Moore v. Avery , 146 Ark. 193 ( 1920 )

It is conceded by counsel on both sides that the only issue to be decided is whether or not the property has legally passed to James Avery under the will referred to in the statement of facts. In the first place, it is contended by counsel for the plaintiffs that the will of Dinah Averitt-did not give to Harry Moore the power to dispose of the property in question. Counsel relies upon the cases of Patty v. Goolsby,51 Ark. 61, and Douglass v. Sharp, 52 Ark. 113. We do not think these cases are applicable. There is nothing in either case to indicate that the testator intended to give to the life-tenant the absolute power to dispose of the fee in the estate. Such intention is clearly indicated in the will of Dinah Averitt. In this respect the case is ruled by that of the Union Mercantile Trust Co. v. Hudson; 143 Ark. 519. In that case the clause under consideration was as follows:

"Second. I give, bequeath and devise all the rest and residue of my estate owned by me at the time of my death, real, personal and mixed, to my mother, Charlotte D. Turner, to have, hold, use and enjoy during her natural life, it being my desire that she shall have the absolute right to sell or incumber it without any restrictions whatever."

The clause in the instant case which we have copied in our statement of facts, and need not repeat here, in plain language gives Harry Moore the power by his last will and testament to dispose of the property in question. It first gives it to him for his natural life, and, in the event of his dying without heirs of his body surviving him, then the property shall go to such persons as Harry Moore by his last will shall direct and appoint.

Having decided that the will of Dinah Averitt gives to Harry Moore the power to dispose of the property, we come to the question of whether or not the will of Harry Moore devised the property to James Avery. "We think it does.

It is contended by counsel for plaintiffs that it does not, because the devise shown by the first clause of the will is, "All of my property, real, personal and mixed, * * I will and devise to my friend and relative James Avery," etc. In construing a will the paramount rule is to arrive at the .intention of the testator, and this must be done from the language used, where it is plain and free from ambiguity. Parol evidence is admissible in this class of cases, to the same extent as in other cases, in aid of the construction of written instruments, when the language used is doubtful, or susceptible of two meanings, and no further. You may show the conditions as they exist at the time of the execution of the will and the surrounding circumstances, so as to place the court in the position of the testator. Fitzhugh v.Hubbard, 41 Ark. 64, and Eagle v. Oldham,116 Ark. 565. In the application of this rule in the instant case, it is proper to consider the conditions as they existed at the date of the execution of the will, and the surrounding circumstances, in order to find out what was intended by the testator. The record shows that Harry Moore had conveyed by deed all of the property devised to him in fee by his grandmother, Dinah Averitt, and that the building on the property in question, which had been devised to him for his natural life by his grandmother, had been destroyed by fire. Harry Moore was ill and infirm, and had no means with which to rebuild on the property or to support himself for the remainder of his life. He thought that he had the power to dispose of the property in question under the will from his grandmother. He offered to make a will in favor of a friend to this property if his friend would advance him money with which to rebuild. His friend declined to make the advance because he was afraid that Harry Moore might change his mind and make another will devising the property to others. Finally, he agreed with James Avery, a friend and relative, that, if the latter would advance him money with which to rebuild, he would execute a will devising the property in question to him in fee simple. This agreement was carried out by the execution of the will in question. The question of the specific enforcement of an agreement of this sort does not arise in this case. The agreement was carried out by the execution of the will, and Harry Moore died without revoking it. Hence the only question for our consideration is whether or not the language of the will, together with surrounding circumstances, is sufficient to devise the property in fee to James Avery. We think so. The testator devised all of his property, real, personal and mixed, to his friend and relative, James Avery. The word "all" was sufficiently broad and comprehensive to include any property to which the testator had the power of disposition. The will of Dinah Averitt gave Harry Moore the absolute power to dispose of the property without any restrictions whatever, and the language used, "all my property," was sufficiently compresensive to include the property in question. In short, if Harry Moore had the power to dispose of the property by will, he did dispose of it by devising all of his property to his friend and relative, James Avery.

There is nothing in the language of the will indicating a contrary intention on his part.

It follows that the decree must be affirmed.