#### HICKS et al. v. FAIRBANKS’ HEIRS, etc. et al.

No. 35298.

Supreme Court of Oklahoma.

March 24, 1953.

As Corrected April 3, 1953.

Rehearing Denied April 21, 1953.

Granville Tomerlin and Jack High, Oklahoma City, for plaintiffs in error.

Joe Young, Chandler, for defendants in error.

WILLIAMS, Justice.

Parties are designated as in the trial court.

Orin Fairbanks died in 1917 while owning the lands involved in this action, and left a will reading in part as follows: '

> “Second, I give, devise and bequeath unto my beloved wife, Ada Fairbanks all of my estate real and personal and mixed to have and to hold to her and ,her heirs forever.

> “Third, should any of my estate remain at the death of my said wife Ada Fairbanks undisposed of then in that event I give and bequeath such remainder to my nephew Charles H. Fairbanks to him and his heirs forever. This provision is not intended to restrain or hamper my said - in any manner — she is to have my entire estate as above provided — and this pro*170vision is only to take effect in case any of my estate remains undisposed of at the death of my said wife.Ada Fairbanks.”

This will was admitted to probate and in 1919 the county court entered its final decree distributing' a fee-simple 'title to Ada Fairbanks, and making no mention of a remainder to Chárles H. Fairbanks. No petition for decree of distribution was filed' before said final decree was entered.

In 1949 Ada Fairbanks died, having previously devised the lands involved in this action to Thelma Hicks and Mary Shiels, her nieces, plaintiffs in the case at bar. In 1951 said plaintiffs filed a quiet title action, alleging themselves to be in possession of said lands. All defendants defaulted except Cosette Johnson (daughter of Charles H. Fairbanks) who, as administratrix of the estate of Charles H. Fairbanks, and individually, filed a cross-petition for possession of, and to quiet title to, such'lands. At the conclusion of the. trial, the trial court rendered judgment for defendant," Cosette Johnson,, individually and as such administratrix, accordingly. Plaintiffs have appealed to this court’ from süch judgment' arid an order -overruling their motion for new trial." ' "

For ■ reversal of the judgment rendered below, plaintiffs make the contention, among others, that the will of Orin Fairbanks, properly construed, vested in his wife, Ada Fairbanks, through whom they claim a fee-simple title.

As we are convinced from a consideration of such contention that the trial court’s judgmént should be reversed, we find it unnecessary to consider plaintiffs’ other contentions herein made.

It is to be noticed that the second paragraph of the • will, above quoted, devised the lands involved herein to Ada Fairbanks “to her and her heirs forever.”

A fee-simple estate is defined by 60 0. S. 1951 § 23 as follows:

> “Every estate of inheritance is a fee, and every such estate, when not defeasible or conditional, is a fee-simple or an absolute fee.”

See Vol. 19 Words and Phrases, Heirs, beginning at page 250, from which the following paragraphs'are taken:

> “Ordinarily, the words ‘heirs,’ or ‘heirs of their body,’ are words of limitation, and by their own force convey the idea of a fee-simple estate. Brumley v. Brumley, Ky., 89 S.W. 182, 183.

> “Where testator gave to a son and his heirs after him all his real estate, the son took an estate in fee simple; the word ‘heirs’ not being used in the sense of ‘children.’ Nesbit v. Skelding, 213 Pa. 487, 62 A. 1062 * * *.

> “At common law the word ‘heirs’ was necessary to convey a fee-simple estate, no matter now plainly the intention so to do be expressed in other words of perpetuity. Hall v. Hall, 106 Me. 389, 76 A. 705, 706.

> * * * * * *•

> “A devise to one and his heirs carries the fee to the first taker. Allen v. Craft, 109 Ind. 476, 9 N.E. 919, 921 * * *

> “A conveyance to one and his heirs always creates an estate in fee simple, and .it has been settled that ,no *words*are so apt and appropriate for this purpose as ‘heirs.’ Robinson v. Payne, 58 Miss. 690 * * *.”

