{ "id": 6136880, "name": "Doyle Edward BROWN v. Betty Carlene Brown JOHNSON and Marion E. Johnson, Her Husband", "name_abbreviation": "Brown v. Johnson", "decision_date": "2003-02-19", "docket_number": "CA 02-606", "first_page": "60", "last_page": "67", "citations": [ { "type": "official", "cite": "81 Ark. App. 60" }, { "type": "parallel", "cite": "97 S.W.3d 924" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "327 Ark. 401", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922749 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/327/0401-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-9-215", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2002, "opinion_index": 0 }, { "cite": "248 Ark. 1060", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1597790 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "1064", "parenthetical": "noting that, in interpreting \"issue\" used in a will executed in 1955, \"[fjerms such as bodily heirs, issue, etc. have long been defined in the law, and the definition does not include adopted children\"" }, { "page": "903", "parenthetical": "noting that, in interpreting \"issue\" used in a will executed in 1955, \"[fjerms such as bodily heirs, issue, etc. have long been defined in the law, and the definition does not include adopted children\"" } ], "opinion_index": 0, "case_paths": [ "/ark/248/1060-01" ] }, { "cite": "288 Ark. 318", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720117 ], "weight": 2, "year": 1986, "pin_cites": [ { "parenthetical": "holding that a will executed in 1951 that left a life estate to siblings and remainder to their \"children\" did not give adopted adult a remainder interest" }, { "parenthetical": "holding that a will executed in 1951 that left a life estate to siblings and remainder to their \"children\" did not give adopted adult a remainder interest" } ], "opinion_index": 0, "case_paths": [ "/ark/288/0318-01" ] }, { "cite": "219 Ark. 623", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1609227 ], "weight": 5, "year": 1951, "pin_cites": [ { "page": "624" }, { "page": "740" }, { "parenthetical": "Citation omitted." } ], "opinion_index": 0, "case_paths": [ "/ark/219/0623-01" ] }, { "cite": "64 Ark. App. 7", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136027 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark-app/64/0007-01" ] }, { "cite": "59 S.W. 250", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1900, "opinion_index": 0 }, { "cite": "68 Ark. 369", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1333965 ], "year": 1900, "opinion_index": 0, "case_paths": [ "/ark/68/0369-01" ] }, { "cite": "267 S.W. 130", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1924, "opinion_index": 0 }, { "cite": "166 Ark. 429", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1378526 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/ark/166/0429-01" ] }, { "cite": "13 S.W. 794", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1890, "opinion_index": 0 }, { "cite": "53 Ark. 255", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911613 ], "year": 1890, "opinion_index": 0, "case_paths": [ "/ark/53/0255-01" ] }, { "cite": "206 S.W.2d 26", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1947, "opinion_index": 0 }, { "cite": "212 Ark. 242", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1470252 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/ark/212/0242-01" ] }, { "cite": "3 S.W.2d 305", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1928, "opinion_index": 0 }, { "cite": "176 Ark. 548", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1400009 ], "year": 1928, "opinion_index": 0, "case_paths": [ "/ark/176/0548-01" ] }, { "cite": "275 Ark. 117", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753626 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/275/0117-01" ] }, { "cite": "281 Ark. 222", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742294 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/281/0222-01" ] }, { "cite": "331 Ark. 395", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604764 ], "weight": 3, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/331/0395-01" ] }, { "cite": "266 Ark. 556", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720825 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "563-564", "parenthetical": "citations omitted" }, { "page": "23", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ark/266/0556-01" ] }, { "cite": "342 Ark. 672", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342396 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "677" }, { "page": "728" } ], "opinion_index": 0, "case_paths": [ "/ark/342/0672-01" ] }, { "cite": "221 Ark. 58", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1656533 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/ark/221/0058-01" ] } ], "analysis": { "cardinality": 599, "char_count": 10127, "ocr_confidence": 0.748, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.174855561077113 }, "sha256": "c73d1d3ba5ad0fb24cf8b609f8f5710fe45c5c8a1fe15482f45ad55d8aa73f6b", "simhash": "1:9b6ce7b4758edbf2", "word_count": 1710 }, "last_updated": "2023-07-14T22:00:28.541819+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Stroud, C.J., and Griffen, J., agree." ], "parties": [ "Doyle Edward BROWN v. Betty Carlene Brown JOHNSON and Marion E. Johnson, Her Husband" ], "opinions": [ { "text": "Josephine Linker Hart, Judge.