author: Mr. Justice Fairchild,

text:
    Slaughter ad. vs. Slaughter.
    The decision in Moody vs. Walker, 3 Ark., 18Y, that a limitation of property after an indefinite failure of issue is void; and that to make an executory devise good to a second legatee, the gift to the first taker must be restricted to a life interest, or must be something less than an absolute gift, re-affirmed.

      Appeal from Phillips Circuit Court.

    Hon. Mark W. Alexander, Circuit Judge.
    Stillwell & Woodruff, for appellant.
    The words of the will are ample to vest the absolute property in Hannah and Elizabeth Pollard, and unless qualified by the subsequent clause, no right vested in appellee upon her death, to either Hannah or her descendants. If the testator referred to, dying without hevr, before the bequest took effect, (the time of the death of the testator,) appellee’s claim is wholly unfounded.
    It will not be controverted that the bequest to Elizabeth Pollard vested immediately upon the death of the testator, and it is a well settled rule on this subject, that if a legacy be given to A generally, “ and in case of his death,” to B, those expressions, unexplained by the context of the will, are to be confined to the event of death happening during the life of the testator, so that if the legatee survive him, the legacy will immediately vest discharged of the executory bequest to B.\ 1 Roper on Legacies, p. 608, {ed. of 1848;) 4 Vesey, 161, Hinckly vs. Simmons ; 8 Vesey, 21, Cambridge vs. Rous; 8 Vesey, 23, 413, 410, Webster vs. Hall; 7 Sim., 40, Origan vs. Baines/ 2 Jarman on-Wills,p. 660, {ed. of 1849;) 2 Stra., 1261, Lowfield vs. Stoneham; 5 Vesey, 806, King vs. Ta/ylor; 18 Vesey, 291, Omany vs. Bearm.

    It is essential to the validity of an executory devise, that .it cannot be defeated by the first taker. If the absolute right of property is given to the first taker, the limitation, over is void. 3 Ark., 186, etc., Moody vs. Walker; 11 Wendell, 311, 361, Patterson vs. Ellis Vesey, {P. K.) 10, Wilmotvs. Wilmotj 8 Vesey, 412, Webster vs.'Hale; lo Ark., 702, Scull vs. Vaugine.

    This is a much stronger case than Moody vs. Walker., There the intention of the testator was plainly expressed, there was no ambiguity — nothing left to inference, and yet the court refused to give effect to his intention, because to do so would be to defeat the absolute right of the first taker. Here, at best, the intention can be arrived at only by a strained construction — inferences not warranted by tbe language of tbe testator.
    Watkins for the appellee.
    It is submitted for the appellee that the clause of the will under which she claims, is good as an executory devise ; and that is the only material question to be considered.
    It is a universal rule in the construction of wills that the intention of the testator, so far as it' can be gathered from the entire will, is to have effect, unless it would contravene some positive rule of law. In this instance the meaning of the testator is obvious.1 He intended that' if any of those grand-children died childless, the property bequeathed to such should go to the surviving grand-children. ' The limitation over would not be void as upon an indefinite failure of issue, or for remoteness. The language used points to the death of the legatee, as the period of time when the failure of issue is to take place. The survivor or survivors would, of necessity, be persons in being at the time of the making'of the will.
    It is submitted for the appellee that the words used in the will of John Pollard, according to the weight of judicial authority, import a definite failure of issue, at the death of the first taker. The reasoning and- conclusion of this court in the case of Moody vs. Walker, and the authorities relied upon, in deciding this question directly presented and involved, are conclusive in favor of the appellee in the case now before the court. The first important proposition there settled is, that'in cases of this kind, where there are reciprocal limitations over upon survivorship, the limitation is for or to the survivors personally. Many of the cases cited, and conclusions arrived at, in the fair and candid argument of the learned counsel for Walker in that case, as well as the opinion of the court, bear directly in faVor of the construction claimed for the appellee here.
    In a case resting so much upon authority, it will be sufficient to cite the .cases to which the attention of the court is requested, in addition to those referred to in Moody vs. Walker. 1 Jarmcm

      on Wills, 781, (marg.f 2 lb., 418, 426 ; James vs. Williams, 6 Munf., 301; Cordle vs. Gordie, lb. 455 ; 2 Kent, 352; 4lb., 283 ; - Williamson vs. Daniel, 12 Wheat., 568; Patterson vs. Filis,' 11 Wend., 278; Parley vs. Martin, 24 Law & Kg. Rep., 275'; Moffat vs. Strong, 10 John., 16; Forsdick vs. Cornell, 1 John., 440, Jackson vs. Blaushan, 3 John., 292; Jackson vs. Staats^ 11 John., 337; Anderson vs. Jackson, 2 Cow., 333; Fortesgue vs:-Fenner, 1 Ire., L. Rep., 566; Rapp vs. Rapp, 6 Barr, 45; Johnson vs. Curren, 10 lb., 498; McCra/w vs. Davenport, 6 Porter, 330; Darden vs. Burns, 6 A la*-, 362; Gray vs. Bridgeforth, 33 Missi., 312; Gra/y■ vs. Gray, 20 Geo., 804.
   Mr. Justice Fairchild,

delivered the opinion of the court.

“ It is essential to the validity of. an executory deyise that it cannot be defeated by the first taker. If the absolute right of property is given to the first taker, the limitation over is void. For if a legatee possesses the absolute right of property, he certainly has the power of disposing of it in any way he may think proper, and therefore he might defeat the devise or limitation over. If a testator gives property absolutely, in the first instance, to a legatee, he cannot afterwards subject it to any limitation or provision whatever, as for example, that he shall hold it , for life, or that he shall not spend it in a particular manner. The absolute right of ownership carries with it full power of disposing of the property. The case of the Attorney General vs. Hall, 8 Viner, 103, expressly decides this point. So also, the cases of Flanders vs. Clark, 1 Ves., Sr., 9; Butterfield vs. Butterfield, 1 Ves., Sr., 134, and Bradley vs. Peixoto, 3 Ves., 324; the same doctrine is re-asserted and affirmed in Ross vs. Ross, 1 Jac. & Walk., 154, decided in 1819. Chancellor Kent has stated the principle,: contained in all the authorities, very briefly and comprehensively in the second volume of his Commentaries, at pages 352, 353, >354. The rule there laid down is ‘ that chattels or money may be limited over after a life interest, but not after a gift of the absolute property, nor can there be an estate tail in a chattel interest,. for that would lead -to a perpetuity aud no remainder over can be permitted on such a limitation; that it is a settled rule, that the same words which, under the English law, would create an estate tail, as to freeholds, gives the absolute property to chattels.’ In Patterson vs. Ellis, 11 Wend., 299, Senator Edmonds uses this emphatic language, ‘ that where the use of a chattel is devised to one for life, with remainder to another, the devise ot the remainder is valid, and the intention of the testator, to give only a life estate, must be undisputed; but where the devise is such, that the property in the chattel becomes absolutely vested in the first taker, any attempt of the testator afterwards to control or restrict the power of disposing of it, is an unwarrantable interference with the absolute right of property already granted, and consequently void.’”

This quotation from Moody vs. Walker, 3 Ark., 187, 188, announces a doctrine well supported by the authorities mentioned in it, and by others which we have examined, and its application to the present case would reverse the judgment rendered in the cirbuit court, by which the plaintiff below, the appellee, by action of detinue, recovered the negroes in suit, as entitled to them under the will of John-Pollard, made in Stafford county, Va., in 1789.

-The appellant, the defendant below, holds the negroes under Elizabeth Pollard, to whom Hannah, the ancestor of the negroes, was bequeathed in the will mentioned, by the following words: Item. I -give 'and bequeath to my grand daughter, Elizabeth Pollard, one negro girl named Hannah, one bed and furniture, a chest with drawers, large seal skin trunk, and half of my y>

• And after similar bequests to other grand-children, and to the appellee as one, comes the following clause, upon 'which rests the claim of the appellee, she being the surviving grand-child, Elizabeth Pollard having died without issue. “ It is my desire that if any of my grand-children die without heir,- that’s heretofore mentioned, that what I’ve left them shall be equally divided to them living.”

It is contended by the appellant that the bequest of Hannah to Elizabeth Pollard, was an absolute gift to her, and that if the latter clause had reference to her death, and not to the death of the testator, it confers no right upon the appellee to the slaves that have sprung from Hannah, as it was an illegal attempt to restrict the enjoyment and devolution of property already given to Elizabeth Pollard, to be used .and to pass as her own. And to this we agree. The words of béquest to Elizabeth Pollard, plainly import an absolute gift, and because the testator attempted to make a subsequent disposition of the same property, it must not be concluded that his intention was to give only a life interest to the first taker, and that such intention must prevail to pass the increase of Hannah to the appellee, the surviving grand child. It is true, in general terms, that the intention of the testator is the rule of construction of his will, but it is not so if the intention were meant, or should operate, if executed, to overthrow, or avoid a legal principle. This is illustrated by the main position of this court in Moody vs. Walker, that a limitation of property after an indefinite failure of issue is void, and which has received a recent application in this court, in the case of Watkins vs. Quarles, decided at the last term.

The law is equally well settled that to make an executory devise good to a second legatee, the gift to the first taker must be restricted to a life interest, or must be something less than an absolute gift. And this is because it is against the policy of the law that property wholly given away should not be used, enjoyed, and disposed of by the first taker, as if no other person could make any claim to it. That is the effect of the Attorney General vs. Hall, 8 Winer’s Abridg. 103, p. 50, generally cited as in' Pitzgibbon’s Reports, and which is often mentioned and relied on in the subsequent cases. It is the doctrine of Patterson vs. Ellis, 11 Wend. 299; which was a well considered case, and treated in Moody vs. Walk&r as a correct exposition of the law upon this and the other subjects involved in both cases; while Moody vs. Walker has become too closely incorporated into our jurisprudence to be departed from, if we had any doubts of- its correctness upon this point, of which we have none. In Maulding vs. Scott, 13 Ark. 91, and in Scull vs. Vaugine, 15 Ark. 702, the same principle was applied, and Moody vs. Walker was expressly sustained, an'd -the authority of that case is not an open question in this court.

It has not been argued, nor is it perceived by us, that the Virginia statute read'in evidence, bears upon the construction of the will of John Pollard, which is the foundation of the claims of both parties. The court of appeals of Virginia has recognized the authority of the cases upon which our construction of the will rests. Reddick vs. Cohorn, 4 Rand. 551.

