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dorsement, if his credit was regarded good | ber term, and then by appeal to the circuit for the amount, and needed only to be acted court. upon by the appellee, and the goods shipped

in accordance therewith to bind him.

Appellee made no proposition to its salesman that it would ship the goods upon his guaranty of the account, but he sent the direction and indorsement which was acted upon by them, and thereupon became binding upon him. He does not claim that he did not have notice that the goods were shipped, but only that he was not advised at the time that the company would look to him for the payment in accordance with his proposition. He did know that appellee had refused to ship the bill of goods, because of the financial condition of the firm ordering them, and also that he had directed their shipment after being notified of such refusal upon his own indorsement, if it was regarded good, and that thereafter the goods were shipped. Nothing further was necessary to bind him to the payment therefor.

As these facts appeared from the undisputed testimony, the court did not err in directing the verdict.

The judgment is affirmed.

CLAY COUNTY v. BANK OF KNOBEL.

(Supreme Court of Arkansas. Dec. 9, 1912.) 1. TAXATION (§ 453*) - ASSESSMENT VALUATION-REMEDY.

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Acts 1911, p. 230, amending Kirby's Dig. §7003, authorizing the board of equalization to correct errors in assessments, and providing for appeals from the order of the board of equalization to the county court, and appeals from the county court to the circuit court, furnishes a complete remedy in case of overvaluation of property for taxation by first applying to the board of equalization, and where relief is not granted by appeal to the county court, and then to the circuit court, and a taxpayer must pursue the statutory remedy, and, where he fails to do so, he cannot obtain relief in the circuit court.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 809; Dec. Dig. § 453.*] 2. TAXATION (§ 453*) - ASSESSMENT VALUATION-REMEDY.

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Cent. Dig. § 809; Dec. Dig. § 453.*]
[Ed. Note.-For other cases, see Taxation,

Appeal from Circuit Court, Clay County;
W. J. Driver, Judge.

From

Petition by the Bank of Knobel against Clay County for the reduction of the valuation of its property for assessment. a judgment of the Circuit Court reducing the assessment as prayed for, the county appeals. Reversed and dismissed.

At the March term, 1912, of the Clay county court, appellee presented its petition alleging that its property in 1911, including its entire assets, personal and real, was assessed at the sum of $9,342.43, whereas it should have been assessed at one-half that sum. It prayed that the assessment be reduced. The petition was overruled. Appellee took an appeal to the circuit court. In the circuit court appellant filed an answer admitting that appellee's property had been assessed at the sum alleged, but denied that the property was doubly assessed, and set up that the court was without jurisdiction or power to grant the relief prayed for, and alleged that, if the petitioner was entitled to any relief, it had lost that right by failure to apply to the proper court within the time required by law. A trial was had and evidence was adduced tending to show that appellee's property was assessed at its true value-the amount alleged in the complaintand there was evidence to the effect that

the board of equalization of Clay county had a rule to assess property at 50 cents on the dollar of its true value; that the board, in that respect, approved the rule of the State Tax Commission to assess property at its real value and then cut it half in two and put the valuation at one-half the real value. But this was not done as to the property of appellee. The circuit court rendered judgment reducing the assessment to $4,696.25, as prayed in the petition. Appellant duly prosecutes this appeal.

G. B. Oliver, of Corning, for appellant. S. Jordan, of Corning, for appellee.

J.

Under Kirby's Dig. § 6992, providing for the meeting in September of each year of the WOOD, J. (after stating the facts as above). board of equalization, and section 1361 and [1] Act 249 of the Acts of 1911, p. 230, Acts 1895, p. 36, providing that the county which amends section 7003 of Kirby's Dicourt of Clay county shall be held at Piggott in April, July, and October of each year, and gest, provides that the board of equalizaActs 1911, p. 161, providing for separate coun- tion, when in session, "shall have power to ty courts for the western district of Clay coun- examine witnesses with respect to any matty, and for the meeting of such courts in March, ter under investigation, to hear complaints June, September, and December of each year, and providing that the county court for levying with respect to the undervaluation or overtaxes shall be held at Piggott as now provided valuation of property, and to equalize the by law, the provisions for the meeting of the assessments of the county by adding to or equalization board and the session of the coun- taking from the valuation of any real or perty court for Clay county apply to the western district, and a taxpayer in the western district sonal property, moneys and credits within may pursue the remedy prescribed by Acts 1911, the county, and to assess the property of any p. 230, in case of overvaluation of his prop- person omitted from the rolls by the assesserty by applying to the board of equalization, and, where relief is not granted, thereby ap-or, and to correct the obvious errors that peal to the county court at the regular Octo- may have been made in the assessment of

vided by law." At the time this act was passed the county court of Clay county was held at Piggott on the first Monday in April, July, and October of each year (Kirby's Digest, § 1361; Acts 1895, p. 36), and the board of equalization met in September of each year (Kirby's Digest, § 6992).

