129 Ark. 7 | Ark. | 1917
(after stating the facts). The court below found that Dennie Carter sold all her interest in said lands to her mother, Emma Smith, and sister, Fannie Murphey, and that her interest was divested out of her estate and invested in them by the chancery decree rendered in 1902, in the suit of Emma Smith and Fannie Murphey, plaintiffs, v. H. B. Carter and Albert J. Carter, Jr., a minor, defendants. Judge Smith died intestate, and it is conceded that his two daughters inherited his whole estate subject to his widow’s right of dower, but it is contended that the chancery decree just referred to only invested Emma Smith and Fannie Murphey with an undivided one-third interest of Dennie Carter instead of investing them with an undivided one-half interest subject to the widow’s dower. We have not set out in full the chancery decree and findings of the chancellor recited therein in the suit referred to, but we have read and considered it carefully. When that decree is considered as a whole, it is evident that it was the intention of the court to invest the plaintiffs with the whole interest of Dennie Carter in her father’s estate and that the recital that Mrs. Smith was entitled to a one-third interest in fee in the estate was a mere inadvertence. The decree recites that Dennie Carter sold her whole interest in her father’s estate to her mother and sister, and that she received a fair price therefor. It is formally decree^ that all her interest in said estate be invested in her mother and sister. So we take it as settled by that de-. cree that the undivided one-half interest of Dennie Carter in her father’s estate was conveyed to her mother and sister subject to her mother’s right of dower as widow.
As it appears from the statement of facts, Dennie Carter died in 1895, leaving surviving her her husband and her son, Albert J. Carter, Jr., the defendant in this action. Fannie Murphey died on October 18, 1903, and left surviving her her husband and a child just born, which died twelve days after the death of its mother. The husband of Fannie Murphey had an estate by the curtesy in her land. Mrs. Emma Smith, grandmother of the infant child of Fannie Murphey, claimed to be its heir and by virtue of this claim executed a warranty deed to the husband of Fannie Murphey on January 11,1904, and he afterwards conveyed the lands to the plaintiffs herein,
On the other hand, it is denied by the defendant that Mrs. Emma Smith was the sole heir of the infant child of Fannie Murphey, and it is contended by him that he is joint heir with her, and is therefore entitled to one-half of the estate which descended from Fannie Murphey to her infant child.
In the case of Kelly v. McGuire, Charles Kelly married a widow who had two daughters by a former marriage,. He accumulated a large estate in Arkansas, where he died intestate in 1834, and by our statutes of descents his real estate descended to his son, Clinton Kelly. In 1836 his widow died, and in 1844 his son, Clinton Kelly, died at the age of seventeen years without having married and without issue, leaving as claimants to his property his paternal grandfather, descendants of his paternal aunt and his two sisters of the half blood. The estate having come from his father only, his paternal kindred were called to the inheritance. Clinton Kelly left no children or other descendants. Hence it was held that his grandfather and the descendants of his paternal aunt, being of the blood of his father, inherited from him. This holding resulted from- the construction placed upon what is now section 2636 of Kirby’s Digest. The same construction was adopted' in the case of West v. Williams, 15 Ark. 683. In that case the court -said that whether an ancestral estate came to the intestate by gift, devise or by descent, upon the failure of issue, it can be inherited by such of his heirs only as are of the blood of the last purchasing ancestor, in the line of the blood from whence it came, either maternal or paternal, as the case may be. There the intestate acquired the estate by devise from his grandmother. It was held that he was in by purchase and thereby became himself a stock of descent as to all those who might inherit from those who inherited from him, it being the rule of the American law, as to such, future descents of ancestral estates, to stop at the last purchaser, and ascend no higher for blood. In that case, the grandmother from whom the estate came was considered the last purchaser and the intestate was considered the stock of descent. The opinion in this case was written by Mr.' Justice Scott, who, it is well to remember in connection with Judge Hemp-stead, the writer, was responsible for the opinion in Kelly v. McGuire, which was rendered at the same term of the court. It is contended, however, that this is contrary to the later case of Campbell v. Ware, 27 Ark. 65. In that case Nicholas Brewer inherited the lands from his father. He died intestate and without issue. His mother, his grandfather and his father’s two sisters sur-' vived him. His grandfather soon thereafter died, leaving two daughters surviving him. Mrs. Brewer, the mother, subsequently married Campell. The two daughters of the intestate’s father died, leaving surviving them James N. Ware as their sole heir. There was a contest for the inheritance between Mrs. Campbell, the mother of the intestate and Ware. The court decreed that Mrs. Campbell be allotted one-third of the lands as her dower right and the remainder to James N. Ware. The decree was right. Mrs. Campbell was entitled to her dower as widow of H. H. Brewer. Ware was entitled to the remainder as heir of Nicholas Brewer, Jr. The court said that Nicholas Brewer, Jr., held the lands as an ancestral estate from his father, and that on His death the estate ascended to his grandfather, Nicholas Brewer, Sr. This was an inadvertence. The court should have said that it descended to the grandfather and the aunts and their descendants in equal parts, and this would have been in accordance with the case of Kelly v. McGuire, supra, and our other decisions bearing upon the question. The language of the court made no difference in the correctness of the decision, for Ware inherited from his grandfather, and there was no conflict between the interests of the grandfather and the paternal aunts and their descendants as in the present case. .This construction is clearly borne out by the case of Oliver v. Vance, 34 Ark. 564. There'John M. Jones died and left a part of his property to Van B. Jones, the son of a deceased brother. Yan E. Jones, died a minor and intestate, . leaving surviving him his mother and four brothers. The sister of John M. Jones claimed the property as his heir and brought suit against the mother, administrator, and brothers of Yan E. Jones. The court held that she had no right to any of it and based its decision upon the ease of Kelly v. McGuire, supra. The court said:
“As to the real estate, it came from a relative in blood of Yan E. ’s father, and must be considered as ancestral. The court in holding this, in Kelly’s case, did not mean that in such cases the donor or devisor became himself the propositus from which the descent was to be traced. The person last entitled to possession, or last invested with the vested remainder, remains the propositus, whose nearest heirs are to be traced. They must, however, be of the blood of the person from whom the benefit came, that is to say, the line of descent must be traced on that line, leaving off the side which bore no relation to the donor. In the case in judgment, we drop the mother altogether, since the land did not come through her, nor any of her blood. We take the father’s line, because we find the lands came from a relative of the blood of the father. But we retain the deceased Yan E. as the propositus, and seek his heirs on that side, and not the heirs of the original donor. In other words, an estate given by a paternal uncle is ancestral, as if it descended from the father, because it comes, of bounty, from of the father’s blood; and the same rule would apply on the mother’s side.
“Any construction of the law, which, on failure of descendants of a donee, would make the donor the propositus, would, in effect, enable one by gift or devise of land to a kinsman to reserve a reversion to his heirs after an estate of inheritance given to another. This would contravene the policy of ¡our laws.
“After the death of Van E. Jones, his real estate descended to his brothers to the exclusion of his mother. His brothers were his nearest heirs on that side, and they took, not only real estate in possession, but also vested interests in remainder. ’ ’
It follows that Albert J. Carter, Jr., is entitled to one-half of the three-fourths interest, which amounts to three-eighths.
Therefore the chancellor erred in holding that he had no interest in the lands; and the decree will be reversed and the canse remanded with directions for further proceedings in accordance with this opinion.
