TERM, 1861.]

Robinson vs. Bishop and wife.

including choses, of which he may die seized and possessed. But appellant insists that the 7th item is intended, and does control and limit the third, which we deny. 1st. The 3d item, without reference to the 7th, gives to Fanny E. absolutely all property, (not disposed of otherwise,) his negroes, ready money, his interest in his grand-father's estate, and all which may be due at his death from his father or mother's estate. 2d. The 7th item does not refer to the 3d, nor to the effects conveyed in it; but in case Fanny E. should die without heir, and before arriving at maturity, then (not what I have given her in the 3d item) all property (future) which may have been inherited (not hereby given) through me in any way, shall be inherited by my beloved father, etc. 3d. The 3d item gives to Fanny E. all property and effects which he dies possessing, or having the absolute right to; the 7th, all that may accrue to him or her as his representative after his death.

4th. The word "inherit" has a fixed legal meaning, and applies solely to real estate. Kelly's heirs vs. McGuire & wife, 15th Ark. 555; 4th Rule of Construction; ch. 56, sec. 20, Gould's Dig. p. 443.

5th. It is not the effects given by the will that are referred to in the 7th item, but any inheritance which may come to said Fanny E., as the testator's representative after his death. He gives one-she is to inherit the other clearly two estates.

To say the least, it is left extremely doubtful, and under the 6th rule of construction, before laid down, Fanny E. would take the absolute title. Moody vs. Walker, 3d Ark. 188.

There was no restriction on her as to selling or disposing of it; and so her guardian, under the Probate or Chancery Court, might have sold or disposed of it for her benefit during minority, and, had she lived, at maturity she could have done so herself. See 7th rule of construction above given, and authorities.

But lastly, the third item gives the property therein specified absolutely; and if the testator intended and did attempt to limit the interest and property given in the 3d by the 7th, the

limitation in the 7th is void. See 8th Rule, Moody vs. Walker 3d Ark. 189; Williamson vs. Daniel et al., 12th Wheat. 568.

It results, then, as an inevitable conclusion, that Fanny E. took the effects given in the 3d item absolutely, and that on her death they passed to her nearest heir, or next of kin, (appellee,) according to the law of her domicil. 2d Kent 426.

GARLAND & RANDOLPH, also for appellee.

Only in extremely doubtful cases is it allowed to introduce extrinsic evidence of what the testator meant or to whom he intended to give his property. Gresly's Eq. Ev. 203; 8 Bingham, 244; 1 M. & W. 129.

Even if an expression in the will be doubtful, the heir cannot therefore be disinherited; but is always to be favored. 3 How. U. S. Rep. 470, Roper on Legacies.

The estate to Fanny E. vested eo instanti, was absolute, and her mother, appellee, takes the property as her next of kin, and all of our adjudications hold this without exception. 3 Ark 185; 13 Ark. 91; 15 Ib. 555; 19 Zb. 66.

Mr. Justice FAIRCHILD delivered the opinion of the court.

In June, 1855, in Union county, Nathaniel W. Robinson made his last will, from which the following is taken:

Item 3. All the balance of my property, Legroes, ready money, and estate of whatever kind which I may be possessed of, or that may be due and coming to me from my grandfather's estate in the State of Georgia, or in any way coming from my father or mother, I give to my beloved daughter, Fanny E. Robinson, together with any mutual offspring that may ever exist between myself and beloved wife.

The fourth, fifth and sixth items of the will provide for its execution, for the guardianship and education of the daughter and other possible children, and are followed by the seventh item in these words:

Item 7. It is also my desire that if my said daughter, Fanny E. Robinson, or any mutual offspring that may exist between

TERM, 1861.]

Robinson vs. Bishop and wife.

myself and beloved wife, depart this life before arriving at the years of maturity, or without an heir at death, in that event, all the property which may have been inherited through me in any way, shall be inherited by my beloved father, and in case of his dissolution before any of these circumstances occur, then, and in that event, the same I bequeath to my beloved wife, Nancy Robinson, my beloved brothers, Isaac T. Robinson and James G. Robinson, and sister Mary Ann Rebecca Robinson, all as upon the same equality of inheritance.