property by the assessor." The second sec- vides that "the county court for levying the tion specifies when the board of equalization taxes and making appropriations shall be shall meet, and then provides: "The board | held at Piggott, the county site, as now proshall have power to exercise its functions in the equalization of property until the fourth Wednesday of October." The fourth section provides that "all appeals taken from the order of the board of equalization shall be taken to the October term of the county court, and such appeals, even if taken after the regular October term of the county court Counsel for appellee states that there was has convened, shall be heard and passed up- only one board of equalization in Clay counon by said court before the fourth Wednes- ty, and there is no evidence in the record day in October." And the fifth section, showing that there was any board for the among other things, provides that "all ap- Western district separate from that for the peals from the county court to the circuit Eastern district. Since there is no specific court herein provided must be taken within provision in the act for the meeting of the thirty days of the day upon which the order equalization board and session of the county from which the appeal is taken was made." court in the Western district of Clay county It will thus be seen that the statute fur- for the purpose of correcting improper assessnishes a complete remedy, in case of over- ment of taxes, we must assume that the valuation of property by the assessor, to have above general provision for the meeting of the same reduced by first applying to the the equalization board and the session of the board of equalization, and, if relief is not county court for Clay county applied to the granted there, then by appeal to the county Western district as well as to the Eastern court, and then to the circuit court. The ap-district threof. When the county court met pellee did not pursue the remedy provided by statute.

We held in Clay County v. Brown Lumber Co., 90 Ark. 417, 119 S. W. 251, that in all cases of excessive valuation, where the assessor or the board acts within its jurisdiction, the taxpayer must pursue the remedy provided for his relief or abide by the finding of the board. And in Bank of Jonesboro v. Hampton, 92 Ark. 492, 123 S. W. 753, we said: "The taxpayer may apply to the county board of equalization for redress against the action of the county assessor; and, if the county board does not grant him the relief, he may appeal to the county court, and, if dissatisfied with its action, may in turn appeal from its decision." In State v. Little, 94 Ark. 217, 126 S. W. 713, 29 L. R. A. (N. S.) 721, we said: "The courts, either of common law or equity, are powerless to give relief against the erroneous judgments of assessing bodies, except as they be especially empowered by law to do so." thus appears that appellee, not having pursued the remedy provided by law, was not entitled to the relief which the circuit court granted.

It

for the levying of taxes, it was necessarily in session for the purpose of correcting any errors that may have been made in the assessment of taxes, as the assessment of taxes necessarily preceded any proper levying thereof.

Therefore, if appellee's property was improperly assessed by overvaluation, it had a complete remedy as provided by statute, supra, by first making application to the board of equalization, and, if relief was not there granted, then by appeal to the county court, and then to the circuit court. Not having pursued this remedy, the circuit court erred in granting the relief prayed in the petition. The judgment is therefore reversed, and the cause is dismissed.

GALLOWAY v. DARBY et al. (Supreme Court of Arkansas. Nov. 18, 1912.) 1. WILLS (8 775*)-LEGACIES-LAPSED LEGA

CIES.

As a will is ambulatory, the death of a legatee during the lifetime of the testator will cause a lapse in the legacy, in the absence of a statute to the contrary, and Kirby's Dig. § 8022, saves from lapse only bequests and devises to surviving children or descendants of the testator.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1997-2000; Dec. Dig. § 775.*] 2. WILLS (§ 775*) — CONSTRUCTION INTENTION OF TESTATOR-"HEIRS."

[2] The appellee contends that under the act of May 4, 1911, supra, it was without a remedy because there was no October term of the county court of the Western district of Clay county to which it could appeal according to the provisions of that act. Act 204, p. 161, of the Acts of 1911, provides, among The question in explaining a will is not other things, for separate county courts for what the testator meant, but what is the meanthe Western district of Clay county and the ing of his words, and, where technical phrases or terms of art are used, it is fair to presume time for the meeting of such courts, to wit, that the testator understood them, and hence a on the third Monday in December and on general provision in a will that all the propthe fourth Mondays in March, June, and erty devised and bequeathed, unless otherwise specifically stated, shall vest in the devisees, September of each year. After fixing the their heirs and assigns, in fee simple, must be time for holding these courts, the act pro-construed as words of limitation fixing the es

not of substitution.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1997-2000; Dec. Dig. § 775.*

tate of such devisees, and cannot be construed | life, and being desirous of settling my worldas equivalent to children, and as showing an ly affairs and directing how the estate with intention to prevent lapse by prescribing a line of succession, for the word "heirs" in its which it has pleased God to bless me, shall technical sense is a word of limitation, and be disposed after my decease, while I have strength and capacity so to do, do make and publish this, my last will and testament, all other last wills and testaments, by me hereby revoking and making null and void heretofore made; * as to my worldly estate and all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to-wit:"

