{ "id": 1473176, "name": "Walker v. Case, Executor", "name_abbreviation": "Walker v. Case", "decision_date": "1947-10-06", "docket_number": "4-8230", "first_page": "1091", "last_page": "1096", "citations": [ { "type": "official", "cite": "211 Ark. 1091" }, { "type": "parallel", "cite": "204 S.W.2d 543" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "297 S. W. 1018", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "174 Ark. 703", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724012 ], "opinion_index": 0, "case_paths": [ "/ark/174/0703-01" ] }, { "cite": "25 Md. 450", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1758656 ], "opinion_index": 0, "case_paths": [ "/md/25/0450-01" ] }, { "cite": "73 Am. St. Rep. 405", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "51 S. W. 111", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "149 Mo. 426", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 458719 ], "opinion_index": 0, "case_paths": [ "/mo/149/0426-01" ] }, { "cite": "209 Ark. 983", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1475837 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/209/0983-01" ] }, { "cite": "3 S. W. 2d 974", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "176 Ark. 660", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1400044 ], "opinion_index": 0, "case_paths": [ "/ark/176/0660-01" ] }, { "cite": "122 S. W. 96", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "92 Ark. 88", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1548596 ], "opinion_index": 0, "case_paths": [ "/ark/92/0088-01" ] }, { "cite": "240 S. W. 712", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "153 Ark. 421", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1362300 ], "opinion_index": 0, "case_paths": [ "/ark/153/0421-01" ] }, { "cite": "112 S. W. 373", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "86 Ark. 368", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1521476 ], "opinion_index": 0, "case_paths": [ "/ark/86/0368-01" ] }, { "cite": "136 S. W. 667", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "98 Ark. 583", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1316075 ], "opinion_index": 0, "case_paths": [ "/ark/98/0583-01" ] } ], "analysis": { "cardinality": 497, "char_count": 8758, "ocr_confidence": 0.484, "pagerank": { "raw": 1.2954407608217056e-07, "percentile": 0.6208973959485669 }, "sha256": "dc45f1a4e157878d88dd2b73c2446402c57f9681bd0e02ad7cae662db985f43b", "simhash": "1:db24e2bb6c54bb2e", "word_count": 1531 }, "last_updated": "2023-07-14T15:35:40.925427+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Walker v. Case, Executor." ], "opinions": [ { "text": "Minor W. \u2022 Millwee, Justice.\nAppellants, are six grandchildren of W. S. Rand, deceased, and brought this action in the Fulton Probate Court against appellee, A. C. Case, executor of the W. S. Rand estate, seeking to establish their status as pretermitted children under the will of their grandfather.'\nW. S. Rand was a resident of Fulton county and the father of six children. A daughter, Bertha Rand, was twice married and died in 1934 survived by six children who are the appellants here. In November, 1945, W. S. Rand executed his last will and subsequently died being-survived by three sons, two daughters and the appellants, as his only heirs at law.\nAfter providing for the appointment of appellee as executor, the-will contains the following bequest: \u201cAfter the payment of all such debts, if any, and my funeral expenses, I give to my five grandchildren, who are children of my daughter Bert Rand Finley, deceased, the sum of $50 (fifty dollars) each; and to my daughter Tracey Rand Dillinger the sum of $100 (one hundred dollars). Such sums to be paid in cash.\u201d The testator then bequeathed his household goods to two daughters and a daughter-in-law, and further directed that his farm, livestock and farm tools be sold and the sale proceeds, together with cash in a bank, distributed among his three sons, a daughter and a grandson, who were named in the will.\nAppellants alleged in their petition that they were not mentioned in the will of their grandfather as required by law, and were, therefore, entitled to that portion of his estate which their mother would have taken luid she survived the testator and he died intestate.\nThe executor filed a response denying the allegations of the petition and alleging that it was the testator\u2019s intention to bequeath $50 to each of the children of Ms deceased daughter; that the testator had not seen Ms grandchildren and did not know their total number, but was under the impression that there were only five at the time he made his will; and that the misstatement of the number of his grandchildren was an unintentional omission.\nIn support of the allegations of the response, appellee offered in evidence a part of the deposition of the scrivener who drafted the will. This deposition was taken in another suit to void the entire will, and that proceeding involved several parties who are not parties to the instant suit. The trial court sustained appellants\u2019 objection to this evidence, which appellee contends was admissible under the decision of this court in Gulley v. Bache, 98 Ark. 583, 136 S. W. 667. In that case the court held (headnote 2) : \u201cIn order that a deposition taken in one suit may be admissible in another suit, it must appear that the latter suit is between the same parties and regarding the same issues.\u201d Since the instant suit is not between the same parties and regarding the same issues, as the suit in which the deposition was taken, there was no error in the exclusion of this testimony.\nThe trial court, in construing the will, held the bequest, \u201cto my five grandchildren, who are children of my daughter Bert .Rand Finley, deceased,\u201d to be a gift to the grandchildren as a class, and that it was the intention of the testator to bequeath $50 to each of the appellants. Judgment was rendered accordingly.