Wheelock v. Simons , 75 Ark. 19 ( 1905 )

Hill, C. J.,

(after stating the facts.) “The term ‘heirs of the body’ has an appropriate technical me'aning as words of limitation to designate heirs in succession, and it is always to be construed in that sense unless the context shows it was intended ás a description of particular p.ersons.” Myar v. Snow, 49 Ark. 125.

At the.time of the execution of the will Ida Belle Wheelock was unmarried, and the testator had affection for her, and treated her as a daughter, although she was not either in blood or in law. The controlling object of his bounty was this child, and ‘the property was for her, and in the event that she had descendants then to them, but in the event that she died without any of her children or their descendants living at her death then, instead of going to her collateral or ancestral heirs, who were alien to him, it was to revert to the estate of the testator. The technical construction of the term herein effectuates the plain intent of the testator.

This court has thoroughly settled the construction to be placed on clauses in wills and deeds like the one in question. This clause would have created an estate tail at common law, and the fee would have vested in Ida Belle Wheelock, and passed to the heirs of her body in succession; but fee tails are abolished in this State, and by statute a common-law fee tail is turned into a life estate in the first taker, and passes in fee simple to the person to whom the estate would first pass from that person according to the course of the common law. Kirby’s Digest, § 735. Under this rule Mrs. Simons took a life estate in the property in controversy, and at her death the fee passed to her two children, Vivian and Harry. Horsley v. Hilburn, 44 Ark. 458; Myar v. Snow, 49 Ark. 125; Hardage v. Stroope, 58 Ark. 303; Wilmans v. Robinson, 67 Ark. 517; Black v. Webb, 72 Ark. 336, 80 S. W. Rep. 367.

2. The court erred, however, in giving judgment in favor of Simons 'for an undivided half interest acquired as heir of his son Harry. If the estate in Harry was ancestral from his mother, no part of it would ascend to the father. If it was a new acquisition, then only a life estate goes to the father with remainder to the next of kin, the sister Vivian. Kelly’s Heirs v. McGuire, 15 Ark. 556. The estate was derived through the will of J. M. Wheelock, and passed by operation of law as a fee simple after the mother’s life estate. The will created the estates both in the mother and ’these children — in them as a class to inherit from her — arid they took as purchasers under the will, and not by inheritance from the mother. The will was from a stranger to the blood. It was therefore a new acquisition. Coolidge v. Burke, 69 Ark. 237; Galloway v. Robinson, 19 Ark. 396; West v. Williams, 15 Ark. 682; Kelly's Heirs v. McGuire, 15 Ark. 556.

As title to real estate is involved, instead of modifying the judgment here, the judgment is reversed and the cause remanded' with directions to modify the judgment in the circuit court, so as to adjudge the title to be in Vivian Simons subject to a life estate in one-half thereof in favor of her father. As the appellant gains nothing by the appeal, and the only error is as to the respective interests of the appellees, the costs are adjudged against appellant.