dissent">JOHN F. STROUD, Judge,

dissenting. I disagree with the majority’s conclusion that article five of the will is unambiguous. It is susceptible to at least two and possibly three interpretations. Even appellee, in his brief, suggests two possible interpretations of the will. Both of his interpretations and the interpretation suggested by appellant are reasonable and merit further exploration with the aid of extrinsic evidence, especially in light of the complex and somewhat confusing language used by the testatrix.

The majority relies in part on the decedent’s use of the term “lapse” to describe what would happen to the interests of those who predeceased her. Although it is possible that she meant to employ this term in its technical sense, it is equally possible that she was using it in a more generic sense. This is evidenced by the fact that, soon after declaring that her bequests to Ernest, Bryan, and Orilla would lapse, she felt the need to designate those to whom their lapsed interests would pass. If she was using “lapse” in its technical sense, her instruction that the lapsed interest would pass to the “surviving beneficiaries of the four” was superfluous. The confusion in the use of the word “lapse” is further amplified by the next paragraph of the will. The testatrix again uses the word “lapse,” but this time says “in the event of the death of Paul L. Chaudoin, his interest shall not lapse....” Although providing that the bequest shall not lapse, she also proceeds to name who shall receive the bequest.

In light of the foregoing, it is worth considering that the testatrix was not speaking technically when using that term. Technical terms need not be construed in their technical sense when the testator uses explanatory words to give them a different meaning. Crittenden v. Lytle, 221 Ark. 302, 253 S.W.2d 361 (1952).

I also disagree that the Chlanda case is dispositive here. The testator in that case used different language than the testatrix used in this case. Our testatrix did not refer to “the survivors of the four” or “the survivors among the four” but “the surviving beneficiaries of the four.” (Emphasis added.) That language creates an ambiguity not present in Chlanda.

Citation profile

Relationships

How this case has been treated — in progress