{ "id": 1650324, "name": "Barry, Executor v. Brittain", "name_abbreviation": "Barry v. Brittain", "decision_date": "1954-05-10", "docket_number": "5-413", "first_page": "613", "last_page": "621", "citations": [ { "type": "official", "cite": "223 Ark. 613" }, { "type": "parallel", "cite": "268 S.W.2d 12" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "146 S. W. 867", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "103 Ark. 273", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1352011 ], "opinion_index": 0, "case_paths": [ "/ark/103/0273-01" ] }, { "cite": "215 Ark. 509", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1464718 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/215/0509-01" ] }, { "cite": "214 Ark. 566", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723621 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/214/0566-01" ] }, { "cite": "224 S. W. 956", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "145 Ark. 589", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1586111 ], "opinion_index": 0, "case_paths": [ "/ark/145/0589-01" ] }, { "cite": "138 S. W. 389", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "200 Ark. 225", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453361 ], "opinion_index": 0, "case_paths": [ "/ark/200/0225-01" ] }, { "cite": "45 S. W. 2d 36", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "184 Ark. 900", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1438632 ], "opinion_index": 0, "case_paths": [ "/ark/184/0900-01" ] }, { "cite": "106 S. W. 2d 159", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "194 Ark. 153", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718890 ], "opinion_index": 0, "case_paths": [ "/ark/194/0153-01" ] }, { "cite": "210 Ark. 288", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719785 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/210/0288-01" ] }, { "cite": "112 Atl. 186", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 1 }, { "cite": "158 Atl. 29", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 1 }, { "cite": "273 S. W. 705", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "169 Ark. 173", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1373984 ], "opinion_index": 1, "case_paths": [ "/ark/169/0173-01" ] }, { "cite": "165 S. W. 956", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "112 Ark. 362", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1538844 ], "opinion_index": 1, "case_paths": [ "/ark/112/0362-01" ] }, { "cite": "218 Ark. 288", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 1 }, { "cite": "98 S. W. 2d 959", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "193 Ark. 233", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411001 ], "opinion_index": 1, "case_paths": [ "/ark/193/0233-01" ] }, { "cite": "208 Ark. 66", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1478771 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/208/0066-01" ] }, { "cite": "112 S. W. 2d 417", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "195 Ark. 431", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721379 ], "opinion_index": 1, "case_paths": [ "/ark/195/0431-01" ] }, { "cite": "220 Ark. 614", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1660182 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/220/0614-01" ] }, { "cite": "194 Ark. 153", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718890 ], "pin_cites": [ { "page": "106" } ], "opinion_index": 1, "case_paths": [ "/ark/194/0153-01" ] }, { "cite": "210 Ark. 288", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719785 ], "opinion_index": 1, "case_paths": [ "/ark/210/0288-01" ] } ], "analysis": { "cardinality": 739, "char_count": 15440, "ocr_confidence": 0.498, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.3648052454023381 }, "sha256": "af061b6deb5b36a836f479a44ca0e5e497f6694364c15d49d143dfd3d262ad9b", "simhash": "1:03ecc49fc6c8ff81", "word_count": 2737 }, "last_updated": "2023-07-14T21:02:33.600099+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices Holt, Millwee, and Robinson dissent." ], "parties": [ "Barry, Executor v. Brittain." ], "opinions": [ { "text": "Griffin Smith, Chief Justice.\nSarah Devlin Brittain, an octogenarian whose mental capacity to execute a will is not questioned, died in June, 1953, leaving an estate estimated to be worth a little more than $42,000. Her husband, E. P. Brittain, to whom she had been married for almost a quarter of a century, was provided for to the extent of from $11,000 to $16,000. Brittain filed with the executor \u2014 Clinton it. Barry \u2014 a claim, for $5,-145.94 for reimbursement of payments personally made covering doctor bills, medicines, nurses, hospitalization and items of a similar nature beginning with April 16, 1952. The claim was disallowed by the executor, but approved by the probate court with an order directing payment.\nDetermination of the appeal requires a construction of the words \u201cjust debts which I may owe\u201d and their relation to Brittain\u2019s contention that it was the purpose of the testatrix to charge her estate with all expenditures relating to the prolonged illness. The pertinent paragraph is \u201c I direct that all just debts which I may owe, including the expenses of my last illness and of my burial, be paid\u201d.