{ "id": 8720565, "name": "Lefeavre v. Pennington", "name_abbreviation": "Lefeavre v. Pennington", "decision_date": "1950-06-05", "docket_number": "4-9222", "first_page": "397", "last_page": "402", "citations": [ { "type": "official", "cite": "217 Ark. 397" }, { "type": "parallel", "cite": "230 S.W.2d 46" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "204 Ark. 32", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1444214 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/204/0032-01" ] }, { "cite": "75 Ore. 549", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 4529334 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/or/75/0549-01" ] }, { "cite": "43 A. 2d 359", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "157 Pa. Super. 296", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 1061232 ], "opinion_index": 0, "case_paths": [ "/pa-super/157/0296-01" ] }, { "cite": "8 N. Y. S. 284", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 2962770 ], "opinion_index": 1, "case_paths": [ "/nys/8/0284-01" ] }, { "cite": "55 Hun 58", "category": "reporters:state", "reporter": "Hun", "opinion_index": 1 }, { "cite": "75 A. L. R. 831", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 } ], "analysis": { "cardinality": 577, "char_count": 9935, "ocr_confidence": 0.504, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2085206512039891 }, "sha256": "3c6dc99c3e17736ad9152bace0c9193da45a5f848e6381038d2886f478456f4e", "simhash": "1:6083b052025b9dbd", "word_count": 1724 }, "last_updated": "2023-07-14T21:48:24.265381+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Holt and Dunaway, JJ., dissent.", "Mr. Justice Holt joins in this dissent." ], "parties": [ "Lefeavre v. Pennington." ], "opinions": [ { "text": "George Rose Smith, J.\nTbis is a proceeding instituted by tbe executor of tbe will of Dr. J. W. Pennington, to obtain a construction of tbe residuary clause. Tbis clause reads: \u201cTbe Bal. to be divided equally between all of our nephews and nieces on my wife\u2019s side and my niece, Natbalee Pennington, of Lawrenceburg, Tennessee.\u201d Tbe trial court construed tbe will as giving balf tbe residuary estate to tbe appellee, Natbalee Pennington. Tbe twenty-two appellants, who are tbe testator\u2019s nephews and nieces on bis wife\u2019s side, contend that tbe property should be distributed equally among all tbe beneficiaries, so that tbe appellee would receive a twenty-third instead of a balf.\nWe agree with tbe trial court\u2019s conclusion. To begin with, tbe testator used tbe word \u201cbetween,\u201d which in its literal sense applies to only two objects, as \u201cbetween Scylla and Cbarybdis. \u2019 \u2019 If tbe reference is to more than two tbe preposition should be \u201camong.\u201d Webster\u2019s New International Dictionary. In several cases tbe courts have stressed tbis distinction in bolding that language such as that now before us contemplates a division of tbe legatees into two classes. In re Moore's Estate, 157 Pa. Super. 296, 43 A. 2d 359; Roelf\u2019s Cousins v. White, 75 Ore. 549, 147 P. 753.\nIt is probably true, however, that most people do not habitually observe the distinction between the two words. For that reason we do not rest our decision on this point alone but prefer to treat this as a case of ambiguity. We may therefore look to the state of the testator\u2019s feelings toward the various beneficiaries as an aid in arriving at his intention. Rufty v. Brantly, 204 Ark. 32, 161 S. W. 2d 11. There was testimony showing that Dr. Pennington had a warm affection for Nathalee. The two wrote to each other often, and he had visited in her home in Tennessee. Dr. Pennington had sent Nathalee various gifts, including a fountain pen, a $500 United States bond, and $10 a month when she was ill for five months. At the trial Nathalee described herself as her uncle\u2019s favorite niece.\nThis evidence confirms our belief that Dr. Pennington meant for half of his residuary estate to go to Natha-lee and for the other half to be divided among the appellants. It is not without significance that Dr. Pennington described the appellants merely as a class, apparently not caring whether the class increased or decreased in number before his own death. Nathalee, on the other hand, was singled out for individual mention. This different treatment may well have been due to the fact that Dr. Pennington did not entertain for each of the twenty-two appellants the same close affection that he had for Nathalee.\nFinally, a per capita distribution among all twenty-three litigants would be a somewhat unnatural division of the estate. Many men feel that property acquired during marriage belongs jointly to the husband and wife, no matter which one holds the legal title. Consequently it is not at all unusual for a childless widower to divide his estate equally between his own family and that of his wife. We think it much more likely that Dr. Pennington intended such a division than that he meant to give twenty-two twenty-thirds to his wife\u2019s relatives and only one twenty-third to Ms own kin. Thus the literal meaning of the language, the state of the testator\u2019s affections, and a natural distribution of the estate all point to the construction adopted by the trial court.\nAffirmed.\nHolt and Dunaway, JJ., dissent.", "type": "majority", "author": "George Rose Smith, J." }, { "text": "Edwin E. Dunaway, J.,\ndissenting. I dissent because I think the majority by insisting upon the strict etymological meaning of the word \u201cbetween\u201d is defeating the intent of the testator as to the disposition of his property.\nIt is true that that eminent legal authority, Webster\u2019s New International Dictionary, says that in its literal sense \u201cbetween\u201d applies only to two objects, and the example quoted in the majority opinion is given as illustrative. In the same authority, however, the word \u201camong\u201d is given as a synonym for \u201cbetween,\u201d and we find this statement: \u201cWhen used of more than two objects, it brings them severally and individually into the relation expressed; as, a treaty between three powers; the three survivors had hut one pair of shoes between them.