See also 16 O.S. 1951 § 29, which reads:

> ■ “Every estate in land which shall be granted, conveyed or .demised by deed or will shall be deemed an estate in fee simple and of inheritance, unless limited by express words.” ■

In In re Friss’ Will and Estate, 45 Okl. 399, 149 P. 1176, this court said (Syllabus 1) :

> “In construing wills, it is a well-settled rule that, where an absolute estate or a certain specific interest is given in one or more provisions in reasonably clear and unambiguous language, this interest or estate will not be cut down, affected, impaired, or qualified in another provision by inference or an inaccurate recital of, or reference to, its contents in other *171parts; and such gifts will be impaired or cut down only when such language tending’ to affect same is clear and certain as the language creating the gift.”

In the body of the opinion, after quoting the above language, the court said:

> “That this rule is sound and in accord with reason and the great weight of authority will be seen by examination of the text-books .and adjudicated cases * * ■

The principles stated in the above quotations from the Friss case are applicable in the case át bar;

84 O.S. 1951 § 141 reads as follows:

> “Every devise .of land in any will conveys all the estate of the devisor therein, which he .could lawfully devise, unless it clearly appears 'by the will that he intended to convey a less estate.” '' '

See also 84 O.S. 1951 § 156, which reads:

> “A clear and. distinct devise or bequest cannot be. affected by any reasons assigned therefor, or by any other words *not equally clear and distinct,*or by inference or argument from other parts of the will, or by an inaccurate recital of or reference to its contents in another part of the will.” (Emphasis supplied.)

In the case of Gormly v. Edwards, 195 Okl. 123, 155 P.2d 985, we held (Syllabus *2):*

> *“A*devise' of real estate by will, without limitation or condition, conveys an- absolute estate in fee simple which is incompatible with a lesser power over it than that of, complete right to its' possession, enjoyment and disposition.”

It is apparent then, that but for the question of a limitation over, the testator in the case at bar has satisfied. all the requirements of the .common law in connection with. the devise of a fee-simple -estate, and in so doing has actually gone beyond the requirements of the statutes of this state, which make express words of inheritance unnecessary. It obviously would have been difficult for' testator to have selected expressions which, taken alone,1 would show a more positive intention than the provisions of paragraph two of the will, supra, to devise an estate in fee simple.

Defendant contends that the will clearly shows that the devise to Ada Fairbanks was -expressly limited -with a remainder over to Charles H.. Fairbanks, of all property remaining undisposed of at the death of ,Ada Fairbanks. .We .think Mr. Fairbanks did-so intend to create a “limitation over” but that the same is not permitted by the law -of this State,- unless the words creating the alleged limitation over ar.e as clear and distinct as the words creating the fee-simple devise. See 84 O.S. 1951 § 156, infra.

Further contention , is made by plaintiffs that if there be .a doubt from the language he employed, whether testator intended a devise in fee., simple. or a life estate, the granting of absolute powers of disposition resolves the question in favor of the former.

For reasons which we will set out below, we think that the answer to this question (whether or not Orin Fairbanks granted to his wife absolute power to dispose of the land) will be the determining factor in this case.

In this connection, defendant argues the will, clearly shows that the testator intended for Ada Fairbanks to have the lands with power to sell and convey during her lifetime, but that if any remained un-disposed of at her death, then it was to go to Charles H. Fairbanks. She says that a “will is a disposition of property to take effect on or after the death of the owner”; that nothing passed during the lifetime of Ada Fairbanks, and that the property remained undisposed of at her death.

This argument is self-contradictory: It first seeks to show that “a will is a disposition. of property” and thereafter (though Ada Fairbanks admittedly devised the lands in her will) says that .the property was. “undisposed of”.

84 O.S. 1951 § 158 reads as follows:

> - “The words of a will are to be taken in their ordinary and grammatical sense unless a clear intention to use *172them in another sense can he collected, and that other can be ascertained.”

For convenience, at this point, we again recite the language of paragraph three of such will:

> “Third, should any of my estate remain at the death of my said wife Ada Fairbanks *undisposed of*then in that event I give and bequeath such remainder to my nephew Charles H. Fairbanks to him and his heirs forever. *This provision is not intended to restrain or hamper my*said.*in any manner*.. *she is to have my entire estate as above provided*... and this provision is only to take effect in case any of my estate *remains undis-posed of at the death of my said wife Ada*Fairbanks(Emphasis supplied.)

