dissenting. The majority somewhat syliogistically reasons that since the testator gave alternative contingent remainders under paragraph three of his will then it follows that Asbury Fletcher had to survive the life tenant before his interest under paragraph three could pass by descent to his children. At page six of the majority opinion, they state “the clear language of the will required that Asbury Fletcher survive his daughter Barbara Jean before any estate vested in him.” Both suppositions are erroneous. The will of I. N. Fletcher, in so far as here pertinent provides:
“KNOW ALL MEN BY THESE PRESENTS:
That I, I. N. Fletcher, of Craighead County, Arkansas, being of sound mind and disposing memory and above the age of twenty-one years, do hereby make, publish and declare this to be my last will and testament, and do hereby revoke all other Wills or codicils thereto heretofore by me made, that is to say:
1. I direct that as soon after my death as practicable all of my just debts, including burial expense be paid.
2. I here devise to my son, Asbury Fletcher, in fee simple, the following described real estate situated in Craighead County, Arkansas, to-wit:
The Southwest Quarter (SW 14) of the Northeast Quarter (NE 14 ) Section Eight (8), Township Fourteen (14), North, Range Six (6) East and also the South Three (3) acres of the Northwest Quarter (NW 14) of the Northeast Quarter (NE 14) of said Section Eight (8).
3. I devise and bequeath to my granddaughter, Barbara jean Fletcher, for an4 during her natural life, then to the heirs of her body, if any, and if not then to Asbury Fletcher his heirs and assigns, the following described real estate situated in Craighead County, Arkansas, to-wit:
All that part of the West Half of the Southeast Quarter (SE14) of Section Five (5), Township Fourteen (14) North, Range Six (6) East which lies South of Thompson Creek Drainage Ditch containing approximately Eighteen (18) acres and Twenty (20) acres in the Northwest Quarter (NW 14) of the Northeast Quarter (NE14) of Section Eight (8), Township Fourteen (14) North, Range Six (6) East bounded on the West by the west line of said Northwest Quarter (NW14) of Northeast Quarter (NE 14) of Section Eight (8) and on the South by the North line of the three (3) acre tract described in Paragraph number two (2).
4. I he eby devise to my son Babe Fletcher, in fee simple, the following described real estate situated in Craighead County, Arkansas, to-wit:
All that part of the North Half (N Vi) of the Northeast Quarter (NE 'A) of Section Eight (8), Township Fourteen (14) North, Range Six (6) East of which I am the owner at the date of this Will, except that portion devised to Barbara Jean Fletcher under paragraph three (3).
Said North Half (N V?.) of Northeast Quarter (NE XA) of said Section Eight (8) is an Eighty (80) acre tract of which I originally owned Seventy-eight (78) acres, a Mr. Gipson now owns one and one-half (1 Vz) acres and Charles McDuffee Three (3) acres, leaving Seventy-three and a half (73 Vi) acres, more or less, of which I am the owner, but of which I have devised Twenty (20) acres to my Granddaughter Barbara Jean Fletcher as shown above. I also devise to my son Babe Fletcher the fractional North Half (NVi) of Northwest Quarter (NW XA), Section Nine (9) containing Thirty-three and ninety hundredths (33.90) acres, more or less, and the North four and Sixty-five hundredths (4.65) acres of the Southwest Quarter (SW!4) of the Northwest Quarter (NW XA) of said Section Nine (9), both in Township Fourteen (14) North, Range Six (6) East.
5. I hereby bequeath to my daughter, Mattie Velma McDuffee, the sum of Three Thousand and No/100 (S3,000.00) Dollars.
6. It is intended and I so direct that if at my death any liens exist upon any of the real estate herein devised, then that said liens be released and discharged by payment of the amounts owing so that the title in fee simple, free and clear of all encumbrance will vest in the devisees; and that such payments be made by my Executors out of the residue of my estate.
7. After payment of all specific bequests and devises herein, I hereby devise and bequeath the entire residue of my estate, real, personal, or mixed to my two sons Asbury Fletcher and Babe Fletcher in equal parts.
99
That the intention of the testator is of prime importance in determining the rights of the parties under the provisions of a will can be seen in Cox v. Danehower, 211 Ark. 696, 202 S.W. 2d 200 (1947), cited and relied upon by the majority, which states:
“At the outset we are confronted with the fact that an interpretation of only one item of a will is sought by the parties and the whole will is not before us. The entire will is not set forth in the pleadings and does not appear in the record. One of the cardinal rules in the construction of wills is that it is the court’s duty to ascertain the intent of a testator, and in doing so such intent is not to be determined by one clause only, but must be gathered from a full consideration of the entire will. In the case at bar, however, the parties seem willing to assume that a consideration of the other portions of the will would not aid their respective contentions, and are content to rest their case upon the devise above quoted. Acting upon this assumption, we proceed to determine whether the language of this devise alone supports the conclusion reached by the Chancellor.”
