Horrocks v. Basham

McCULLOCH, C. J. This litigation involves a construction of the last will and testament of the late George L. Basham for the purpose of determining whether under the terms of the will the testator’s son, Leftridge Basham, took an estate in fee simple, as contended by appellee, or whether he took an estate tail, which under our statute is converted into a life estate, as contended on behalf of appellants. The instrument in question, omitting parts not material to this controversy, reads as follows : “All the rest and residue of my estate, real and personal, I give and devise to W. B. Worthen Company, Robt. J. Lea, E. E. Moss; my brother, Hugh Basham, and my son, Leftridge Basham, to hold in trust for the purposes hereinafter set out. It is not my purpose to impose on my trustees, Lea, Moss and Hugh Basham, the burden of the management of my estate but simply to give them advisatory control. “First. My said trustees shall pay all my just debts and funeral expenses and the legacy hereinbefore set out. “Second. They shall pay to my son Leftridge the sum of one hundred and twenty-five dollars per month and a further sum each month which shall equal the amount of his earnings during that month in any vocation which he may follow. And the further sum of twenty-five dollars per month for each child bom in lawful wedlock while living. “Should the exigencies of his business in the judgment of my trustees justify it, they may advance to him a reasonable sum provided the same can be done out of the income of my estate. Should my son by his own efforts accumulate an estate of the value of fifteen thousand dollars clear and unencumbered, or in any event when he shall have reached the age of forty-five years, my trustees shall turn over to him my entire estate. “Should my son die without bodily heirs him surviving, then I will and direct that my trustees shall pay to each of the children of my four brothers and my sister the sum of one thousand dollars. Should any of my nephews or nieces die, prior to my decease, leaving a child or children, said child or children shall receive the part that would have gone to the parent if living. I further direct that they shall pay to my sister-in-law, Laura Basham, fifteen hundred dollars. All the above sums to be paid out of the income of my estate as soon as may be, should my son Leftridge so depart this life without bodily heirs him surviving. And in that event after the payment of the above legacies I hereby direct that my said trustees shall annually pay one-half of the net income of my estate each to Methodist Orphans ’ Home and the Florence Crittenden Home of Little Bock. Should either of these cease to exist then the whole net income shall be paid to the other. “I hereby direct that $1,000 of my stock in the Bankers Trust Company shall be set aside by my said trustees and that the income and profits of the same shall be used for the care and preservation of my lots in Mount Holly Cemetery, Little Bock, Arkansas, and the furnishing of fresh flowers for the graves of my wife, my children and myself on natal, Easter and Christmas days.” There is an undated codicil to the will, which reads as follows: “I desire to make it clear that should my son Left-ridge (die) leaving heirs of his body, such heirs or their descendants shall inherit my estate in fee simple.” The omission of the word “die” from the codicil is a patent one. It is clear from the language of the will that the trust should come to an end when Leftridge Basham should “by his own efforts accumulate an estate of the value of fifteen thousand dollars clear and unencumbered,” and in any event, when he “shall have reached the age of forty-five years.” According to the testimony in the case it has been determined by the trustees that said devisee has accumulated an estate of the value specified in the will, and they have turned the devised estate over to him. When the whole language of the will is considered together, it is manifest that the testator used the words “should my son die without bodily heirs him surviving” with reference to the period before the time of distribution when the devised estate should be reduced to possession by delivery to the beneficiary. This, under the doctrine announced by this court in Harrington v. Cooper, 126 Ark. 53. In that case we approved a long line of decisions of the Kentucky Court of Appeals, where similar language in wills was restricted to the death of the remainderman before the termination of that estate or before the distribution of the estate or its reduction to the possession of the person to whom it is first devised. Now, when the language of the codicil is considered in the light of what appears to be the intention of the testator expressed in the original instrument, it can not reasonably be construed as changing in anywise that intention. In fact, the language used shows that the testator had in mind his intention as expressed in the original document, and did not change the devise, but merely made clearer his intention as originally expressed. The language is not susceptible of the construction that it was intended to devise the property to heirs of the body of the first taker in any event, but merely to declare that those heirs should take the estate in fee simple, if they took at all, on the happening of the contingency specified, i. e., the death of the first taker before the distribution of the estate “leaving heirs of his body.” This interpretation of the will, which is not inconsistent with the language used, is induced by the well-settled canon of construction that'the law favors the early vesting of estates. And the fact that the trust is ended, according to the terms of the will, when the estate is delivered to the devisee on the happening of either one of the events specified, leads unerringly to this construction, for the provision of the will concerning the disposition of the property after the death of the first taker is made by the trastees during the existence of the trust. So it is clear that no remainder over was intended, except upon the death of the first taker before he came into possession of the estate. The decree of the chancery court was correct, and it is, therefore, affirmed.