Brown v. Johnson (Hart, J.).

Our 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's granting clause granted the property "unto Carl Brown and Thelma Brown and unto Thelma Brown's heirs by Carl Brown and unto their heirs and assigns forever...." The habendum clause provided, "To have and to hold the same unto the said Carl Brown and Thelma Brown and unto their heirs and assigns forever...." At the time of the conveyance, Thelma and Carl Brown had one child, appellee Betty Brown Johnson,1 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.

Appellant filed this action in equity seeking to be declared entitled to an undivided one-half (½) 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.

The 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 "unto Thelma Brown's heirs by Carl Brown and unto their heirs and assigns forever" 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 remaindermen. Further, the court concluded that, even if the deed was ambiguous, extrinsic evidence supported the court's interpretation. Judgment was entered dismissing appellant's complaint, and this appeal followed.

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Affirmed on direct appeal; cross-appeal moot in favor of Defendant.

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Reported by L. Hargraves