\nAppellant\u2019s position is that it was the husband\u2019s primary duty to pay the charges incurred on account of Mrs. Brittain\u2019s illness, that he recognized this obligation from time to time, and that in the absence of appropriate language in the will from which an intention to charge the estate with these items should be drawn, there was no indebtedness within Mrs. Brittain\u2019s contemplation and no right of repayment.\nIt is conceded that a court\u2019s function is to construe and enforce a will \u2014 not to make for the testator another which might appear to be more equitable \u201cor more in accordance with what the court might believe to have been the testator\u2019s unexpressed intentions\u201d. Park v. Holloman, 210 Ark. 288, 195 S. W. 2d 546. We are cited to Morris v. Bosch, 194 Ark. 153, 106 S. W. 2d 159 as authority for appellee\u2019s belief that Mrs. Brittain intended that her husband should be reimbursed for what he had spent; but in the Morris-Dorsch case the language of the will was: \u201cAfter all expenses, burial, inheritance tax, etc., are paid, I want [the property to go as directed] \u201d. We held that inheritance taxes and certain other items were charges against the estate made so by express language.\nWe are also asked to apply a rule stated in Miller v. Oil City Iron Works, 184 Ark. 900, 45 S. W. 2d 36. An item of $1,522.65 was allowed in favor of the administratrix, covering last illness and burial expenses. But there the intestate decedent was responsible for his own bills. The administratrix was his widow and the obligations were of a fixed character. Excerpts from the opinion are: \u201cExcept for funeral expenses, no debts can be created against an estate after death. The debts must be existing at the time of death or arise out of obligations incurred by decedent. Only such claims can be presented for allowance, classification, and payment out of the assets found in the hands of the representative after settlement\u201d. In Burns v. Wegman, 200 Ark. 225, 138 S. W. 389, we held that a widow had a right to pay the medical and funeral expenses of her husband and claim reimbursement as a creditor of the first class.\nIn Beverly v. Nance, 145 Ark. 589, 224 S. W. 956 it was said that \u201cincident to the duty of a husband to maintain his wife is the corresponding duty of paying for her reasonable burial expenses\u201d.\nTwo cases decided in 1949 \u2014 Simpson v. Thayer, 214 Ark. 566, 217 S. W. 2d 354, and James v. James, 215 Ark. 509, 221 S. W. 2d 766, reaffirm what Judge Kirby said for an undivided court in Harbour v. Harbour, 103 Ark. 273, 146 S. W. 867: \u201c. . . Where the husband purchased and paid for land, taking the deed therefor in the name of his wife, the presumption is that his money, thus used, was intended as a gift to her, and the law does not imply a promise or obligation on her part to refund the money or to divide the property purchased or to hold the same in trust for him. His conduct is referable to his affection for her and his duty to protect her against want . . .\u201d\nIn the case before us Mrs. Brittain directed that \u201call just debts which I may owe\u201d be paid, including the expenses of my last illness and of my burial\u201d. Burial expenses are not included in the account.\nAppellee testified that he had been employed gainfully for many years, that during the 24 years of his marriage to Mrs. Brittain he earned $80,000 or more, and that his savings from such receipts had been about $5,000.\nWe think the case here is much stronger in favor of the executor than the court\u2019s language in Harbour v. Harbour, where the husband\u2019s money paid for the land and the deed was made to his wife. There was no legal obligation that this be done, and it is entirely possible that the purchaser expected a reconveyance. This, of course, is speculative; but the fact remains that his purchase was held to have been an outright gift.\nBrittain was legally obligated to make the payments he did, and when his wife died the estate was not under any duty to repay him. Mrs. Brittain had the financial ability to do so and the mental capacity to express the intent, but the language relied upon by appellee did not accomplish that purpose, hence the judgment must be reversed.\nJustices Holt, Millwee, and Robinson dissent.", "type": "majority", "author": "Griffin Smith, Chief Justice." }, { "text": "J. Seaborn Holt, J.,\ndissenting. The decisive question presented is primarily not whether Mrs. Brittain\u2019s husband owed her the duty to support her, but whether, under the following plain and unambiguous provision of her will, \u2014 \u201cI direct that all just debts which I may owe, including the expenses of my last illness and of my burial, be paid,\u201d \u2014 created a charge upon Mrs. Brittain\u2019s separate property that imposed ultimate liability on her estate. It seems obvious to me that it did.