This result makes it unnecessary to consider other points argued in this case, and the judgment in this case, and those rendered against William II. Slaughter and Stanton Slaughter, in favor of the 'appellee, upon the 'same facts, must be reversed. The three cases will be sent back .to the Phillips Circuit Court to be decided according to law.


source: Caselaw Access Project

author: Mr. Chief Justice English

license: Public Domain

text:
    Curtis et al. vs. Daniel et al.
    Adverse possession of slaves, under a verbal gift void by statute, for the period of limitation, confers title upon the possessor, and bars a recovery by an adverse claimant. (Spencer vs. McDonald, 22 Ark.)

    The possession contemplated by the statute (Gould’s Dig.,p. 1026,) must be a peaceable possession, adverse or hostile to the true owner; and does not as a general rule run in favor of a direct trustee, (19 Ark. 666; 18 2b. 498; 22 lb. 9.) but where the trustees sells, or otherwise disposes of the trust property to another person, who holds and uses the property as his own for the period of limitation, his possession is adverse within the meaning of the statute, and he is entitled to its protection. (Halliburton ad. vs. Fletcher et al., 22 Ark.)

      Appeal from Drew Circuit Court in Chancery.

    lion. John C. Murray, Circuit Judge.
    Harrison for the appellant.
    An express trust will not be barred by any length of time. Rill on Trustees, 264; Sheldon vs. Wildman, 2 Ch. Ca. 26; Coofc vs. Williams, 1 Creen. Ch. 209; Armstrong vs. Campbell, 3 Yerg. 201; 4 lb. 104; 1 J.J. Marsh. 401; 6 John. Ch. 244; 7 lb. 90; Story’s Eg. 980.
    If James Curtis gave the slaves to defendants it was a fraud on complainants’ rights, and no delay will purge a fraud. Alden vs. Gregory, 2 Eden, 280; Deloraine vs. Browne, 3 Bro. C. C. 633; Pugh’s heirs vs. Bell’s heirs 1 J.J. Marsh. 408; Kane vs. Bloodgood 7 John. Ch.

    As to what constitutes an adverse possession, see McChmg vs. Boss, 5 Wheaton, 116,124; Morris vs. Yandever, 1 Dali. 67; Baxton vs. Renson, 3 PredeTl, 669; Logan vs. Simmons, 1 Dev. <& Bat, 13.
    That a cestui gue trust will not be barred from his right to relief by any length of acquiescence unless he have an immediate possessory title to the beneficial interest — Kill on Trustees, 266;Bennet vs. Colley, 5 Sim. 181. .
    Winter, for the appellees.
    The only legitimate bearing, the transcript of the statute laws of the State of North Carolina, read at the hearing by the appellants, could have in the case, would be to aid the statutory bar set up, in defence of their claim, by impliedly fixing the time and place of the appellees acquiring possession of said slaves to have been by a gift in the State of North Carolina, prior to the year 1850. It is alleged in the bill that the appellees obtained possession of them at that time and place, by a gift, from said James, but ■ there is no fraud or other insufficiency alleged in avoidance of that gift. Without some such showing, a court of equity, regarding the substance and not the form or circumstances of said gift, when called on to adjudicate upon the right acquired thereunder, would always consider that gift in all things perfect, and to have been made according to the provisions of those' statutes, unless there was positive proof to the contrary. “ Equity looks ' upon that as done, which ought to be done. ” Story’s Eg. 619; Graig vs. Leslie, 3 Wheat. 578.
    The possession by the appellees of said slaves .was not a trust, two things are essential: first, that the ownership conferred be coupled with a trust, either declared by the parties or resulting by presumption of law: secondly, that it be accepted on those terms by the trustee. Adams’ Eg. *27; Ilill on Trusts, 111, <md note 1.

    But if the appellees could, in any way, be construed to hold said slaves in trust, it would be merely an implied one, which would still leave the appellants’ claims to them vulnerable to the defence interposed. To exempt a trust from the bar of the statutes of limitation, it must be a direct trust. Angelí on Lim., seo. 166.
    The statements in the answer definitely limiting the date, place and circumstances of the gift of said slaves to the appellees, were wholly responsive to the bill, and were bound to be taken as true as therein set forth, unless they had been disproved by two witnesses, or one witness and strong corroborating circumstances to the contrary. 1 Gill <& J. 270; 2 Blaef. 321; 3 Wend. 532; 4 Lng. 550; 19 Arle. 51; 20 Ar7&. 381.
    It is shown by the allegations in the bill, by the responsive statements in the answer, and by implication from the evidence introduced at the hearing; that the appellees had “peaceable possession ” of said slaves, Sam and Mid, from the time they removed from the State of North Carolina to Arkansas, until some time in the year 1857, a period of over five years, when appellants first set np their pretended claim to an interest in them, which lapse of time alone, under our statutes was sufficient to give the appellees “ the right of property thereto, as against all persons whatever, and which may be relied on as a complete bar to any suit in law or equity.” Seos. 3 and 4, chop. 162, Gould's Digest. Their adverse possession of -five years, even had it been with a full knowledge of a better title in. some one else, would be a bar to that title. Alexander vs. Pendleton, 8 Oranoh., 462. The only exceptions to the limitation of the statute of five years peaceable possession of slaves, are contained in the 5th section of the act of December 19th, 1846, and the courts will make no others. 1 Eng. 14; 13 Arh. 291; Pryor estad, vs. Pybv/rn, 16 Arh.', Sadler vs Sadler, lb. 628; Maohvn vs. Thompson, 17 Arh. 199; Angelí on Dim. 204, 205. If the statute had been less comprehensive, it would not have been equal to the grave considerations of policy which induced its enactment. 16 Arh. 694; MeElmoyle vs. Oohen, 13 Peters, 312. The decision in the case of Parr vs. Vaughan, ad., 20 Arh. 600, does not alter the rule. The term of five years had not expired after the enactment of the statute before the institution of that suit. An implied trust would not prevent the operation of the statute. Adams, ad., vs.' Taylor, 14 Arh. 62; Murdoch vs. Hughes, 7 Smede and Mar. 219. In the case of OraMree et al. vs. MeDániel, 17 Arh. 222, there is an averment in the bill that the defendant held the slaves “ without authority of law, and as trustee for the complainants.” Tet the court failed to regard the averment as of any importance, and maintained the ruling laid down in the case of Pryor and wife vs. Pybv/rn. Thus is the law well settled in this State, that five years peaceable possession of slaves bars all actions for their recovery, and gives to the holder a valid and absolute title to them.
   Mr. Chief Justice English

delivered. the opinion of the court.

On the 2d of April, 1824, Nancy Curtis, of Anson county, North Carolina, made her will, which contained, among others, the following clauses:

“ I give and bequeath to the heirs of my son, Thomas Curtis, (provided that such should hereafter make their appearance, giving satisfactory evidence that they are the legal and bodily heirs of said' Thomas Curtis,) a negro woman named Jjucy, and all -her increase, except a girl named Massey, which I bequeath to my grandson Thomas, son of Elijah Curtis.
“I also bequeath to the heirs of Thomas Curtis (provided they come qualified as above named) a negro boy by the name of Sam.
“The above named negroes,'which I bequeath to the heirs of my son Thomas, I desire to be given up, at my death, to my son James Curtis, for the purpose of securing them to the heirs of Thomas Curtis; and I do hereby empower my son James to take possession of said negroes, at my death, for that purpose. And ¶rovided that the legal bodily heirs of Thomas Curtis should not hereafter come forward and demand the above named negroes, which I have bequeathed to • them, the said negroes and their increase shall be equally divided between the heirs of James and Elizabeth Curtis, viz: Emeline and Nancy Jane, daughters of James, and Harvey and Thomas, sons of Elizabeth Curtis.”

It appears that, at the time the will was made, Thomas Curtis, the son of the testatrix, was absent from the United States; that he had not been heard of for a considerable time, and the testatrix supposed him to be dead; and that it was not known whether he had any children or not. But it turned out that he was not dead. He was living when the bill was filed, (ljth February, 1858,) but quite an old man, and childless, never having been married.

The woman Lucy had one other child, besides Massey, named Mid.

The testatrix died shortly after the execution of the will, and immediately after her death, and the probate of the will, - James Curtis took possession of Lucy, her child Mid, and the negro boy Sam, and retained possession of them nntil within about fifteen years before the filing of the bill, when he gave the boy Sam to his daughter Emeline, and Mid to his daughter Nancy Jane; Lucy having about that time died,

Emeline intermarried with Dudley Daniel, and Nancy Jane intermarried with ¥m. E. Spence.

The bill was filed by James Harvey Curtis and Thomas Curtis, sons of Elijah Curtis, and grandsons of testatrix, against Daniel and wife, and Spence and wife, for an account of hire, and partition of the slaves. The court below, on the final hearing, dismissed the bill, and the only question discussed by the counsel here, or which need be decided, is, whether the relief sought by the bill was barred by the statute of limitation.

The cause was heard in the court below on the bill, answer, replication, a transcript of the will of Nancy Curtis, and a copy of an act of the General Assembly of North Carolina concerning gifts of slaves. The time at which the defendants obtained possession of the slaves in controversy, the character and duration of their possession, and the nature of the title under which they held them, are to be determined from the allegations of the bill, the admissions and averments of the answer.

Erom them it appears that James Curtis took possession of Lucy, klid and Sam shortly after the death of Nancy Curtis, as above stated, and remained in possession of them until about the year 1843, taking and using their labor for his own benefit. That about that time he partitioned his property between his two daughters, Emeline and Nancy Jane, who were his only children, and at the same time divided between them the slaves in controversy, giving Sam to Emeline and Mid to Nancy Jane. From that time until the filing of the bill, the defendants had possession of Sam and Mid, taking the benefit of their services, and treating them as their property.

About the year 1850, James Curtis and the defendants moved to this State, and the former lived with the latter until the time of his death, which occurred some two or three years before the filing of the bill.

The bill alleges that the defendants at all times, until shortly before the commencement of the suit, recognized the right of the complainants in the slaves, and at one time, in the year 1857, made a verbal agreement with them to sell the slaves, and divide the proceeds. On the contrary, the answer denies that defendants ever recognized any right in complainants to the slaves, and avers that defendants had no knowledge that complainants had any claim to the slaves until about the year 1857 — that from the time the slaves were given to defendants, by James Curtis, to the time of the filing of the bill, they were in the peaceable, uninterrupted possession of the slaves, claiming and using them as their own property.

