the fundamental error in the majority opinion, in my judgment, is the assumption that Mrs. Simmons took title to the fee in the personal property trust created by the will of Major Tillar for her benefit. If that assumption be false, and it is, as I shall undertake to demonstrate, then the majority necessarily reach a false conclusion. If Mrs. Simmons took only a life estate in said trust, the remainder interest passed or was controlled by the will of Major Tillar, and such trust was, at her death, still a part of the estate of Major Tillar, which was released and quitclaimed by Mrs. Alma Adamson in the deed set out in the majority opinion, and prevents her and appellants, her assignees, from recovering any part thereof.
It is conceded that Mrs. Adamson is a collateral heir of Mrs. Simmons. But Mrs. Simmons died testate and under her will Mrs. Adamson was given certain pieces *Page 373 of jewelry. All the rest of her estate was devised to her husband, W. T. Simmons, and further designated him as her appointee to receive one-sixth of the annual net income during his life from the trust estate created by the will of her mother, Antoinette Tillar, and at his death to Mrs. Adamson in fee simple. She made no attempt to convey by will or otherwise either the income from or the corpus of the personal property trust created for her benefit by the will of her father, Major J. T. W. Tillar. Mrs. Simmons realized that the title to this trust passed on her death by the will of her father and that her own estate could not be augmented by the corpus or principal thereof, and made no attempt to convey it in her will, and it cannot pass by the laws of descent and distribution because the title thereto in fee never vested in her. She was entitled to the income from it for her life only, which is nothing more than a life estate in the trust. Under the will of Major Tillar, the title in fee to the trust would have gone to the children of Mrs. Simmons, if she had had children, but if she died without children, then under the same will, the fee title passed to Mrs. Simmons' heirs, one of which is Mrs. Adamson. The title to the fee in this trust passed to the collateral heirs of Mrs. Simmons by the will of Major Tillar, not by inheritance from Mrs. Simmons, but by virtue of the control over it retained by him and the directions given in his will.
That Mrs. Simmons took only a life estate in the trust created by Major Tillar's will cannot be doubted. The very term "life estate" contradicts the conception of a fee title. In 69 C.J., p. 532, it is said: "A gift to one `in trust for his heirs' gives him a life estate."
In Kent v. Morrison, 153 Mass. 137, 26 N.E. 427,10 L.R.A. 756, 25 Am. St. Rep. 616, it was held: "If . . . the estate given to the devisee is only for life, although coupled with a power in the devisee of disposing of the fee, either by deed or will, or both, then, if this power is not executed, the remainder in fee, after the termination of the life estate, is a part of the estate *Page 374 of the testator, and will pass under the will of the testator."
In perhaps the leading case of Jackson v. Robins, 16 Johns (N. Y.) 537, Chancellor Kent laid down the rule as follows: "We may lay it down as an incontrovertible rule, that where an estate is given to a person generally, or indefinitely, with a power of disposition, it carries a fee; and the only exception to the rule is, where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal. In that particular and special case, the devisee for life will not take an estate in fee." This rule was changed by subsequent statute in N.Y.S.ee Barr v. Howell, 85 Misc. 330, 147 N.Y.S. 483. See, also, 1639, 69 C.J., p. 569.
We call attention to these cases of the devise of a life estate, coupled with the power to convey, to show the extent to which the courts have gone to carry out the testator's intent as expressed in the will. In the will of Major Tillar, Mrs. Simmons was given no control whatsoever of the estate conveyed in trust for her use and benefit, and, of course, no power of disposition either by deed or will. Being a life estate, only the income belonged to her.
The majority say the case of Blanks v. Craig, 72 Ark. 80,48 S.W. 764, "appears to be in point." But, in what way it appears to be in point, I am unable to perceive. There, Daniel E. White conveyed to Blanks his "interest in any lands by will or otherwise in the estate of Mrs. Mary A. Sumner." After this deed was executed his sister, Mrs. Terrell, died intestate and without issue and Daniel E. White inherited one-half of her estate which came by inheritance from the estate of her mother, Mrs. Mary A. Sumner. Blanks claimed that, under the deed of Daniel E. White, he was entitled to the interest in the Terrell estate which Daniel E. White would have inherited but for his deed to him. It was under this state of facts that the court held as it did in the quoted portion of the opinion set out by the majority. White Mrs. Sumner left a will, she did not create a trust for the *Page 375 benefit of Mrs. Terrell, and the will was afterwards found to be invalid and of no effect as to the lands there in controversy. Mrs. Terrell took a vested fee interest in the estate of her mother, an interest which passed to Daniel E. White on her death as one of her heirs, and this was some time after his deed to Blanks. The court correctly held that his deed to Blanks did not convey his interest in Mrs. Terrell's estate. The distinction between that case and this is that Mrs. Terrell took the fee and Mrs. Simmons took only a life estate in the trust created by Major Tillar's will, the corpus of which passed by his will, and not by inheritance from Mrs. Simmons.
That Mrs. Adamson's interest in this trust fund created for Mrs. Simmons was alienable there can be no doubt. We so held in a similar situation in Bowen v. Frank, 179 Ark. 1004, 18 S.W.2d 1039.
By the terms of Mrs. Antoinette Tillar's will the claim of Mrs. Adamson to share in the estate of Major Tillar is set out, and a bequest of $100,000 in trust is made to her and her children, conditioned as follows: "Before she or her children, or their descendants shall participate in my estate under this will, she shall by quitclaim deed relinquish to the estate of J. T. W. Tillar all claim to participate under the will of my said husband except as to the property in Pine Bluff, Arkansas, specifically given to her in said will."
In order to obtain this $100,000 bequest, Mrs. Adamson executed a quitclaim deed, relinquishing to "the said estate of J. T. W. Tillar and unto the executors and administrators and heirs of said J. T. W. Tillar," except as to the Pine Bluff property.
After the death of Mrs. Simmons, Mrs. Adamson undertakes to claim under the will of Major Tillar through heirship of Mrs. Simmons. This she cannot do for two reasons: because she conveyed her interest there in and received a bequest from her grandmother of $100,000 for so doing. This appears to me to be a good and valuable consideration, and if the title to the Major Tillar trust ever vested in Mrs. Simmons then it passed *Page 376 by her will, and not by inheritance. Mrs. Simmons gave all her property to her husband except, as above stated, certain articles of jewelry given to Mrs. Adamson, and the remainder interest as aforesaid, as shown by her will.
For these reasons, I respectfully dissent from the holding of the majority, and am authorized to say that the Chief Justice and Mr. Justice MEHAFFY concur in this dissent.