ARK.] .SANDERS V. TAYLOR.. 1095 SANDERS V. TAYLOR. 4-4639
Opinion delivered May 3, 1937. boWER.—Statutes relating to dower and to adoption and the rights of adopted children deal with entirely different subjects, and act No. 137 of the Acts of 1935 does not affect the dower • • rights of widows. 2. DOWER—NATURE OF RIGHT TO DOWER—WHAT LAW GOVERNS.—The widow's right of dower remains inchoate during the life of her s husband and is not an estate, but a contingent expectancy; therefore, the law governing the right is the one existing at the • time -of the death of the husband, and not that existing at the time of the marriage. 3. ADOPTION—RIGHT ON, TO INHERIT. — Adopted children, under act No. 137 of the Acts of 1935 providing that an adopted child "shall be invested with every legal right, privilege, obligation and relation in respect to education, maintenance and the right of inheritance to real estate, "are in the same class as natural children, and § 3536, C. & M. Dig., does not relate to heirs of the body alone. 4. -DOWER—RIGHTS OF ADOPTED CHILDREN.—Where S and wife, childless, adopted two children, and S, after making a will, died, his widow was not entitled to one-half of the estate as dower, as provided in C. & M. Dig., § 3536, where there- are no children, but was entitled to one-third as provided in §§ 3514 and 3535, since S left children surviving within the meaning oi the statute. Appeal from White Circuit Court; W. D. Davenport, Judge; affirmed.
1096 SANDERS V. TAYLOR. [193 Culbert L. Pearce, for appellant. B. E. Taylor; for appellee. BUTLER, J. This'aetion was begun in the probate court 'and subraitted upon an agreed statement of facts frolic which the following appears. On November 16, 1910, Mrs. Ethel B. Sanders and T. N. Sanders were Married andlived -as husband and wife until his demise. No children were born of this union or to T. N. Sanders by any former marriage. On December 12, 1932, by proper order of the probate Court, T. N. Sanders and Ethel B. Sanders adopted two children who'were given the names of Martha Lonise and Dorothy May Sanders. On December 20, 1933, T. N. Sanders executed a last will and testament and later added two codicils. On October 14, 1935, the testator died leaving Ethel B. Sanders, his widow, and his said adopted daughters his sole heirs-at-law and the principal beneficiaries under his will. The will and codicils were filed for probate as the last will and testament of the decedent and were duly admitted to probate and recorded. The person-named by the testator as executor declined to serve as such and the court thereupon appointed the widow as administratrix with the will annexed. -She duly qualified and is now acting as such adMinistratrix. A petition was filed, in the probate court by Mrs. Sanders as administratrix alleging that she was entitled to take under the. will, or under the law, at her election, but is unable to properlY 'make decision without first knowing what she would receive under the law; that she believes she is entitled to one-half of the real and personal. property of the estate as dower, subject only to the rights of the creditors. She further . alleged that the rights of the adopted children are affected. She prayed that a guardian ad litem be appointed to intervene and defend for them and that the court ascertain and declare whether the petitioner, as widow, is entitled to dower under § 3536 of Crawford & Moses' Digest or under other provisions of the statutes,.and that she be granted all other and proper relief.
ARK.] SANDERS V. TAYLOR. 1097 The probate court appointed appellee, a practicing attorney, as guardian ad litem to appear and defend .for Martha Louise. and Dorothy May Sanders, the, adopted daughters, who were minors. An anSwer.was filed by:the guardian ad litem admitting the material ;allegations .of the petition and. alleging' the joint adoption. of the minor children. by petitioner and hex deceased husband. Contention was made in said answer that petitioner was not entitled .to endowment under § 3536, sitpra, but was un-: der the other 'statutes relating to. the dower rights of widows. Without objection the. probate court enter-. tained jurisdiction.of the questions raised by the.petition and answer and found as a matter of law; -upon the facts as agreed, that petitioner was . entitled. to. one-third . of the personal property of said estate absolately anct , to one-third Of the; real . estate during her natural life as..dower, which rights are fiked by the provisions of §§ 3514 and 3535 of Crawford & Moses ;" Digest; . that • the rights,•-of the • adopted minor childrerr are ;such as if. said children were born in legal wedlock to.the petitiOnet and' deCeased. On apPeal : to :the 'cireUit' eourt ..and on . the; 'same agreed statement of . facts : that bourt ;declared The; law 'in accordance . ..with the declaration's inade br the - probate court. Oh appeal from that judgment ;the-appellant in:- sists that she is entitledto. endowment nndet §4'3536; slipra,. which stUtute 'is as' : follows `If ;a, husband leaving a widow and no 'Children; such AvidoW -shalI he endowed of one-half of the . real estate of Which sueh hus:- band 'died seized, * * * and one‘half Of the personal-estate absolutely and; in her-own right; as' against '6 ollateTA1 heirs ;* * *." The Contention . that . "this is. the applicable stainte is based iipeUi the- idea • Ihat doWer • i4 , a5a eStUte superior to one of inhetitanCe, • that act No. I31' Of-the Acts of 1935 enlarged the right : of inheritance'Of adOpted children; and, to ' that extefit, diminishes Pelitit'S tight of dower as it existed prior to , the enactment of -that statute, and that, therefore r it should not.be ,constrned_as:im-" pliedly affecting the • pre-existing , •dower . rights .of, fhb appellant. '.!