In the absence of any proof to sustain the allegations of the bill, it must be assumed from the admissions, denials, and responsive allegations of the answer, that the defendants were in the peaceable,' continuous, uninterrupted and adverse possession of the slaves, for more than five years after the passage of the act of 19th of December, 1846, and before the filing of this bill,

Whether the gift of the slaves from James Curtis to his daughters was in parol or by deed, does not appear from the allegations of the bill or the answer. But assuming it to have been a verbal gift, and that under the statute of North Carolina, read in evidence, such gift was null and void, yet it has been held that adverse possession of slaves, under a verbal gift void by statute, for the period of limitation, confers title upon the possessor, and bars a recovery by an adverse claimant. McDonald ads. vs. Spencer, 22 Ark., and cases cited.

It is‘insisted for the appellants that James Curtis held the slaves as a direct trustee, under the will of Nancy Curtis, for the joint benefit of themselves and the appellees; that the statute of limitations did not run in his favor; and that appellees having received the slaves of him, with knowledge of the trust, Held them as trustees, in Ms stead, and that the statute did not run in their favor.

The statute (Gould's Digest, p. 1,026) declares that the peaceable possession of slaves, etc., for five years, etc., shall be sufficient to give the the possessor the right of property, as against all persons, etc.

The statute makes no exception in favor of persons claiming slaves as cestui que trusts against their direct trustees, but we have held that the possession contemplated by the statute was such possession as was adverse or hostile to the title of the owner (Spencer vs. McDonald, 22 Ark., and cases cited), and that it did not,- as a general rule, run in favor of a direct trustee, because his possession was not adverse within the meaning of the statute, but in contemplation of law, the possession of his cestui que trust. Anderson vs. Dunn, 19 Ark. 665 ; Harriet et al. vs. Swan et al., 18 ib. 498 ; Brinkley & wife vs. Willis et al., 22 ib. 9.

But where the trustee sells or otherwise disposes of the trust property to another person, in violation of the trust, though the purchaser, if he takes the property with knowledge of the trust, may be chargeable in equity as an implied trustee, yet his possession commences in hostility to the title of the cestui que trust, and if he holds and uses the property as his own for the period of limitation, his possession is adverse within the meaning of the statute, and he is entitled to its protection. The cestui que trust must suffer the consequences of permitting a. stranger to the. trust to acquire and hold adverse possession of the property for the-time prescribed by the statute, without resorting to the courts for its recovery.

. It was upon the principles above asserted that the court held in Halliburton ad. vs. Fletcher ad. et al., that the statute did not run in favor of Henry M. Olay, who held the slaves in controversy, in that case, for many years as guardian of Dr. Green Olay, but that it did run in favor of Jóseph Olay, who took the slaves from his father, Henry M., with knowledge of the trust but held and treated them as his own property for the period of limitation after the death of his father.

It may be remarked, however, that in this case, the appellees claim the property under a gift from James Curtis, and they expressly deny that they had any knowledge of the title of the appellants until a short time before the bill was filed. In other words, they deny that they took the slaves with a knowledge of the trust, and there was no proof to overturn the answer.

The decree must be affirmed.


text:
    Toby vs. Haggerty et al.
    The assessment and forfeiture of land for non-payment of taxes, situated in one county, by the officers of another county, were null and void, and the forfeiture conferred no title upon the state, and she could convey none: and so a bill in chancery for title to. the land, both parties claiming under the same . forfeiture, was properly dismissed.
    Hon. JohN J. CleNdeNIN Circuit Judge.
    Hollowbll & Jaooway for appellants.
    The face of the proceedings show the assessing of the lands by the assessor of Perry county, and their forfeiture to the state by the collector of that county, which render the acts of that, officer nugatory and void. The lands not being situated in Perry but in Tell county, wherein they had been assessed and the taxes regularly paid by Brown and his wife from the date of their several donation deeds from the auditor, the assessor and collector of Perry county had no authority whatever to assess or to forfeit them to the state. Haggerty’s deed was based upon the illegal forfeiture of the lands to the state by the tax collector of Perry county. The proceedings therein were therefore without legal warrant, unauthorized by the statute, without even the color of authority, and- as such were void db initio. If we are right in this view -of the case, then it must be conceded the first step taken in the premises being void, all subsequent acts were likewise irregular, unauthorized and of no binding force. .
    The assessing and forfeiture of the lands in question by -the collector- of Perry county, being- wholly without warrant, the grant by the auditor to Haggerty of the lands upon thé supposition • of- such forfeiture being legal, was void also, and Haggerty under such grant acquired no right whatever to the premises.
    We maintain that neither Haggerty nor appellees, who, claim' under him, acquired any right to, or interest in the premises conveyed to him by the auditor under Haggerty’s deed. The auditor’s deed to Haggerty is, it is true, good on its face, but the showing made against it renders it absolutely void. Sogen vs. Brashears, 13 Ark., 202; Merrick vs. Suit, 15 Ark., 331; 2 Iowa, 364; 4 McLean G.G.R., 494.
    In the second place-, the deed is not attacked because of its irregularity, nor because it is not in- all things regular upon its face, but because the auditor had no authority whatever to rnake such deed. The lands in tact had never been-forfeited to the state, but remained as other - lands belonging to the citizen, to which the state had no legal color of claim whatever. If the collector had no authority to assess, he certainly-had ;no right to self or offer-for sale, nor to forfeit the same .to the state for the non-payment of taxes.1 Every step-taken from the inception ' was' illegal, and could never- so operate as to divest private right. The deed therefore is void. 2 D&o. {I. It.) 98; 14 Sergt. & Bcmle, 331; 2 A. K.Ma/rsh. 240; Coke on Lit. 295; 5' Vin. 389 ; 8 Cow. B. 544, 548; 5 Piolcer. Bep. 20, 27; 8 Cow. 589, 605; Adams on Ejectment, 551, note a.

    We submit it as proved, that Brown, and his wife paid the taxes, both state and county, annually accruing on the lauds from the date of their respective deeds, until they sold to appellant; that they, and each of them, cleared, fenced, improved and placed in readiness for cultivation, five acres of each tract of the land, and within the time prescribed by the statute.
   Mr. Chief Justice English

delivered the opinion of .the court.

The bill in this case was filed in the circuit court of Yell county, by Charles E. Toby, against Penelope Haggerty and others, heirs at law of Joab Haggerty, deceased.

The object of the bill was to cancel tax deeds which Joab Haggerty procured, ;in his life time, to the east half of northeast quarter, and the east half of the south-west quarter of section 25, township six north, range 19 west, situate in Yell county, and to establish and quiet the complainant’s title to the same lands. ' ‘ ■

The title of the complainant was derived as follows:

The lands having been forfeited to the state for non-payment of taxes-prior to the 18th September, 1848, the auditor, on that day, executed a donation deed to Isaac Brown for one of the tracts, and a like ¡deed to his wife Nancy, for the other; and afterwards, on the 11th of June, 1856, Brown and wife, by a joint deed, conveyed the lands to complainant. - .

Joab Haggerty, who, ■ it seems, entered the lands, and was the owner of. them-at the time they .were forfeited to the state, on the 19th of April, 1851, filed affidavits' with the .auditor, stating that at-the time the lands were donated to Brown and wife, he owned improvements thereon, which they had failed to pay him for, etc.; whereupon the auditor-treated their donation deeds as forfeited, and Sold and conveyed the lands to Haggerty for arrearages of taxes, underact of 11th January, 1851, (Gould’s Dig. chap. 101, art. II. sec. 19, p. 699.)

On the part of the complainant it is sufficiently made out that the deeds executed by the auditor to Haggerty, were null' and void for an objection that will be stated, to say nothing of others. It is alleged in the bill, and admitted by the answer, that the lands were situated in Tell county, though, near the line between Yell and JPerry. It appears from the treasurer’s receipt to Haggerty, exhibited with the bill, that the taxes due upon the lands at the time they were forfeited, and for which Haggerty purchased, or redeemed them, were charged upon them in Perry county, and not in Tell. Beyond question, the forfeiture and assessment of lands situated in Tell county, by the officers of Perry county, were null and void; and the forfeiture conferred no title upon the state, and the state could vest no title in Haggerty by conveying them to him upon his paying the taxes thus illegally assessed.

But the complainant, in showing Haggerty’s tax' deeds to be void, has proven too much, and defeated his own title, for the donation deeds to Brown and wife must have rested upon the same illegal forfeiture, none other being alleged or shown by the evidence.

It follows that the decree of the court below, dismissing the bill must be affirmed.


author: Mr. Chief Justice ENGlish

text:
    Cossart vs. Spence.
    A collector has no legal authority to receive payment of taxes, and execute a receipt therefor, before the assessment of the property.

      Appeal from Olarh Circuit Court in Chamcery.

    Hon. LeN. B. GreeN, Circuit Judge.
    Gallagher, for appellant.
    FlaNagot, for appellee.
   Mr. Chief Justice ENGlish

delivered the opinion of tbe Court.

On the 16th January, 1858, Sol. Spence, sheriff and collector of Ciarle county, having received of Joseph Cossart, in money and otherwise, a sum equal to the amount of his taxes for the years 1856 'and 1857, executed to him the following receipt:

“Received of Joseph Cossart, his state and county tax in fall for-the years 1856 and 1857.
“ State tax-, County tax-.
“16th day of January, 1858.
SOLO. SPENCE, Sheriff”

At the time this receipt was given, the property of Cossart had not been assessed for the year 1857.

On the 8th of April, 1858, Sol. Spence departed this life, and Thomas F. Spence was appointed, and qualified as his successor in the office of sheriff and collector. Ascertaining that a number of tax payers had not been assessed for the year 1857, and among them Cossart, he made out and returned an additional assessment list, including the property of Cossart, upon which a supplemental tax book was issued to him, with a warrant attached, for the collection of the taxes therein charged.

He demanded of Cossart the amount of taxes charged upon real estate assessed to him, which he refused to pay, and Spence proceeded to advertise the property for sale, etc.

Cossart filed a bill to injoin the sale, on the ground that the receipt of Sol. Spence was a discharge of the taxes. The court granted a temporary injunction, which was dissolved on the final hearing, the bill dismissed, and he appealed.

The property of Cossart not having been assessed for the year 1857, at the time the receipt was g'iyen to him, Sol. Spence had no legal authority to receive of him payment of the taxes, or to execute ' to him a receipt therefor. 1 The collector derives his authority to collect taxes from the assessment, the tax book, and warrant attached, and a payment to him before the assessment is a mere personal and unofficial transaction between him and the tax payer, and no legal discharge of taxes subsequently assessed.

The agreement between the parties ‘placing the whole case upon the validity of the receipt, the decree of the court below must be affirmed.


author: Mr. Justice Fairchild

text:
    Kinsworthy et al. vs. Austin.
    A sale of land for taxes, after tender of payment by tbe owner, tbougb the land is assessed in the name of another person, does not divest the owner of his title.

