The opinion
Sam Robinson, Associate Justice (dissenting). I fully agree that the intention of the testator has been thwarted. In fact, it has been blocked, obstructed and defeated, all on the theory that doubtful language in the will creates a trust, and yet in the same breath the majority says no valid trust was created. There was a devise absolutely to a brother; therefore, I say the doubtful language should not he construed as creating a trust, valid or invalid.
In this case the intention of the testator is clear. If there is any doubt about how the will should be construed, it should be construed so as to give effect to the intention of the testator. Yet, the doubtful language in the will is construed by the majority in a manner that absolutely defeats the expressed and known intention of the testator. In so doing, the majority does not follow established principles of will construction.
Actually, no trust was set up, valid or invalid. No trustee is named, no beneficiary is named, no duties of a trustee are specified, and no purposes of a trust are mentioned. The will was prepared by an able lawyer. It is not likely that an experienced lawyer would draw a will to create a trust and never mention the word trust. Not one time does the will in question use the word trust.
It is said in 49 A. L. R. 34: “ There is a simple, sure, and familiar form of bequest to raise a trust, which consists of a devise to the legatee in trust to the beneficiary, and the failure to use it has been held to indicate an intention to avoid the creation of a trust. As remarked in one case: ‘It certainly seems singular that a testator, having a full and settled intention to create a trust (for that is what must be read on the face of the will or no-trust can exist), should adopt a mode which at best appears to be a mere suggestion, or inference, instead of employing the familiar method and creating the trust by an express declaration.’ ”
In Woolridge v. Gilman, 170 Ark. 163 , 279 S. W. 20 , the language was more indicative of creating a trust than is the language in the case at bar. There, the will provided : “To Elizabeth Gilman I bequeath my entire stock in Simmons National Bank, and request that she never dispose of it, but keep it to educate her children, Charles and William Gilman.” In holding that no trust was created, this court said: “. . . the word ‘request’ is employed as a mere expression of hope or confidence on the part of the testatrix that the legatee will use the bank stock in the education of her children, hut the extent and character of their education is left wholly to the judgment of the legatee. Therefore, we do not think the language used justified the conclusion that the testatrix intended to create a trust in favor of Charles and William Grilman.”
An intent to create must be clearly expressed by the language of the will. Bloom v. Strauss, 73 Ark. 56 , 84 S. W. 511 ; Wallace v. Wallace, 179 Ark. 30 , 13 S. W. 2d 810 .
“On the principle that words which cut an estate down must be as clear as those which create it, an absolute and beneficial interest which is clearly given will not be cut down to the legal title of a trustee by precatory words, unless they show testator intention to create a trust as clearly as though he had created it by express words.” Page on Wills, Vol. 5, $ 40.5, p. 116, 117.
In the case at bar, the will is clear and explicit that the property be left in fee to the testator’s brother, the appellant herein. The will provides: “I hereby give, devise and bequeath to my said brother, William Housley, all the property of every nature, kind and classification, real, personal or otherwise designated . . '. and title absolute and in fee simple, unconditional and unrestricted . . . and said property will pass to him by title absolute and in fee simple, unconditional and without restrictions.” It is hard to see how language could be more explicit in giving the property to the brother in fee.
We have repeatedly held that words of art must be given their technical meaning. Pletner v. Southern Lumber Co., 173 Ark. 277 , 292 S. W. 370 ; Fine v. McGowan, 186 Ark. 1035 , 57 S. W. 2d 565 .
This rule is so firmly established that it is a rule of property. Shields v. Shields, 179 Ark. 167 , 14 S. W. 2d 545 . In Moody v. Walker, 3 Ark. 147 , the court said: “When technical phrases or terms of art are used, it is fair to presume that the testator understood their meaning, and that they expressed the intention of his will, according to their import and signification. When certain terms or words have by repeated adjudication received a precise, definite and legal construction, if the testator in making his will use such terms or similar expressions, they shall be construed accordingly to their legal effect. . . and ... if this was not the case, titles to estates would be daily unsettled, to the ruin of thousands. It is all-important to the interest of society, that the rules of property should be definitely settled, and that they should possess uniformity and consistency.”
“In fee simplé” are words of art; they have only one meaning. Ballentine Law Dictionary, p. 494; 19 Am. Jur. 471 -473.
