Brock v. Turner , 147 Ark. 421 ( 1921 )

Smith, J.

The decision of this case turns upon the construction of the following will:

“I give, devise and bequeath to my beloved husband, John F. Marshall, all of my personal property and real estate, as follows, towit: Forty acres, being the southeast quarter of the northwest quarter of section eleven (11), township four (4), range 32 west, containing sixty acres, more or less. Also all chattel property of any kind, including money on hand, notes, household goods, etc. And if there should hereafter be any legal heirs of any of this, my estate, then and in that event it is my will and testament that all such may be paid the sum of one dollar in money to each. ’ ’

The will was executed by Mrs. Marshall, the testatrix, on February .1, 1908. On September 2, 1909, she acquired the real estate which forms the subject-matter of the litigation, and after her death, February 1, 1913, her brothers and sisters and the children of certain brothers' and sisters claimed the property which she had acquired subsequent to the execution of the will as her heirs at law. Did the property acquired after the execution of the will pass under it?

We answer the question in the affirmative. In the first place, there is a presumption against partial intestacy. Of course, no controlling effect is to be given to this presumption, but it is one which must always be taken into account when the language employed in a will is sufficiently ambiguous to require the application of rules of construction in extracting its meaning.

The will devises “all of my personal property and real estate.” It is apparent that the adjective “all” modifies both classes of property — the real estate as well as the personal property. The sentence immediately following the one which undertakes a specific description of all the land then owned by the testatrix undertakes a description of the personal property. Its language is: “Also all chattel property of any kind, including money on hand, notes, household goods, etc.” The phrase “on hand” referred, of course, to the time of death. Manifestly, there was no purpose to devise specific pieces of money owned by the testatrix at the time of the execution of the will; nor is it to be believed that she did not intend to collect the notes then due her but meant to keep them for the benefit of her husband at her death.

The will, of course, was made in contemplation of death, and the property disposed of was that “on hand” when that event occurred. No other construction of the will appears possible so far as tbe personal property is concerned; and we think the testatrix made no distinction between her real estate and her personal property in. this respect.

We think this construction of the will is reinforced by the concluding sentence thereof. The testatrix knew that she had brothers and sisters who .might survive her or be themselves survived by their own descendants. She referred to them as a class- — as they will exist at thé time of her death — and she designates the part they each and all of them are to have of ‘ ‘ my estate. ’ ’ The phrase ‘ ‘ my estate” as certainly comprehends real estate as it does personal property, and the part of that estate given to each of these heirs is “the sum of one dollar in money to each. ’ ’

We conclude, therefore,' that it was the purpose of the testatrix to dispose of the estate which she might own at the time of her death; and when a will manifests that purpose, it includes after-acquired property of which the testator or testatrix dies seized and possessed. Patty v. Goolsby, 51 Ark. 61; Galloway v. Darby, 105 Ark. 558.

The court -below so construed the will and entered judgment in accordance with that construction; and that judgment is therefore affirmed.