      Ayypeal from Cobwrnbia Circuit Court in Chcmoery.

    Hon. Leh. B. Greef, Circuit Judge.
    GarlaNd, for appellant.
    Gallagher, for appellee.
   Mr. Justice Fairchild

delivered the opinion of the court.

For several years prior to 1849, Austin, through his agent Woodruff, paid the taxes upon the southwest quarter of section twenty-four, in township .eighteen' south, of range twenty-two west, but in 1849, the list which Woodruff prepared for the assessor of Lafayette county, in which the land was then situated, failed to reach him, and the land was not charged with, taxes for that year in the name of Austin, yet Austin, by Woodruff, his agent, tendered to the collector of Lafayette county the taxes on the land for the year 1849, but the collector refused to receive them because no charge of taxes upon the land in Austin’s name was upon his tax book. .Neither Woodruff nor the collector, as we- may suppose, then knew that the land was taxed that year to Cobb, or to Cobb & Shaw, but such proved, to be the fact, and for want of payment of the taxes, the land was offered for sale by the collector, was forfeited to the State, and in due time was exposed to sale by the auditor, and the Kinsworthys and Williams bought it. Woodruff, supposing that the taxes had not been paid for 1849, in 1850 had it assessed, and paid the taxes on it for that and the preceding year, and has ever since, to the time of the trial of this case, paid the taxes on the land for Austin. The purchasers at the auditor’s sale filed their petition for its confirmation, Austin appeared and resisted it, his resistance was successful, the tax sale was annulled, the deed of the áuditor to the Kinsworthys, and to Williams, was canceled; hence this appeal on their part for the reversal of the decree of the Circurt Gourt sitting in chancery for Columbia county, within whose limits the land is situated. '

If Austin loses the land, it will be for his default in not paying the taxes charged upon it in 1849, though it was taxed to Cobb, or to Cobb & Shaw. Under our law the numbers of the land were a sufficient description and notice to him that it was taxed, and that he must pay the taxes to save it from sale or forfeiture; and it necessarily follows that, if he were to lose the land for not taking notice of its being taxed, though in the name of another person, he was entitled to have his money tendering the taxes upon the lands applied, to their payment, in whosoever name the land was taxed. Austin was not liable to the penalty of the law for not paying his taxes; he was willing to pay them, he offered to do so; the collector refused to take the money tendered for their payment. He was bound to receive it when tendered by the owner, and put it to the credit of the lands, though it was taxed to another person than the owner, or the one making the tender. It would be strange law to cause Austin to lose his land for not paying the taxes charged upon it in the name of another person, and also to lose his land because the collector would not receive the money offered for the taxes because they were not charged in Austin’s own name.

The decree of the court below was according to law and equity, and is affirmed.


author: Mr. Justice Faiechild

text:
    Robinson vs. Bishop and Wife.
    A subsequent limitation of personal property, that had been given to, and absolutely vested in the first taker by a previous'clause in the will, declaimed illegal. {Slaughter vs. Slaughter, ante.) ■ ■
    The intention of the testator should be derived from the terms of his will, rather than from the testimony of the draftsman.
    A failure of issue is taken to be indefinite, not according to the course of after events, but as the possibility, thereof may exist at the death of the testator.
    The words “ heir at death,” in the will under consideration, as “ die without heir,’* in Slaughter vs. Slaughter, declared to mean “child” or “ descendant.”

      Appeal from, Onion Gi/rcwit Cowrt in Chancery.

    Hon. Len B. Queen, Circuit Judge.
    J. II. Askew for appellant.
    Under the state of case, did the court err in mating'tie decree, to reverse which this appeal was taken? We insist it did.'
    And 1st, we maintain that it was competent to prove the sense in which the testator used the words “ die without cm hei/r at death” as expressed in the 7th clause of his will by the scrivener who wrote it.
    That is, it is competent to prove that he did not mean by the word “ heir,” those, who, by law, would take as in case of intestacy, in a technical sense, but that he meant issue of the body of the said Fanny E., living at the time of her death, and to this point we think is the case of Cflcmton vs. Anthony et al., 15 Arle-., 543; Byers et al. vs. Wheeler, 22 Wend., 148, and particularly at p. 153, where the court declares the declarations of the testator are receivable to give a name or character, either to tbe devisee or the property devised — and upon the admission of testimony generally, to explain writing, see 1 Greenl., commencing at see. 296; 1 Phil, on Ev., top p. 532; and note 939; 2 Phil..from 646 to 650, and 3 v. p. 1362; 1 Story Eg., from see. 152 to 161, inclusive; 6 Oruise Dig.; 170; Hall vs. Leonard, 1 Pick., 27; where the court expressly declared, a parol averment may be admitted to ascertain the person meant: see, also, Powell vs. Biddle, 2 Dali. P, 70 ; Thomas vs. Stevens, 4 J. G. 607; and as a consequence to ascertain one not meant, 10 Mass., Sargent vs. Town; in this’ case the court permitted parol, testi. mony to enable it to determine the character of the estate intended to pass by the will.
    And surely this testimony is competent, at least to show: 1st, that the testator did not intend to use the word “heir” in a technical sense, under our statute of descents and distributions, or if he did, which one of his heirs, both the complainant and appellant, come within' that description of persons by the use of the word in its technical sense, if the word “heir” applies to those wbo may take by our statute in the ascending line has any technical sense attached to it at all. And secondly, that tbe testator did not regard either of the parties as heirs in the sense in which he used the term, and we think that Lord Qhennfs case clearly demonstrates the admissibility of the testimony: see 1 Phil. Lv. 532.
    And 2dly. We insist that the claim of the appellant, under the will of the testator, belongs to that class of cases, denominated contingent executory devises — such a devise, upon a contingency to happen in the extent of a life or lives in being, and twenty one years and a fraction, is always allowed. And in determining the rights of the appellant, the first question that presents itself is, whether the devise over is upon a definite or indefinite tailure of issue, and that it is the former, there can be no doubt, as the contingency in this case is in these words: “ It is also my desire, that if my said daughter, Fanny E. Bobinson, or any mutual offspring that may .exist between myself and beloved wife, depart this life before arriving at the age of maturity, or without an heir at death, in that event, all the property which may have been inherited through me, in any way, shall be inherited by my beloved father; and, incase of his demise before [any of these circumstances occur,” then over, to his wife, complainant and others. See Williams vs. Dan-id, 12 Wheat. 564; 4 Kent 268, 270, 271, 272, 275; Fasdick vs. Cornell, 1 J. R. 440; Moffatt vs. Strong, 10 J. R. 12; Jackson vs. Stats, 11 J. R. 337; Willcs vs. 'Lyon, 2 Cow. .362;, Lion vs. Burks, 20 J. R. 483; Richardson vs. Koys, 2 Mass. 57; Km-kpatrick vs. Kirkpatrick, 13 Yes. 476; HuTbert vs. Emmerson, 16 Mass. 241; Cook vs., Derandes, 9 Yes. — .; Chandler vs. Price,, 3 Yes. 99. And having, as we conceive, by the foregoing authorities, fully shown that the devise over, to appellant, was upon a definite failure of issue, it is therefore not void, as being too remote.
    The next question that presents itself is, is the devise over to the appellant void, as being repugnant, to what precedes it? We think not; and in determining this question, due regard must be had to the construction of wills.
    And one rule is, that the intention of the testator is the first and great object of enquiry. . Maulding et al. vs. Scott et oil., 13 Ark.p. 92. And to this object technical rules are, to a certain extent, made subservient. See 4 Kent 534-5, note a and b; 6 Cruise Dig. 147, title Devise; Hekner and wife vs. Shoemaker, 22 Wend. 136; 2 Aik. 280; 2 Roper on Leg. 421, and cases there cited; Rathborn vs. Dyckman, 3 Hedge, p. 26-7-8-9.
    Another rule is, that if two parts of a will are totally inconsistent, the latter prevails. 2 Roper, 322, 328, 329.
    Another rule is, that the whole will shall be construed together, if possible. 2 Roper 330; 6 Cruise 147, s. 2. And to this end words may be supplied , or transposed. 2 Roper 321, 322; 6 Cruise Dig. p. 150, and authorities there cited; 6 J. R. 54. And chancery is more liberal than courts,of law; 2 Aik. 280. And with these rules we insist there is no repugnancy in the devise over, and to this point, cite the following authorities:
      Beane vs. .Test, 9 Ves. 147; Davidson vs.-Dallas, 14 Ves. 576; Hughes vs. Sayer, 1 P. Wms. 534; Fosdick vs. Cornell, 1 J. li. 440; 10 J. It. 12; 11 J. It. 337; Wilks vs. Lyon, 2 Cow. 362; Lion vs. Burdis, 28 J. B. 483; Bidha/rdson vs. Ways, 2 Mass. 56; Harrison vs. Foreman, 5 • Ves. 209; 1 Boper 414; Davidson vs. Dallas, 17- Ves. 576; 3 Aik. 396; 2 Aik. 280; Sa/rgmt vs. Towne, 10 Mass. 307,- and note a, and the authorities cited' by this court in the case of Moody vs. Walker, 3 Ark. 148, and'particularly those in the brief of the able attorney of Moody.
    ¥e apprehend, however, that but for the misconception of appellee,. as to what, this court really decided in the case of Moody vs. Walker, appellee never would have- filed her bill in this cause, and, no doubt, rests her whole case upon that case. We think that there is a vast difference between the two; in that case there was no time specified, at which the devise over was to' take effect, and the court, upon the .express ground, that it was bound by precedent, decided against what it believed, to be the intention of the testator, because there were no words in the will indicating that he did not mean to be technically understood; and, therefore decideddhe devise over tobe upon an indefinite failure of issue; because the testator, in that case, failed to’say, that the devise over should take effect at the death of his daughter, Nancy.
    CaRletóN, for the appellee. ■
    It may b'e well .to lay down some general rules of construction of wills before we take up the will itself.
    The first rule is, that the intention of the testator must prevail,-'if not'inconsistent with the law. Moody vs. Walker, 3d Ark. 185.. - ’ - •
    2d. Every clause should be so construed with reference to the other items, 'that each-item maytake effect.
    3d. The will itself is the only thing to which reference can be had. - 1-Creen. Fv. secs. 289 and 290; Hiscoek vs.Hiscock, 5th M¿ & TF.-363 and 367; Brown et ctl. Vs. Sdltemstall. 2d Met. -423;
      Jackson vs. ¿Sill, 11th Johnson Bep. 501; 5th Prop.', Wigram on Wills 11 a/nd 12; 3d conclusion ib. 211, 212, 213 and 214.
    There are two exceptions to this rule — but two, viz: First, when the thing devised is not sufficiently described in the will to enable the court to ascertain from it what is intended to be devised. 5th Prop. Wigram on Wills, p. 11 and 12; 1st Greenl. Ev. secs. 289 and 290. Seeond, when the devisee is not sufficiently described in the will to enable the court, from it, to tell for whom the bounty was intended, lb. Here the appellant attempts to use as evidence what the scrivener, Gatlin, meant by the 3d and 7th items of the will. A proposition most preposterous ! Were such received, no will could stand.
    4th. The words of the will should be taken in their primary and technical sense, unless it appear from the context that they were intended to be used in their secondary or popular sense. Wigram on Wills, Prop. 1 and 2; 3d Conclusion ib. 212 213 amd 214.
    5 th. Plain and unambiguous words need no constructions. 2 Kent. 554, (5th ed.)