It is presumed that the testator knew and understood the meaning of the words used in the will. Crittenden v. Lytle, 221 Ark. 302 , 253 S. W. 2d 361 ; Galloway v. Darby, 105 Ark. 558 , 151 S. W. 1014 . In the Galloway case, the court quotes from Doebler’s Appeal, 64 Pa. St. 9, as follows: “It becomes no man and no court to be wise above that which is written. Security of titles requires that no mere arbitrary discretion should be exercised in conjecturing what words the testator would have used, or what form of disposition he would have adopted, had he been truly advised as to the legal effect of the words actually employed. That would be to make a will for him, instead of construing that which he had made.”
The devise to appellant is as clear as a bell — -“title absolute and in fee simple, unconditional and unrestricted.” Doubtful language thereafter used should not be construed as cutting down the fee. “. . . an absolute gift in a will cannot be cut down by subsequent inconsistent language of doubtful or ambiguous significance, it being necessary before such a result will be permitted that the language indicating an intention to cut down the gift be as clear, plain, and unequivocal as that used in the gift itself; that the presumption is that the first taker receives a fee in spite of subsequent words casting doubt on the question; that in case of doubt as to the quantity of an estate devised, the general rule is that an absolute rather than a qualified estate was intended; and that where a devise of an absolute interest is made, subsequent limitations attempting to deprive the estate of any of the incidents appertaining to it are repugnant and void.” 57 Am. Jur., Wills § 1320.
These rules are supported by many Arkansas cases, including Moody v. Walker, 3 Ark. 147 ; Byrne v. Weller, 61 Ark. 366 , 33 S. W. 421 ; Bernstein v. Bramble, 81 Ark. 480 , 99 S. W. 682 ; Letzkus v. Nothwang, 170 Ark. 403 , 279 S. W. 1006 ; Union Trust Co. v. Madigan, 183 Ark. 158 , 35 S. W. 2d 349 ; Collie v. Tucker, 229 Ark. 606 , 317 S. W. 2d 137 .
Appellee relies on Lytle, Ex’r. v. Zebold, 235 Ark. 17 , 357 S. W. 2d 20 , but in that case there was no doubt whatever that a trust was created prior to the use of the language that could be construed as limiting a fee. Here, it will be remembered that the language devising a fee in the property is clear, unequivocal, and unambiguous. No one can say that the language depended on here to establish a trust is not doubtful. In Ross v. Ross, 135 Ind. 367 , 35 N. E. 9 , the court said: “Where an estate in fee is devised in one clause of a will in clear and decisive terms, it cannot be taken away or cut down by raising .a doubt upon a subsequent clause, not by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the estate in fee.”
In Burnes v. Burnes, 137 Fed. 781 , Mr. Justice San-born said: “The crucial question in the interpretation of this will is, did the testator intend to impose an imperative obligation upon his brothers to apply his estate, or their property, to the equal benefit of all the children of each of them, or to express a desire that they should do so, and to intrust to their discretion the exercise of the option to comply or refuse to comply with his wish? In Knight v. Knight, 3 Beav. 148, 172-174, Lord Langdale declared the law upon this subject in language which has rarely, if ever, been excelled in strength and clearness. He said:
‘As a general rule, it has been laid down that when property is given absolutely [our italics] to any person, and the same person is by the giver, who has power to command, recommend or entreated or wished to dispose of that property in favor of another, the recommendation, entreaty, or wish shall be held to create a trust: First, if the words are so used that, upon the whole, they ought to be construed as imperative; secondly, if the subject of the recommendation or wish to be certain; and, thirdly, if the objects or persons intended to have the benefit of the recommendations or wish be also certain. . . . On the other hand, if the giver accompanies his expression of wishoor request by other words, from which it is to be collected that he did not intend thé wish to be imperative, or if it appears from the context that the first taker was intended to have a discretionary power to withdraw any part of the subject from the object of the wish or request, or if the objects are not such as may be ascertained with sufficient certainty, it has been held that no trust is created.’ ”
In the case at bar, the testator devised the property absolutely to his brother. If the rule discussed by Judge Sanborn in the Burnes case was followed here, and there is no sound reason why it should not be followed, the appellee could not prevail because the language in the will said to create a trust is not imperative; and the persons claimed to have the benefit of the alleged trust are not certain. Furthermore, if a trust was created, certainly as trustee the brother would have “a discretionary power to withdraw any part of the subject from the object of the wish or request.”
In my opinion, the law is clear that here it should not be said that the will creates a trust. I, therefore, respectfully dissent.
McFaddin, J., joins in this dissent.