{ "id": 8721244, "name": "Finch v. Hunter", "name_abbreviation": "Finch v. Hunter", "decision_date": "1921-05-09", "docket_number": "", "first_page": "482", "last_page": "487", "citations": [ { "type": "official", "cite": "148 Ark. 482" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "98 S. W. 1167", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "105 Ark. 618", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "22 Ark. 567", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727312 ], "opinion_index": -1, "case_paths": [ "/ark/22/0567-01" ] }, { "cite": "68 Ark. 369", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1333965 ], "opinion_index": -1, "case_paths": [ "/ark/68/0369-01" ] }, { "cite": "113 Ark. 404", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1537508 ], "opinion_index": 0, "case_paths": [ "/ark/113/0404-01" ] }, { "cite": "143 Ark. 519", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1589444 ], "opinion_index": 0, "case_paths": [ "/ark/143/0519-01" ] } ], "analysis": { "cardinality": 492, "char_count": 9307, "ocr_confidence": 0.469, "pagerank": { "raw": 6.874801428709131e-08, "percentile": 0.418426904425702 }, "sha256": "08efc0511535839f79e3c01dcfa6aece04c3999cbaa4fa9bc4f76be747ff361c", "simhash": "1:e00f61d8d52d7e93", "word_count": 1663 }, "last_updated": "2023-07-14T16:10:39.547829+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Finch v. Hunter." ], "opinions": [ { "text": "Hart, J.\n(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;\nThe 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; \u201cTo my children, Willie Finch and Emmer Lee Hunter.\u201d 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.\nIt 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.\nOn the -other hand, it is insisted that the use of the words, \u201cI give to each of my children and Emmer Lee Hunter, what is known as the Horse Shoe Bend\u201d place, shows that the testator intended his two daughters to share in this place equally.\nThe 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, \u201cI give to each of my children and Emmer Lee Hunter, what is known as the Horse Shoe Bend\u201d place. The word \u2018 \u2018 and, \u201d it is true, is generally used in a conjunctive sense, but such is not always the case. The word \u201cand,\u201d as used in the clause quoted above, rather expresses the relation of addition and means \u201cincluding\u201d or \u201ctogether with.\u201d The word \u201cand\u201d has no synonym; but the Century Dectionary says that it is approximately expressed by \u201cwith, along with, together with, besides, also, moreover.\u201d\nWe 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, \u201ceach of my children and,\u201d are merely surplusage. It was not necessary to use the words, \u201cand Emmer Lee Hunter,\u201d 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, \u201cand Emmer Lee Hunter,\u201d to indicate that she was included in the words, \u201cto each of my children.\u201d 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.\nIt is not claimed by the grandsons that the word \u201cchildren\u201d 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\u2019s immediate offspring and does not extend to grandchildren. Alexander on Wills, vol. 2, \u00a7 841; Schouler on Wills, Executors and Administrators (5 ed.), vol. 1, \u00a7 533, and 40 Cyc. 1451.\nOf 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 \u201cchildren\u201d 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.\nTherefore, 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.", "type": "majority", "author": "Hart, J." } ], "attorneys": [ "Pryor & Miles, for appellant.", "The appellee, Emmer Lee Hunter, pro se." ], "corrections": "", "head_matter": "Finch v. Hunter.\nOpinion delivered May 9, 1921.\n1. Wills \u2014 CONSTRUCTION.\u2014The cardinal rule in construing a will is to ascertain and declare the intention of the testator, 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.\n2. Wills \u2014 construction.\u2014Where a testator, having two children, F. and H., devised certain land \u201cto each of my children and H.,\u201d and devised the rest of his lands to his wife for life with remainder to H., the first devise is to the two children, the words \u201cand H.\u201d being used in the sense of \u201cincluding EL,\u201d to indicate that H. was included in the words, \u201cto each of my children.\u201d\n3. Wills \u2014 grandchildren.