    6th. A devise will always be held absolute, unless it clearly appear from the will that it was the testator’s intention to limit it. Moody vs. Walker, 3d Ark. 188; Patterson vs. Ellis, 11th Wend. 299.
    7th. If the first taker have the power of destroying or defeating the limitation over in personal property, he takes absolutely. 2 Kent. 252, seq.; Patterson vs. Ellis, 11th Wend. 275; Mood/y vs. Walker, 3d Ark. 185.
    8th. When the testator gives personal property absolutely, and then attempts to create a limitation over, the limitation is void. Mood/y vs. Walker, 3d Ark. 189; Williamson -vs. Daniel, 12 Wheat. 568.
    Having laid down these rules, let us proceed to apply them to the case at bar.
    It is clear that the third item of the will gives an absolute estate standing by itself. It makes no limitation, nor reference to any clause making one, but gives absolutely the effects including cboses, of which, he may die seized and possessed. But appellant insists that the' 7 th item is-intended, and does control and limit the. third, which we deny. 1st. The 3d item, without reference to .the 7th, gives to Fanny E. absolutely all property, (not disposed of otherwise,) his negroes, ready money, his inteiest in his grand-father’s' estate, and all which may be due at his death from his father or mother’s estate. 2d. The 7th item does not refer to the 3d, nor to the effects conveyed in it; but iú case Fanny E. should die without heir, and before arriving at maturity, then (not what I have given her in the 3d item) all property (future) which may have' been inherited (not hereby given) through me in any way, shall'be inherited by my beloved father, etc.- 3d. The 3d item gives to Fanny E. all property and effects which he dies' possessing, or having the absolute right to; the 7th, all that may accrue to him or her as his representative after his death.
    4th. The word “inherit” has a fixed legal meaning, and applies solely to real estate. Kelly’s heirs vs. 'Me Gime dk wife, 15th Ark. 555; 4th Buie of Construction; ch. 56, sec. 20, Gould’s Dig. jo. 443.
    5th. It is not the effects given by the will that are referred to in the 7th item, but any inheritance which may come to said . Fanny E., as the testator’s representative after his-death. He gives one — she. is to inherit the .other — clearly two estates.
    To say the least, it is left extremely doubtful, and under the 6th rule of construction, .before laid down, Fanny E.. would take the absolute title. Moody vs. Walker, Zd Ark- 188.
    There was no restriction on her as to selling or disposing of it; and so her guardian, under the .Probate or Chancery Court, might have sold or disposed of it for her benefit during minority, and, had she lived, at maturity she could have done so herself. See 7th rule of construction above gimen,, and authorities.

    But lastly, the third item gives the property therein specified absolutely; ■ and if the testator intended and did attempt to limit the interest.and property given in the 3d by the 7th, the limitation in the 7th is void. See 8th Ride’, Moody vs. Walker 3d Ark. 189; Williamson vs. Drniel et dl., 12th Wheat. 568.
    It results, then, as an inevitable conclusion, that Fanny E. took the effects given in the 3d item absolutely, and that on her death they passed to her nearest heir, or next of kin, (appellee,) according to the law of her domicil. 2d Kent 426.
    G-ARLAND & Randolph, also for appellee.
    Only in extremely doubtful eases is it allowed to introduce extrinsic evidence of what the testator meant or to whom he intended to give his property. Oreshfs Eq. ILv. 203; 8 Bingham, 244; 1 M. ■<& W.- 129.
    Even if an expression in the will be doubtful, the heir cannot therefore be disinherited; but is always to be favored. 3 .How. IT. S. Rep. 470, Roper on Legacies'.

    The estate to Fanny E. vested eo vnstanti, was absolute, and her mother, appellee, takes the property as her next of kin, and all of our adjudications hold this without exception. 3 Ark 185; 13 Ark. 91; 15 lb. 555; 19 lb. 66. '
   Mr. Justice Faiechild

delivered the opinion of the court.

In June, 1855, in Union county, Nathaniel W. Robinson made his last will, from which the following is takeh:

Item 3. All the balance of my property, tegroés, ready money, and estate of whatever kind which I may be possessed of, or that may be due and coming to me from my grandfather’s estate in the State of Georgia, or in any way coming from my father or mother, I give to my beloved daughter, Fanhy E. Robinson, together with any mutual offspring that may ever exist between myself and beloved wifé.

The fourth, fifth and sixth items of the will provide for its execution, .for the guardianship and education of the daughter and other possible children, and aré followed by the seventh item in these words:

Item 7. It is also my desire that if my said daughter, Fanny E. Robinson, or any mutual offspring that may exist between myself and beloved wife, depart this life before arriving at the years of maturity, or without an heir at death,-in that event, all the property which may have been inherited through me in any way, shall be inherited by my beloved father, and in case of his dissolution before any of these circumstances occur, then, and in that event, the same I bequeath to my beloved wife, Nancy Ilobinson, my beloved brothers, Isaac T. Robinson and James G. Robinson, and sister Mary Ann Rebecca Robinson, all as upon the same equality of inheritance.

The testator died in the month after he made the will, the daughter, Fanny E. Robinson, being his only child. In October of the same year she died, and Benjamin P. Robinson, the father of the testator and executor of the will, claimed the property given to the daughter in the third item of the will to be vested in himself by the seventh item of the will.

And upon settlement of his executorship, Benjamin P. Robinson obtained an order from the Probate Court of Union county vesting the amount of money and slaves remaining in the hands of the executor, as appeared by his settlement, as his own property, as residuary legatee of the whole estate of Nathaniel W. Robinson. This was in October, 1857, and in September, 1858, Nancy S. Robinson, the widow oí Nathaniel W. Robinson,-filed her bill on the chancery side of the Union Circuit Court, in which, as the heir of her daughter, Fanny E. Robinson, she claimed that the money and slaves, and effects in the hands of Benjamin P. Robinson, which came to him as the executor of Nathaniel W. Robinson, should be transferred to her.

The court sustained her bill in adjudging that Fanny E. Robinson took an absolute interest in the property mentioned in the third item of the will, that Nancy S. Robinson was the heir of her daughter, and in decreeing that Benjamin P. Robinson pay to her the amount of money in his hands, as the executor of Nathaniel W. Robinson, as shown by his. account current filed at the October term, 1857, of the Probate Court, tSld that be should deliver to her the slaves, with hire, that belonged to the estate of Nathaniel W. Robinson. Benjamin P. Robinson appealed from the decree, and during the pendency of the appeal in this court, Nancy S. Robinson has married, and her husband, Caldwell Bishop, has been admitted as a party, with his wife, to defend fhe case here.

After the death of Nathaniel W. Robinson, his widow, with her daughter, removed to Louisiana, and there the daughter died; but whether the domicil of the daughter were the residence of her mother, or that of her guardian, where her interest, as her father’s legatee, was, is immaterial in this case, as the mother, by the law of Louisiana, as well as of this State, was entitled to the money and slaves of her deceased daughter. And the question simply is, whether under the third item of the will, the daughter took an absolute interest in the personal property therein mentioned. The affirmative of this has been settled upon a full consideration of this subject as presented by this will, and by the will of John Pollard, construed in Slaughter vs. Slaughter, just decided, and we hold, without hesitation, that Benjamin P. Robinson did not obtain title to the money and slaves in his hands as executor of Nathaniel W. Robinson, by the seventh item of the will, as that was an illegal attempt to limit property to Benjamin F.- Robinson that had already been given to and was absolutely vested in Fanny E. Robinson. Denson vs. Thompson, 19 Ark. 69, may be mentioned as another recognition by this court of Moody vs. Walker that was not referred to in Slaughter vs. Slaughter. See, also, Massey vs. Parker, 2 M. & R. 184; Cuthbert vs. Purrier, 1 Jac. 417; Jackson vs. Ball, 10 Johns. 20; Jackson vs. Robins, 16 Jhs. 590.

We prefer to construe the will under consideration from its own terms, rather than to take the deposition of its draughtsman as declaratory of the intention of the testator. We are not oyrvinced of the propriety of the mode of interpretation insisted on in this court.

The limitation over in this will, as in the will of John Pollard, was not void for being too remote, for in each case it was dependent upon a definite failure of issue. And though in this case the failure of issue was accomplished in the next October, while in Slaughter vs. Slaughter, sixty-five years elapsed before the death of Elizabeth Pollard, and she then left Catherine Slaughter living, a surviving grandchild of John Pollard, each limitation was to take effect upon the death of a person alive when the wills were made. A failure of issue is taken to be indefinite, not according to the course of after events, but as the possibility thereof may exist at the death of the testator. Clare vs. Clare, Cas. temp. Talbot 26; Patterson vs. Ellis, 11 Wend. 299; Hawley vs. James, 16 Wend. 171; 4 Kent 283; Ibbetson vs. Ibbetson, 10 Sim. 515.

We also think that the words in this will “heir at death,” and in the will of Pollard “ die without heir,” are to be taken in their general acceptation, by which heir would mean child or descendant. Cox vs. Britt, 22 Ark.

The decree of the court below is affirmed.


text:
    Bevens et al. vs. Baxter.
    The 19th section, chapter 154, Gould's Digest, Acta of 1854, page 109, Acte of 1852, page 42, are public acts in their character and subject matter, though local in their application, aud the courts are bound to take judicial notice of them.

      Appeal from Independence Circuit Court.

    Hon. Wn. R. Cain Circuit Judge.
    Bevens, for the appellant.
   Mr. Chief Justice English

delivered the opinion of the court!

This suit was brought by Baxter as school commissioner of section 16, township 13 north, range 6 west, on a bond executed to McGuire, his predecessor in the same office.

A demurrer was interposed to the declaration on the ground that the special acts under which the plaintiff held the office of school commissioner for the section and township recited in the bond, and in the declaration, were private statutes, of which the court could not take judicial notice, and should have been set out in the declaration. The demurrer was overruled,' and final judgment for plaintiff.

