{
  "id": 1624094,
  "name": "Earnest SMITH et al v. Van Parks GILES et al",
  "name_abbreviation": "Smith v. Giles",
  "decision_date": "1973-04-30",
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  "last_updated": "2023-07-14T22:26:13.512056+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Earnest SMITH et al v. Van Parks GILES et al"
    ],
    "opinions": [
      {
        "text": "Conley Byrd, Justice.\nInvolved here is the construction of the will of Vera Murphy which provides:\n\u201c...This bequest of the five acres to my niece, Ruby Marie Giles, is to be for her lifetime, to use in any way she may see fit, but not to sell or dispose of the same, and the remainder shall go to her heirs...\u201d\nThe trial court ruled that Ruby Marie Giles took only a life estate. Appellants Mr. 8c Mrs. Earnest Smith as purchasers from Ruby Marie Giles contend that under the rule in Shelley\u2019s Case, Ruby Marie Giles took the fee. Appellees Van Parks Giles and Rosemary Downs, the children and heirs at law of Ruby Marie Giles contend the Rule in Shelley\u2019s Case is not applicable because of the restraint against alienation of the life estate and because the term \u201cheirs\u201d is used in its non-technical sense. We agree with the appellants.\nThe rule in Shelley\u2019s Case is a rule of property and not a rule of construction. The history and reasons for its application are set forth in Hardage v. Stroope, 58 Ark. 303, 24 S.W. 490 (1893). It was pointed out that whenever there is a limitation to a man which, if it stood alone, would convey to him a particular estate of freehold, followed by a limitation to his heirs (or equivalent expressions), either immediately, or after the interposition of one or more particular estates, the apparent gift to the heirs, according to the rule in Shelley\u2019s Case, is to be construed as a limitation of the estate of the ancestor, and not as a gift to his heirs. The theory was that, in cases which come within the rule, the heirs take by descent from the ancestor, and they cannot do so unless the whole estate is united and vests as an executed estate of inheritance in the ancestor.\nIn discussing the scope and extent of the rule in the Hardage case, we quoted approvingly from Doebler\u2019s Appeal, 64 Pa. St 9, as follows:\n\u201c...The rule in Shelley\u2019s Case is never a means of discovering the intention. It is applicable only after that has been discovered. It is then an unbending rule of law, originally springing from the principle of the feudal system, and though the original reason of it, the preservation of the rights of the lord to his relief, primer seisin, wardship and marriage, has passed away, it is still maintained as a part of the system of real property which is based on feudalism and as a rule of policy. It declares inexorably that where the ancestor takes a preceding freehold by the same instrument, a remainder shall not be limited to the heirs, qua heirs, as purchasers. If given as an immediate remainder after the freehold, it shall vest as an executed estate of inheritance in the ancestor; if immediately after some other interposed estate, then it shall vest in him as a remainder. Wherever this is so, it is not possible for the testator to prevent this legal consequence by any declaration, no matter how plain, of a contrary intention. That is a subordinate intent which is inconsistent with, and must therefore be sacrificed to, the paramount one. Even if he expressly provides that the rule shall not apply \u2014 that the ancestor shall be tenant for life only and impeachable for waste \u2014 if he interpose an estate in trustees to support contingent remainders \u2014 or, as in this will, declare in so many words that \u2018he shall in nowise sell or alienate, as it is intended that he shall have a life interest only,\u2019 it will be all ineffectual to prevent the operation of the rule. ...\u201d\nWe find this language to be controlling of the issues here presented.\nThe cases of Letzkus v. Nothwang, 170 Ark. 403, 279 S.W. 1006 (1926) and First National Bank of Ft. Smith v. Marre, 183 Ark. 699, 38 S.W. 2d 14 (1931), have held restraints on alienation similar to that here involved, unenforceable and void for repugnancy.\nWe find no merit to the contention that the term \u201cheirs\u201d is used in its non-technical sense to mean children. See Galloway v. Darby, 105 Ark. 558, 151 S.W. 1014 (1912).\nReversed and remanded.",
        "type": "majority",
        "author": "Conley Byrd, Justice."
      }
    ],
    "attorneys": [
      "Mays & Landers, for appellant.",
      "Shackleford ir Shackleford, for appellees."
    ],
    "corrections": "",
    "head_matter": "Earnest SMITH et al v. Van Parks GILES et al\n73-6\n494 S.W. 2d 108\nOpinion delivered April 30, 1973\n[Rehearing denied June 4, 1973.]\nMays & Landers, for appellant.\nShackleford ir Shackleford, for appellees."
  },
  "file_name": "0384-01",
  "first_page_order": 406,
  "last_page_order": 409
}