For other definitions, see Words and Phrases, vol. 4, pp. 3241-3265; vol. 8, pp. 7677-7678.j 3. WILLS (§ 858*)-LAPSED LEGACIES-RESID

UARY CLAUSE.

The distinction between personalty and realty having been abolished, a general residuary clause will carry a lapsed devise of realty as well as a bequest of personalty.

[Ed. Note. For other cases, see Wills, Cent. Dig. 88 2173-2183; Dec. Dig. § 858.*]

* *

In item 1 the testatrix gave to appellant, 4. COURTS (§ 92*)-RULES OF DECISION-DIC- D. F. S. Galloway, who was her grand

TUM.

A decision on which the case could have turned cannot be regarded as obiter dictum merely because, owing to the disposal of that contention, it was necessary to consider another question.

[Ed. Note.-For other cases, see Courts, Cent. Dig. § 335; Dec. Dig. § 92.*]

5. WILLS (§ 858*) - LAPSED LEGACIES SIDUARY CLAUSE.

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Where the introduction of a will expressed the testator's intention of disposing of all her property, a residuary clause reciting that she gave, devised, and bequeathed all the rest and residue of her estate not hereinbefore specifically devised and bequeathed, of which she should die possessed or to which she will be entitled, will carry lapsed devises notwithstanding the expression "not herein before specifically devised," for a general residuary clause carries all the property of the testator not otherwise disposed of, unless the will shows an intention to exclude from its operation some part of the estate, and such clause should be liberally construed to prevent intestacy.

[Ed. Note. For other cases, see Wills, Cent.
Dig. 88 2173-2183; Dec. Dig. § 858.*]
Appeal from Pulaski Chancery Court;
John E. Martineau, Chancellor.

Action between D. F. S. Galloway against James Darby and others. From a judgment for defendants, plaintiff and defendant W. A. Galloway appeal. Reversed and remanded, with directions.

Rose, Hemingway, Cantrell & Loughborough, of Little Rock, for appellants. James A. Comer and John McClure, both of Little Rock, for appellees.

nephew, her home in the city of Little Rock, and all its contents, furniture, paintings, silver, etc., horses, carriages, and harness, and also certain other lots of real estate in said city, and a tract of land in Pulaski county containing 180 acres.

In item 2 she gave to her nephew W. A. Galloway two lots in Little Rock, and a certain tract of land in Pulaski county.

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In item 4 she gave two lots in the city of Little Rock, and a farm in Pulaski county known as the "Beasley place," to her niece Mary A. Eanes for life, with remainder over to D. F. S. Eanes, a grandnephew of the testatrix.

In item 5 she gave to her said grandnephew D. F. S. Eanes three lots in the city of Little Rock, the property being left in trust to D. F. S. Galloway as trustee for the benefit of said D. F. S. Eanes until the latter should come of age.

In items 6 and 7, respectively, she bequeathed sums of money to a friend and to

a certain church in Little Rock.

Item 8 contained the following residuary McCULLOCH, C. J. The merits of this devise and bequest: "I give, devise and becontroversy involve the construction of the queath to my grandnephew, David F. Shall last will and testament of Elizabeth S. Shall, | Galloway, all the rest and residue of my eswho died in the city of Little Rock on March tate not hereinbefore specifically devised and 23, 1908, the owner of a large estate, con- bequeathed, whether real, personal or mixed, sisting mostly of valuable lands, city and of which I shall die seized and possessed, farm property. The will was executed Jan- or to which I shall be entitled at the time of uary 17, 1898, and on April 14, 1905, she add- my decease." ed a codicil. The preamble or introductory clause of the will reads as follows:

After the residuary clause the will reads as follows:

"I, Elizabeth S. Shall, of the city of Little "The property herein devised and beRock, county of Pulaski, State of Arkansas, queathed in items four and five to my grandbeing in good bodily health and of sound nephew, David F. Shall Eanes, shall, in the and disposing mind and memory, calling to event of his death without issue of his body mind the frailty and uncertainty of human him surviving, vest in fee-simple in his

mother, my niece, Mary A. Eanes, her heirs | by in the codicil lapsed, as decided by the and assigns.