For the acts in question, see Gould’s Digest, chap. 154, sec. 79; Acts of 1854, p. 109; Acts of 1852, p. 42, and acts there referred to.

The acts are not private statutes as supposed by appellants. They are local in their application, relating, as they do, to the sixteenth section and common schools of a particular township, but they are, nevertheless, public acts in their character and subject matter, and the courts are bound to take judicial notice of them. McCuen vs. State (No. 1), 19 Ark. 630.

Judgment affirmed.


text:
    Boutner vs. Kent.
    The person, who furnishes the lumber for a building, not being the mechanic or builder, is not entitled to a mechanic’s lien for the price of the lumber. (Duncan vs. Bateman, ante.)

      Appeal from Diew Circuit Court.

    Hon. John C. Murray, Circuit Judge.
    Winter, for appellant.
    Harrison, for appellee.
   Mr. Chief Justice English

delivered the opinion of the Court.

Kent and his deceased partner, who owned a saw mill, sold a bill of lumber to Boutner, and Kent instituted proceedings under the statute concerning mechanics’ liens, to fix a lien upon a house and lot of Boutner, for the amount of the bill, alleging that the lumber was furnished to build the house, etc.

On the trial, it was proven that the lumber was furnished to Boutner by Kent and his partner, and that the prices charged in the account were usual. But it was not proven that they were mechanics or builders, or that they furnished the lumber to Boutner under any contract with him to do work as such, or that the lumber sold by them to him was even used in building the house, etc., upon which the lien was sought.

The case falls within the decision of this court in Duncan vs. Bateman, ante, and the judgment must be reversed, and the cause remanded for a new trial.

As to the question of pleading, made by the counsel for appellee, see Hicks et al. vs. Branton et al., 21 Ark. 186.


text:
    Barker vs. Parker.
    Where the surety in a bond for the payment of money, receives the amount of the principal under an agreement to pay it over to the payees, this is a new undertaking which he is legally bound to perform, and an action will lie at the suit of the payees for the money received; and if he pay one of them his half of the money, the other may treat their interest as severed and sue in his own name for his portion.
    ft is more usual in such cases for the party entitled to the money to recover upon the count for money had and received, but he may declare specially, setting out the facts.
    In a suit upon a bond for the payment of money, a plea that it was given upon an illegal consideration — the abduction of a person — would be a good bar to the action.
    But if the principal in a bond given for an illegal consideration, deliver the money due upon it to his surety to be paid to the payee, and he agrees so to pay it over, this is a new contract and undertaking on his part, and though a party to the original contract he is as much bound to pay the money as a stranger to the illegal contract would have been.
    A plea is bad as setting up a former discharge, when it alleges no final judgment in the former suit.

      Error to Bradley Circuit Court.

    i
    Hon. John C. Murray, Circuit Judge.
    Garland & Randolph, for plaintiff in error.
    Beyond doubt actions for money had and received may be maintained against third persons who receive money to be paid over to others. Ch. on Con. 615; Amos vs. Ashley, 4 Pick. 71. But Parker being liable on the note with Ervin, and undertaking to discharge the agency, established his liability beyond question. Even if he had been a volunteer in' receiving the money and undertaking to pay it over, his liability would have been fixed. Ch. on Con. 617, to 619; 17 III Rep. 170; 9 N. Ilamp. 55, 63; 11 Wend. 477.
    The suit is not upon the note, that was merged by payment, and it was at the option of the parties to treat it as at an end and look to the assumpsit of Parker, which they did: There is no room for cavil about the note, or its consideration. Ervin> with a full knowledge of all the facts, paid over the money; he certainly cannot question it, could not recover the money back, be the consideration of the note ever so fraudulent or illegal. Ch. on Con. 622, 6-33; 3 Waits., 327; 10 Peters, 137. The illegal contract is performed, and now it is too late to recur to the consideration. If Ervin cannot question it, certainly his agent cannot.
    The subject mater of this suit is entirely different from the one set out in the 3d plea. The plea also fails to show the termination of that suit, and makes no attempt to show that plaintiff received his half of the money. Ch. PI. 488 and notes 828, 829.
    Hempstead, for the defendant.
    The declaration is insufficient and the action misconceived. Barker should have sued in debt on the obligation; and be had no right to abandon that higher security, and resort to a mere verbal promise. The payment by Ervin to Parker did not discharge the obligation. It was only a private arrangement between the co-obligors with which the payees had no concern or privity.
    The second plea was good. It set up an illegal consideration, for which the note was executed. The illegality of a contract is always a perfect defence to its enforcement. 2 Parsons, 186.
    No valid consideration could possibly spring out of such a transaction as that for which the note was given. Because the effect of it would be to encourage the violation of law. Ch. on Con. 674; 9 Verm. 310; 6 N. Hump. 225, and the consideration being illegal, it constituted a good defence to and barred the action.
   Mr. Chief Justice English

delivered the opinion of the Court.

Assumpsit by George M. Barker against Uriah H. Parker.

The first count in the declaration alleged, in substance, that on the 26th of March, 1857, one JarnesErvin, Benj’n. W. Martin and defendant executed a writing obligatory, by which they promised, thirty days after its date, to pay to John R. Barnett and the plaintifF, $406 60 for value received, with ten per cent, interest from maturity. That on the 27th of April, 1857, Ervin, who was principal in the bond, and for whom Martin and defendant were sureties, paid over to the defendant the full sum stipulated to be paid thereby, with the express agreement and understanding that defendant should pay the same over to the plaintiff and said Barnett, which the defendant promised at the time todo: and afterwards, on the 12th of December, 1857, the defendant fully paid over to Barnett his one-half of said obligation, viz: $203 30, which he then received in full payment and discharge of his portion of said indebtedness; but the defendant failed and neglected to pay the plaintifF his portion thereof, but kept back and withheld the same, etc.

The second count was for money received of Ervin, by the defendant, t.o be paid over to plaintifF. The third was the common counts blended.

The court sustained a demurrer to the first count.

To the 2d and third counts, the defendant pleaded non-assumpsit.

To the second count, a special plea in substance as follows:

That the money supposed to have been received of Ervin, by defendant, to be paid over to the plaintifF, was to be so paid over in discharge of a certain writing obligatory then held by the plaintiff and one John R. Barnett, against said Ervin, one Benj. W. Martin and defendant, as follows, etc., [here the obligation is set out, being same referred to in the first count of the declaration], which writing obligatory was executed by Ervin, Martin and defendant, in consideration that plaintiff and said Barnett arrested and took into their custody one Jackson Cloud, in the county of Bradley, a free white person, and with force and violence, and without any legal authority, conveyed said Cloud from said county to the city of New Orleans, beyond the State of Arkansas and there delivered said Cloud to said Ervin, against the will and without the consent of said Cloud; and said obligation was executed upon no other consideration, etc., and therefore defendant avers that said writing obligatory was executed upon an illegal consideration, and was null and void.

Defendant also filed a third plea (to the second count) alleging, in substance, that the money received by him of Ervin for the use of plaintiff, etc., was to be paid over on the obligation above described: that suit had been brought on the obligation by plaintiff and Barnett, in the Bradley Circuit Court, against defendant and Maitin: that they interposed a plea that the obligation was executed upon an illegal consideration (the abduction of Cloud,) to which plaintiff, in said suit demurred, and the demurrer was overruled by the court, etc.

The defendant also interposed a fourth plea (to the third count) alleging that the money therein alleged to have been had and received by him for the use of plaintiff was received in manner and form as set forth in his second plea, ant not otherwise.

The plaintiff demurred to the 2d, 3d and 4th pleas, the court overruled the demurrer, he rested, and final judgment was given for defendant.

1. Treating the bond recited in the first count of the declaration as a valid obligation, the $203 30 paid over to Barnett by the defendant was a payment pro tanto of the bond, and the plaintiff and Barnett had the right of action upon the bond against Ervin, Martin and the defendant, for the balance due thereon. But the plaintiff was not obliged, as insisted by the counsel for defendant, to resort to an action on the bond: this was not his only remedy. The defendant received of Ervin $406 60, in money, which, it is alleged in the count in question, he agreed to pay over to plaintiff and Barnett. This, on the part of the defendant, was a new undertaking which he was legally bound to perform. In fulfillment of his agreement he paid over to Barnett one half of the money, but retained in "his own hands the other half. The money which he so retained belonged justly and equitably to the plaintiff. Had he a legal right of action to recover it?

It may be regarded an the settled law in this country that where one person places money in the hands of another, to be paid over to a third person, and the person receiving the money agrees so to pay it over, the third person for whose benefit he receives the money, may maintain an action against him therefor. Del. & H. Canal Co., vs. Westchester co., Bank, 4 Denio, 98; 2 Greenl. Ev. sec. 119; Hall vs. Martin, 17 Mass. R. 578; 1 Stary on Contracts, (4 ed.) sec. 451, b. p 554, and cases collected in note 3.

The money having been received by the defendant of Ervin for the joint benefit of plaintiff and Barnett, had he failed to pay over any part of it, they would have had a joint right of action against him for the whole of the money. But the defendant having paid over to Barnett one half of the money, which it seems was the amount going to him, and he having accepted it, as it is alleged in the count, in full satisfaction and discharge of his portion, the plaintiff had the right, we think, to acquiesce in the payment to Barnett, to treat their interest as severed, and to sue for the other half of the money in his own name, to which, as above remarked, he was equitable entitled.

It is more usual for the party entitled to the money in such cases to recover upon the count jor money had and received, which in its spirit and objects has been likened to a bill in equity, and may, in general, be maintained where the defendant had received or obtained possession of money belonging to the plaintiff, and which, in equity and good conscience, he should pay over to him (2 Greenlf. Ev., sec. 117); bat we think the facts requisite to show a cause of action are substantially alleged in the special count in question, and that the court should not Lave sustained the demurrer thereto.

2. If the suit had been upon the bond, no doubt but the: defence set up in the 2d plea of defendant, that the bond was executed upon an illegal consideration — for services rendered in the abduction of Cloud — would have been a good bar to the action. But the suit was not upon the bond, or the illegal contract. Ervin, the principal in the bond, not choosing to avail himself of the illegality of the transaction to avoid payment, delivered the money due upon the bond to the defendant, to be paid over by him to the plaintiff, etc., and he agreed so to pay it over. This was a contract and undertaking on his part, and though he was a surety of Ervin in the bond, and a party to the original contract, he was as much bound to pay the money over to the plaintiff as a stranger to the illegal contract would have Been If Ervin was willing to pay Ihe money due on the bond, and delivered it to defendant for that purpose, what right had he to put the money in his own pocket, and to say that Ervin was not legally bound to pay the bond, and therefore he would keep the money? None we think.

