{ "id": 1533763, "name": "Badgett v. Badgett", "name_abbreviation": "Badgett v. Badgett", "decision_date": "1914-11-02", "docket_number": "", "first_page": "9", "last_page": "14", "citations": [ { "type": "official", "cite": "115 Ark. 9" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "79 N. W. 377", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "108 la. 555", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8648966 ], "opinion_index": -1, "case_paths": [ "/iowa/108/0555-01" ] }, { "cite": "119 Mass. 525", "category": "reporters:state", "reporter": "Mass.", "opinion_index": -1 }, { "cite": "8 N. J. L. 90", "category": "reporters:state", "reporter": "N.J.L.", "opinion_index": -1 }, { "cite": "23 Ga. 571", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 249369 ], "opinion_index": -1, "case_paths": [ "/ga/23/0571-01" ] }, { "cite": "40 N. C. 82", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2101500 ], "opinion_index": -1, "case_paths": [ "/nc/40/0082-01" ] }, { "cite": "10 N. E. 433", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": -1 }, { "cite": "104 N. Y. 325", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2206895 ], "opinion_index": -1, "case_paths": [ "/ny/104/0325-01" ] }, { "cite": "104 Ark. 448", "category": "reporters:state", "reporter": "Ark.", "weight": 2, "pin_cites": [ { "page": "572" } ], "opinion_index": -1 }, { "cite": "38 Ark. 147", "category": "reporters:state", "reporter": "Ark.", "weight": 2, "opinion_index": -1 }, { "cite": "3 Ark. 147", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728351 ], "opinion_index": -1, "case_paths": [ "/ark/3/0147-01" ] }, { "cite": "38 Ark. 139", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900554 ], "opinion_index": 0, "case_paths": [ "/ark/38/0139-01" ] }, { "cite": "110 Am. St. Rep. 821", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "105 Ark. 568", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "104 Ark. 439", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1350617 ], "opinion_index": 0, "case_paths": [ "/ark/104/0439-01" ] }, { "cite": "90 Ark. 152", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513873 ], "opinion_index": 0, "case_paths": [ "/ark/90/0152-01" ] }, { "cite": "51 Ark. 61", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720154 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/51/0061-01" ] }, { "cite": "111 Ark. 54", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1540404 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/111/0054-01" ] } ], "analysis": { "cardinality": 494, "char_count": 10521, "ocr_confidence": 0.467, "pagerank": { "raw": 2.847872596275471e-07, "percentile": 0.8404287276980241 }, "sha256": "d99dc8ce5225b9b1e32dd4c5a1ce244712591816716d0eaf987eb05d7493e8e0", "simhash": "1:336eeecbae0c903e", "word_count": 1869 }, "last_updated": "2023-07-14T18:21:32.118939+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Badgett v. Badgett." ], "opinions": [ { "text": "Wood, J.,\n(after stating the facts). The only question is as to whether or not O. K. Badgett, Sr., has title to the lands in controversy under the will.\nIn Jarman on Wills, at page 998, we find this statement: \u201cMany of the early authorities proceeded on the principle that the heir was not to he disinherited except by clear words. At the present day, however, more respect is paid to the intention of testators, and in seeking to ascertain, in any particular case, what the intention is the court proceeds on the theory that aman who makes a will does not, as a general rule,\u2019 wish to die intestate as to any part of his property.\u201d\nIn Webb v. Webb, 111 Ark. 54, we said: \u201cThis court early announced that \u2018the leading rule in the construction -of wills is to give effect to what appears to be the intention of the testator in view of'all the provisions of the will. \u2019 \u2019 \u2019\nThis court has often announced the familiar rul\u00e9, \u2018 \u2018 That in the construction of wills, there is -always a presumption against partial intestacy, unless such intention clearly appears from the language used in the instrument.\u201d Patty v. Goolsby, 51 Ark. 61; Gregory v. Welch, 90 Ark. 152; Booe v. Vinson, 104 Ark. 439; Galloway v. Darby, 105 Ark. 568-572; Webb v. Webb, 111 Ark. 54.