Housley v. Housley, 238 Ark. 269

George Eose Smith, J. Y. W. Housley died on June 6, 1963, leaving a will that be bad executed on July 22, 1960. Tbis application for a construction of tbe will was submitted to tbe probate court by agreement of tbe parties. Tbe court beld tbe will to be inoperative, so that tbe estate passed by intestacy to tbe appellee, tbe decedent’s son and only beir. Tbe appellant, tbe decedent’s brother, insists that tbe will effectively devised and bequeathed tbe entire estate to him. Y. W. Housley and bis son, tbe appellee, bad been estranged for some time. In the second paragraph of bis will V.

W. directed that bis son should not share in any property that be might leave. Then follows tbe third paragraph, which gives rise to this controversy and reads essentially as follows: “III. Eeposing tbe utmost confidence in tbe integrity and judgment of my brother, "W. M. Housley [the appellant], of Little Rock, Arkansas, who knows my and our relatives and kindred, their worthiness and needs and my feelings and affections concerning each of them, I hereby give, devise and bequeath to my said brother, W. M.

Housley, all of the property of every nature, kind and classification; real, personal or otherwise designated, of which I die seized and possessed . . . in fee simple, unconditioned and unrestricted, to possess, to hold, to use, to own, to barter, to sell or to give away at his will and pleasure and to pass title thereto absolutely and in fee simple and to receive the consideration therefor, if any, and receipt therefor, without any accounting therefor to anyone, in accordance with instructions I have given my brother concerning my burial and the adjustment of any amounts I may owe, including taxes, if any and, also, with respect to any' property Avhich passes to him under this will and said property AAdll pass to him by title absolute and in fee simple unconditionally and without restriction.” The will Avas prepared by an attorney, and a copy of it AYas sent to the appellant, the sole beneficiary.

Almost three years elapsed between the execution of the aat.11 and the testator’s death. The appellant denies that his brother gave him any instructions about the disposition of the estate, but there is much testimony that casts doubt upon the credibility of the appellant’s statement. We need not consider AAdiether the execution of the Avill A\ras induced by fraud, as the appellee charges, for Ave think the probate court Avas right in holding the aat.11 to be inoperative. There is no real question about the controlling rules of hw.

The difficulty lies in their application to this Avill. “Oral instructions cannot be incorporated into a Avritten will by any words of reference, hoAvever clear, since by statute the will must be in writing.

Accordingly, a gift to A to be used in accordance Avith testator’s former instructions, or a gift ‘ Avith the hope and expectation and perfect faith that she Avill expend so much of the income and principal thereof, if it should become necessary in the carrying on of a certain charity in which she knows I am deeply interested,’ or a gift ‘in accordance with my instructions to her,’ or a gift ‘to carry out instructions that I may leave in writing or verbally which I have not yet fully completed, ’ cannot operate as an incorporation of such oral instructions into the will as a part thereof.” Page on Wills (Bowe-Parker Rev.), % 19.33.

When the testator makes such an attempt to bequeath property to one who is to dispose of it in accordance with the testator’s oral instructions, this provision in the will is void. The gift fails. Fitzsimmons v. Harmon, 108 Maine 456, 81 Atl. 667; Moore v. O’Leary, 180 Mich. 261, 146 N. W. 661; Gross v. Moore, 22 N. Y. S. 1019. The appellant insists that the testator’s dominant intention was to vest the fee simple title in his brother. It is argued that, as in Wooldridge v. Gilman, 170 Ark. 163, 279 S.

W. 20, the additional language in the will should be treated merely as an explanation of the testator’s reasons for disposing of his property as he did. We do not find this argument to be persuasive. No doubt Y. W. Housley did intend to vest the fee simple title in his brother, but that fact alone does not solve our problem. If he intended for W. M. Housley to receive the fee so that he would be in a position to carry out Y. W.’s oral instructions, then the third paragraph in the will is invalid.

By analogy a trustee often takes the fee simple, as when he is given a power of sale and must be in a position to convey the fee, but he nevertheless holds the property in trust. Restatement, Trusts, Second, § 88. The pivotal question is whether Y. W. intended for his brother to have the beneficial interest in the property. We think it plain that he did not. It would have been a simple matter for this testator, especially with the assistance of an attorney, to make an absolute devise of his property to his brother in fee simple. Yet clause after clause in the will indicates that Y.

W. was not making an outright gift. If that had been his intention why did he think it necessary to express his confidence in W. M.’s integrity and judgment? Why did he think it necessary to observe that W. M. “knows my and our relatives and kindred, their worthiness and needs and my feeling and affections concerning each of them”? Why did he think it necessary to declare that W. M. could dispose of the property and receive the consideration therefor, without accounting to anyone? Why, especially, did he say that the property was left to W.

M. with the power to dispose of it “in accordance with instructions I have given my brother . . . with respect to any property which passes to him under this will”? Every one of these declarations is wholly inappropriate — indeed, completely irrelevant — if W. M. was to receive the beneficial interest in the estate. Yet each clause is of genuine significance if Y. W. meant for his brother to carry out his oral instructions with respect to the gift. To sustain the appellant’s position we should have to disregard every meaningful phrase in the controlling paragraph of this will except the declarations that W.

M. was to take the property in fee simple. Yet, as we have seen, those declarations alone cannot govern our decision, because if Y. W. intended for the appellant to distribute the property among the two brothers’ relatives it was still necessary first to vest the fee in W. M. The testator’s attempt to disinherit the appellee fails, for the property was not effectively left to anyone else. Williams v. Norton, 126 Ark. 503, 191 S. W. 34.

It is unfortunate that the decedent’s intention must be thwarted; but even a reversal would not help matters, since the appellant declines to (and could not lawfully) carry out whatever his brother’s wishes may have been. Affirmed. McFaddin, Robinson, and Holt, JJ., dissent.