\nFor reversal of the judgment appellants earnestly contend that, since only five grandchildren are mentioned in the bequest, it is impossible to identify the one meant to be excluded and the will is thereby rendered inoperative as to all the appellants under \u00a7 14525, Pope\u2019s Digest. This statute provides: \u201cWhen any person shall make his last will and testament, and omit to mention the name of a child, if living, or the legal representatives of such child born and living at the time of the execution of such will, every such person, so far as regards such child, shall be deemed to have died intestate, and such child shall be entitled to such proportion, share and dividend of the estate, real and personal, of the testator as if he had died intestate; and such child shall be entitled to recover from the devisees and legatees in proportion to the amount of their respective shares, and the court exercising probate jurisdiction shall have power to decree a distribution of such estate according to the provisions of this and the preceding sections.\u201d\nIn construing this statute in Brown v. Nelms, 86 Ark. 368, 112 S. W. 373, this court held that a will in which the testator provides for his children as a class, without expressly naming them, is a sufficient mention of his children within the statute. The court, speaking through Justice McCullough, said: \u201cWe think it is manifest that what was intended by the statute was to declare intestacy as to children of a testator, and thus provide compulsory provisions for them, unless the testator expresses a contrary intention in the will toward the children. Such an intention may be expressed by the testator in his will by providing for them as a class without naming them separately, or by naming them without providing for them. Either method is equivalent to the other, and either the one or the other clearly excludes any intention on the part of the testator to omit his children from the testament. It would, we think, be disregarding entirely the purpose of the statute, and would be putting form over substance, to say that the names of children must,be individually mentioned in a will which provides substantially for each and all of them.\u201d\nIn LeFlore v. Handlin, 153 Ark. 421, 240 S. W. 712, tlie testatrix bequeathed, \u201cUnto my son Louis LeFlore, of Stigior, Oklahoma, and to his children living at the time of my death, the sum of $100 each, \u2019 \u2019 and it was held that the bequest sufficiently designated the grandchildren of the testatrix and that the statute did not apply. The same rule was held applicable where the members of the class referred to were grandchildren in King v. Byrne, 92 Ark. 88, 122 S. W. 96. It was also held in Powell v. Hayes, 176 Ark. 660, 3 S. W. 2d 974, that a reference by a testator in his will to his \u201cheirs\u201d constituted a mention of his children who were his only heirs at law. See, also, Taylor v. Cammack, 209 Ark. 983, 193 S. W. 2d 323.\nOne of the leading American cases involving the question of class gifts is Thomas v. Thomas, 149 Mo. 426, 51 S. W. 111, 73 Am. St. Rep. 405, where a devise to \u201cthe six children of my son\u201d was held to be a gift to the grandchildren as a class. In decisions from other jurisdictions the rule seems to be well established that where a testator misstates the number of legatees or devisees, who are entitled to take as a class under a particular bequest or devise, the estate devised will pass to the actual number falling within the class. In McMasters v. Shellito, 14 Pa. S. Ct. 303, where a testator overstated the number of those entitled to take as a class under a particular devise, it was held that the estate would pass to the smaller number who fell within the class. The court said: \u201cWhere a testator devises to the sons or daughters of a person named, and incorrectly speaks of them as being of a particular number, the number mentioned will be disregarded and all who fall within the class, whatever their actual number, will take under the devise: Berkeley v. Palling, 1 Russell, 496, and see.note; Thompson v. Young, 25 Md. 450; Lawton v. Hunt, 4 Strobhart\u2019s Eq. (S. C.) 1; Shepard v. Wright, 5 Jones\u2019 Eq. (N. C.) 20.\u201d\nIn Lockhart v. Lyons, 174 Ark. 703, 297 S. W. 1018, this court said: \u201cThe true rule in the construction of wills, which can be said to be paramount, is to ascertain or arrive at the intention of the testator from the language used, giving consideration, force and meaning to each clause in the entire instrument.\u201d When the entire will is considered we think the testator expressed his intention to include all of the appellants in the bequest to \u201cmy five grandchildren, who are children of my daughter, Bert Rand Finley, deceased\u201d by providing for them as a class.' We find nothing-in the other provisions of the will to indicate that he intended to omit any of the children of his deceased daughter from the class named. The reasonable conclusion is that he merely misstated the number of the class and, under the aforementioned rule, the number \u201cfive\u201d should be disregarded and all who fall within the class will take under the bequest. The testator did not, therefore, omit to mention appellants within the meaning of \u00a7 14525 of Pope\u2019s Digest, supra.\nIt follows that the trial court correctly construed the will, and the judgment is affirmed.", "type": "majority", "author": "Minor W. \u2022 Millwee, Justice." } ], "attorneys": [ "Oscar E. Ellis, for appellant.", "Northcutt S Northcutt, for appellee." ], "corrections": "", "head_matter": "Walker v. Case, Executor.\n4-8230\n204 S. W. 2d 543\nOpinion delivered October 6, 1947.\nOscar E. Ellis, for appellant.\nNorthcutt S Northcutt, for appellee." }, "file_name": "1091-01", "first_page_order": 1107, "last_page_order": 1112 }