\nOur issue here is whether the trial court properly interpreted a deed as excluding appellant, Doyle Brown, who is an adopted child, from the remainder interest created by the deed. The facts were stipulated by the parties. In 1945, Charley King and L.C. King, as husband and wife, conveyed certain land in Madison County to their daughter and son-in-law, Thelma Brown and Carl Brown. The deed\u2019s granting clause granted the property \u201cunto Carl Brown and Thelma Brown and unto Thelma Brown\u2019s heirs by Carl Brown and unto their heirs and assigns forever. ...\u201d The habendum clause provided, \u201cTo have and to hold the same unto the said Carl Brown and Thelma Brown and unto their heirs and assigns forever. . . .\u201d At the time of the conveyance, Thelma and Carl Brown had one child, appellee Betty Brown Johnson, who was eleven. Appellant, who was born in 1955, was adopted by Thelma and Carl Brown at some time between 1956 and May 1962. In March 1979, Thelma Brown and Carl Brown conveyed the property to appellee, their daughter, by warranty deed. Carl Brown died in May 1979. In 1996, appellee conveyed a portion of the property to the Arkansas State Highway Commission for a consideration of $40,370. Appellee also sold timber, rock, gravel, and dirt from the property. Thelma Brown died in October 1999.\nAppellant filed this action in equity seeking to be declared entitled to an undivided one-half (V2) interest in the property, claiming that, under the terms of the deed, he had, as a child of Carl and Thelma Brown, a remainder interest in the property. The complaint also sought partition of the property, division of the proceeds of the partition sale, and an accounting for monies received from the sale of the property and the sale of the timber, dirt, and minerals. Appellee answered, denying the factual allegations and asserting the affirmative defenses of estoppel, laches, waiver, and, by amendment on the day of trial, statute of limitations.\nThe trial court first found that appellant had proven that he was adopted. Next, the trial court, citing Steele v. Robinson, 221 Ark. 58, 251 S.W.2d 1001 (1952), which held that language similar to the language \u201cunto Thelma Brown\u2019s heirs by Carl Brown and unto their heirs and assigns forever\u201d created a vested remainder in the heirs subject to open, concluded that the language of the deed did not create a fee tail. The trial court also held that the above language unambiguously evidenced an intent on the part of the grantors to exclude adopted children from the class of remain-dermen. Further, the court concluded that, even if the deed was ambiguous, extrinsic evidence supported the court\u2019s interpretation. Judgment was entered dismissing appellant\u2019s complaint, and this appeal followed.\nIn two separate points, appellant argues that the trial court erred in construing the deed to exclude him, as an adopted child, from the class of remaindermen. First, he argues that the trial court erred in interpreting the language of the deed to mean that the grantors intended to exclude adopted children. Second, he argues that the trial court erred in ignoring the adoption statutes, which provided that an adopted child is to be treated for all purposes as a legitimate blood descendent of his adoptive parents. Appellee cross-appeals, contending that the trial court erred in finding that appellant had proven by clear and convincing evidence that he was the adopted child of Thelma and Carl Brown.\nAs an equity case, our review is de novo. Our courts have been precise in stating what de novo review entails:\nEquity cases are tried de novo on appeal upon the record made in the chancery court, and the rule that this court disposes of them and resolves the issues on that record is well established; the fact that the chancellor based his decision upon an erroneous conclusion does not preclude this court\u2019s reviewing the entire case de novo.\nConagra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 677, 30 S.W.3d 725, 728 (2000); Ferguson v. Green, 266 Ark. 556, 563-564, 587 S.W.2d 18, 23 (1979) (citations omitted).\nWhen construing a deed, we ascertain the intention of the parties, and we examine the four corners of the deed to ascertain intent. Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998). Our first duty is to give effect to every word, sentence, and provision of a deed where possible to do so. Id. We will not resort to rules of construction when a deed is clear and contains no ambiguities, but we will do so when its language is ambiguous, uncertain, or doubtful. Bennett v. Henderson, 281 Ark. 222, 663 S.W.2d 180 (1984); Barnes v. Barnes, 275 Ark. 117, 627 S.W.2d 552 (1982).\nAppellant first argues that Steele settled his status as a \u201cchild\u201d of Thelma Brown and that, after the deaths of Carl and Thelma Brown, appellant had a one-half undivided interest in the property. Steele, however, is not determinative, as it does not address whether adopted children are included in the term \u201cchildren.