## Facts

- Dollie Smith died owning a residence in Blytheville, Arkansas, and left a will devising the home to her daughter, Lorene Smith, “to be used by her as a home as long as she wishes.”
- The will further provided that if Lorene decided to sell the property, the sale proceeds would be divided equally between Lorene and her brother (the plaintiff).
- The plaintiff filed suit in chancery court seeking construction of the will and related relief, alleging Lorene received only a life estate and that Dollie died intestate as to the remainder, leaving the remainder to the siblings as heirs.
- The plaintiff also alleged Lorene committed waste by failing to maintain the property, including not repairing a leaking roof that caused deterioration such as rotting floors.
- The complaint requested forfeiture of Lorene’s estate (if a life estate), appointment of a receiver to make repairs, and partition of the remainder interest.
- The chancery court sustained a demurrer and dismissed the complaint as legally insufficient.
- The plaintiff appealed.

## Issues

1. Whether the will’s language created a life estate or conveyed a fee simple to Lorene.
2. If Lorene held a life estate, whether the complaint alleged sufficient facts to state a claim for waste.
3. What remedies are available for waste by a life tenant, including whether forfeiture may be ordered absent statutory authorization.

## Decision

- The Arkansas Supreme Court reversed the dismissal and remanded for further proceedings.
- The court held the will created only a life estate in Lorene, with the remainder passing by intestate succession.
- The court held the pleaded facts of deterioration from failure to repair stated a claim for waste sufficient to survive demurrer.
- The court held forfeiture of the life estate was not available absent statutory authority, but equitable relief such as receivership and partition could be considered.

## Legal Principles

- A devise permitting a beneficiary to use property “as a home as long as she wishes,” especially when coupled with a direction to share sale proceeds with another, may indicate intent to create a life estate rather than a fee simple.
- A presumption against partial intestacy does not justify converting a life estate into a fee simple where the testamentary language more naturally limits the estate and the instrument does not dispose of the remainder.
- When a will fails to dispose of a remainder interest, that remainder passes by intestate succession to the decedent’s heirs.
- Allegations that a life tenant failed to make reasonable repairs causing material deterioration can state a claim for permissive waste.
- Forfeiture of a life estate for waste is not available without statutory authorization; courts may instead use equitable remedies such as receivership and may address competing interests through partition subject to the life estate.

## Conclusion

The court construed the will as granting Lorene only a life estate and held that the remainder passed to the heirs by intestacy; it further ruled that the plaintiff’s detailed allegations of deterioration stated a waste claim, while rejecting forfeiture as a remedy absent statutory authority and permitting equitable relief on remand.


Smith v. Smith, 219 Ark. 304, 241 S.W.2d 113 (Ark. 1951)