\u201d\nThe great weight of authority recognizes that in common parlance \u201camong\u201d and \u201cbetween\u201d are used interchangeably. \u201cIn popular usage no distinction is made between the words \u2018between\u2019 and \u2018among\u2019; both being used without regard to the number involved. This confusion of meaning frequently appears in wills, and effect is given to testator\u2019s actual intention.\u201d 3 Page on Wills (3rd Ed.) \u00a7 1084, p. 295. Again in an annotation in 75 A. L. R. 831, where the eases are collected, it is said:\n\u201cWhere the gift is to a named individual and a num--ber of persons by general description, as in the case of a gift to A and the children of B, and the question arises whether A is a member of the class, or where the gift is to the children of A, B, and C, and the question arises whether the legatees constitute a single or a composite class, some doubt may arise from the testator\u2019s.use of the word \u2018between\u2019 in a direction to divide. The courts, however, have settled that such use is of little significance, as the word \u2018between\u2019 may be, and frequently is, used in the same sense as \u2018among\u2019.\u201d\nSee, also, Thompson, Construction of Wills, \u00a7 229, p. 372.\nIn Graves v. Graves, 55 Hun 58, 8 N. Y. S. 284, the court said in discussing this problem: \u2018 \u2018 Criticism is made upon the use of the word \u2018between,\u2019 and not \u2018among\u2019, in the direction for division in the case at bar. It is true that in very strict use of language the preposition \u2018between\u2019 is more properly employed where the reference is to two persons or things only; and \u2018among\u2019, where the reference is to more than two. But the distinction is' too nice to furnish a rule of construction, and it is known to all that \u2018between\u2019 is very commonly used as synonymous with \u2018 among \u2019 in such connection. \u2019 \u2019\nThe will in question was a holographic will, prepared by a layman and not a lawyer versed in legal niceties. The testator said of his estate, \u201cThe Bal. to be divided equally between all of our nephews and nieces on my wife\u2019s side and my niece Nathalee Pennington . . .\u201d\nThe problem of construction presented by thus designating a class of legatees and then naming an individual is discussed in 3 Page on Wills, (3rd Ed.) \u00a7 1083, p. 292:\n\u201cIf the gift is to one or more named or designated persons who are to take together with a class, the question arises whether or not such named persons take each a share, and the class takes a share, on the one hand; or whether such named persons are intended to be members of the class, so that such persons and the members of such class will each take the same amount, on the other. If testator intends to make them members of the class, the gift is one to a class.\n\u201cIt is said that it will be assumed, in the absence of anything in the will to show a contrary intention, that testator intended to make such named person a member of the. class, and to divide the gift between the members of the class as thus constituted, per capita.\u201d\nIt must be recognized that the courts encounter interminable difficulties in trying to construe wills in the light of authority. As said in Roelf\u2019s Cousins v. White, cited supra in the majority opinion, \u201cThese troubles are nowhere more cogently illustrated than in Mr. Jarman\u2019s Standard Treatise on the Law of Wills, where one may find authority for almost any proposition which the exigencies of a given case may suggest or demand. \u2019 \u2019 That seems to be true in the instant case. \u2022\nWhat then does the record reflect as to the testator\u2019s feelings toward the various beneficiaries as an aid in arriving at his intention? It is from the testimony of Nathalee Pennington herself that the majority finds a \u201cwarm affection\u201d toward her on the part of the testator and hers is the only testimony that she was her uncle\u2019s favorite niece. Dr. Pennington left Tennessee, where Nathalee lives, in 1900 and has lived in Arkansas since. After her early childhood Dr. Pennington saw her only' twice \u2014 once during his wife\u2019s lifetime and once during a visit to Tennessee, after Mrs. Pennington\u2019s death. Prom his wife\u2019s death until he died, the testator lived with a sister of his wife, Mrs. Anderson. Some of the legatees are children of this sister, and some the children of other brothers or sisters. (How many branches of Mrs. Pennington\u2019s family there were is not shown by the record.) A son of Mrs. Anderson was named executor without bond, and the will provided that as to sale of decedent\u2019s property this nephew\u2019s \u201cjudgment be final in all matters.\u201d\nThe fair inference from all of this is that the testator was much closer to his wife\u2019s family here in Arkansas than to his own which he left in Tennessee many years ago. Certainly the testimony of Nathalee, who stood to take one-half the estate instead of one twenty-third, about her favored position might have been somewhat colored by interest. Nor does the argument impress that since Nathalee\u2019s foiir brothers were left nothing, the testator must have meant for her to share in half the property. A more reasonable view, it seems to me, is that the testator wanted certain of \u201cour\u201d nephews and nieces as a class to have his property. Which ones?- \u2014 all of his wife\u2019s and only one of his. In his brief holographic will, instead of listing the twenty-two names of all his wife\u2019s nieces and nephews, he designated them as a class, and to that class added the one of-his own relatives he desired to include; and provided that between them his property should be \u2018 \u2018 divided equally. \u2019 \u2019\nThe judgment should he reversed.\nMr. Justice Holt joins in this dissent.", "type": "dissent", "author": "Edwin E. Dunaway, J.," } ], "attorneys": [ "Harry T. Wooldridge, for appellant.", "Harwell & Boston and Jay W. Dickey, for appellee." ], "corrections": "", "head_matter": "Lefeavre v. Pennington.\n4-9222\n230 S. W. 2d 46\nOpinion delivered June 5, 1950.\nHarry T. Wooldridge, for appellant.\nHarwell & Boston and Jay W. Dickey, for appellee." }, "file_name": "0397-01", "first_page_order": 421, "last_page_order": 426 }