dissenting. I am unable to agree with the majority opinion in this case for the reasons hereinafter set out. The general and universally accepted rule governing the construction of wills is to ascertain the intention of the testator, and this is the rule in this state. From Morris v. Lynn, 201 Ark. 310, at page 311, 144 S. W. 2d 472, we quote the following:
“As said by this court in Jackson v. Robinson, 195 Ark. 431, 112 S. W. 2d 417, ‘All our cases are to the effect that the object in construing wills is to ascertain the intention of the testator. This must be done from the language used as it appears from the consideration of the entire instrument, and when such intention is ascertained it must prevail, if not contrary to some rule of law, the court placing itself as near as may be in the position of the testator when making the will. ’ ’ ’
All other rules, such as those discussed in the majority opinion, are to be used merely as aides to ascertain the intention of the testator. The only exception that comes to my mind would be where some established rule of law or property would prevent giving effect to the intention of the testator, and certainly this is not the situation here.
It is true that in this case there is no extrensic evidence to throw any light one way or the other on the intention of the testatrix but that is not essential because, as appears in the above citation, the intent must be gathered from the contents of the will itself. A careful consideration of the contents of the will under consideration convinces me that the testatrix intended to give an undivided one-fourth interest to the two brothers, Charles and Henry Rand and not to give an undivided one-eighth interest to each of them as the majority opinion holds. Listed below are some of the things gathered from the will which we think show this intent.
(a) The will shows a definite logical grouping of the beneficiaries which indicates the testatrix was thinking in groups and so intended to divide her property. One group is her sister and her sister’s daughter; another group is the six children of her brother; and another is the two brothers of her first husband — the group with which we are concerned.
(b) The matter of relationship to the testatrix is something that should be taken into consideration. See 57 Am. Jur. Sec. 1266. It is clear from a casual reading of the will that the testatrix thought a great deal of her first husband, giving him credit for accumulating most of her estate. It appears only natural therefore that she would desire a sizeable portion of her estate to go to his heirs.
(c) If the testatrix had wanted each of the two brothers to receive only a one-eighth interest it would have been very easy to say so. So it seems significant that she chose to give an undivided one-fourth interest to Charles Rand and Henry Rand. To my mind it is farfetched and unreasonable to say that the testatrix gave any consideration whatever to Ark. Stats. § 50-411 which gives effect, under ordinary circumstances, to such a devise.
The fact that the two brothers were mentioned by name does not necessarily preclude a class designation. It is so recognized in Page on Wills in the portion copied in the majority opinion. Conceding the general rule that the giving of names and addresses is, in some instances, prima facie evidence against a class devise it must still be remembered that this rule is to be used only in an effort to determine the intention of the testator. Under the wording of the will under consideration I am unable to understand how any light is thrown on the intention of the testatrix simply because she gave the names and residences of the two brothers. At any rate any indication of intention from this source is minor as compared with the intention gathered from a reading of the entire will.
Justice Robinson joins in this dissent.