149 Ark. 527 | Ark. | 1921
(after stating the facts). The chancellor found that Bose Epperson was the legitimate daughter of. Mack Harmon, deceased, and that she and John Harmon, her older half-brother, were the sole heirs at law of said Mack Harmon, deceased.
We. are of the opinion that the evidence sustained the finding of the chancellor. According to the testi-money of Miranda Harmon, Bose Harmon was horn after her marriage to Mack Harmon in South Carolina. The witness did not remember the date of her marriage to Maek Harmon, nor the date on which Bose was born. She remembered distinctly, however, that Bose was born after their marriage in South Carolina, and was four or five years of age when they came to Grant County, Arkansas. They rented land when they first came to Arkansas, and the white people from whom they rented land and others who knew them said that Mack Harmon always spoke of Bose as his own daughter. The family physician who knew them for twenty-three years said that Mack always spoke of Bose as his own daughter. The evidence of these witnesses tends to corroborate the testimony of Miranda Harmon. The testimony shows more than occasional conduct and declarations by Mack Harmon that he was the father of Bose. He spoke of and treated Bose as his daughter during the whole period of his residence in Arkansas. He devised to her daughter a part of his land after he had become estranged from Bose on account of the divorce from her mother. The whole course of his conduct shows- that he reconized Bose as bis daughter. The witnesses all said that Mack Harmon came to Arkansas in 1884 or 1885, and that Rose appeared to be five or six years of age at that time.
It is true that Joe Stoudamire and others testified that Miranda Harmon had admitted to them that Hillard Roseboro was the father of Rose, but we do not think their testimony is sufficient to overcome the testimony favoring the legitimacy of Rose. Joe Stoudamire testified that he knew Mack and Miranda Harmon and that they married in South Carolina in 1883. He said that Rose was six or seven years old when they married and that he came to Arkansas in 1888, leaving the Harmons still in South Carolina. His testimony is contradicted by all the witnesses for the appellees. They testified that Mack Harmon and his family came to Arkansas in 1884 or 1885, and that Rose then appeared to be only five or six years old. George Stoudamire, the brother of Joe, testified that Joe did not know the Harmons in South Carolina. The testimony is too long to be. set out in its entirety, but a careful consideration of it leads us, as above stated, to the conclusion that the chancellor was right in finding that Rose Epperson was the daughter of Mack Harmon and was born after his marriage to Miranda.
The will of Mack Harmon is copied in the transcript. The name of Rose Epperson is not contained in it, and no reference whatever is made to her. Under section 10507 of Crawford & Moses’ Digest, if a testator omits the name of a child from his will, he will be deemed to have died intestate as to the child omitted and such child shall be entitled to recover the same portion of her father’s estate as would have descended or been distributed to such child if the father had died intestate.
It follows then that because Rose Epperson was not named in her father’s will he died intestate as to her. The record is not very clear as to whether John Harmon was the son of Mack Harmon, but that does not make any difference. Rose Epperson conveyed a half interest in the land to him, and, as we have already seen, the chancellor was right in holding her to he the legitimate child .of Mack Harmon. She and John Harmon, then, were the only heirs at law of Mack Harmon, deceased, and inherited his property subject to the widow’s right of dower. Mack Harmon died in 1911, and his widow, Prances, then went on the land and resided there until her death in August, 1919. It is claimed that she thus acquired title to the land by adverse possession, and that appellants inherited the land from her. The widow did not acquire any title to the land by adverse possession. Under our statute it was the duty of the heirs to lay off and assign dower to the window. . Crawford & Moses’ Digest, § 3544.
Appellees permitted the widow to reside on the land from the date of her husband’s death until her death. It was their duty to assign dower to the widow, and the widow’s occupancy pending the assignment of dower was not an adverse holding. Brinkley v. Taylor, 111 Ark. 305. Therefore the statute of limitations did not begin to run in favor of appellants until after the death of their mother who was the widow of Mack Harmon, deceased.
It -follows that the decree must be affirmed.
