Finch v. Hunter

Hart, J. (after stating the facts). It is the contention of the plaintiff that the language of the will gives the Horse Shoe Bend land, consisting of twenty-seven acres, equally to the plaintiff and to the defendant, and such was the contention made by the plaintiff before the chancellor; The chancellor was of the opinion that, if he had intended to divide this place between the plaintiff and defendant in equal parts, the testator would have used language as follows; “To my children, Willie Finch and Emmer Lee Hunter.” The chancellor was of the opinion that it was the intention of the testator to give all of his land to Emmer Lee Hunter, but to charge a certain portion of it with a life estate in favor of his widow. It is insisted that this contention is borne out by the facts that the testator gave a specific legacy of $5 to Willie Finch, thus evincing an intention to give her this sum and no more. On the -other hand, it is insisted that the use of the words, “I give to each of my children and Emmer Lee Hunter, what is known as the Horse Shoe Bend” place, shows that the testator intended his two daughters to share in this place equally. The cardinal rule in construing a will is to ascertain and declare the intention of the testator. That intention is to be gathered from reading the entire will and construing it so as to give effect to every clause and provision therein if this can be done. Union & Mercantile Trust Co. v. Hudson, 143 Ark. 519, and Heiseman v. Lowenstein, 113 Ark. 404. The language used is, “I give to each of my children and Emmer Lee Hunter, what is known as the Horse Shoe Bend” place. The word ‘ ‘ and, ” it is true, is generally used in a conjunctive sense, but such is not always the case. The word “and,” as used in the clause quoted above, rather expresses the relation of addition and means “including” or “together with.” The word “and” has no synonym; but the Century Dectionary says that it is approximately expressed by “with, along with, together with, besides, also, moreover.” We think the word is used in this sense in the clause referred to. The testator used it to indicate a connection .of what follows with what has gone before in the way of description. In other words, the testator meant to say that he gave to each of his children, together with Emmer Lee Hunter, or including Emmer Lee Hunter, the Horse Shoe Bend place. In this way only can effect be given to every clause in the will. In the construction placed upon the clause by the chancellor the words, “each of my children and,” are merely surplusage. It was not necessary to use the words, “and Emmer Lee Hunter,” but these words were probably used by the' testator to emphasize the fact that he wanted Emmer Lee Hunter to share with his other daughter in the Horse Shoe Bend place. He knew that he was going to leave the rest of this land to her after charging it with a life estate in favor of his widow, and might have feared that on this account she would be left out of a share in the Horse Shoe Bend place. For this reason he probably added the words, “and Emmer Lee Hunter,” to indicate that she was included in the words, “to each of my children.” So that the testator meant to say, I give to each of my children along with Emmer Lee Hunter what is known as the Horse Shoe Bend place. It is not claimed by the grandsons that the word “children” in the clause just referred to includes them, and it may be said in this connection that a gift to the children of a person means one’s immediate offspring and does not extend to grandchildren. Alexander on Wills, vol. 2, § 841; Schouler on Wills, Executors and Administrators (5 ed.), vol. 1, § 533, and 40 Cyc. 1451. Of course, this rule is merely presumptive and would yield to a contrary intention as gathered from the context. There are no words in the context, however, to indicate that the word “children” is used in other than its ordinary and natural meaning. The testator left a bequest to each of his grandchildren and specifically designated them as his grandsons. Therefore, we are of the opinion that the chancellor erred in not decreeing a partition of the Horse Shoe Bend place between the plaintiff and the defendant, and for that error the decree will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.