1098 SANDERS V. TAYLOR. [193 We are cited to the case of Barton v. Wilson, 116 Ark. 400, 172 S. W. 1032, approving the doctrine of the Indiana courts to the effect that the widow does not take as the heir of her husband, and, upon the doctrine of that case and of Arbaugh v. W est, 127 Ark. 98, 192 S. W. 171, appellant asserts that the right of dower is superior to that of inheritance. We are, also, referred to a number of our decisions which declare the rule to be that repeals by implication are not favored. We concede the soundness of the rules declared in the cited cases, kit are of the opinion that the statutes relating to dower and to adoption and the rights of adopted children deal with entirely different subjects, and that act No; 137 of the Acts of 1935, supra, does not affect the doWer rights of widows. The contention is also made that the language of § 3536, supra, relates only to heirs of the body, and not to adopted children. We are cited to the case of Starrett v. McKim, 90 Ark. 520, 119 S. W. 824, and 1 Am. Jur. 664, as authority for this contention. • The cases dealing with dower rights and holding that same is an estate relate to dower consummate after the death of the husband, but, as pointed out in the cases cited by appellees, it remains an inchoate right during the lifetime of the husband, and is not an estate, but a contingent expectancy. Smith v. Howell, 53 Ark. 279, 13 S. W. 929; Robbins v. Robbins, 181 Ark: 1105, .29 S: W. (2d) 278. • Therefore, it follows that the law . governing the widow's right of dower is the one existing at. the time of the death of the husband, and not that existing at the time of the marriage. Hatcher v. r Buford, 60 Ark: 169, 29 S. W. 641, 27 L. R. A. 507; Skelly Oil Co„ v. Mur-phy, 180 Ark. 1023, 24 S. W. (2d) 314. We think that the effect of, our late decisions, preT vious to the passage of act No. 137, supra, places the legal status of adopted children .exactly as of those born in wedlock. Both classes are to be deemed children within the spirit and meaning of our law, but on this questiOn there can now be no doubt. * Act No. 137, snpra, provides (by § 8) that the child adopted * * * "shall be invested
ARK.] 1099 with every legal right, privilege, obligation and relation in respect to education, maintenance and the right of inheritance to real estate, or the distribution of personal estate on the death of the adopting parents as if born to them in legal wedlock." In the recent case of Grimes v. Jones, ante, p..858, 103 S. W. (2d) 359, we had occasion to construe the statute relating to the execution of wills with reference ,to the . rights Of an adopted child. The statute provided that where a child is born to the testator after the making of a will and shall. die leaving such child un-provided for in any settlement or in the.will and unmen-tioned. therein, the child shall succeed to that portion of the testator's estate to which it would have been entitled under the law regardless of the will. We there said, in substance, that where a testator, subsequent to the execution of a will, adopts a child which is not , piovided for by settlement or mentioned in the will, such child is entitled to inherit as a natutal child. Tjnder the plain provisions of act No. 137, supra, .and the authority of Grimes v. Jones, supra, the trial court correctly declared the law to be that adopted children . are in the same class as natural children, and, therefore, T. N. Sanders left children surviving within the meaning of § 3536 of•the Digest, supra, and. the. widow is not entitled to endowment under that section... • . It follows that the judgment of the trial court is correct, and it is ) therefore, affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.