In Farmer vs. Russell et al., 1 Bos. & Pull. 205, quoted by Chief Justice Marshall in Armstrong vs. Toler, 11 Wheat. 273, it was held, that “ if A is indebted to B on a contract forbidden by law, and pays the money to C for the use of B, a court will give judgment in favor of B against C for this money. In this case B could not have recovered against A, but when the money came into the hands of C, a new prordise was raised on a new consideration, which was not infected by the vice of the original contract. In this case, Chief Justice Eyre said, that the plaintiff’s demand arose simply from the circumstance that money was put into the hands of C for his use; and Justice Buller said, that the action did not arise upon the ground of the illegal contract. Yet, in this case, A’s original title to the money was founded on an unlawful contract, and he could not have maintained an action against B.” See also Perkins vs. Clemm, 22 Ark.

The demurrer should have been sustained to the 2d plea, and also to the 4th, which attempted, in an informal way, to set up the same matter.

The 3d plea, if unobjectionable in other respects, was bad as a plea of former discharge, because it alleges no final judgment in the suit.

The judgment of the court below must be reversed, and the cause remanded, with instructions to overrule the defendant’s demurrer to the first count in the declaration, and sustain the plaintiff’s demurrer to the 2d, 3d and 4ih pleas, and for further proceedings, etc.


text:
    Guthrie et al. vs. Price et al.
    The decision In the J^Tattcr of the Will of Cornelius, (14 Ark. 675): that where the testator’s name is written to the will by another person, and he makes his mark, it is a valid subscription within the meaning of the statute, should not be disturbed.
    It being proven that the will was executed in accordance with the formalities prescribed by the statute, the burthen of showing that fraud or imposition was practiced upon the testatrix was upon the parties contesting the validity of the will: and though in determining such question the fact that she could not read, and that the will was not read to her, at the time she signed it, were circumstances to be considered, it was erroneous for the court, to tell the jury, as a matter of law, that it being shown she could not read, it was necessary to prove that the will was read to her — they having the right to infer from all the circumstances that she knew the contents of the will.

      Error to White Circuit Court.

    Hon. William C. B'evbns, Circuit Judge.
    Jordan and Hollowell, for the plaintiffs in error.
    The court seems to have refused the instruction of the defen* dants below, on the ground that the making of a mark by the testatrix is not a subscribing; and that in case the party signs by making a mark, it must appear that her name was written by one of the subscribing witnesses. The question presented then, is whether the execution of a will by making a mark isa sufficient compliance with that clause of the statute, which requires that it must be subscribed by the testator at the end of the will. This question was settled by the decision of this court In the Matter of the Will of Cornelius, 14 Ark. 686. We take the rule to be that when the testator, from physical ina* bility (or other cause) to sign his name, requests another to write it, and adopts the signature as his own, without making his mark, then the person writing his name must subscribe his own name as a witness. But when the testator executes ihe will by making his mark, it is not necessary for the party who wrote the name to be a subscribing witness. The following authorities are submitted on this point: In the Goods of Savory, 6 Eng. Com. Law 4* Eq. 583; In re Field 2 Curtis 225; Chaffee vs. Baptist Miss. Com. 10 Paige 89; Butler vs. Benson, 1 Barb. jS. C. Rep. 533; 1 Jarman on Wills 144.
    The words subscribed and signed, when used in reference to the execution of a will, under our statute, are synonymous: and the meaning of the clause in the statute, that “the will shall be subscribed by the testator at the end of it,” is that he shall sign it. See, as to what is a sufficient signing of a will to make it valid. 1 7arman on Wdls 113, and note 1; 1 Grecnl. on Ev., see. 674; Jackson vs. Van Dusen, 5 J. R. 144.
    Even if the testatrix had not made her mark, the fact that .she produced the will, and declared, in the presence of witnesses, that it was her will, is sufficient evidence of its execution. 1 Greenl. Ev. 675, 677; White vs. JSritish Museum, 6 Bing. 310; Hull vs. Hull, 13 Pick. 373; 4 Kent Com. 516.
    The second instruction asked by the plaintiffs is objectionable unless the further qalification be added, that, the production of the will by the testatrix, prepared and ready for execution, raises a presumption that it had been read to her, and that she understood its contents.
    B. D. Turner, for defendants in error.
    Although the first, instruction given for these defendants is in conflict with the decision of this court In the. Matter of the Will of Cornelius, 14 Ark. 675, we think it was authorized by the statute of wills, and was proper; and with respect, but with confidence, submit that that decision should be reconsidered.
    The first clause of the fourth section, statute of wills, declares that the will “ must be subscribed by the testator at the end of the will, or by some person for him at his request;” and the fifth section declares that “ every person who shall sign the testator’s name to any will, by his direction, shall write his own name as a wdtness to such will, and state that he signed the testator’s name at his request.” Now, we think it is evident that in this last section the legislature had direct reference to the first clause of the fourth section above quoted; and if so, they intended by the word “ subscribed,” in that clause, precisely the same thing that they intended by the words “ sign the name,” and “ write his name,” in the fifth section; which, we think, was never intended by our legislature to be performed by a mere mark, either by a testator or by a.witness; for if a will can be “ subscribed” by a testator by a mark, it can also be “ subscribed” “ by some other person for hiin” by a mark; for the same word “ subscribed” is used in the fourth section( both for the testator and the “ other person” who subscribed for him. And if a mark is sufficient under that section, it must also be sufficient under the fifth section, which has direct reference and allusion to the fourth section, as no other part of the statute except the fourth section, had authorized any other person to “ subscribe” or “ sign the testator’s name” to his will. Did the legislature intend that? If so, it is also intended that the person who signed the testator’s name, under the fifth section, by a mark, might also by a mark “ write his own name as a witness.” They both mean the same thing; for we cannot suppose that the legislature would permit an illiterate man to “ sign a testator’s name” by a mark, and then require him to “ write his own name” as a witness, unless it wras intended that he might do that also by a mark; and if it intended this, it also intended that by a like mark he might *• state that he signed the testator’s name at his request,” a thing which is perfectly impossible, for no mark could make such a statement. 1 hen we take it that the words “ sign the name” and “ write his name,’’ in the filth section, cannot mean making a mark; and as the legislature evidently intended the same thing by the word “ subscribed,” in the fourth section, that it. meant by the words “ sign” and “ write the name,” in the fifth section; and as the word “ subscribed,” in the fourth section, is used for both the testator and the party who subscribes for him, we think the conclusion must be that in Arkansas.a will cannot be executed by a mark.

    For the foregoing reasons, it is submitted that the first instruction for these defendants in error was properly given, and the instruction asked by the plaintiff properly refused. And see Abraham vs. Wi/kins, 17 Ark. 292; Greenough vs. Greenough, 1 lores 489; GaveWs Appeal, 8 W. 4‘ S. 20; Grobill vs. Barr, 5 Barr 441; Asay vs. Hoover, 5 Barr 21.
    As to the second instruction given for defendants in error, see Harrison vs. Rowan, 3 Wash. C. C. 580, 584, 585; Day r Day, 2 Green Ch. Rep. 550; Gerrish vs. Nason, 22 Maine 438. Billinghurst vs. Vickers, 1 Phil. Ec. Rep. 189; Harding vs. Harding, 18 Penn. State Rep. (6 Harris) 340; Cliftcn vs. Murray, 7 Georgia 504. .
    Now, it is clearly proven that the testatrix in this case, could not read, and none of the witnesses could tell that the will was ever read to, or that she had any knowledge of its contents, ’Tis true, she said it was her will; but how did she know that? Not even her mark was to it at the time she produced it to the witnesses, and she could not know that it was her will, except by being told so by the scrivener, or by its being properly read to her by him, and also by being able to identify it as the same unaltered writing which he had piepared for her. And so the evidence of its being her will, is not that she made her mark to it, and that it was properly attested by witnesses, which, in this case amount to nothing; but the several facts, whether the scrivener honestly conjormtd to her instructions in writing it, and •properly read it over to her, and that it was the same unaltered will which he had prepared: none of which appears from the evidence. And this again illustrates the necessity for that construction of the statute which the circuit court gave in the first instruction. (

   Mr. Chief Justice English

delivered the opinion of the court.

This was an issue of devisavit vel non, determined in the circuit court of White county.

The validity of the will of Susan Guthrie, which had been regularly probated, was contested by Fielding Price, and wife Mary, and Joseph Price, and wife Martha, the sons-in-law and daughters of Mrs. Price. The defendants in the petition were Nelson Guthrie and four others, the sons of the testatrix.

The name of Susan Guthrie was subscribed to the will, and between her Christian and surname was her mark, in the form of a cross.

It seems that she had two daughters, the contestants, and five sons. The provisions of the will are fewand simple. She gave to each of her three younger sons a horse, bridle, saddle, cow and calf, bed and bedding, to make them equal, as reched •in the will, to their two elder brothers, who had before received as much. ' ^

To each of her daughters she bequeathed only one milch cow, for the reason, as stated in the will, that they married before the property devised by her was accumulated, and rendered tbeir brothers and her no assistance in acquiring the same.

All the residue of her estate she bequeathed to her five sons, to be equally divided between them. How much property she had does not appear. She was a widow. .

The subscribing witnesses to the will were J. J. Watson, E. F. Martin, and J. Franklin.

On the trial, Watson testified that he and the other attesting witnesses signed the will as such, at the request of Mrs. Guthrie, in her presence, and in the presence of each other. That he saw her sign it by making her mark thereto. She produced the paper when they were about to attest it, and declared that it was her will, and She desired them to witness it as such: He did not see her write her name: she made her mark to the paper. Did not see' any person write her name to the instrument.. Did not know who wrote it. She was of sound mind at the' time— as sound as usual. The will was notread to Mrs. Guthrie in the presence of witness, and he did not know that it ever was read to her.

Two witnesses testified that they knew her well, and were under the impression she could not read or write. She frequently 'got one of them to look over her papers, and get such of them as she wanted.

Another witness gave it as his opinion, from comparison of hand-writings, that her name, as subscribed to the will, was not in the handwriting of either of the attesting witnesses.

■Here the petitioners closed.

J. Fra/nldin, introdimed by "defendants, testified, that he and the other attesting witnesses subscribed the will, at the request of Mrs. Guthrie, and in her presence, etc. She produced the instrument, and declared the same to be her will. Did not see her write her name to the will, but saw her make her mark thereto, as it appeared' upon the paper. She acknowledged, when she made her mark, that the same was hór act and deed —that it was her will — and she requested him to witnesgs the same. She was of sound-mind at the time. She .was a woman of very good sense, and was tolerably particular about her business transactions. Did not think she could read or write. The will was not read to her in his presence, and if it was read over to her, he never knew it.

