The opinion
Ed. F. McFaddin, Justice (dissenting). The germane portions of the deed here involved read as follows:
‘ ‘ Know All Men By These Presents: That I, W. E. Meacham, a single man, for and in consideration of the sum of ($2,500) twenty-five hundred dollars, to me in hand paid by H. J. Williams, the receipt of which is hereby acknowledged, do hereby grant, bargain, sell and convey unto C. H. Williams and C. F. Williams, to have and to hold to them during their natural lives with remainder after their death to their heirs, the term heirs herein used is a term of purchase and not of limitations, the following lands lying in the county of Arkansas, State of Arkansas, to-wit: The Frl. N% of NE1^, right bank of Bayou, and SW% NE%' Section Seventeen (17), Township Four (4) South, Range Six (6) West, Northern District, Arkansas County, Arkansas.
“To have and to hold the same unto the said C. H. Williams and C. F. Williams as above set forth and unto their heirs and assigns forever, and all appurtenances thereunto belonging.” (Italics my owm.)
The majority opinion holds that the italicized words are without effect, because “the rule in Shelley’s case applies”; and I cannot agree with that holding. For some time our Court has held that the intention of the parties, as ascertained from all the language of the deed, should govern in the construction of the instrument, rather than any hard and fast formulae anciently established. Luther v. Patman, 200 Ark. 853 , 141 S. W. 2d 42 ; Carter Oil Co. v. Weil, 209 Ark. 653 , 192 S. W. 2d 215 ; Coffelt v. Decatur School District No. 17, 208 S. W. 2d 1 ; McBride v. Conyers, 212 Ark. 1034 , 208 S. W. 2d 1006 . Here the grantor (in actuality the payor of the consideration, H. J. Williams, father of the life tenants) used an apt phrase to clearly and definitely express his intent to create a life estate only in the two sons of H. J. Williams, namely, C. H. and C. F. Williams.
In the italicized portion of the deed above, there are these words:
“. . . the term heirs herein used is a term of purchase and not of limitations, . .
Thus, the deed itself described what was meant by the words “heirs”; and every time the word “heirs” appears in the deed, it means that the heirs of O. H. Williams and C. F. Williams take by purchase and not by limitations. The grantor used legal words to have a legal meaning, and I think we should give some effect to them: but the majority opinion is that when the “Buie in Shelley’s case” enters, then the intent of a party goes out the window. I still believe that we should give effect to what was the clear intent of H. J. Williams in having this deed made as it was in 1916. t * * _
¡My views find expression in the opinion of this Court in the case of Eversmeyer v. McCollum, 171 Ark. 117 , 283 S. W. 379 . In that case it was claimed that the rule in Shelley’s case applied, but Justice Hart used this language :
“The rule in Shelley’s case is applicable only when the language used in the conveyance creates a limitation to the heirs of the grantor in general. If the limitation is to the heirs of the body of the grantee, the . rule in Shelley’s case does not apply~” j
Therefore, I dissent from the holding of the majority on the point at issue.