Sides v. Beene

Alvalu SIDES v. Linda BEENE, Margie Melhorne,
Trecora Hagy, Jim Hagy, Mollie Hagy, Melody
Hagy, Beth Welshans, Bradley Welshans,
Catherine Welshans
 Cantor, Cindy Welshans, Vanessa Welshans, &
Wilson Welshans

96-1020                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 24, 1997


1.   Deeds -- interpretation of -- primary intent given to intent
     of grantor. -- In interpreting a deed, the supreme court gives
     primary consideration to the intent of the grantor; the intent
     of the grantor is gathered solely from the language of the
     deed unless the language of the instrument is ambiguous,
     uncertain, or doubtful. 

2.   Deeds -- fee tail at common law discussed -- adopted persons
     traditionally excluded from class of "bodily heirs" in
     construing fee tail. -- At common law, a deed that granted
     real property and utilized granting language such as "to A and
     her bodily heirs" or similar language created a fee tail so
     that such a conveyance created a life estate in A, then
     subsequent life estates in the surviving lineal descendants of
     A; traditionally, the supreme court has excluded adopted
     individuals from the class of "bodily heirs" in construing a
     fee tail.

3.   Deeds -- adoption-inheritance laws not intended to modify
     established meaning of terms used in deeds. -- Terms such as
     bodily heirs, issue, etc. have long been defined in the law,
     and the definition does not include adopted children; the
     adoption-inheritance laws were not intended to modify the
     established meaning of terms used in deeds.

4.   Deeds -- modern rule would include adoptees in term "heirs of
     her body" -- under law in effect at time deed was drafted
     adopted person would not qualify as heir. -- Although the
     Revised Uniform Adoption Act makes it plain that it is
     applicable for all purposes, including inheritance and
     applicability of documents and instruments, and the modern
     trend is to treat adopted and natural children equally, there
     was no doubt that in 1930, when the deed in question was
     executed, the rule of property in Arkansas was that an adopted
     person would not qualify as an heir of the body of an adopting
     parent; the parties to the conveyance had a right to rely upon
     the law as it was at that time; the court found that the
     granting clause in the 1930 deed expressly excluded adopted
     children from the remainder interest. 


     Appeal from Crittenden Chancery Court; Rice Van Ausdall,
Chancellor; affirmed.
     Stephen K. Wood, P.A., by:  Stephen K. Wood, for appellant.
     Sloan, Rubens & Peeples, by:  Kent J. Rubens and Fletcher
Long, Jr., for appellees.