\nIn the latter case, after quoting the above rule from former cases, we said: \u201cBut in Patty v. Goolsby, supra, and other cases in which this rule was -announced, the language of the will construed showed a purpose to dispose, by will, of the entire estate of the testator. \u2019 \u2019 The same thought is well expressed in Gallagher v. McKeague, 110 Am. St. Rep. 821, as follows: \u201cWhenever the words of a will, fairly construed, are such as to carry the whole estate, it will he presumed that the testator intended to dispose of all of his property, and not to die intestate as to any part of it.\u201d And the court adds: \u201cBut the intention to pass the whole estate \u00a1must be expressed in some form, arid such presumption will not prevail when the language of the will, fairly construed, is insufficient to carry the whole estate.\u201d\nThe language of this will, as .a whole, indicates that it was written by one who was not familiar with the use of the legal and technical language in which wills are usually couched when drawn by those well versed in such language. For instance, the words \u201cgive,\u201d \u201cdevise\u201d and \u201cbequeath\u201d are not used in the entire instrument to express the intended conveyance or transfer of the testatrix\u2019s property. Instead thereof, she' expressed her testamentary disposition in these words: \u201cI most earnestly desire that my dear husband, O. K. Badgett, shall be my sole legatee, and shall take possession of all or any property, both real, personal or mixed, of which I am now possessed or have any interest in.\u201d\nIt is manifest that the testatrix used the language, \u201cshall take possession of all or any property, both real, personal or mixed,\u201d for the purpose of devising all of her real estate and bequeathing all of her personal property to her husband, O. K. Badgett. The language of the will shows plainly an intention on the part of the testatrix to dispose of her entire estate. She uses the words, \u201cshall take possession of all or any property,\u201d in the sense of investing the title in such property in her husband. When she says \u201che shall take possession of\u201d she evidently means that he shall be seized and possessed of, using the words \u201ctake possession of\u201d in the sense of transferring the title in the property to 'him. When the term legatee is construed in connection with these other words, denoting the disposition which she intends to miaike of her entire estate, it is plain that the testatrix did not intend to use the word legatee in its restricted legal and technical sense of beneficiary only of the personal estate bequeathed under the will. This word legatee, when used with reference to the other words of .the context, will not justify the construction that it was intended that O. K. Badgett should take only the personal estate mentioned. , It was rather used in the sense that he should be the sole beneficiary of the testatrix; that is, as if she had said, \u201cI most earnestly desire that my dear husband, 0. K. Badgett, shall be my sole beneficiary.\u201d To give it any other interpretation would render meaningless the other words used in the immediate context by which the testatrix evidently intended to make final disposition of her entire estate.\nIn Bell & Carlton v. Welch, 38 Ark. 139-147, we said: \u201cThe term \u2018sole legatee\u2019 is generally used to describe those to whom .there has been a bequest of personal property, but it may include a devise of real estate also. \u2019 \u2019 In that case it was held that it was so meant. The same in this case when the whole context is considered.\nMr. Jarman says that, \u201cWords applicable exclusively to personal estate have sometimes, by force of the context, been held to include land.\u201d 1 Jarman on Wills, p. 1015. See, also, 40 Cyc., pp. 1405-1407, and cases cited.\n\u201cThe word legacy may be so extended as to include realty or interest therein when this is necessary * * * to effectuate the purpose of the testator as expressed in his will.\u201d Black\u2019s Law Dictionary, page 707, and cases cited under the word \u201cLegacy.\u201d See, also, Anderson\u2019s Law Dictionary, \u201cLegacy,\u201d page 607, and note 10. Other authorities are cited in appellee\u2019s brief.