The above, with the will, was all the evidence introduced upon the trial.

The petitioners moved the court to instruct the jury, as follows :

“1. If the jury believe, from the evidence, that the signature or name of Susan Guthrie, signed to the will, is not in her proper handwriting, and that her name was signed by some other person, unless they further find from the evidence, that the person who wrote 'her name, wrote his own name as a witness to such will, and Btated that he Signed her (the testatrix’s) name, at hér request, they should find for the petitioners, that the paper produced is not the will of Susan Guthrie:
2. If the jury believe, from the evidence, that the testatrix could not read writing, then, before they can find said paper to-be her will, they must find from the evidence that said paper was read to her, and that she was informed as to its contents.
3. If the jury believe, from the evidence, that the testatrix could not read writing, before they can find it to be her will, they must find from the evidence that said paper was read to her in the presence of the attesting witnesses, and that she understood its contents.
4. Before they can find the paper to be the will of the testatrix, they must find from the evidence that it was subscribed by the testatrix at the end of the will, or by some person for her, at her request.”

The court gave the 1st, 2d and 4th instructions, against the objection of the defendants, but refused the third.

The defendants asked the court to charge the jury:

“Thatif they believed, from the evidence, that Mrs. Susan Guthrie signed said paper writing, purporting to be her will, by making her mark, and, in the presence of the attesting witnesses thereto, acknowledged and declared that the same was her act and deed, and that the same was her will, this is a sufficient subscribing under the statute.” ■ .

- Which the court refused to give.

The jury found against the validity of the will, and the defendants brought the casé here on exceptions to the instructions of the court.

1. The court, in giving the first and fourth instructions, moved by the petitioners, and in refusing the instruction asked by the defendants, ruled directly contrary to the decision of this court In the Matter of the Will of Cornelius, 14 Ark. 675, where it was held, that where the testator’s name was written to the will by another person, and he made his mark, it was a valid subscription within the meaning' of the statute.

The counsel for the petitioners have asked us to review the opinion in that case, criticising, with much ingenuity, the words of the statute, to show that the opinion is not well founded. But the decisión is supported by adjudications upon statutes similar to ours, and by the standard text books, and we think it should not be disturbed.

2. In the 2d instruction moved by the petitioners, the court told the jury, in effect, that notwithstanding the will was executed in accordance with the- formalities prescribed by the statute, yet it being shown that the testatrix could not read, the will was -invalid, unless it was proven that it was read to her, and that she was informed as to its contents. Is this the law ?

In Harris vs. Brown, 3 Wash. C. C. 584, where the will was impeached for want of testamentary capacity, and for fraud and circumvention produced upon the testator by the person who drew the will, Mr. Justice WASHINGTON-said: “A third objection was made by one of the defendant’s counsel, -which was, that the will is not proved to have been, read over to the testator, in the presence of the witnesses. We understand this to be made as a substantive objection to the will, although- it was not so argued by the other counsel on the same side who very properly considered it merel/y as a lodge of fraud, that it was not proved to have been read.-’ We will, therefore, at once, dispose of this point* by observing that it is hot necessary, in order to establish a will, that the person claiming under it should prove that it was read over to the testator, in the presence of the attesting or other witnesses. It would be an unwise provision in the law to require this to be done, inasmuch as most men are careful to confine to their own breaste the manner in which they have disposed, or mean to dispose of their property by will. The domestic peace and harmony of the testator’s family might be very unhappily jeoparded, if publicity were necessary to be given on such occasions. The law ■ presumes, in general, that the will was read to or by the testator.

“ But if evidence be given that the testator was blind, or from any cause incapable of reading; or if a reasonable ground is laid for believing that it was not read to him, ’or that there was fraud or imposition of any kind practised upon the testator, it is incumbent on those who would support the will, to meet such proof by evidence, and to satisfy the jury either that the will was read, or that the contents were Jcnown fry the testator.” ■

In Day vs. Day, 2 Green's Ch. Rep. 551, the Ordinary said: It is admitted, on both sides, that the formal execution of the instrument, so far as regards the signing and publication, is substantially proved. The testator affixed his name in the presence of all the witnesses, and acknowledged the instrument to be his will. The difficulty grows out of the question whether it is sufficiently manifested that the testator understood the contente of the instrument he was signing. In ordinary cases, when a testator is in health, and of ability, it is not necessary to show that the will was read over-to him, or that he knew- the contents of fit. The legal presumption in such cases is always in favor of the will; and he who seeks to impeach it, must show, conclusively, that the testator was imposed on, or that there was some mistake, whereby he was deceived.

“ In this cade, it is without question that the testator did not read the will himself. It was not in his possession, so as to afford him an opportunity; and, if it had. been, he was so weak .and 90 low as to be unable to do it.. It is also clear, that it was not read to him. It must, then, be shown to the satisfaction of the court, that he was in some other way made acquainted with the contents of the instrument, apd approved them. In this case the presumption of law fails: and it becomes the duty of the person offering the will, to show that the contents of the paper were fully made known to the testator. So if the testator is incapable of reading the will, whether the incapacity arise from blindness, or any other cause, 'the rule is the same, and the burthen of proof is thrown on the person offering the will. 1 Stom. 96.”

In Clifton sv. Murray, 7 Geo., 565, Lumpkin, J., said: “ This case is narrowed down to a single point: when a testator is blind, or so illiterate as to be unable to read, or write, is it indispensa. ble to the validity of his will that it be read over to him, at .the time of its' execution, in the presence of the subscribing witnesses ?. Swmtmrm intimates that it is. * * * * * This may be the rule of the civil law; it would seem, however, never to have been adopted' as that of the common law, * ' * * * It has been expressly held, in many reported cases, that a will need not be read over to a blind testator previously to its execution. * * It is, after all, cun issue of fraud; and the question as to whether or not the testator had been imposed on, is one fact to be left to the jury. And the circumstance that the will was not read, will bo weighed by them in coming to a conclusion. We cannot get our consent, however, to lay it down as an inflexible rule of law, that- the. validity of the instrument depends, in every case, upon its being proved that it was read in the presence of the witnesses previous to its execution. It .would deprive testators of the /privilege secured to them, upon sufficient reasons, of secreting the contents of testaments, until after their death, in order to insure their peace.” etc.

“It was, at one time, contended that the will of a blind testator should be read over to him in the presence of the witnesses, and that the identical will offered for proof should have been read, but the more reasonable doctrine, which may be now considered; as established, is, that, if the court of probate is satisfied from the evidence that the testator knew tho contents of the will offered — either by hearing it read, or by narrating all of its provisions to others — or, if proved in any other manner that he knew its' contents, the court will probate the will. Mod. Prob. Wills, 201.”

In Boyd vs. Cooh, 3 Leigh, 32, the will of a blind man was admitted to record upon the ground that it appeared to the court, by satisfactory evidence, that he' was acquainted with its contents : although it was not read over to him. 1 b., 205. In that case Cabe, J., said: “ In the case of a man who can see, the signing his will in the presence of witnesses, oi* acknowledging it to them to be his will, as signed, although he be illiterate, is proof that ho was acquainted with its contents; but, in the case of a blind man, although the forms of the statute be complied with, the jury, or probate court, will, to rebut any imputation of fraud, require stronger evidence than the mere attestation of the signature,” etc,

Shanks et al. vs. Christopher, 3 A. K. Marsh., 144, was very similar'to the case now before us. Two of the subscribing witnesses deposed that they had, at the request of the testator, attested the instrument in question, by subscribing their names thereto, in his presence; and that at the time of their attestation, he was of sound mind, and acknowledged the instrument to be his will. The name of the testator was signed to the instrument, with the mark of a cross between the Christian and surname, and it was admitted that he could neither read nor write, and neither of the subscribing witnesses read, or heard the instrument read to the testator. It appeared that he had manifested some care in the selectionjof the witnesses to attest his will, that they were of good character, and that the disposition made by the will of the testator’s property was in accordance with, his settled intention, as evidenced by his reiterated declarations, etc., etc. On this state of facts, it was • contended that the instrument ought not to be admitted to • record as the will of the testator, because it did not' appear to have been read to him, etc. The court said that the will was executed as required by the statute. That the statute did not require the will to be read to the testator. That a testator ought to know the contents of the will, there could be no doubt, for, otherwise, it could not be said to be his will. But the execution of it by the testator, with the solemnities required by the statute, did, of itself, create a presumption of his knowledge of its contents, and that they conforta to his intention. It must, therefore, be incumbent upon those who seek to avoid the will, on the ground that it contains a disposition of the testator’s estate inconsistent with his intention, or, of which he has no knowledge, to establish the fact by proof alwmde the instrument itself. But so far from there being any prooí of such facts in this case, said the court, all the circumstances of the case conduce to evince the contrary.

In the case before us, it was proven that the will was executed in the manner prescribed by the statute. It was subscribed at the end, by the testatrix. It was done in the presence of each of the attesting witnesses. The testatrix, at the time of subscribing it (by making her mark) declared the instrument, so subscribed, to be her will. There were at least two attesting witnesses, each of whom signed his name, as a witness, at the end of the will, at the request of the testatrix. She was of sound mind, mature age, etc. Gould's Dig., chapter 180, secs. 1-4.

It being proven that the will was executed in accordance with the formalities prescribed by the statute, the burthen of showing that fraud or imposition was practiced upon the testatrix was upon the parties contesting the validity of the will. See Tucker vs. Calvert, 6 Call, 98, Op. Judge Roane.

It was proven that she could not read, and it was not shown that the will was read to her at the time it was executed, but it may have been before. She produced the will herself, declared it to be her will, asked the witnesses to attest it as such, signed it by making her mark. She was a woman of good sense, particular abont her business transactions, and manifested her usual soundness pf mind at the time. It is not shown that she was laboring under any feebleness of mind from disease, or approaching dissolution. The provisions of her will appear to be reasonable. It is not shown that any imposition was practiced upon her, or that her sons had any agency in the preparation of the will.

It was erroneous for tho court to tell the jury, as a matter of law, that it being shown that she could not read, it was necessary to prove that the will was read to her. They had the right to infer, from all of the circumstances, that she know the contents of the will, though, as shown by the authorities above quoted, in determining whether there was fraud or imposition in the execution of the will, the fact that she could not read, and that the will was not read to her, at the time she signed it, were circumstances to be considered by the jury.

The judgment must be reversed, and the cause remanded for a new trial.