Gist v. Pettus

Wood, J., (after stating the facts). The appellants contend that the testator, W. W. Pettus, devised to his son, John W. Pettus, a fee simple title to the lands in controversy under the third paragraph of the will, and that the codicil, in attempting to dispose of the lands devised in a manner inconsistent with ‘the terms of the devise in the third paragraph, is repugnant to this devise, and should be declared void. Appellants rely upon the case of Bernstein v. Bramble, 81 Ark. 480, where Judge Battle, speaking for the court, quoted from Underhill on the Law of Wills, as follows: “It is the rule that where property is given in clear language sufficient to convey an absolute fee, the interest thus given shall not be taken away, cut down or 'diminished by any subsequent vague and general expressions. * * * If it is clearly the intention .of the testator that the devisee shall own the fee simple, his subsequent language, directing that what remains of the property at the death of that devisee shall devolve upon a particular person or class of persons, will not cut down the fee to a life estate. The fee, being vested by express and appropriate words, will not be diminished by subsequent words of vague and general character which are absolutely repugnant to the estate granted.” In Booe v. Vinson, 104 Ark. 445, we said: ‘ ‘ The purpose of construction of a will is to ascertain the intention of the testator from the language used as it appears from consideration of the entire instrument, and, when such intention is ascertained, it must prevail if not contrary to some rule of law, the court placing itself as near as may be in the position .of the testator when making the will.” See, also, Little v. McGuire, 113 Am. 497; 168 S. W. 1084. (1) Applying these well established rules to the will under consideration, when the codicil and the third paragraph of the will, above quoted, are considered together, there is no doubt that it was the intention of the testator to devise to his son, John W. Pettus, only a life estate in the real estate in controversy, and to give to his heirs the remainder in fee simple; for the codicil expressed this intention of the testator in language too plain to be misunderstood. The testator, by codicil, expressly declares what his intention wa's by the devise contained in his will. He construes the clauses of his will as if apprehensive that they might not he clearly understood, and expresses in unequivocal and unambiguous terms that at the death of his son, John W. Pettus, it was his intention that “all the real estate devised and given shall descend to the heirs of his body.” (2) When the will is thus construed there is no necessary repugnancy between the codicil and the third paragraph. The third paragraph, with this interpretation of it by the testator himself, means no more than that the lands were devised to John W. Pettus and the heirs of his body forever. But, if we are mistaken in this, and the third paragraph of the will should be construed to devise the fee simple title to John W. Pettus, then this paragraph would be manifestly inconsistent with and repugnant to the codicil, and in that ease the language of the codicil would control. (3) In Little v. McGuire, supra, we held that, where the provisions of a will are in conflict, the last provision is controlling. See, also, Cox v. Britt, 22 Ark. 567; McKenzie v. Roleson, 28 Ark. 102; 40 Cyc. 1180. The effect of the devise, considering the entire will, under our statute abolishing fee tails, is to convey to John W. Pettus a life estate only, which, at his death, passed in fee simple 'to his children, the appellees herein. Kirby’s Digest, § 735; Horsley v. Hilburn, 44 Ark. 458; Mayar v. Snow, 49 Ark. 125; Hardage v. Stroope, 58 Ark. 303; Wilmans v. Robinson, 67 Ark. 517; Black v. Webb, 72 Ark. 336. It follows that the court did not err in its construction of the will and in its instruction declaring that construction to the jury as the law for their guidance. The judgment is therefore correct, and it is affirmed.