"All the property herein devised and bequeathed, unless otherwise and specifically stated, shall vest in the devisees, their heirs and assigns in fee simple, and the property devised and bequeathed to my nieces is to be their sole and separate property and free from the control and debts of their said husbands, together with the rents and profits of the same."

By her codicil the testatrix revoked the devise to appellant, D. F. S. Galloway, as to some of the said lots given to him in the will, and devised the same to Elizabeth S. Darby in fee simple. The codicil made certain other changes not material to this controversy. Elizabeth S. Darby died prior to the death of the testatrix, and the controversy in this suit is as to the devolution of the property devised to her in the will and codicil.

chancellor, by reason of her death before the death of the testatrix, and the property either falls within the residuary clause of the will, if that clause is broad enough to include it, or descends to the heirs at law of the testatrix, as undisposed of property. That question will be considered later.

It is contended on behalf of appellees that the devise of the Shall place did not lapse, and that it was the intention of the testatrix to substitute the children of Mrs. Darby as devisees in the event of the latter's death before the death of the testatrix. This contention is founded on the general provision in the will that "all the property herein devised and bequeathed, unless otherwise and specifically stated, shall vest in the devisees, their heirs and assigns in fee simple." The argument is that there is presumed an intention not to permit the devise to lapse, and that the word "heirs" should It is the contention of appellant that both be construed to mean "children," so that a of the devises to Elizabeth S. Darby lapsed line of succession should be prescribed in on account of her death prior to the death order to prevent lapse. There might be of the testatrix, and that that property fell more reason for adopting that construction within the residuary clause of the will. The of the provision if it applied only to the chancellor decided that the devise to Mrs. devise to Mrs. Darby, but it applies to all Darby in the will did not lapse, but went of the property devised in the will except to her children under the terms of the will, when "otherwise and specifically stated," and that the devise to Mrs. Darby in the and the fact that the provision is a general codicil lapsed, but did not fall within the one materially weakens the basis for conresiduary clause, and as to that the testatrix struing the word "heirs" to mean "children." is deemed to have died intestate, and the We do not, however, mean to say that such property descended to her heirs at law. Ap- would be the proper construction even if the pellant, D. F. S. Galloway, is not one of the provision applied only to the devise to Mrs. heirs of the testatrix, so, under the decree, Darby. On the contrary, we are of the he gets none of the property in controversy, opinion that the words, "their heirs and asand he appealed to this court. W. A. Gal- signs," were used in a technical sense to loway, the father of D. F. S. Galloway, is denote the character of the estate or extent one of the heirs, and is a party to this suit. of the interest to be taken by the deviseesHe appealed from that part of the decree that they are words of limitation, not words which holds that the property devised to of substitution. The aim in construing a Mrs. Darby in the will goes to her children. will is to correctly arrive at the intention [1, 2] The rule is established beyond con- of the testator, but the meaning is to be troversy, except where changed by statute, gathered from the language used. "The that a legacy or devise lapses when the question in expounding a will is not what legatee or devisee dies before the testator. the testator meant, but what is the meaning 17 Am. & Eng. Ency. of Law, p. 748, and of his words. The use of the expression authorities there cited. "The liability of a that the intention of the testator is to be the testamentary gift to failure or as it is guide, unaccompanied with the constant exgenerally termed lapse," says Mr. Jarman, planation that it is to be sought in his words "by reason of the decease of its object in and a rigorous attention to them, is apt to the testator's lifetime, is a necessary conse- lead the mind unconsciously to speculate upquence of the ambulatory nature of wills, on what the testator may have been supwhich, not taking effect until the death of posed to have intended to say, instead of the testator, can communicate no benefit to strictly adhering to the true question, which persons who previously die." 1 Jarman on is what that which he has written means. Wills (6th Ed.) p. 307. A statute of this The will must be expressed in writing, and state changes that rule as to a legacy or a that writing only is to be considered. And devise to a child or other descendant of the in construing that writing the rule is to testator, and provides that it shall not lapse, read it in the ordinary and grammatical but that "the property so devised or be- sense of the words, unless some obvious abqueathed shall vest in the surviving child or surdity or some repugnancy or inconsistency other descendant as if such devisee or lega- with the declared intention of the writer to tee had survived the testator and died intes- be extracted from the whole instrument tate." Kirby's Digest, § 8022. should follow from the reading of it." 2

