Gathright v. Gathright

Hart, C. J., (after stating the facts). It is the settled law in this State that if, under the terms of the will, it be doubtful what 'the rights and duties of the trustee are, he can resort to equity for a proper construction and interpretation of the will. For the same reason those interested under its terms in the proper definition and limitation of the trust and enforcement thereof may come to such court for like relief. Booe v. Vinson, 104 Ark. 439, 149 S. W. 524, and Gaines v. Arkansas National Bank, 170 Ark. 679, 280 S. W. 993. Hence the court was right in assuming jurisdiction of the case, and we -also think was right in the interpretation of the will. The testator first directed the payment of all his just debts and funeral expenses. He next made nominal bequests to his brothers and sisters. Item four is copied in our statement of facts, and is called the residuary clause of the will. The language of the fourth item, “all the rest, residue, remainder of -my estate,” is to foe understood in its usual and technical sense, and covers all the remaining property of the testator, both real and personal. Galloway v. Darby, 105 Ark. 558, 151 S. W. 1014, 44 L. R. A. (N. S.) 782, Ann. Cas. 1914D, 712. Thus it will be seen that, under item four of the will, after paying his debts, funeral expenses and specific legacies, the testator gave all the remainder of his property, both real and personal, to his beloved wife, absolutely. Under item five the provision in favor of the testator’s wife is to be in lieu of dower in his estate. It is contended by the plaintiffs that this means that the wife is to take under the will only that part of the estate that she would receive under the law as dower, and which, under our laws of descents, and distributions, would be, in this case, one-half of the real and personal property absolutely. Crawford & Moses ’ Digest, § 3536. We do not agree with counsel in this contention. Under the common law the testator will not be presumed to have intended a devise in his will to be a substitute for dower unless the claim of dower would be inconsistent with the will, or so repugnant to its provisions as to disturb and defeat the will. In other words, at common law it is held that, where the testator’s intention was not apparent upon the will, the devise would be presumed to be in addition to dower. Page on Wills, 2 Ed., vol. 1, § 1190, page 1985, and numerous cases cited in a note to 22 A. L. R., at 501. In the first place, it may be said that item four is not inconsistent with the view that it was the intention of the testator to only give his wife under the will what the law would give her as dower; and we do not believe that item four and item five are repugnant to each other. As we have already seen, when item four is construed with reference to the ordinary meaning of the language used in it, the testator gave his wife all his estate, charged with the payment of his debts, funeral expenses and the specific bequests to his brothers and sisters. Then it will be asked, what was the meaning of item five ? It will be noted that, under § 3538 of Crawford & Moses’ Digest, if a husband shall devise to his wife any portion of his real estate of which he dies seized, it shall be taken in lieu of dower out of the estate of such deceased husband, unless such testator shall in his will declare otherwise. It will be noted that there is no such provision in our statutes with regard to personal property. The will under consideration bequeaths personal property and also contains a devise of real estate. It has' been held, under statutes like that just referred to above, that a legacy of personal property will not put the widow to her election, as in the case of a devise of real estate, unless expressly made in lieu of dower. Booth v. Stebbins, 47 Miss. 161; Pemberton v. Pemberton, 29 Mo. 408, and other oases cited in a note to 22 A. L. R. 50. It mil be seen that the object of item five in the will was to require the widow to make her election just as she would be required to do under our statute in case a devise of land in lieu of dower was made in accordance with-the provision of § 3538 of Crawford & Moses’ Digest. It will also be seen that there is no repugnancy whatever between item four and item five of the will, and that the widow’s portion under item four is the remainder of the testator’s property after paying his debts, funeral expenses and the specific legacies provided for in the will. The object of item five was merely to require the widow to elect whether she would take under the will or take dower under the statute. Another reason for putting' his wife to her election was that the testator did not know how long he mig’ht live or whether he would own much or little at the time of his death. As we have already seen, he wanted his debts to be paid first, and this his widow would be required to do if she took under the will. On the other hand, if she took dower under the law, this would be a legal right given her, and she would be under no obligation whatever to. pay his debts. . The result of our views is that the decree of the chancellor was correct, and it will be affirmed.