Locke v. Cook, 5--4745
| Decision Date | 09 December 1968 |
| Docket Number | No. 5--4745,5--4745 |
| Parties | Jeannette J. LOCKE, Appellant, v. C. N. COOK and Matthew B. Cook, Appellees. |
| Court | Arkansas Supreme Court |
Shaver, Tackett & Jones, by Damon Young, Texarkana, for appellant.
John C. Finley, Jr., Ashdown, for appellees.
This appeal involves an order determining heirship of Nelle McCrary Reynolds, insofar as the parties to this proceeding are concerned. Appellees C. H. (Chalmer Nathan McCrary) Cook and Matthew A. (Matthew Alexander Locke) Cook are brothers. They instituted the proceeding claiming to be entitled to share in the estate of Mrs. Reynolds as second cousins on her paternal side, with the additional circumstance that their father and Mrs. Reynolds' father had been double first cousins. We will refer to them as 'McCrary heirs.' While it was indicated in the court below that there might be others standing in the same (or nearer) degree of kinship with the decedent as appellees in the McCrary line, this question has been reserved by the probate court. The petition was resisted by Jeannette Joyner Locke, the only surviving first cousin of Mrs. Reynolds. It also developed during the hearing that there were descendants of two brothers of Mrs. Locke who would be entitled to share with her, per stirpes, in any inheritance on the maternal side. We shall refer to these heirs, collectively, as the 'Joyner heirs.'
It was stipulated that the property involved was a new acquisition by Mrs. Reynolds, at least insofar as the parties involved are concerned. For the purposes of this proceeding, we may consider that Mrs. Reynolds died intestate.
The probate court held that both the 'McCrary heirs' and the 'Joyner heirs' were entitled to one-half of the estate. Although the probate judge considered this difficult question of first impression at length and reviewed the authorities exhaustively in an excellent memorandum opinion, he recognized that the matter was unsettled in Arkansas and actually encouraged this appeal in an order subsequent to that from which the appeal was taken. With all due respect, we reach a conclusion different from that of the trial court.
The solution of the problem depends upon the interpretation to be given our statutes of descent and distribution, particularly Ark.Stat.Ann. §§ 61--101 and 61--111 (1947). For a better understanding of the result we reach, these sections are reproduced as follows:
'61--101. General law of descent.--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 and 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 (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 ancestee (ancestor), and their children and their descendants, in equal parts.'
Mrs. Reynolds left no descendants. Her mother, father and all grandparents predeceased her. All her brothers and sisters died when very young, leaving no issue. She left no uncles or aunts surviving her. She was the daughter of Jessie Joyner and Nathan C. McCrary.
Jessie Joyner, Mrs. Reynolds' mother, was the daughter of William and Martha Joyner, and the sister of Henry Joyner. Henry Joyner was the father of appellant. He also had five sons, none of whom were living at the time of Mrs. Reynolds' death, although two of the deceased sons each left a child surviving them.
Nathan Chalmer McCrary, the father of the decedent, was the son of Martha Ann Isabella Cook, who married Matthew P. McCrary. Matthew McCrary's sister, Fannie married Nathan Judson Cook the brother of Martha Ann Isabella. Martha and Nathan were the only children of Thomas Barnes Sims Cook who lived beyond childhood. Nathan Judson Cook and Fannie McCrary had one son, Thomas Brice Sims Cook, who was the father of appellees and the double first cousin of Mrs. Reynolds' father.
We will first dispose of a contention on the part of appellees that presents little problem. They contend that their relationship as double cousins to the decedent makes them related to her in the same degree as Mrs. Locke, contrary to the finding of the probate judge. Arkansas follows the canon or common law rule in determining degree of relationship. Meek, Descent & Distribution, Arkansas Bar Association Desk Manual, II(6), p. 13; Kelly v. Neely, 12 Ark. 657. William Joyner was the common ancestor of decedent and appellant. Thus, appellant was related to Mrs. Reynolds in the second degree. The common ancestor of Mrs. Reynolds and appellees was Thomas Barnes Sims Cook, which would make their relationship in the third degree. Appellees have cited no authority to support their argument and we know of none. On the other hand, appellant has cited Franklin v. Hastings, 253 Ill. 46, 97 N.E. 265. We think that the holding of the Illinois court is correct. Of course, the degree of relationship of appellees to the decedent would be determined by the nearest common ancestor.
We agree with the probate judge that § 61--111 provides the guideline for determination of the issues here as to real estate, but do not agree with his construction of the pertinent portions of that provision. It is to be noted that the general scheme of the Arkansas statutes of descent and distribution is establishment of certain 'levels' of inheritance. As to new acquisition real property, they are, generally:
1. children or their descendants.
2. parents.
3. brothers and sisters and their descendants, and
4. uncles and aunts.
In arriving at these 'levels' it is necessary to be aware that § 61--111 defines the manner of descent of real estate where subsection 3 (third) of § 61--101 applies. Todd v. Thedford, 221 Ark. 436, 253 S.W.2d 961.
The critical point in this case, however, is not the degree of relationship of the adverse claimants, but the construction and application of the meaning of the proviso in § 61--111, i.e., 'that if such line of either the father or the mother shall be extinct, then the entire estate shall go to such line of the other.' The trial judge held that the father's line was not extinct, apparently because of the survival of appellees. This is the point on which we disagree with the trial court. We hold that the line on the paternal side became extinct when there were no brothers and sisters (or their descendants) of Nathan Chalmer McCrary, the father of Nelle...
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