Wheeler v. Myers

Jake WHEELER and Bobby Wheeler v. Gary MYERS
and Donna Kerns

97-396                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 11, 1997


1.   Descent & distribution -- living person has no heirs. -- A living
     person has no heirs; in the strictly proper sense of the word,
     no one is an heir until after the death of the ancestor, and
     the word signifies one who has succeeded to a dead ancestor;
     it is used to express the relation of persons to some deceased
     ancestor, and cannot be applicable to one whose ancestor is
     living.

2.   Descent & distribution -- right to inherit vests upon death of decedent. -
     - The right to inherit property is a right that accrues upon
     the owner's death; on a person's death, the rights of his
     heirs become vested and may not be impaired by subsequent
     legislation.

3.   Descent & distribution -- law in effect at time of death of ancestor is
     controlling. -- Notwithstanding whether an adopted person is the
     heir or the ancestor or, correspondingly, whether a natural
     relative is the claimant to the estate or the decedent, the
     law in effect at the time of the death of the ancestor is
     controlling on matters of inheritance.

4.   Descent & distribution -- trial court correctly concluded that law in
     effect at time of ancestor's death prohibited appellants from inheriting
     from his estate. -- Where appellants' rights to inherit from
     their natural relatives could not have possibly vested until
     the time of an ancestor's death in 1980, the supreme court
     held that the law in effect at the time of his death was
     controlling; the trial court thus correctly concluded that
     Ark. Code Ann.  9-9-215 (Supp. 1995), which had been in
     effect since 1977, prohibited appellants from inheriting from
     the ancestor's estate.


     Appeal from Prairie Probate Court; Jim Hannah, Chancellor;
affirmed.
     Joseph H. O'Bryan, for appellants.
     Malcolm Smith, for appellees.

     Donald L. Corbin, Justice.
     Appellants Jake and Bobby Wheeler appeal the orders of the
Prairie County Chancery and Probate Courts, finding that Appellees
Gary Myers and Donna Kerns are the heirs of Ervin Myers to the
exclusion of Appellants.  This appeal was certified to us from the
court of appeals on the basis that it presents an issue of first
impression; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R.
1-2(d).  Appellants' sole point for reversal is that the trial
court erred in holding that the right of adopted children to
inherit from their natural ancestors is dependent upon the laws on
adoption and inheritance in effect at the time of the natural
ancestors' deaths.  We find no error and affirm.
     The essential facts are not in dispute.  Appellants and
Appellees are the four surviving natural children of Ira Myers. 
Ira Myers was the sole child of Ervin and Mae Myers.  Appellants
were adopted by their stepfather Robert James Wheeler in 1961.  Ira
Myers died in 1973.  Ervin Myers died on September 28, 1980, and
was survived by his wife Mae.  Mae Myers held possession of the
property at issue from the time of Ervin Myers's death until her
own death in 1995.
     Appellants filed a petition in the Prairie County Chancery
Court on December 27, 1995, requesting that the court declare and
adjudicate the rights to the possession and rental income from the
property at issue.  Appellees denied all material allegations
contained in the petition and filed a counterclaim stating that
Appellants had no interest in the property because they had been
adopted and had thus ceased to be heirs of Ira Myers.  While that
action was pending in the chancery court, Appellees filed a
petition in the Prairie County Probate Court requesting the court
to conduct a hearing to determine the decedent's heirs.  
     The trial court found that Jake and Bobby Wheeler were legally
adopted by Robert James Wheeler in 1961 and that the temporary and
final orders of their adoption were not subject to collateral
attack.  The trial court determined that the right to inherit
property does not vest until the death of the owner and that the
law in effect at the time of the owner's death is controlling as to
matters of inheritance.  The court concluded further that Ark. Code
Ann.  9-9-215 (Supp. 1995), which was passed in 1977 and was in
effect at the time of Ervin Myers's death, provides that all legal
relationships between the adopted individual and his or her natural
relatives, including the right of inheritance, are terminated upon
the final decree of adoption.  Accordingly, the trial court ruled
that the application of section 9-9-215 precluded Jake and Bobby
Wheeler from inheriting from their natural grandfather, Ervin
Myers.
     Appellants do not dispute that the law in effect at the time
of Ervin Myers's death would preclude them from inheriting any part
of his estate.  Thus, the sole issue for our review is whether the
trial court erred in ruling that the law in effect at the time of
Ervin Myers's death is controlling as to Appellants' rights to
inherit from his estate.  For the reasons outlined below, we
conclude that the trial court's ruling was correct.  
     Appellants rely heavily on this court's decisions in Dean v.
Smith, 195 Ark. 614, 113 S.W.2d 485 (1938), and Dean v. Brown, 216
Ark. 761, 227 S.W.2d 623 (1950), for the proposition that the law
in effect at the time of adoption is controlling.  Appellants'
reliance is misplaced, however, as both those cases addressed
factual situations involving challenges to the validity of the
adoption orders themselves.  This court held in both cases that the
law in effect at the time of the adoption must be applied when
attempting to test the validity of the adoption order.  Were
Appellants questioning the validity of their adoptions in the
present case, we would be required to apply the law that was in
effect at the time of their adoptions.  We decline, however, to
extend this legal principle to their assertion that they should be
recognized as heirs of their natural grandfather's estate. 
Furthermore, Appellants concede that the analogy between the Smith
case and the present one is weak due to the fact that in Smith, all
of the relevant events, including the children's adoptions and the
death of both ancestors, occurred prior to the enactment of the law
sought to be applied.  Hence, the holdings in those cases are not
dispositive of the issue at hand.  We thus turn to our case law on
the rights of inheritance in general. 
     This court has long recognized the principle that a living
person has no heirs.  In Wallace v. Wallace, 179 Ark. 30, 13 S.W.2d 810 (1929), this court held:
     In the strictly proper sense of the word, no one is an
     heir until after the death of the ancestor, and the word
     signifies one who has succeeded to a dead ancestor; it is
     used to express the relation of persons to some deceased
     ancestor, and cannot be applicable to one whose ancestor
     is living.
Id. at 34-35, 13 S.W.2d  at 812 (quoting 29 C.J. 290).  Similarly,
in Purinton v. Purinton, 190 Ark. 523, 80 S.W.2d 651 (1935), it was
observed that the rights of the decedent's family to inherit from
the decedent were fixed and vested as of the date and time of the
decedent's death.  More recently, this court has reiterated that
the right to inherit property is a right that accrues upon the
owner's death and that "[o]n a person's death, the rights of his
heirs become vested and may not be impaired by subsequent
legislation."  Lucas v. Handcock, 266 Ark. 142, 153, 583 S.W.2d 491, 496 (1979).  
     Correspondingly, in Estate of Caisson, 289 Ark. 216, 710 S.W.2d 211 (1986), upon which the trial court relied for its
ruling, this court was presented with the issue of whether the
adoptive or blood heirs of an intestate decedent may inherit the
estate of an adopted child.  As is true in the present case, in
Caisson, the trial court determined that the law pertaining to
descent and distribution at the time of the decedent's death was
controlling.  This court agreed with the trial court, stating:
     We do not hesitate to hold that the law in effect at the
     time of the death of the adopted child is controlling on
     matters of inheritance.  To hold otherwise would create
     a myriad of problems and confuse the law.

