The opinion
Robert L. Brown, Justice, dissenting. The testator and his wife, Ava Thornton (now Collins), lived in the main house of the 1,050-acre plantation in Desha County from 1930 until his death in 1961. Ava Collins continued to live in the main house until it burned in 1989.
The testator left a will in 1961 devising one-half of the plantation to his wife, Ava, and was silent about the life estate in the other one-half. He devised the remainder interest in the plantation in thirds: one-third to Ava; one-third to his daughter, Annie Thornton Edwards; and one-third to his grandchildren, James Edwards and Kathy Fossick. The testator stated that the remainder interests were subject to the life estate in Ava.
Ava insured the house for $75,000 and its contents for $25,000, and from 1980 forward she paid the insurance premiums on the house. Around 1980, the other possessors of the remainder interests expressly declined to participate in payment of the insurance premiums. When the house burned, Ava claimed all of the insurance proceeds, and the circuit court found in her favor. Under these facts, that decision appears entirely correct.
One basic principle that should guide us in the construction of the testamentary language is the testator’s intent. The testator clearly wanted Ava to remain in the house as she had for thirty years with him. As we said in Hastings v. Jackson, 201 Ark. 1005, 1009 , 148 S.W.2d 305 , 307 (1941): “We think it certain that the testator’s first and foremost thought was to provide a home for his elderly wife and to provide her with sufficient means to live in comfort and without financial embarrassment the remainder of her life.” That is undoubtedly what the testator wanted in this case — to provide a home for his widow for the balance of her life. No one suggests that the testator intended anything other than this. A more than reasonable conclusion is that the testator’s grant of a life estate in one-half of the plantation to Ava included the house.
In light of this salient point, to hold that when the house burned the widow must share the proceeds with other remainder interests flies in the face of reason. If the intent of the testator was for the widow to have a place to live, the testator clearly would have wished her to insure her interest and then to use the proceeds to rebuild the home in the event of its destruction.
The majority relies on a partition case involving a dispute between the decedent’s widower and her sister where no will was involved and where the property was not a house but two city lots. See Krickerberg v. Hoff, 201 Ark. 63 , 143 S.W.2d 560 (1940). The case is readily distinguishable on the facts. In Krickerberg the issue was whether the property was subject to partition — not who was entitled to insurance proceeds following destruction of a house. It is true that we concluded that a tenancy-in-common existed between the widower who was a holder of a life estate in one-half of the property and the sister who held the property in fee simple subject to the life estate. But we also quoted with approbation from “Tenants in Common,” 7 R.C.L. 815: “It follows that to be a tenant in common one must have such a title as will authorize him to take and hold possession, and if he can never be entitled to the possession, or the control of the property, he cannot be a tenant in common.” Krickerberg, 201 Ark. at 67 , 143 S.W.2d at 562 . No one seriously contends that the appellants, during Ava’s life, are entitled to possess the house or control it. Indeed, the circuit court found that she had the exclusive right to occupy the house after her husband died.
The majority states that a tenancy-in-common exists and, therefore, Ava had a fiduciary obligation to insure the home for the benefit of the remainder interests. There is no indication that the testator intended a fiduciary relationship regarding the house during his widow’s lifetime. To infer a tenancy-in-common under Krickerberg and then to make a second inference of fiduciary responsibility for the purpose of divesting the widow of her insurance proceeds is to deny the reality of the situation. A fiduciary obligation should not be imposed on these facts where the result will be that the widow will not have sufficient funds to construct a new home.
The case that should control this matter is Jackson v. Jackson, Trustee, 211 Ark. 547 , 201 S.W.2d 218 (1947). The circuit court cited Jackson in its decision and was correct in doing so. In Jackson, the facts are similar in many important respects to those in this case. There, we considered a widow’s full life estate in a house where the testator’s children and one grandchild, held remainder interests. The widow insured the house which was partially destroyed by fire. After the fire, the trustee of the estate on behalf of the children and grandchildren began repairing the house and incurred costs. The issue at trial was whether the trustee could share in the insurance proceeds. The circuit court found that he could, but we reversed stating:
There was no obligation resting upon [the widow], in procuring insurance, to protect the interest of the remaindermen under the terms of the will. On the contrary, any fiduciary duty resting on the parties in this respect was owing from the trustee and remaindermen to the life tenant. . . .
There was no agreement on the part of [the widow] to keep the premises insured for the benefit of the estate or the owners of future interests in the property. [The widow] procured the insurance in her own name and for her own benefit. The premium was paid from her own funds under a personal contract of indemnity with the insurance company. The trustee failed to insure the property and was not a party to the insurance contract. . . .
Since [the widow] insured her own interest in the premises at her own expense and was under no obligation under the will to insure for the benefit of the remainder-men, and having made no agreement to do so, she is entitled to the proceeds of her policy of insurance free from the claims of appellees.
Jackson v. Jackson, Trustee, 211 Ark. at 552-553 , 201 S.W.2d at 220-221 .
What should decide this case is not only the testator’s obvious intent that the one-half life estate should include the house but also the fact that the appellants voluntarily ceased paying insurance premiums on the house about 1980 and failed to pay maintenance costs. Ava Collins had the exclusive right to occupy the house, and she continued to insure it to protect her interest. Under these facts, she is entitled to the insurance proceeds.
I respectfully dissent.
Holt, C.J., joins.