Graves v. Burns, 4-4676.

• Decision Date: 07 June 1937
• Docket Number: No. 4-4676.,4-4676.
• Citation: 106 S.W.2d 602
• Parties: GRAVES v. BURNS et al.
• Court: Arkansas Supreme Court

106 S.W.2d 602

GRAVES v. BURNS et al.

No. 4-4676.

Supreme Court of Arkansas.

June 7, 1937.

Rehearing Denied July 12, 1937.

Appeal from Clay Chancery Court, Western District; J. F. Gautney, Chancellor.

Action by Lucy Burns and others against Martha Graves, wherein Frank Hays and others intervened. From a judgment for the plaintiffs, defendant appeals.

Affirmed.

F. G. Taylor, of Corning, and Beloit Taylor, of Little Rock, for appellant.

C. T. Bloodworth, of Poplar Bluff, Mo., and E. L. Hollaway, of Corning, for appellees.

MEHAFFY, Justice.

Richard H. Hays on April 21, 1935, died intestate in Clay county, Ark., leaving lands and personal property in said county. He left surviving him no widow or children or their descendants, or no father or mother. His nearest living relative is the appellant, Martha Graves, his sister. The appellees are the children of deceased's brothers and sisters.

This action was instituted in the Clay chancery court by the appellees for partition of the lands belonging to Richard H. Hays. The complaint alleged that the appellant, Martha Hays, as the sister of Richard H. Hays, deceased, is the owner of and entitled to an undivided one-third interest in and to the real estate described: that the appellees Lucy Burns, Anna Jackson, and Jewel Hays are the children of James Hays, deceased, brother of the said Richard H. Hays, and are the owners of an undivided one-third interest; that the appellees Albert L. Curry and Bennett R. Curry are the sole and only heirs of Rachel Hays Curry, deceased, sister of the said Richard H. Hays, deceased, and are the owners of and entitled to an undivided one-third interest in said lands. The complaint states that there are no debts due against the estate of said Richard H. Hays; that said estate was at all times solvent; that said lands cannot be divided equally or equitably in kind; and that it would be to the interest of all the heirs that the said lands be partitioned by sale of the same as a whole, and the funds divided among the heirs of Richard H. Hays, deceased. The complaint also states that Ewell Vandover has possession of the property, and asked that he be compelled to account for the income received from said real estate, and that he be required to pay into court all sums collected.

The appellant filed a demurrer to the complaint, which was overruled, and she then filed answer admitting that she was a sister of Richard H. Hays, and admitting that said Hays at the time of his death was the owner and in possession of the lands described in the complaint. She denied that appellees were the owners of any interest in said lands and alleged that she was the sole heir of Richard H. Hays, deceased.

Frank Hays, Mrs. Minnie Hays Willis, and Mary Taylor and Ed Wagner filed intervention. The court, in its decree, however, reserved the question of the rights of the interveners for further hearing upon application for distribution, and it is therefore unnecessary to set out the intervention.

The court found that the appellant was entitled to an undivided one-third interest in the lands, and that the children of the deceased brothers and sisters of Richard H. Hays were entitled to the other interests. The case is here on appeal.

The evidence shows that appellees Lucy Burns, Anna Jackson, and Jewel Hays were the only children of James Hays, deceased, who was a brother of Richard H. Hays and of Martha Hays; that said James Hays died long before the said Richard H. Hays; that the appellees Albert L. Curry and Bennett R. Curry were the only children of Rachel Curry, deceased, who was a sister of the said Richard H. Hays and the appellant, Martha Graves; and that said Rachel Curry died long before the said Richard H. Hays.

It is the contention of the appellant that the appellees cannot recover or inherit because of Act No. 52 of the Acts of 1933 (pages 143-145, §§ 1-4), which amends section 3471, 3480, 3481, and 3483, of Crawford & Moses' Digest. Section 3471 reads:

"When any person shall die, having title to any real estate of inheritance, or personal estate, not disposed of, nor otherwise limited by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed, in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow's dower in the following manner:

"First. To children, or their descendants, in equal parts.

"Second. If there be no children, then to the father, then to the mother; if no mother, then to the brothers and sisters, or their descendants, in equal parts.

"Third. If there be no children, nor their descendants, father, mother, brothers, or sisters, nor their descendants, then to the grandfather, grandmother, uncles and aunts and their descendants in equal parts, and so on in other cases, without end, passing to the nearest lineal ancestor, and their children and their descendants, in equal parts."

Section 1 of Act No. 52 of the Acts of 1933 (page 143) amends section 3471 of Crawford & Moses' Digest, and the section of Act No. 52 amending said section of the digest reads as follows:

"Section 1. That Section 3471 of Crawford and Moses' Digest of the Statutes of Arkansas be and the same is hereby amended to read as follows:

"Section 3471. When any person shall die, having title to any real estate of inheritance, or personal estate, not disposed of, nor otherwise limited by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed, in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow's dower in the following manner:

"First: To children, or their descendants, in equal parts.

"Second: If there be no children, then to the father or mother in equal parts, or, if one parent be dead, then the whole to the surviving parent; if no father or mother, then to the brothers and sisters, in equal parts.

"Third: If there be no children, nor their descendants, father, mother, brothers, or sisters, nor their descendants, then to the grandfather, grandmother, uncles and aunts and their descendants in equal parts, and so on in other cases, without end, passing to the nearest lineal ancestor, and their children and their descendants, in equal parts."

It will be observed that paragraph 2 of section 3471 has the clause, "if no mother, then to the brothers and sisters, or their descendants, in equal parts." The second paragraph of section 1 of Act No. 52 leaves out the words "or their descendants." For this reason, it is contended by the appellant that the descendants of brothers and sisters cannot inherit if there are any brothers or sisters living.

The appellant cites and relies on Lawyer v. Carpenter, 80 Ark....