\nThe uniform rule is that courts must construe and enforce wills as written. Mrs. Brittain, whatever her motive, had a right to dispose of her property as she saw fit. \u201c * * Hence, courts have, with great uniformity, in this class of cases, required the proof that should destroy the recitals in a solemn instrument to be clear, specific, satisfactory, and of such a character as to leave in the mind of the chancellor no hesitation or substantial doubt,\u2019 \u201d McDaniel v. McDaniel, 220 Ark. 614, 249 S. W. 2d 125.\n\u201cThe function of a court in dealing with a will is purely judicial; and its sole duty and its only power in the premises is to construe and enforce the will, not to make for the testator another will which might appear to the court more equitable or more in accordance with what the court might believe to have been the testator\u2019s unexpressed intentions. \u2018The appellants are correct in the statement that the purpose of construction is to arrive at the intention of the testator; but that intention is not that which existed in the mind of the testator, but that which is expressed by the language of the will.\u2019 Jackson v. Robinson, 195 Ark. 431, 112 S. W. 2d 417.\n\u201cBefore the necessity for judicial interpretation of a will may arise there must be found in the language of the will an ambiguity or uncertainty; and where no such ambiguity or uncertainty is found, there is no need for the application by the court of any of the rules for construction. In Quattlebaum v. Simmons National Bank of Pine Bluff, 208 Ark. 66, 184 S. W. 2d 911, we quoted from Thompson on Wills, 2d Ed., \u00a7 210, as follows: \u2018The purpose of construction and interpretation being the ascertainment of the testator\u2019s intention, it follows that where such intention is expressed in the will in clear and unequivocal language, there is no occasion for judicial construction and interpretation, and it should not be resorted to or allowed. \u2019\n\u201cThe polestar of the court, in construing a will, should always be the intention of the testator; and the will itself is ordinarily the only place to which the court should resort to find such intention. If it be in the will expressed in language that is clear and unmistakable the court should go no further, but should put in effect the intention of the testator, as thus clearly set forth in his will. Hoyle v. Baddour, 193 Ark. 233, 98 S. W. 2d 959.\n\u201c* * * -^re n0 right to alter, under the guise of construction, the definite and unequivocal disposition of his property as made by him,\u201d Park v. Holloman, 218 Ark. 288, 195 S. W. 2d 546.\n\u201cThe cases all agree that the testator\u2019s intention can be gathered only from the will itself and that extrinsic evidence is not admissible to prove an intention in regard to the disposition of the property not expressed in the will.\u201d Duensing v. Duensing, 112 Ark. 362, 165 S. W. 956.\nIn Morris v. Dosch, 194 Ark. 153, 106, S. W. 2d 159, the will provided: \u201cAfter all expenses, burial, inheritance tax, etc., are paid, I want the balance of my Estate to be given to \u2019 \u2019 certain charities. The trial court directed the trustees to pay inheritance taxes out of the corpus of the estate. Affirming, we said: \u201cIn this we think the court was correct. It is in exact compliance with the will. It says: \u2018After all expenses, burial, inheritance tax, etc., are paid, I want,\u2019 etc., as copied above. The obligation to pay these taxes and expenses was not placed on appellees further than it might reduce the income from the estate. The direction comes in a sentence referring to expenses that came shortly following the death of the testator, such as burial, court costs, etc. The payment of the inheritance taxes could not be postponed until after the death of appellees and he had the right to direct its payment from the body of his estate.\n\u201c * * the general rule is that the paramount principle in the construction of wills is that the general intention of the testator, if not in contravention of public policy or of some rule of law, shall control; and such intention is to be ascertained from the language used as it appears from a consideration of the entire instrument. Words and sentences used are to be construed in their ordinary sense so as to arrive at the real intention of the testator. (Citing cases).\u2019 \u201d\nIt appears to be the uniform rule that a married woman may bind her separate property for medical expenses for herself, either by express provision, conduct, or words from which a promise may be inferred.\nIn 41 C. J. S. (Husband & Wife), \u00a7 340, p. 827, this rule is stated: \u201cA married woman may, however, as a general rule, bind her property for medical services for herself or the family, either by express provision or by conduct or words from which a promise may be inferred.\u201d 30 C. J., \u00a7 627, p. 923 states the same rule.