The testator died in the month after he made the will, the daughter, Fanny E. Robinson, being his only child. In October of the same year she died, and Benjamin P. Robinson, the father of the testator and executor of the will, claimed the property given to the daughter in the third item of the will to be vested in himself by the seventh item of the will.

And upon settlement of his executorship, Benjamin P. Robinson obtained an order from the Probate Court of Union county vesting the amount of money and slaves remaining in the hands of the executor, as appeared by his settlement, as his own property, as residuary legatee of the whole estate of Nathaniel W. Robinson. This was in October, 1857, and in September, 1858, Nancy S. Robinson, the widow of Nathaniel W. Robinson, filed her bill on the chancery side of the Union Circuit Court, in which, as the heir of her daughter, Fanny E. Robinson, she claimed that the money and slaves, and effects in the hands of Benjamin P. Robinson, which came to him as the executor of Nathaniel W. Robinson, should be transferred to her.

The court sustained her bill in adjudging that Fanny E. Robinson took an absolute interest in the property mentioned in the third item of the will, that Nancy S. Robinson was the heir of her daughter, and in decreeing that Benjamin P. Robinson pay to her the amount of money in his hands, as the executor of Nathaniel W. Robinson, as shown by his account current filed at the October term, 1857, of the Probate Court, and that

he should deliver to her the slaves, with hire, that belonged to the estate of Nathaniel W. Robinson. Benjamin P. Robinson appealed from the decree, and during the pendency of the appeal in this court, Nancy S. Robinson has married, and her husband, Caldwell Bishop, has been admitted as a party, with his wife, to defend the case here.

After the death of Nathaniel W. Robinson, his widow, with her daughter, removed to Louisiana, and there the daughter died; but whether the domicil of the daughter were the resi dence of her mother, or that of her guardian, where her interest, as her father's legatee, was, is immaterial in this case, as the mother, by the law of Louisiana, as well as of this State, was entitled to the money and slaves of her deceased daughter. And the question simply is, whether under the third item of the will, the daughter took an absolute interest in the personal property therein mentioned. The affirmative of this has been settled upon a full consideration of this subject as presented by this will, and by the will of John Pollard, construed in Slaughter vs. Slaughter, just decided, and we hold, without hesitation, that Benjamin P. Robinson did not obtain title to the money and slaves in his hands as executor of Nathaniel W. Robinson, by the seventh item of the will, as that was an illegal attempt to limit property to Benjamin P. Robinson that had already been given to and was absolutely vested in Fanny E. Robinson. Denson vs. Thompson, 19 Ark. 69, may be mentioned as another recognition by this court of Moody vs. Walker that was not referred to in Slaughter vs. Slaughter. See, also, Massey vs. Parker, 2 M. & R. 184; Cuthbert vs. Purrier, 1 Jac. 417; Jackson vs. Ball, 10 Johns. 20; Jackson vs. Robins, 16 Jhs. 590.

We prefer to construe the will under consideration from its own terms, rather than to take the deposition of its draughtsman as declaratory of the intention of the testator. We are not convinced of the propriety of the mode of interpretation insisted on in this court.

The limitation over in this will, as in the will of John Pol

lard, was not void for being too remote, for in each case it was dependent upon a definite failure of issue. And though in this case the failure of issue was accomplished in the next October, while in Slaughter vs. Slaughter, sixty-five years elapsed before the death of Elizabeth Pollard, and she then left Catherine Slaughter living, a surviving grandchild of John Pollard, each limitation was to take effect upon the death of a person alive when the wills were made. A failure of issue is taken to be indefinite, not according to the course of after events, but as the possibility thereof may exist at the death of the testator. Clare vs. Clare, Cas. temp. Talbot 26; Patterson vs. Ellis, 11 Wend. 299; Hawley vs. James, 16 Wend. 171; 4 Kent 283; Ibbetson vs. Ibbetson, 10 Sim. 515.

We also think that the words in this will "heir at death," and in the will of Pollard "die without heir," are to be taken in their general acceptation, by which heir would mean child or descendant. Cox vs. Britt, 22 Ark.

The decree of the court below is affirmed.

BEVENS ET AL. VS. BAXTER.

The 19th section, chapter 154, Gould's Digest, Acts of 1854, page 109, Acts of 1852, page 42, are public acts in their character and subject matter, though local in their application, and the courts are bound to take judicial notice of them.