     Annabelle Clinton Imber, Justice.
     This case involves the construction of a deed, and whether the
appellant, an adopted child, was properly excluded from the
remainder interest created by the deed.  The trial court held that
the language in the deed conveying property to the grantee for
life, and then to the legal heirs of her body who survived her,
created an estate tail, and further held that title to the property
reverted to the grantors' estate.  We find no error and affirm.   
     On February 24, 1930, T.P. Johnson and Arkie Johnson executed
a deed conveying their interest in 160 acres of land located in
Crittenden County to their daughter, Lucy Faye Thompson.  The
granting clause of this deed provided as follows:
I do hereby grant, bargain, sell and convey unto the said
Lucy Faye Thompson and the legal heirs of her body, and
in the event the said Lucy Faye Thompson should die
without leaving any legal heirs of her body surviving
her, then in that case the hereinafter described property
shall revert to the said T.P. Johnson the grantor
herein... . 
T.P. and Arkie Johnson also had two other children, Hazel Welshans
and Bernard Paul.  Lucy Faye died on October 29, 1993, and was
survived by her adopted daughter, the appellant, Alvalu Sides. 
Lucy Faye did not have any natural children and adopted Sides in
March of 1956. 
     The appellees are all descendants of Hazel Welshans and
Bernard Paul.  Hazel Welshans had six surviving grandchildren: 
Beth Welshans, Bradley Welshans, Wilson Welshans, Vanessa Welshans,
Cindy Welshans, and Catherine Welshans Cantor.  Bernard Paul was
survived by three children:  Linda Beene, Margie Melhorne, and
Tecora Hagy; and three grandchildren:  Jim Hagy, Mollie Hagy, and
Melody Hagy.
     On February 3, 1994, Linda Beene and others filed an action in
Crittenden County Circuit Court to quiet title in the 160 acres. 
The case was removed to chancery court, where Sides brought a
cross-claim and moved for summary judgment.  She argued that she
owned the land in fee simple as a bodily heir of Lucy Faye
Thompson.  The trial court found that the deed "created an estate
tail in Lucy Faye Thompson with possibility of reverter to the
estate of T.P. Johnson and Arkie Johnson in the event Lucy Faye
Thompson was not survived by legal heirs of her body."  The trial
court further concluded that title to the property did in fact
revert to the grantors' estate, and the property was divided
accordingly.  Sides received a one-third interest in the land under
the trial court's pro rata distribution. 
     Sides now brings the present appeal.  Her sole point on appeal
is that the trial court erroneously determined that she was not an
"heir of the body" in construing the deed. 
     In interpreting a deed, this court gives primary consideration
to the intent of the grantor.  Wilson v. Brown, 320 Ark. 240, 897 S.W.2d 546 (1995); Bennett v. Henderson, 281 Ark. 222, 663 S.W.2d 180 (1984).  The intent of the grantor is gathered solely from the
language of the deed unless the language of the instrument is
ambiguous, uncertain, or doubtful.  Id.  In the present case, the
critical language is the meaning of the phrase "unto the said Lucy
Faye Thompson and the legal heirs of her body."
     Sides relies on provisions contained in the Revised Uniform
Adoption Act, Ark. Code Ann.  9-9-201 et seq., to argue that she
is solely entitled to the land in question.  Specifically, she
cites Ark. Code Ann.  9-9-215(a)(2) (Repl. 1995), which provides
that a final decree of adoption creates a parent-child relationship
"as if the adopted individual were a legitimate blood descendant.
. . for all purposes including inheritance and applicability of
statutes, documents, and instruments, whether executed before or
after the adoption is decreed, which do not expressly exclude an
adopted individual from their operation or effect."  
     The Act clearly treats adopted persons as blood descendants
for "all purposes."  However, the Act allows documents or
instruments to expressly exclude an adopted individual from their
operation.  In the present case, the relevant inquiry is whether
the deed's granting language, "unto the said Lucy Faye Thompson and
the legal heirs of her body," expressly excluded adopted
individuals from taking under the deed.
     At common law, a deed which granted real property and utilized
granting language such as "to A and her bodily heirs" or similar
language had a technical definition.  More precisely, such language
created a fee tail.  See Spence v. Spence, 271 Ark. 697, 610 S.W.2d 264 (1981); Weatherly v. Purcell, 217 Ark. 908, 234 S.W.2d 32
(1950).  Thus, a conveyance to "A and her bodily heirs" would
create a life estate in A, then subsequent life estates in the
surviving lineal descendants of A.  Traditionally, this court has
excluded adopted individuals from the class of "bodily heirs" in
construing a fee tail.
     Illustrative of this principle is Davis v. Davis, 219 Ark.
623, 243 S.W.2d 739 (1951), where a deed conveyed real property to
the grantor's children for their lives and "then to their bodily
heirs."  The grantor died intestate, leaving a child who eventually
died without natural children of his own, but was survived by an
adopted son.
     The Davis court concluded that the adopted son was not a
"bodily heir" of his father.  The court was not swayed by Ark.
Stat. Ann.  56-109 (1949) (repealed 1977), which provided that a
legally adopted person shall not be barred from inheriting property
from his parents or other kin.  The court distinguished this
statute, stating that "the question is not one of inheritance." 
The court explained:
     Terms such as bodily heirs, issue, etc., have long been
     defined in the law, and the definition does not include
     adopted children. (Citation omitted.)  A foster child,
     being a stranger to the blood, is the antithesis of an
     heir of the body.
Id.  See also Cox. v. Whitten, 288 Ark. 318, 704 S.W.2d 628 (1986)
(will executed in 1951 that left life estate to siblings and
remainder to their "children" did not give adopted adult a
remainder interest);  Bilsky v. Bilsky, 248 Ark. 1060, 455 S.W.2d 901 (1970) (in interpreting "issue" used in a will executed in
1955, court observed that "[t]erms such as bodily heirs, issue,
etc. have long been defined in the law, and the definition does not
include adopted children").  Thus, the Davis court concluded that
the adoption-inheritance laws were not intended to modify the
established meaning of terms used in deeds.
     The holding in Davis was certainly consistent with the general
common law rule that excluded adopted individuals from taking as
"heirs of the body."  See Restatement (First) of Property  306
(1940) (interpreting meaning of words "heirs of the body" and
similar words).  Comment g to section 306 explains in part:
     An adopted child of the designated ancestor is not an
     heir of his body.  Thus, unless a contrary intent of the
     conveyor is found from additional language or
     circumstances, an adopted child is not included in a
     limitation to the "heirs of the body" of a designated
     person.
Id.  
     The "effect of adoption" provision contained in the Revised
Uniform Adoption Act is distinguishable from the provision
considered in Davis.  Unlike former Ark. Stat. Ann.  56-109, Ark.
Code Ann.  9-9-215 does not limit its effect to mere inheritance. 
Instead, Ark. Code Ann.  9-9-215 makes it plain that it is
applicable for all purposes, including inheritance and
applicability of documents and instruments.  The Commissioner's
Note to Ark. Code Ann.  9-9-215 further provides: 
     [T]he section is intended to make any use of the word
     `child' or other similar designation such as `issue' in
     an instrument include an adopted child unless the
     instrument expressly provides to the contrary.
     Clearly, the modern trend is to treat adopted and natural
children equally.  See generally, Jan Ellen Rein, Relatives by
Blood, Adoption, and Association: Who Should Get What and Why, 37
Vand. L. Rev. 711 (1984).  Arkansas's enactment of the Revised
Uniform Adoption Act evinces an intent to follow this trend.
Nonetheless, the Act allows for a grantor to expressly exclude
adopted children.  There is no doubt that in 1930 when the deed in
question was executed the rule of property of this State was to the
effect that an adopted person would not qualify as an heir of the
body of an adopting parent.   See Davis, supra.  The parties to
that conveyance had a right to rely upon the law as it was at that
time. See Abrego v. United Peoples Fed. Sav. & Loan, 281 Ark. 308,
664 S.W.2d 858 (1984); Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981).  Thus, we find that the granting clause in the 1930
deed, "unto the said Lucy Faye Thompson and the legal heirs of her
body" expressly excluded adopted children from the remainder
interest.  We do not reach the question of whether the result would
be the same with respect to a conveyance executed after the
enactment of Ark. Code Ann.  9-9-215.  
     Affirmed.