(dissenting). There is no rule of property established by Kelly’s Heirs v. McGuire, 15 Ark. 555, that keeps the cousins of the intestate from inheriting in the case at bar. Sections 10 and 12 of the 49th Chapter of the Bevised Statutes of 1838, Ark. Stat. Ann. §§ 61-110 and 61-112 (1947) were applicable to the facts, and controlling, in Kelly’s Heirs v. McGuire on the point under consideration. Neither of the aforesaid sections of the statute are applicable to the facts in the case now before the court.
In Kelly’s Heirs v. McGuire, Clinton Kelly had two half sisters, Elizabeth and Emeline. They had the same mother as Clinton, but Clinton’s father, Charles Kelly, was not the father of the girls. Clinton inherited real property from his father and then died at age 17 without issue and intestate. One of the questions before the court was whether the half sisters inherited from Clinton the ancestral property he had inherited from his father, or did the property go to Greenberry Kelly, the grandfather of Clinton. Revised Statutes, Chapter 49, Section 10,'Ark. Stat. Ann. § 61-110 provides that if the estate came by the father it shall ascend to the father and his heirs. There were heirs of the father, therefore the statute was applicable. Hence the estate ascended to grandfather Greenberry Kelly and descendants of his daughter, Mrs. Elkelburner, the aunt of Clinton.
The other statute which had to be considered in reaching a decision was Section 12 of Chapter 49 of the Revised Statutes, Ark. Stat. Ann. § 61-112. It provides that relations of the half blood inherit equally with those of the whole blood. But this provision did not help Elizabeth and Emeline because the same section provides that it does not apply to ancestral property.
The decision in Kelly’s Heirs v. McGuire, on the point involved here, was based squarely on the two aforesaid statutes. Neither statute applies here. In the first place, no heirs of the half blood are involved. In the second place, Section 10, Ark. Stat. Ann. § 61-110, does not apply because here there are no heirs in the mother’s line whence came the estate. Of course the estate cannot descend or ascend to nonexisting heirs; therefore, Section 10 is not applicable. The phrase used by the court in Kelly, the heirs took “not in postponement, but in exclusion” was applicable to the facts in that case but is not applicable to the facts in the case at bar.
The law of descent and distribution is regulated by statute in this state and, of course, as pointed out by the majority, statutes must be read in the light of judicial construction. With this concept of the law in mind I am firmly of the opinion that in the ease at bar the blood kin of Clara — her cousins on her father’s side — should inherit the property Clara owned in fee simple at the time of her death; and that the remote relatives of her deceased husband (he died more than thirty years ago) should not inherit from Clara under the provisions of our statutes.
Our statutes constitute the controlling law. The statutes governing descent and distribution were adopted in 1838, Revised Statutes of Arkansas, Chapter 49, Sections 1-22 inclusive. There have been no amendments affecting the principle involved in the case at bar, although a 1959 amendment mentioned by the majority added heirs of a deceased spouse to those who might inherit to prevent an escheat to the state. The amendment does not affect the right of the blood kin of the intestate to inherit. If the cousins of the intestate could inherit under the provisions of our statutes as they existed prior to the 1959 amendment, the amendment did not cut out that right.
It necessarily follows that we must look to the statutes to determine who inherits the property owned by Clara in fee simple. Do her blood kin — her cousins on her father’s side — inherit it? Or do distant unknown relatives of her deceased husband inherit it? The answer is supplied by Section 1 of Chapter 49 of the Revised Statutes, Ark. Stat. Ann. § 61-101. The applicable part of this statute provides:
“When any person shall die, having title to any real estate of inheritance, . .• . and shall be intestate as to such estate, it shall descend and be distributed, . . . Second: If there be no children, then to the father and mother in equal parts, or, if one parent be dead, then the whole to the surviving parent; if no father or mother, then to the brothers and sisters [or their descendants], in equal parts.” It will be noticed that the above statute applies to “real estate of inheritance.”
There can be no question about the property owned by Clara being “real estate of inheritance” within the meaning of the statute. It is said in Kelly’s Heirs v. McGuire:
“. . . And every estate, interest and right, legal and equitable, in lands and tenements and hereditaments, excepting only leases for years, and estates for the life of another person, are thus inheritable and descendable; or, as the 1st section expresses it [§ 61-101] ‘having title to any real estate of inheritance,’ constitutes an inheritable estate, ...”
Clearly, under this statute, the cousins inherit the property if there is no other statute preventing such inheritance. I respectfully submit there is no such statute.