The following definition of the phrase “dispose of” is found in Black’s Law Dictionary, Third Edition:

> “Dispose of. To alienate or direct the ownership of property, as *disposition by will.”*(Emphasis supplied.)

A quick examination of a few of our statutes dealing with wills shows repeated use of the term “dispose of”. See the following sections of Title 84 O.S. 1951:

> 41. “Every person * * * may by last will, *dispose of** * *.”

> 42. “A married woman may *dispose of * * *•*by will * *

> 44. “Every estate in property may be *disposed of*by will * *

> 45. “A testamentary disposition may be made to any person capable by law of taking the property so *disposed of** *

> 109. “An agreement made by a testator, for- the sale or transfer of property *disposed of*by will * * *.”

> 111. “A conveyance, settlement, or other act of a testator, by which his interest in a thing previously *disposed of*by will * * *.”

> 112. “* * * previously *disposed*of by * * * will * * (Emphasis supplied in all of the above quotations.)

It is evident from a reading of the above that the meaning of the phrase “dispose of” includes “disposition by will”.

Although defendant argues to the contrary, we believe the situation in the case at bar analogous to that presented in a consideration of our statute providing, with reference to intestate succession,

> “that in all cases where the property is acquired by the joint industry of husband and wife during cover-ture, and there is no issue, the whole estate shall go to the survivor, *at whose death, if any of the *** ** property remain,*one-half of such property shall go to the heirs of the husband and one-half to the heirs of the wife, according to the right of representation.” (Emphasis supplied.)

84 O.S. 1951 § 213(2).

In construing the above section of the statutes, this court has consistently held that a survivor who inherits land' thereunder may dispose of the same by will. In re Laug’s Estate, 189 Okl. 516, 118 P.2d 228, 230, concerned a situation where the wife was the survivor and later devised the land inherited under the quoted section of the statute. In that case, the court said:

> “The whole estate vested in her. It was hers to dispose of * * * by will.”

We hold that, under the terms of the will of Orin Fairbanks, Ada Fairbanks had absolute power to dispose of the lands involved herein.

33 Am.Jur., Life Estates, Remainders, etc., section 36, reads:

> “It is a well-settled rule, firmly supported by a great numerical preponderance of the authorities, that where there is a devise or bequest to one in general terms only, expressing neither fee nor life estate, and there is a subsequent limitation over of what remains at the first taker’s death, if there is also given to the first taker an unlimited and unrestricted power of absolute disposal, express or implied, the devise or bequest to the first taker is construed to pass a'fee. * * *"

*173Substantially the same quotation may be found in an annotation beginning at 75 A. L.R., page 71.

To the same effect is the following language of the court in Roth v. Rauschenbusch, 173 Mo. 582, 73 S.W. 664, 667, 61 L.R.A. 455:

> “A distinction must be made between- those cases where there is a devise generally or indefinitely with a power of disposition, and those' cases where.there is a devise'for life with a power of disposition. In the former, the devisee takes the property in fee.”

See also Galligan v. McDonald, 200 Mass. 299, 86 N.E. 304, wherein the court said: '

> “Testator devised his real estate to his son, to hold ‘the same to him and his heirs forever,’ and provided that if he died leaving no issue surviving, Or if such issue should die during minority, the ‘estate remaining’ at the death of the son should go to designated persons. *Held,*that the words ‘estate remaining’ did not mean a remainder in a technical sense, but meant what the son should not dispose of during life, and by necessary implication the son had power to dispose of any or all of the estate, and the limitation over, being inconsistent with the power of disposal, could not take effect as an executory devise.

> “The limitation over did not cut down the' son’s estate to.a simple life estate, or to a life estate with power of disposal.”

We have previously shown that Orin Fairbanks granted to his wife the absolute power to dispose of the land. Under the principles of law above stated, it makes no difference whether he intended to devise an estate in fee simple, or a lesser estate. In either case, plaintiffs herein should prevail, because if Ada Fairbanks took á fee-simple estate from her husband, the heirs to whom she devised it are certainly now .entitled to it; and if her husband devised to her less than a fee-simple estate, coupled with absolute powers of disposition, then by operation of law she took a fee-simple title which she could in turn devise as she wished.