\nIn Security Bank & Trust Company v. Costen, 169 Ark. 173, 273 S. W. 705, the wife was allowed to recover her husband\u2019s burial expenses. The will did not require her to pay such debt and for this reason it was held that it was not her obligation and could not be charged against the property she took under her husband\u2019s will. We there said: \u201cIf the person who incurs the expense or advances the money to pay it is not a mere volunteer who acts officiously and without interest in the estate of the decedent, the charge against the estate inures to his or her benefit. (Citing cases). Under the circumstances of this case, it cannot be rightly said that the widow was a mere volunteer and acted officiously and without interest in paying the funeral expenses of her deceased husband. The payment was in settlement of the claim of the undertaker, which would have been a legal claim against the estate, and the act of the widow in 'making the payment was not a discharge of the obligation of the estate, but was a mere transfer of the obligation by way of subrogation to the widow. The last will and testament of the deceased husband did not cast upon the widow the burden of paying the debts of the estate, and she was therefore under no obligation to pay the debts out of her own estate or out of the interest which she took under the will of her husband, for no such condition or burden was imposed upon her by the terms of the will.\u201d\nThe implication, it seems to me, to be clear that where, as here, the wife\u2019s will expressly directs payment of \u201cexpenses of my last illness\u201d from her estate, the husband would be entitled to reimbursement upon payment by him.\nIn 27 Am. Jur. (Husband and Wife), \u00a7 458, p. 57, in stating that the Married Women\u2019s Acts do not relieve the husband\u2019s primary liability to pay funeral expenses of his wife, it is said: \u201cThe husband may be relieved from such primary liability, however, by the will of his wife; a provision in a will to such effect is construed as a legacy.\u201d\n13 R. C. L., \u00a7 248, p. 1214, states the same rule as follows: \u2018 \u2018 Where a married woman by her will expressly charges her separate estate with the payment of her funeral expenses, the husband is entitled to reimbursement from such estate in case he has paid such charges. \u2019 \u2019\n\u201cA married woman may, by providing in her will that her funeral expenses shall be paid out of her own estate, relieve her husband from liability; * * 41 C. J. S., (Husband and Wife), \u00a7 61 at p. 529.\nIn Picketts\u2019 Est. v. Pickett (Md.), 158 Atl. 29, the wife\u2019s will directed her estate to pay funeral expenses. The court held that the husband as administrator was entitled to allowance of such expenses, although but for such direction the husband would be primarily liable therefor. The court said: \u201cApart from the direction in the will on that subject, the husband\u2019s primary responsibility for such an expense would debar him from charging it against his deceased wife\u2019s estate. (Citing cases). But it was legally permissible for the wife to impose that obligation upon her estate, and thus relieve her husband of it, by suitable provision in her will. When a testamentary purpose to that end has been definitely expressed, it should be given its due effect. \u2019 \u2019\nIn Jackson as Executor (N. Y.) 61 Howard\u2019s Pr. Rep. 402, the court held that the duty of burying a wife rests on the husband, but the wife may charge by her will her own separate estate with funeral expenses and said: \u201c* * * But the will of the testatrix itself puts the subject at rest, for she orders and directs in the first paragraph thereof, that all her debts and \u2018funeral expenses\u2019 shall be paid. The duty, therefore, is cast upon the executors to pay these charges. Although it may be true that the duty of burying the body of his deceased wife rests upon her husband, yet a wife may charge, through her last will and testament, her own separate estate with the expenses of her funeral. \u2019 \u2019\n\u201cBut where, as in the present case, the wife by will directs the payment of her funeral expenses out of her estate, the ultimate liability will fall upon her estate rather than upon the husband, and the husband is entitled to reimbursement from her estate in case he has paid such charges,\u201d Watt v. Atlantic Safe D & T Co. (N. J.), 112 Atl. 186.\nI think the great preponderance, if not the undisputed, testimony supports the chancellor\u2019s finding in appellee\u2019s favor that the claim was for expenses expended by him for Mrs. Brittain\u2019s last illness for the period March 17, 1952 up to her death, and that no credit should be allowed thereon and that the claim should be allowed in full.", "type": "dissent", "author": "J. Seaborn Holt, J.," } ], "attorneys": [ "Clinton R. Barry, Pro Se, for appellant.", "Warner $ Warner, for appellee." ], "corrections": "", "head_matter": "Barry, Executor v. Brittain.\n5-413\n268 S. W. 2d 12\nOpinion delivered May 10, 1954.\n[Rehearing- June 14, 1954.]\nClinton R. Barry, Pro Se, for appellant.\nWarner $ Warner, for appellee." }, "file_name": "0613-01", "first_page_order": 635, "last_page_order": 643 }