should- be vested in Georgia Anna at her mother’s death and in case Georgia Anna should die without leaving a child before her mother’s death the estate should revert to the testator’s estate and be divided among his other children. This is in application of a rule that where an estate is devised to one for life, with remainder to another, with the further provision that, if the remainderman should die without having a child, then to a third person, the words “die without having a child” are restricted to the death of the remainderman before the termination of the particular estate. Birney v. Richardson, 5 Dana (Ky.) 432; Daniel v. Thomson, 14 B. Mon. (Ky.) 662; Thackston v. Watson, (Ky.) 1 S. W. 398; Pruitt v. Holland, (Ky). 18 S. W. 852; Ferguson, etc., v. Thomasson, et al. (Ky.) 9 S. W. 714; Harvey, etc., v. Bell (Ky.), 81 S. W. 671; Bradshaw v. Butler (Ky.), 110 S. W. 420.

This conclusion is borne out by the context of the will. The testator in one case refers to haying made advancements to certain of his children and says that it is his intention to do equal and exact justice to all of his children and that all may share and share alike. Other language used in the will also shows that it was the intention of the testator that all his children should share equally in his property taking into consideration certain advancements made to-his older children.

It follows that the decree will be affirmed.