When we remember that Barbara Jean Fletcher is the daughter of Asbury Fletcher, it is at once obvious to me that the testator wanted the land given to Barbara Jean to go back to Asbury if she should die without heirs of her body. There is nothing in any clause of the will that requires Asbury to survive Barbara Jean. Any assertion by the majority to the contrary is unsupported by provisions of the will.
There is nothing in Wise v. Craig, 216 Ark. 144, 226 S.W. 2d 347 (1949), that supports the majority view that Asbury must survive his daughter. The will in the Craig case specifically provided what would happen if the remaindermen did not survive the life tenant, in the following words:
“In case any of my said nephews and nieces are dead at the time of the death of my daughter, Sallie, then the descendants of such deceased devisee shall take such share as would have gone to such nephew or niece if living.”
The real issue in the instant case is whether the interest of Asbury Fletcher is inheritable since he did not survive the life tenant. I think there is no question that it is. In L. Sims and A. Smith, The Law of Future Interests, § 135 (2d ed. 1956), in a discussion on whether survivorship is a condition precedent, it is stated:
“In a large number of cases in which the discussion proceeds as if the problem were merely whether the remainder is vested or contingent, the real question involved is simply whether there is a requirement that a certain devisee must survive until his interest becomes possessory; it being conceded that he has not so survived. In many of such cases the whole discussion of the distinction is irrelevant, because exactly the same result would be reached if the remainder in question were treated as contingent or as vested subject to complete defeasance on the death of the remainderman before the termination of the particular estate. Thus, in a limitation to A for life and then to B and his heirs if he survives A, the interest of B ends when he predeceases A, whether we classify the interest as contingent or as vested subject to complete defeasance. More dangerous are the cases in which it does make a difference how the interest is classified and in which the courts get involved in a- peculiar mingling of fallacies concerning the meaning of the terms ‘vested’ and ‘contingent.’ On the one hand, these cases seem to assume that if there is no condition precedent of survivorship, the remainder is necessarily vested (thus purporting to give the term ‘vested’ the meaning: ‘not subject to a condition precedent of survivorship’). On the other hand, they assume that all contingent remainders are necessarily subject to a condition precedent of survivorship. Both of these assumptions are invalid and do not conform to the normal meanings of the two terms in question. As to the first, it is true that if there is a condition precedent of survivorship, the remainder in question is contingent, but the converse is not true. If survivorship is not a requisite, it does not follow that the remainder is vested. A remainder may be subject to some other condition precedent which renders it contingent, even though there is no condition that the devisee must survive until the termination of the preceding estate.
The second assumption — that all contingent remainders are subject to an implied condition of survivorship — is equally invalid. While it is true that the courts will sometimes imply a condition precedent of survivorship (and thus make the remainder contingent), it is also true that some contingent remainders are inheritable, and thus capable of transmission even though the holder thereof does not survive until the interest becomes possessory.
These cases represent an area of the law which engenders confusion because of the narrow meaning which is given to the term ‘vested’ and because of a failure to appreciate that the question of whether there is a requirement of survivorship is not synonymous with the question of whether the remainder is vested or contingent.”
In 23 Am. Jur. 2d Descent and Distribution § 32 (1965), we find, contrary to the suggestion of the majority opinion in the second full paragraph on page six, the following statement:
“As a general rule, a contingent remainder passes under the statute of descent and distribution. Similarly, in the case of an executory interest, where the fee is limited to commence in the future upon a contingency, the fee passes, until the contingency happens, in the usual course of descent to the heirs at law.
. . . While contingent interests have sometimes been considered as subject to an implied condition of the donee surviving the particular estate, seemingly just because they are subject to some condition precedent, this is not logically sound where the contingency refers only to the time of enjoyment and possession and not to the time for the title to pass or for the determination of the person taking.”
That it was not necessary for Asbury Fletcher to survive the life tenant is eminently supported by Black v. Todd, 121 S.C. 243, 113 S.E. 793 (1922). In that case the will devised the property to Corrinna Mystis Harris for life, the remainder to her children, if any, and if no children then to Mary Brown for life with remainder to her children, if any, and if none then to Samuel P. Black. Corrinna Mystis Harris outlived both Mary Brown and her children, all of whom died without issue. After the death of Corrinna Mystis Harris without children, the court held that a conveyance from the children of Mary Brown was valid as against the claims of Samuel P. Black.
For the reasons stated, I respectfully dissent.
Harris, C.J., and Jones, J., join in this dissent.