JOHNSON et al, v. PHILLIPS et al. (Supreme Court of Arkansas. Jan. 13, 1908.)
Descent And Distribution—Persons Entitled—Brothers And Sisters.
Kirby's Die. § 2647, provides that relations of the half blood shall inherit equally with those of the whole blood, but forbids the inheritance going to a line not of the blood of the devisor or ancestor. The child of an ancestor's deceased daughter, being the only descendant of the blood of the ancestor, died seized of certain property which she inherited from the ancestor's estate. The ancestor's widow married again, and had two children by such second marriage. Held, in an action by the ancestor's brother and sisters against such children to quiet title to the property, that it ascended to plaintiffs, the nearest of kin in the line from whence the property was derived, and not to defendants, which would be putting the inheritance in a line of alien blood. [Ed. Note.—For cases in point, see Cent. Dig. vol. 16, Descent and Distribution, §§ 93-107.]
Appeal from Craighead Chancery Court; Geo. T. Humphries, Chancellor.
Action by W. R. Phillips and others against O. O. Johnson, administrator, and others, to quiet title to certain land. From a judgment for plaintiffs, defendants appeal. Affirmed.
F. G. Taylor, for appellants. Mathes & Westbrooke and Lamb & Caraway, for appellees.
HILL, C. J. - J. A. Phillips died Intestate in 1884 In possession of the land in controversy. He left surviving him his widow, MaMnda J., and three children. His widow married Houston, and of that marriage were born two children. Houston died, and she married Edwards and died while this suit was pending. Two of the Phillips children died in Infancy; Elizabeth Phillips alone surviving. She married Nelson, and one child, Elizabeth, was born of that union. Both she and her husband died, leaving this child, their heir, and subsequently the child died. This is a suit brought by the brother and sister and heirs of another sister of Phillips against Mrs. Edwards and the Houston children to establish and quiet their title and principally involves the inheritance of said land. Mrs. Edwards bought an alleged outstanding title to a part of the land, and also claimed that she had paid a part of the purchase money after J. A. Phillips' death. The evidence, however, does not sustain either of these contentions, and the chancellor was right In holding that J. A.. Phillips paid for the land and owned the land at the time of his death. This leaves but the question of inheritance for determination.
Appellants contend that the Houston children were the nearest of kin to Elizabeth Nelson, the child, and that they Inherited from said child when she died. They rely upon section 2647 of Kirby's Digest, to the effect that relations of the half blood shall Inherit equally with those of the whole blood in the same degree. They seek to avoid the limitation of said statute, which forbids the Inheritance going to a line not of the blood of the devisor or ancestor, by contending that the ancestor, in contemplation of this provision, was Elizabeth Nelson, nee Phillips, the mother of the child, and she was the half-sister of the Houston children. In other words, the argument here is that the law will not look beyond the Immediate ancestor to determine the Inheritable blood. Some authority is cited to support this, and, without deciding whether or not It is applicable. It is sufficient to say that the court is concluded by the rule announced in Kelly's Heirs v. McGuire, 15 Ark. 555, wherein It was said: "It is clear that the meaning and Intention of this section was to prohibit the half blood, and their descendants alike, from sharing In the Inheritance of an estate which might come to the intestate by descent, devise, or gift from an ancestor; in all cases, where they were not of the blood of such ancestor. The reason for excluding the half blood Is just as strong as for excluding their descendants, and it is impossible to conceive any well-founded distinction between the two. And whatever opinion we might entertain as to the hardships of such a rule In any given case, or as to the impolicy of establishing lines of blood at all in a new country, where almost every man is the architect of his own fortune and the stock of descent, yet the Legislature has spoken Its will. The language is too plain to be doubted, and addresses a prohibition to the courts not to be disregarded or evaded." In Oliver v. Vance, 34 Ark. 564, the court said: "As to the real estate. It came from a relative In Mood of Van R.'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 them 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."
The application of these principles makes dear the proper decision here. This property was inherited by Mrs. Nelson—one-third from her father, and the other two-thirds from her infant brother and sister. It was In turn inherited by her child from her, and when her child died then the Inheritance ascended to the nearest of kin In the line from whence the property was derived, and the nearest of kin of the blood of Phillips were the plaintiffs In the court below, appellees here. To hold otherwise would be to cast the Inheritance of property to the half-sister of Mrs. Nelson which she inherited from the side of her family not related to them. This would be putting the inheritance in a line of alien blood, and that is not what is contemplated by this statute, judgment Is affirmed.
Source: The Southwestern Reporter, Volume 107, containing all the current decisions of the Supreme and Appellate Courts of Arkansas, Kentucky, Missouri, Tennessee, and Texas, February 26 - March 25, 1908; published by West Publishing Company, St. Paul, 1908; Pgs. 170- 171
