3. LAW OF DESCENTS—THE ARKANSAS STATUTE. SECTION 552. Children inherit, when. 553. Inheritance when there are no children nor their descendants, no father, no mother, no brother, or sister, or their descendants. 554. Construction of statutes-Kelly nonancestral property-De- 555. Posthumous children. 556. Illegitimate children inherit from the mother-Marriage will legitimatize, when. 557. Children where marriage is 558. An alien may inherit. nor their descendants, no SECTION 560. Per capita and per stirpes. 561. Ancestral and nonancestral property. 562. Where there is default of father and mother. 563. Half-bloods. 564. Where not provided by statute inheritance to go as at common law-Several inherit as descendants in common. 565. Conflict of laws. 566. Construction of certain terms of the statutes of descent. 567. Heir at law may be made by declaration in writing-Declaration must be recorded or same shall have no force. 568. Advancement by settlement of portion to child-How reckoned and effect of-When not equal to share of estateValue of such advancement, how ascertained-Maintenance, education, and the like not to be taken as advancement, when. Sec. 552. Children inherit, when. 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: To children, or their descendants, in equal parts.1 1 Section 2,522, Mansfield's Digest of Statutes of Arkansas; Sec. 1,820, Ind. Ter. Stat. (1899). Sec. 553. Inheritance when there are no children nor their descendants, no father, no mother, no brother or sister or their descendants. 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 manner following: 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.2 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.3 Sec. 554. Construction of statute-Kelly v. McGuire—Ancestral and nonancestral property-Descent per stirpes and per capita. The Supreme Court of Arkansas early in its history, in a very lengthy and able opinion, construed the foregoing and other kindred statutes of descent and distribution in this 2 Section 2,522, Mansfield's Digest of the Statutes of Arkansas; Sec. 1,820, Ind. Ter. Stat. (1899). 3 Section 2,522, Mansfield's Digest of the Statutes of Arkansas; Sec. 1,820, Ind. Ter. Stat. (1899). Where, under the Statute found in English's Digest, Chap. 97, Art. 1, and the Act of December 12, 1850, amendatory thereof, land was donated by the State to a minor, it was a new acquisition by him within the meaning of the statute of de scents (Mansfield's Digest, 2,522), although his father paid the fees necessary to obtain the deed, and on his dying intestate and without issue, it descended first to his father and then to his mother for life. In such case, no interest in the land can be devised by the father, and on his death the sister of the deceased cannot maintain ejectment for it without proving the death of the mother. Hogan v. Finley, 52 Ark. 55. State. The decision has since been followed by the later decisions of the case. We here quote from the decision: It is a general rule of construction, that a statute should be so considered as that every clause, sentence, or part, shall stand, if possible; and that general words or clauses may be restrained by particular words or clauses in the same statute; and when there are different provisions in the same statute expressed in different words, they ought to be so construed as to avoid inconsistency. It would be unsafe to construę a statute according to mere grammatical rules, or to rely on punctuation, as any material aid in ascertaining the true meaning. Neither bad grammar nor bad English will vitiate a statute. The true construction of our statute of descents and distributions is: (a) That, as to both real and personal property, it was the design of the Legislature, when there were descendants of the intestate, to send down both to them, per capita, if in equal degree, and per stirpes, if in unequal degree, without any regard to the fact as to how the estate was acquired. (b) That, as to personal estate, it was the design, where there were no descendants, that it should go to collaterals, in the same way it would have gone to descendants, if there had been any; that is to say, per capita, if in equal degree, and per stirpes, if in unequal degree, without inquiry as to how the property was acquired by the intestate. (c) That, as to real estate, it was the design of the Legislature, where there were no descendants, to point out the lines of the succession, and that this to depend on the fact whether the inheritance is ancestral or new; and, if ancestral, then whether it come from the paternal or maternal line. (d) If the inheritance was ancestral, and come from the father's side, then it will go to the line on the part of the father, from whence it came, not in postponement, but in exclusion of the mother's line; and so, on the other hand, if it come from the mother's side, then to the line on the part of the mother, from whence it came, to the exclusion of the fat her's line. (e) If the inheritance be not ancestral, but a new acquisition, then, after lawful estate reserved in succession to the father and mother, if alive, it will go in remainder, first, to the line of the intestate's paternal uncle and aunts, and their descendants, in postponement of the mother's line, until the former becomes extinct; and then to the line of the intestate's maternal uncles and aunts and their descendants; unless there should be kindred lineal or collateral, who, either in right of propinquity, or by right of representation, stand in a nearer relation to the intestate than the uncles and aunts: in which case, such nearer kindred would take the inheritance to the exclusion of both of these collateral lines; and, in their hands it would become an ancestral estate, and afterwards go into the blood of the relative from whence it came, in the ordinary course of descent, prescribed for ancestral inheritances. (f) That, when the inheritance is fixed by these facts, in any given line, it will pursue that line until it becomes extinct, and the objects of bounty, and the order in which they succeed one another, and the proportion they take, are to be ascertained by the first section, which is to be considered as the general rule of descent. The father, mother, brothers, sisters, and so on, mentioned in that section, are those who are to be considered when counting from any propositus, whether the propositus of a single line only or concurrent propositus of both lines, as the intestate is as to personal property. (g) In all cases where the inheritance is in any one line, it there goes in succession per capita, if in equal degree, and per stirpes, if in unequal degree, precisely as if the other line was extinct, and precisely as the inheritance of a bastard would take a course in his mother's line, he having no father's line at all. (h) The half-blood and their descendants, take personalty, as well as realty, equally with the whole blood, except that they are excluded from real estate, when ancestral, if they lack the blood to the transmitting ancestor.* This decision has become a rule of property. Indeed, it has been said that the foregoing decision, rendered after full argument and patient consideration, endeavored to shape into form and order our confused and incongruous law of descents and distributions. The rules educed from the provisions of the statute of descents and distributions of this State, and formulated in that case, met with the approbation of the profession, and the principles therein set forth have. since been followed until they have become rules of property-so much so, that the rules in what the Supreme Court afterwards has seen fit to designate as the Kelly case, have been oftener cited and are more familiar to the profession than the rule in Shelly's case. It must now be left to the Legislature to disturb them, if right and justice may ever seem to require it. Nothing in our judicature calls more emphatically for the application of the policy of the courts, stare decisis.5 4 Kelly v. McGuire, 15 Ark. 556. The facts in this case are, that, about the year, 1810, Charles Kelly migrated to what is now Arkansas: and, in 1815, married Mrs. Craig, a widow, who had two children by a former marriage, named Elizabeth and Emmeline. Charles Kelly, an enterprising, shrewd business man, aided by the prudence, skill and good management of his wife, accumulated in Arkansas, where he lived, a large estate, consisting of real and personal property. He died intestate in 1834, and, by the law in force, his real estate descended and his personal property was distributed to James Dewitt Clinton Kelly, who was the only surviving issue of the marriage with Mrs. Craig. She died in 1836, and the son above mentioned, called for brevity, Clinton Kelly, died intestate in Arkansas, the place of his domicile, in 1844, at the age of 17 years, without having married and without issue, leaving, as claimants for his property, his paternal grandfather, Greenberry Kelly, the descendants of Mary Eikelburner, his paternal aunt, and his two sisters of the half-blood, Elizabeth and Emmeline, the first of whom is the present Mrs. Marsh, and the second, Mrs. McGuire. The halfblood claimed the entire estate of Clinton Kelly, real and personal, as his next of kin, to the exclusion of all other descendants. 5 Oliver v. Vance, 31 Ark. 567. |