Cases are to be found where the word | Lord Denman, in Doe v. Gallinie, 5 Barne"heirs" in a will or deed was construed to wall & Adolphus, 621, said: "Technical mean "children." The following are among words, or words of known legal import, those cases: Wyman v. Johnson, 68 Ark. 369, must have their legal effect, even though 59 S. W. 250; Shirey v. Clark, 72 Ark. 539, the testator uses inconsistent words, unless 81 S. W. 1057. Other examples are found in those inconsistent words are of such a nature the many cases cited by counsel for appel- as to make it perfectly clear that the testalees. But words used in a will must be con- tor did not mean to use the technical words strued according to the technical legal mean- in their proper sense." Mr. Washburn has ing, unless explanatory words in the con- this to say on that subject: "On the other text qualify them or give them another mean- hand, 'heirs' may have sometimes meant the ing, or unless the peculiar situation under same as 'child' or 'children.' That the teswhich they are used indicate an intention tator intended to use it thus must be clear to use them other than in a technical sense. and something more than implication. OthIn Moody v. Walker, 3 Ark. 147, this court erwise, it is a word of limitation." 2 Washsaid: "When technical phrases or terms of burn on Real Property, p. 603. Judge Sharsart are used, it is fair to presume that the wood, speaking for the court in Doebler's Aptestator understood their meaning, and that peal, 64 Pa. 9, said: "While the intention of they expressed the intention of his will, ac- the testator, if consistent with law, is uncording to their import and signification. doubtedly to bé the polar star, yet we are When certain terms or words have by repeat- bound to take as our guides those general ed adjudication received a precise, definite, rules or canons of interpretation which have and legal construction, if the testator in mak- been adopted and followed by those who have ing his will use such terms or similar expres- gone before us. It becomes no man and no sions, they shall be construed according to court to be wise above that which is written. their legal effect; for, if this was not the Security of titles requires that no mere arcase, titles to estates would be daily unset- bitrary discretion should be exercised in contled, to the ruin of thousands." In Johnson jecturing what words the testator would v. Knight of Honor, 53 Ark. 255, 13 S. W. have used, or what form of disposition he 794, 8 L. R. A. 732, in construing the mean- would have adopted had he been truly ading of the word "heirs," the court said: "It vised as to the legal effect of the words acis a technical word. When used in any le- tually employed. That would be to make a gal instrument, and there is no context to will for him, instead of construing that which explain it, as in this case, it should be un- he has made." derstood in its legal and technical sense." This rule of construction has been univerTo the same effect, see Myar v. Snow, 49 sally adopted by judges and law writers. Ark. 129, 4 S. W. 381. "Though the inten- The exceptions to it are, as above stated, tion of a testator, when ascertained," says found in cases where there are qualifying Mr. Jarman, "is implicitly obeyed, however words in the context, which shows that a informal the language in which it has been technical meaning was not intended, or the conveyed, yet the courts in construing that peculiar circumstances under which the words language resort to certain established rules were used demonstrate clearly that they were. by which particular words and expressions, meant otherwise than in the technical sense. standing unexplained, have obtained a differ- In the present instance there is nothing to ent meaning, which meaning it must be con- indicate that the term, "heirs and assigns," fessed does not always quadrate with their was used otherwise than in the technical popular acceptation. This results from the sense as words of limitation. There are nuenactment of law, which presumes every per- merous authorities holding that the word son to be acquainted with its rules of inter- "heirs" in a will is a word of limitation, and pretation, and consequently to use expres- not of substitution, and that the use of it, sions in their legal sense, i. e., in the sense following the name of the devisee, does not which has been fixed by adjudication to the prevent a lapse in the event of the latter's same expressions occurring under analogous death before that of the testator. Mr. Jarcircumstances, a presumption, though it may man has this to say on that subject: "The sometimes have disappointed the intention doctrine applies indiscriminately to gifts with of a testator, is fraught with great general and gifts without words of limitation. Thus convenience, for without some acknowledged if a devise be made to A. and his heirs, standard of interpretation it would have been * * * or to A. and the heirs of his body, impossible to rely with confidence on the op- and A. died in the lifetime of the testator, eration of any will not technically expressed the devise absolutely lapses." 1 Jarman on until it had received a judicial interpreta | Wills, p. 307. "For the word 'heirs' in such tion." 2 Jarman on Wills, p. 1651. "In cases," says Mr. Underhill, "gives the heirs seeking for the expressed intention of the no interest under the will, but it is merely testator, his words are to receive that con- a word of limitation, showing what interstruction and interpretation which a long series of decisions has attached to them, unless it is very certain that they were used in

est the ancestor was to take in case he should survive the testator." 1 Underhill on Wills, p. 436. Mr. Redfield states the same rule

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