\u2014Grandchildren are not included in a gift to the testator\u2019s children, in the absence of words in the contract to indicate such intention.\nAppeal from Sebastian Chancery Court, Greenwood District; J. V. Bourlcmcl, Chancellor;\nreversed.\nSTATEMENT OE FACTS.\nMrs. H. C. Finch brought this suit in equity against her sister, Einmer Lee Hunter, for the partition of certain real estate to which she claims an undivided one-half interest under the will of their deceased father.\nA. J. Hunter owned the lands in controversy in his lifetime and himself wrote the will which is the basis of this lawsuit. A. J. Hunter died in July, 1919, leaving surviving- him his widow, Mrs. A. J. Hunter, two children, the plaintiff, Mrs. H. C. Finch, and the defendant, Emmer Lee Hunter, and two grandchildren, Loyd Gilliam, and Earl Gilliam, the sons of a deceased daughter. A. J. Hunter was married four times, and the plaintiff, the defendant, and the deceased daughter were all children of different mothers. His widow had no children.\nThe will was duly signed and attested and the body of it is as follows:\n\u201cKnoiv all men by these presents, that I, A. J. Hunter, of Lavaca, in the county of Sebastian and State of Arkansas, of sound and disposing mind and memory, do make and publish this, my last will and testament, hereby revoking all former wills by me at any time heretofore made.\n\u201c1. I hereby constitute and appoint J. B. Branch to be the sole executor of my last will, directing my executor to pay all my just debts and funeral expenses and the legacies hereinafter given, out of my estate.\n\u201c2. After the payment of my said debts and funeral expenses, I give to each of my children, and Em-mer Lee Hunter, what is known as the Horse Shoe Bend west of Big Creek, towit: (SE) southeast of the (SE) southeast quarter of section (18) eighteen, township (8)' \u00e9ight, north of range (29) twenty-nine west, containing nine acres, more or less.\n\u201cAnd northeast part of southeast (SE) of southeast (SE) section (13) thirteen, township (8) eight, range (30) thirty, eleven acres and eighty-five one-hundredths and the north part of southwest, section (13), township (8), range (29), containing six acres, lying west of Doctor Fork, making Doctor Fork and Big Creek line, containing in all twenty-seven acres, more or less.\n\u201cAnd after payment of all my just debts I give devise to my said wife, during her natural life or long as she remains my widow, all the balance of my real estate, and after her decease or marriage to go to my daughter, Emmer Lee Hunter.\n\u201cI give and bequest to my grandson, Loyd Gilliam, five dollars to be paid within twelve months after my decease; I give and bequest to my grandson, Earl Gilliam, five dollars to be paid within twelve months after my decease.\n\u201cI give and bequest to my daughter, Willie Finch, five dollars to be paid within twelve months after my decease.\n\u201cIn testimony whereof, I hereunto set my hand, and publish and declare this to be my last will and testament, in the presence the witnesses named below, this 24th day of April, A. D. 1918.\u201d\nThe contest in this case is over the twenty-seven-acre tract in the second clause of the will.\nThe chancellor found in favor of the defendant, and the plaintiff has appealed.\nPryor & Miles, for appellant.\nThe intention of the testator in the construction of a will must be gathered from its language used when \u25a0unambiguous and not from oral testimony. There is no ambiguity here; it clearly gave to the two children the 27 acres of land and the balance of the real estate to the daughter, Emmer Lee Hunter.- 68 Ark. 369; 116 Id. 328.\nThe appellee, Emmer Lee Hunter, pro se.\nA clerical mistake in a will may be corrected to effect the manifest intention of the testator as collected from the context of the will. 22 Ark. 567. Where two parts of a will are irreconcilable the latter clause prevails. IIi.\nA testator is presumed to have used the word \u2018 \u2018 children\u201d in a will in its ordinary and strict meaning, unless the contrary is plainly shown. 105 Ark. 618. The testator\u2019s intent should be carried out as ascertained in view of all the provisions of the will.' 98 S. W. 1167. Considering the will altogether, there is no prejudicial error, as the evidence sustains the finding." }, "file_name": "0482-01", "first_page_order": 506, "last_page_order": 511 }