\nThe familiar presumption that the heir at law will not be disinherited unless the words used by the testator evince a clear intent to devise his real estate is overcome by the language used by the testatrix, to the effect that it was her desire that O. K. Badgett \u201cshall take possession of all or any property, both real, etc., of which. I 'aim now possessed or have any interest in. \u2019 \u2019 This construction is further strengthened by reference to the clause in the will in which she names her children. By expressly naming them she shows that she had them in mind, and in failing to devise \u00a1or bequeath to them any part of' her estate she shows that it was not her intention to do so, but to vest her entire estate, at her death,- in her husband.\nWe are of the opinion, therefore, thait the chancellor was correct in his construction of the will, and his decree is in -all respects affirmed.", "type": "majority", "author": "Wood, J.," } ], "attorneys": [ "Carmichael\u25a0, Broohs, Powers <& Rector, for -appellant.", "Rose, Kemingivay, Cantrell & Loughborough, for appellee." ], "corrections": "", "head_matter": "Badgett v. Badgett.\nOpinion delivered November 2, 1914.\n1. Wills \u2014 intention of testator. \u2014 In the construction of wills, effect will be given to what appears to be the intention of the testator in view of all the provisions in the will.\n2. Wills \u2014 partial intestacy \u2014 presumption.\u2014There is always a presumption against partial intestacy, unless such an intention clearly appears from the language used in the instrument.\n3. Wills \u2014 devise of whole estate \u2014 intent of testator. \u2014 A will contained the following: \u201cI most earnestly desire that my dear husband, O. K. B., shall be my sole legatee, and shall take possession of all or \u00e1ny property, both real, personal or mixed, of which I am now possessed or have any interest in.\u201d Held, the testator intended to devise all her real estate and to bequeath all her personal estate to her husband, and that she intended to dispose of her entire estate.\n4. Wills \u2014 '\u201csole legatee\u201d \u2014 intention of testator. \u2014 The term \u201csole legatee,\u201d while generally used in wills to describe a person .to whom there has been a bequest of personal property, may also include a devise of real estate.\n5. Wills \u2014 disinheritance of heir \u2014 presumption.\u2014The presumption that the heir at law will not be disinherited unless the words used by the testator evince a clear intent to devise his real estate, held, \u25a0to be overcome where the testator used the language that it was her desire that 0. K. B., her husband, \u201cshall take possession of all or any property, both real, etc., of which I am now possessed or have any interest in.\u201d\nAppeal from Pulaski Chancery Court; John E. Martineau, Chancellor;\naffirmed.\nSTATEMENT BY THE COURT.\nJulia T. Badgett made a will, which, omitting the merely formal words of opening and conclusion, reads as follows:\n\u201cI, Julia T. Badgett, do make, declare and publish this to be my last will and testament, and I hereby revoke all former wills or testaments.made \u00a1by me of any other -character or description whatsoever.\n\u201cIn furtherance -of my wishes, I most earnestly desire that my -dear husband, O. K. Badgett, shall be my sole legatee, and shall take possesion of all -or -any property, both real, personal or mixed, of which I am now possessed or have any interest in. I further desire that he shall be my sole executor, without bond, to do -and perform all or -any -of the -acts that I request of him, or that may be necessary for him to perform in carrying out my last wishes.\n\u201cI further desire that he shall pay all of my just debts and funeral expenses that may accrue which are chargeable to me -or to my estate. I further desire that my husband, O. K. Badgett, shall be the sole guardian of my dear children, whose names are as follows: Bussell, O.K., Jr., Dorothy and Bentley, which he is naturally, and I ask that he shall be made so by law -after my death.-\u2019 \u2019\nAfter the death of Mrs. Badgett, 0. K. Badgett, Sr., became ins-ane. The Union Trust Company, his duly appointed guardian, brought this -sui-t, claiming that O. K. Badgett, Sr., w-a-s the owner of certain lands under the will to which the appellants here also -claimed title- by virtue