The majority bases its decision that paternal heirs cannot inherit from the intestate on Ark. Stat. Ann. § 61-110 (Eevised Statutes of 1838, Chapter 49, § 10), the pertinent part of which provides:
“In cases where the intestate shall die without descendants, if the estate come by the father, then it shall ascend to the father, and his heirs; if by the mother, the estate shall ascend to the mother and her heirs; . . . ”
Section 10, Chapter 49, Eevised Statutes, Ark. Stat. Ann. § 61-110, does not limit Section 1, Chapter 49, Eevised Statutes, Ark. Stat. Ann. § 61-101 in the case at bar, because although the estate came by the mother, she is dead and there are no heirs of the mother, hence the estate cannot go to the mother or her heirs. Therefore, Section 10'has no application whatever to the facts in the case at bar. The statute could only apply if there was a living mother.or living heirs of the mother. Here, neither exist.
- The majority holds that under Ark. Stat. Ann. § 61-107 — the escheat section of the descent and distribution statutes — the property goes to heirs of the deceased husband of the intestate. In referring to this section the majority say:
“. . . This section originally provided that if there were no descendants, parents, ‘or any paternal or maternal kindred capable of inheriting,’ the estate should go to the surviving spouse, if any; otherwise it would escheat to the State.”
It appears that due consideration was not given to a part of Ark. Stat. Ann. § 61-107 (Supp. 1963) not appearing in the majority opinion. The statute in full is as follows:
“Descent in absence of kin — Escheat.—‘If there be no children, or their descendants, father, mother, nor their descendants, or any paternal or maternal kindred capable of inheriting, the whole shall go to the wife or husband of the intestate. If there be no such wife or husband, then the estate shall go to the heirs of such wife or husband, and if there be no such heirs of either wife or husband, then the estate shall go to the State. ’ ’ ’ [Emphasis supplied.]
Section 61-107 is clearly an escheat statute. The property would go to the husband’s heirs only as a last resort and then only to prevent an escheat to the State, But before the heirs of the husband can inherit the property there must be no descendants of the father of the intestate. Here, there are descendants of the father. The majority appears to attach considerable importance to the inclusive words of the statute “or any paternal or maternal kindred capable of inheriting, ’ ’ as if this phrase prevented the father of the intestate or his heirs from inheriting, but the phrase does not do away with the right of anyone to inherit. It merely emphasizes that before the heirs of the husband can inherit there must be no one else that could inherit under Section 1. In no way does the majority explain just how the quoted language limits the preceding language giving the father’s descendants the right of inheriting. Certainly, under Section 1, cousins are capable of inheriting, and here the intestate had cousins.
No doubt, the only reason the escheat statute was enlarged to include heirs of a deceased spouse was because it was thought that before the amendment the statutes gave collateral heirs, if any, the right to inherit in a case of this kind. But if there were no collateral heirs and no surviving spouse of the intestate, the estate would escheat to the State. Hence, the amendment to prevent an escheat where there are no collateral heirs and no surviving spouse.
The majority say that it is not an inequitable construction of the statute to hold that a total stranger to the intestate can inherit in preference to his blood kin— his cousins — because for 120 years the surviving spouse was allowed to take in a situation of this kind. In no case has this court ever held that in a situation of.this kind a surviving spouse was permitted to inherit where there were blood relatives — first cousins — of the intestate.
In Kelly’s Heirs v. McGuire, the court said that it is the universal rule that the sense of an act must be collected from the whole act. I thoroughly agree and respectfully submit that it was never the intention of the General Assembly to permit total strangers to inherit from an intestate in preference to his first cousins where, in many instances, the cousins would be actually as close to the intestate as a brother or sister.
The intestate in the case at bar had an estate of inheritance, Ark. Stat. Ann. § 61-101. There is no doubt that this section gives the estate to the collateral heirs unless it is superseded by some other statute; it is so stated in Kelly’s Heirs v. McGuire. There, the court said:
“The 1st section [Ark. Stat. Ann. § 61-101] is general and comprehensive, embracing all lands, whether ancestral or newly acquired, subject to certain exceptions and qualifications hereafter more particularly noticed, and these exceptions refer to real estate alone. This section also constitutes the table, by which real estate is to descend and personal property be distributed. As, by its express language, it relates to both real and personal property, it was manifestly the design of the Legislature, when there were descendants of the intestate, to send down both to them per capita, if in equal degree, and per stirpes, if in unequal degree, without any regard to the fact as to how the property had been acquired.”
There is no statute applicable to the facts in the case at bar that supersedes Ark. tSat. Ann. § 61-101. Under our statutes, where the property came by the mother it should go to the heirs of the mother, if any. But where there are no such heirs, as in the case at bar, it cannot be said that § 61-110 supersedes § 61-101. In these circumstances, § 61-101 applies and heirs of the intestate should inherit regardless of whether they are kin on the mother’s side or on the father’s side.
Under our statutes the blood ldn of the intestate should inherit. Therefore, I respectfully dissent.