{
  "id": 8720117,
  "name": "Ann Whitten COX v. T.E. WHITTEN",
  "name_abbreviation": "Cox v. Whitten",
  "decision_date": "1986-03-10",
  "docket_number": "85-263",
  "first_page": "318",
  "last_page": "320",
  "citations": [
    {
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      "cite": "288 Ark. 318"
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      "cite": "704 S.W.2d 628"
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    "id": 8808,
    "name": "Arkansas Supreme Court"
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1953,
      "opinion_index": 0
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    {
      "cite": "237 N.C. 572",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8616022
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      "year": 1953,
      "opinion_index": 0,
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    {
      "cite": "144 A.L.R. 676",
      "category": "reporters:specialty",
      "reporter": "A.L.R.",
      "year": 1943,
      "opinion_index": 0
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    {
      "cite": "70 A.L.R. 626",
      "category": "reporters:specialty",
      "reporter": "A.L.R.",
      "year": 1931,
      "opinion_index": 0
    },
    {
      "cite": "211 Ark. 132",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1473253
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      "year": 1947,
      "opinion_index": 0,
      "case_paths": [
        "/ark/211/0132-01"
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    {
      "cite": "87 S.W.2d 994",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "year": 1935,
      "opinion_index": 0
    },
    {
      "cite": "191 Ark. 776",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1418477
      ],
      "year": 1935,
      "opinion_index": 0,
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        "/ark/191/0776-01"
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    {
      "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
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      "year": 1928,
      "opinion_index": 0,
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  "analysis": {
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    "char_count": 4325,
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  "last_updated": "2023-07-14T22:45:27.788923+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Purtle, J., not participating."
    ],
    "parties": [
      "Ann Whitten COX v. T.E. WHITTEN"
    ],
    "opinions": [
      {
        "text": "George Rose Smith, Justice.\nIn this case the only question, arising from undisputed facts, is whether a provision in Ida Mae Tatum\u2019s will leaving property to the \u201cchildren\u201d of her four brothers was intended to apply to the appellee, who is the adopted child of one of the brothers. The appeal comes to this court under Rule 29(l)(p). We are unable to agree with the chancellor\u2019s conclusion that the language of the will extends to this adopted child.\nMrs. Tatum, a resident of Mississippi, made her will in 1951. She died there in 1960. Her will left 180 acres of land in Crittenden County, Arkansas, to her four brothers for life. The will continued as follows:\nWith remainder over in fee simple to their children, provided that in event any one or more of my said brothers shall die childless, then the interest of any brother who shall die childless shall go to the children of those who do not die childless, share and share alike.\nTwo of the brothers died childless. A third died in 1974 survived by one child, the appellant Ann Whitten Cox. The last brother died in 198 3 survived by the appellee, T.K. Whitten, whom he and his wife had adopted in 1976 in Kentucky, where they lived. The appellee was 48 years old when he was adopted, but there is no suggestion that the adoption was for the purpose of enabling him to share in Mrs. Tatum\u2019s estate.\nAfter the death of the fourth brother, the appellee brought this suit in 1984 to quiet his title to an undivided half interest in the 180 acres. By counterclaim the appellant asked that title to the entire property be quieted in her. This appeal is from a summary judgment in favor of the appellee, no testimony having been necessary.\nBoth parties recognize in their briefs that the issue is not that of applying the Arkansas statutes that govern the inheritance rights of an adopted child. Instead, the sole issue is whether Mrs.Tatum intended for her reference to \u201cchildren\u201d to include a person who was adopted as an adult sixteen years after Mrs. Tatum died and twenty-five years after she made her will.\nIt is certainly true, as the appellee 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), quoted in Deener v. Watkins, 191 Ark. 776, 87 S.W.2d 994 (1935). Neither of those cases concerned an adopted child; so the court\u2019s statement was merely a generalization. If, for example, a testatrix had three natural children and one adopted child when she made her will, it could be argued with much force that if she left her property to \u201cmy children,\u201d her language would include the adopted child.\nThat is not the situation before us. The adoption was not by the testatrix but by her brother. The question here is whether Mrs. Tatum\u2019s devise of the remainder interest to her brothers\u2019 \u201cchildren\u201d was meant to include the appellee, who was not adopted until many years after Mrs. Tatum\u2019s death. In determining a question of intention we try to place ourselves as nearly as possible in the position of the testatrix at the time she signed the will. Weeks v. Weeks, 211 Ark. 132, 199 S.W.2d 955 (1947). When we approach the issue in that way, we are decidedly of the opinion that Mrs. Tatum\u2019s reference to her brothers\u2019 children was not selected with the idea of including a person who was not adopted until long after her death. That is definitely the majority rule. Annotations: 70 A.L.R. 626 (1931); 144 A.L.R. 676 (1943). The North Carolina court cited decisions from twelve states to support its holding that a devise to the children of the testator\u2019s nephews and nieces did not include children who might be adopted after the testator\u2019s death. \u201cTo hold otherwise would make it possible for property of a testator to be diverted to strangers of his blood without his knowledge or consent.\u201d Bradford v. Johnson, 237 N.C. 572, 75 S.E.2d 632 (1953). We are convinced that the majority rule should be applied to the facts presented by the case before us.\nReversed and remanded for the entry of a decree quieting title in the appellant.\nPurtle, J., not participating.",
        "type": "majority",
        "author": "George Rose Smith, Justice."
      }
    ],
    "attorneys": [
      "Hale, Fogleman & Rogers, for appellant.",
      "Rieves & May ton, by: Ted Mackell, Jr., for appellee."
    ],
    "corrections": "",
    "head_matter": "Ann Whitten COX v. T.E. WHITTEN\n85-263\n704 S.W.2d 628\nSupreme Court of Arkansas\nOpinion delivered March 10, 1986\nHale, Fogleman & Rogers, for appellant.\nRieves & May ton, by: Ted Mackell, Jr., for appellee."
  },
  "file_name": "0318-01",
  "first_page_order": 350,
  "last_page_order": 352
}