Eubanks v. McDonald , 225 Ark. 470 ( 1955 )

George Rose Smith, J.

This is a suit brought by the appellee to quiet her title to a small tract of land in Washington County. The case turns upon the construction of this language in the will of W. G. Taylor, who is the parties’ common source of title: “I will and bequeath to my beloved wife, Ida Taylor, all the rest and residue of my estate, both real and personal, to have and enjoy during her lifetime, and at her death I will and bequeath that all my property go to and become the absolute property of my adopted daughter, Dorothy Taylor, now Dorothy Wilson, of Fort Smith, Arkansas, and the children of her body born, to have and enjoy forever.”

At Taylor’s death in 1934 Dorothy Wilson, who later became Dorothy Eubanks, was the mother of three children. The testator’s widow, Ida Taylor, died some years after her husband’s death, and thereafter Mrs. Eubanks and her three children conveyed their interest in the property to the appellee. In 1949 there was born to Mrs. Eubanks a fourth child, the appellant in this case.

The trial court construed Taylor’s will as being in substance a devise to Ida Taylor for life with remainder to Dorothy Eubanks and her bodily heirs. Upon this premise the chancellor held that Mrs. Eubanks, who is still living, received only a life estate under Taylor’s will and that the appellant is a remainderman having an undivided future interest in the land. On direct appeal it is argued that Taylor’s devise was simply to Dorothy Eubanks and her children and that the appellant holds a present possessory interest as a tenant in common with the appellee. On cross-appeal the appellee contends that the appellant has no estate whatever in the property.

The first step is to determine the meaning of the devise to Dorothy Eubanks ‘ ‘ and the children of her body horn.” We agree with the chancellor’s view that this question is controlled by the decision in Dempsey v. Davis, 98 Ark. 570, 136 S. W. 975, where the conveyance was to the grantors’ daughter “and her children, the natural offspring of her body.” It was held that the quoted words are synonymous with ‘ ‘ bodily heirs. ’ ’ The phrases used in the two cases are so similar in fundamental meaning that to draw a somewhat artificial distinction between the two would only create needless uncertainty for the future.

Thus we have what amounts to a devise to Ida Taylor for life and at her death to Dorothy Eubanks and her bodily heirs. It is settled by five decisions of this court that the effect of this language was to vest the fee simple in Dorothy Eubanks upon the death of Ida Taylor. Bell v. Gentry, 141 Ark. 484, 218 S. W. 194; Pletner v. Southern Lbr. Co., 173 Ark. 277, 292 S. W. 370; Bowlin v. Vinsant, 186 Ark. 740, 55 S. W. 2d 927; Adams v. Eagle, 194 Ark. 171, 106 S. W. 2d 192; Cox v. Danehower, 211 Ark. 696, 202 S. W. 2d 200. By the doctrine of these cases the appellant has no interest in the land now in dispute, since his mother received the fee and later conveyed it to the appellee.

The chancellor recognized the force of the precedents cited; bnt, aware that the case was to be appealed in any event, he explained in detail his reasons for thinking that the earlier decisions should be overruled. Other learned writers have also questioned the technical soundness of the established rule: Sadler, The Construction of the Arkansas Fee-Tail Statute, 4 Ark. L. S. Bull. 29; Meriwether, A Survey of Recent Arkansas Real Property Cases, 3 Ark. L. Rev. 62, 66; Core, Transmissibility of Certain Contingent Future Interests, 5 Ark. L. Rev. 111, 122.

We shall not restate the various persuasive arguments for and against the rule adopted in Bell v. Gentry, for the doctrine of that case and those that have followed it has become a rule of property. To repudiate the rule by judicial decision would have the effect of invalidating titles that were acquired in reliance upon the rule in question. If a change in the law is really desirable it should be brought about by legislation, which operates with prospective effect only and does not upset titles already vested.

Affirmed on direct appeal, reversed on cross-appeal.

Mr. Justice Ward dissents.