DeLoney v. Froug

Humphreys, J. This appeal is to challenge the construction placed upon the will of Rosa Breathwaite, deceased, by the chancery court of Cleveland County. The court’s construction of the will was that it devised the tract of land involved in the suit, consisting of 260 acres, to Lucy B. DeLoney, the sister of the testatrix, in fee simple. Appellee purchased the land from John H. Breathwaite, who obtained it, by warranty deed, from Lucy B. DeLoney. They then brought suit to quiet the title to said real estate against appellants, children of Lucy B. DeLoney. Appellants interposed the defense that the will created a life estate in said real estate in their mother, Lucy B. DeLoney, with the remainder over to" them in fee simple. The testatrix, after providing for the payment of her burial expenses, debts and a $5 legacy to a half-sister, bequeathed $1,000 to her husband, John H. Breathwaite, if her estate exceeded $3,000 in value, or one-third of the estate to him, if its value- did not exceed $3,000. Following these provisions are the fifth and a part of the sixth paragraphs of the will, relating to the lands in question. The fifth paragraph is as follows: “5th. I give and bequeath to my beloved sister, Lucy (Brewer) DeLoney, and to her heirs of her body, bom and unborn, all the residue of whatever estate I may-die seized and possessed of every description and kind, the same to be used for their common benefit and happiness and to be controlled absolutely by my said sister and for the use of which she shall not be held to account to any one.” That part of the sixth paragraph, relating to said land, is as follows: “At the time of the execution of this my last will and testament I own some land near my old home place, and in the event that my estate is at my demise worth only three thousand dollars or less than that amount, and it should be necessary for my husband and sister, Lucy (Brewer) DeLoney, to make a division of the land in order that my bequests herein be carried out, then I desire them to divide it to suit themselves; and if they fail to agree, then it is my will that the matter of division be submitted to three good and lawful men for arbitration, and I further will that, if any disagreement be had, that it be settled-in this manner rather than by recourse to the civil courts. I would prefer that my sister, Lucy DeLoney, keep the land and my husband, John IT. Breathwaite, receive his legacy, whether it be one-third interest or one thousand dollars in cash or personal property. ’ ’ The language of the fifth paragraph of the will is clear and unambiguous. The limitation in said paragraph is to the heirs of the body, horn and unborn, of the devisee, Lucy B. DeLoney, and, at the death of the testatrix, vested in Lucy B. DeLoney a life estate with the remainder in fee simple to appellants, who are her bodily heirs. The language used in said paragraph is not susceptible of any other construction, under the rule announced in the cases of Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, and Gray v. McGuire, 140 Ark. 109. Appellees contend, however, that, if the provisions of paragraph 5 provided for a life estate only to Lucy B. DeLoney, then there is an irreconcilable conflict between the paragraph and paragraph 6, quoted above, for the suggested reason that paragraph 6 evinces an intention on the part of the testatrix to divide her lands in fee simple between her husband, John H. Breathwaite, and her sister, Lucy B. DeLoney; and that, on account of the conflict, the intention of the testatrix in paragraph 6 should prevail, as being the latest expression of the testatrix. We do not concur with learned counsel for appellees in his construction of paragraph 6 of said will. Paragraph 6 does not attempt to devise or bequeath the testatrix’s estate. It relates entirely to the method by which certain real estate may be divided in order that her bequests may be carried out. The method provided was by agreement, if possible; if not, by arbitration, rather than by recourse to the civil courts. Since paragraphs 4 and 5 related to the character and nature of the bequests and paragraph 6 to the manner of division in the execution of the bequests, there could be no conflict between the first two and the last paragraphs. They relate to different matters. On account of the error indicated, the decree is reversed and the cause remanded with directions to enter a decree in accordance with this opinion.