\u201d\nIt is certainly true, as appellant argues, that \u201cchildren\u201d is a broader term than the word \u201cheirs\u201d and may include adopted children. Kelly v. Kelly, 176 Ark. 548, 3 S.W.2d 305 (1928). If a will or a deed shows it was the intention of the testator or grantor to use the words \u201cchild or children\u201d to mean words of limitation like \u201cheirs of his body,\u201d it has been held that that is what was meant. See Wilkins v. Wilkins, 212 Ark. 242, 206 S.W.2d 26 (1947). The term \u201cheirs,\u201d in its strict legal sense, means those upon whom the law casts the inheritance of land, Johnson v. Knights of Honor, 53 Ark. 255, 13 S.W. 794 (1890), but this construction will yield if the face of the instrument shows sufficient intent that the meaning of the word is to be limited to \u201cchildren.\u201d Black v. Stephenson, 166 Ark. 429, 267 S.W. 130 (1924); Wyman v. Johnson, 68 Ark. 369, 59 S.W. 250 (1900). When this latter construction is used, it has been held that \u201cchildren\u201d does not include after-born or adopted children, without express language. Wyman v. Johnson, supra. See also Kelly, supra.\nThe controlling question in making this determination is whether the deed\u2019s terms are susceptible to more than one equally reasonable construction. See Fryer v. Boyett, 64 Ark. App. 7, 978 S.W.2d 304 (1998). The remainder interest in the property was to \u201cThelma Brown\u2019s heirs by Carl Brown.\u201d In commonsense terms, a person\u2019s heirs \u201cby\u201d a particular person means that person\u2019s child or children \u201cborn or begot of,\u201d meaning natural children. Webster\u2019s Third New International Dictionary 307 (1993). Appellee was the only heir of Thelma Brown born of or begot by Carl Brown. Appellant, as their adopted child, was not born of or begot by Carl Brown. In these circumstances, we cannot say that the trial court clearly erred in concluding that the deed unambiguously excluded adopted children.\nFor his second point, appellant argues that the trial court erred in ignoring the adoption statutes, which provided that an adopted child is to be treated for all purposes as a legitimate blood descendent of his adoptive parents. Citing Davis v. Davis, 219 Ark. 623, 243 S.W.2d 739 (1951), appellant argues that the adoption statute in effect at the time he was adopted, Ark. Stat. Ann. \u00a7 56-109 (1949) (repealed 1977), provided that an adopted child shall be treated as a natural child for all purposes. His reliance on Davis, however, is misplaced because the language he cites from Davis is from Justice J. Seaborn Holt\u2019s dissenting opinion, not the majority opinion. Justice Holt\u2019s dissent made the same argument that appellant is now making.\nDavis involved a deed that conveyed real property to the grantor\u2019s children for their lives and \u201cthen to their bodily heirs.\u201d The grantor died intestate, leaving a child who eventually died and was survived by an adopted son but no natural children. The Davis court concluded that the adopted son was not a \u201cbodily heir\u201d of his father. The court rejected the argument concerning section 56-109, stating that \u201cthe question is not one of inheritance.\u201d Id. at 624, 243 S.W.2d at 740. The court explained: \u201cTerms such as bodily heirs, issue, etc., have long been defined in the law, and the definition does not include adopted children. A foster child, being a stranger to the blood, is the antithesis of an heir of the body.\u201d Id. (Citation omitted.) See also Cox v. Whitten, 288 Ark. 318, 704 S.W.2d 628 (1986) (holding that a will executed in 1951 that left a life estate to siblings and remainder to their \u201cchildren\u201d did not give adopted adult a remainder interest); Bilsky v. Bilsky, 248 Ark. 1060, 1064, 455 S.W.2d 901, 903 (1970) (noting that, in interpreting \u201cissue\u201d used in a will executed in 1955, \u201c[fjerms such as bodily heirs, issue, etc. have long been defined in the law, and the definition does not include adopted children\u201d). Thus, the Davis court concluded that the adoption-inheritance laws were not intended to modify the established meaning of terms used in deeds.\nDavis dealt with the same adoption statute under which appellant was adopted. The supreme court has left open the question of whether the same result would apply under the current adoption statute, Ark. Code Ann. \u00a7 9-9-215 (2002). Sides v. Beene, 327 Ark. 401, 938 S.W.2d 840 (1997). Because Davis rejected the specific argument now being made by appellant, we affirm on this point.\nOn cross-appeal, appellee contends that the trial court erred in finding that appellant met his burden of proving that he was the adopted child of Thelma and Carl Brown. Because we affirm the trial court\u2019s interpretation of the deed, this issue is moot.\nAffirmed on direct appeal; cross-appeal moot.\nStroud, C.J., and Griffen, J., agree.\nBetty Johnson\u2019s husband Marion Johnson was made a party to this action. We refer only to Betty Johnson as the appellee.", "type": "majority", "author": "Josephine Linker Hart, Judge." } ], "attorneys": [ "Hall Law Offices, by: W. Q. Hall, for appellant.", "Chris Lisle Law Firm, P.A., by: Chris Lisle, for appellee." ], "corrections": "", "head_matter": "Doyle Edward BROWN v. Betty Carlene Brown JOHNSON and Marion E. Johnson, Her Husband\nCA 02-606\n97 S.W.3d 924\nCourt of Appeals of Arkansas Division IV\nOpinion delivered February 19, 2003\nHall Law Offices, by: W. Q. Hall, for appellant.\nChris Lisle Law Firm, P.A., by: Chris Lisle, for appellee." }, "file_name": "0060-01", "first_page_order": 86, "last_page_order": 93 }