          The right to inherit property does not vest until
     the death of the owner and the devolution of property is
     controlled either by common law or statute.

Id. at 217, 710 S.W.2d  at 212 (emphasis added).  Appellants attempt
to distinguish this holding on the basis of the relationship of the
parties to one another.  In effect, they argue that because the
facts presented in Caisson involved the estate of an adopted child,
as opposed to the present facts where the estate is that of a
natural ancestor, the holding of that case cannot be applied to the
issue at hand. Although, arguably, the holding in Caisson was
necessarily tailored to the facts of that case, we believe that
same rationale should be extended to the present case.  
     Thus, notwithstanding whether the adopted person is the heir
or the ancestor or, correspondingly, whether the natural relative
is the claimant to the estate or the decedent, the law in effect at
the time of the death of the ancestor is controlling on matters of
inheritance.  As was stated in Caisson, "[t]o hold otherwise would
create a myriad of problems and confuse the law."  Id. at 217, 710 S.W.2d  at 212.  We have found much support for this conclusion
amongst the holdings of other jurisdictions.  See, e.g., Black v.
Washam, 421 S.W.2d 647 (Tenn. Ct. App. 1967); Hamilton v. Butler,
397 S.W.2d 932 (Tex. Civ. App. 1965); In re Williams, 144 A.2d 116
(Me. 1958); In re Trainor's Estate, 256 N.Y.S.2d 497 (N.Y. Surr.
Ct. 1965).
     Accordingly, because Appellants' rights to inherit from their
natural relatives could not have possibly vested until the time of
Ervin Myers's death in 1980, the law in effect at the time of his
death is controlling.  The trial court thus correctly concluded
that section 9-9-215, which had been in effect since 1977,
prohibited Appellants from inheriting from Myers's estate. 
     Affirmed.