The judgment of the trial court is reversed, with directions to enter judgment for plaintiffs as prayed for in their petition.

HALLEY, C. J., JOHNSON, V. C.. J., and WELCH and DAVISON, JJ., concur.

CORN, O’NEAL and BLACKBIRD, JJ., dissent. .

CORN, Justice

(dissenting).

The facts, as well as a copy of the will, are set forth in the majority opinion. The following definitions will aid in a better understanding of my dissenting opinion.

A will is the disposition of one’s property to take effect after death.

A will is the legal declaration of .a'man’s intentions, which he wills to be1 performed after his death as to the disposition of his property. . • ,

There can be no contention by anyone that property passes or is disposed of by a will before the testator dies. Therefore, this property belonged to Ada Fairbanks up to the time of' her death.

84 O.S. 1951 § 151, provides:

> “A will is to be construed according to the intention of the testator. Where his intention cannot have-effect' to its full extent, it must have ■ e'f-feet as far aá possible.” " ■ •

Section 152 provides:

> - “Ascertaining,intention. — In case of,, uncertainty, arising upon the face of a will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words, of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations.”

Section 155 also provides:

> “Irreconcilable parts. — All the parts of a will are to be construed in relation to each other, and so as to form one consistent .whole, if possible but where several parts are absolutely ir-reconcible, the, latter as to position must prevail.” .

*174In Cobb v. Newman, 201 Okl. 318, 205 P.2d 858, we held:

> “The object and prime purpose in the construction of any will is to arrive 'at and give effect to the -intention of the testator. And in ascertaining such intention the will is to be considered as a whole and the sev-ér’al provisions thereof in their' relation to each other.

> “Where in one paragraph of a will there is a specific devise of land in fee simple and in another paragraph dealing expressly with such devise there . is prescribed a condition to the effect that the ' title ' so devised is'to be de-' feated in part upon a contingency' if same'occurs during-the ownership of' 'the devisee, held, the condition is consistent with the ■ title devised and valid.” •

Under the third paragraph of the will it is plain to’ 'my mind that the testator intended for his wife to have the property 'in fee simple to sell, barter’ or give away, if she so desired, during her lifetime, but .in case any .of the property remained un-disposed of'at her death it go to Charles H. Fairbanks .or his legal heirs.

The Majority opinion cites 84.0.S.-1951 § 213, and cases construing said section, as authority. These cases hold that a survivor who inherits - land thereunder may dispose of the same by will. I. find. no fault with the construction; given to said section. Said section deals with the disposition of property that a person acquires by joint industry, *without any restrictions,*where he dies intestate. Section 213, and cases ■ construing the sanie,' are not applicable to the facts in this case and have no application whatever where a person dies leaving a will. There 1⁄8 no limitation in said section preventing a person who inherits property acquired by joint industry from disposing of the property by will if he desires to do so. In other words property inherited which was acquired- by joint industry 'can be disposed of-by the surviv- or, in the same manner that he .can dispose of property that- he has acquired the title to' by purchase or otherwise. -

16 O.S. 1951 § 29, provides:

> “Every estate' in'land which shall be granted, convéyed'-ór- demised by deed or will, shall be deemed an e'state in fee simple and of inheritance, unless *limited by express words.”*

*■*So it appears to me that the language in the third paragraph of the will executed by Orin Fairbanks is clear and certain as to what effect it was to-have on paragraph two of the: will, and was not inconsistent therewith. ... :

It is thoroughly demonstrated in this case that paragraph three. of. the will is not inconsistent with paragraph two, ■ thereof. Ada Fairbanks- owned this property and had the unlimited use- of it and the exclusive right to sell, barter or, give ayay the property for a ■ period of more than thirty years. I think the majority opinion places a limitation on the manner of how a person can. dispose-of his property by a will which is contrary • to our statutes and all the decisions of this court in construing a will, i. e. let the intent of the testator prevail unless it violates some law, statutory or otherwisé, or is against public policy.

I respectfully dissent.