Davis v. Davis

243 S.W.2d 739, 219 Ark. 623, 1951 Ark. LEXIS 576

• Court: Supreme Court of Arkansas
• Decided: December 3, 1951
• Docket: 4-9610
• Status: Published

Opinions

George Rose Smith, J.

This is a suit by the widow and the adopted son of Homer Davis, Sr., to establish their interest in certain land in Johnson County. The chancellor dismissed the complaint for want of equity.

All the facts are stipulated. Both the appellants and the appellees trace their claims of title back to R. S. Davis, who was the father of Homer Davis, Sr. In 1922 R. S. Davis divided this and other land among his seven children by conveying it to them for their lives and then to their bodily heirs. The effect of this deed is to convey a separate tract to each child, and the land now in controversy is that so conveyed to Homer Davis, Sr., for life and then to the heirs of his body. R. S. Davis died intestate in 1934. His son, Homer Davis, Sr., had no children of his own, but in 1942 he adopted Homer Davis, Jr., the principal appellant. After Homer, Sr., died intestate in 1947, his widow and adopted son brought this suit. The defendants are the living brothers and sisters of Homer Davis, Sr., and the bodily heirs of those who are dead.

Homer, Jr., first contends that our present adoption statute, Ark. Stats. 1947, Title 56, and the statutes which preceded it, had the effect of making an adopted child a bodily heir of his adoptive parents. We are unable to accept this view. It is true that § 56-109 provides in substance that an adopted child shall have the same rights of inheritance as a natural child. But on this phase of the case the question is not one of inheritance. Instead, it is whether Homer, Jr., by reason of his adoption, became a grantee in the deed to Homer, Sr., and the heirs of his body. In other words, when R. S. Davis chose the phrase “heirs of the body,” did he intend to include adopted children? We think it plain that he did not. Terms such as bodily heirs, issue, etc., have long been defined in the law, and the definition does not include adopted children. Rest., Property, § 265. A foster child, being a stranger to the blood, is the antithesis of an heir of the body. Regardless of the effect of the adoption laws upon the right of an adopted child to inherit from Ms foster parents, these laws were not intended to modify the established meaning of terms used in deeds executed by third persons.

In the alternative Homer, Jr., contends that he inherited an undivided one-seventh interest in the property upon the death of Homer, Sr. In this contention he is correct. A reversionary interest remained in R. S. Davis when he conveyed this land to Homer Davis, Sr., for life and then to his bodily heirs. Dempsey v. Davis, 98 Ark. 570, 136 S. W. 975; Rest., Property, § 154; Simes, Future Interests, § 44. It is appropriate to point out that in LeSieur v. Spikes, 117 Ark. 366, 175 S. W. 413, we inadvertently remarked that such an interest is a possibility of reverter (instead of a reversion) and that it is not disposable.

Such a reversionary interest may pass by inheritance. Simes, supra, % 723; Core, ‘ ‘ Transmissibility of Certain Contingent Future Interests,” 5 Ark. L. Rev. Ill, 121. Hence upon the death of R. S. Davis the reversion descended to his seven children, and in like manner upon the death of Homer, Sr., his one-seventh interest passed to Homer, Jr., who inherited from his adoptive father by reason of the adoption statute. Since the reversion became a fee simple estate upon the death of Homer, Sr., without bodily heirs the chancellor erred in failing to grant the alternative relief prayed by Homer, Jr.

The other appellant, the widow of Homer, Sr., seeks dower in this one-seventh interest in the land. This claim must be denied for the reason that the reversion was not a possessory estate during the life of Homer, Sr. Even the holder of a vested reversion or remainder is not seized of an estate in possession, and consequently his widow is not entitled to dower if his death occurs before the termination of the preceding life estate. McGuire v. Cook, 98 Ark. 118, 135 S. W. 840; Field v. Tyner, 163 Ark. 373, 261 S. W. 35. Here the. reversionary interest of Homer Davis, Sr., could not have become a possessory estate until his own death without heirs of his body; so it was impossible for him to acquire seizin during his lifetime.

Reversed and remanded for the entry of a decree in accordance with this opinion.