Hill v. Hill , 58 Okla. 707 ( 1916 )

I fully concur in the dissenting opinion of Mr. Justice SHARP in this case. The cases upon which the majority opinion is grounded do not hold that such estates are estates of inheritance under the common law or the law creating them, nor otherwise, except in respect to their relation to chapter 49, sec. 2531, Mansfield's Digest of the Statutes of Arkansas of 1884, in force in Indian Territory prior to statehood. To the contrary, those cases show that such estates are not absolutely estates of inheritance in their inherent nature, and are only so within the broad meaning of this Arkansas statute of descent and ascent. In other words, those cases merely construe this Arkansas statute in its application to such estates, and hold that such estates are ancestral within the breadth of meaning of that statute, notwithstanding their lack of some of the essential inherent qualities of ancestral estates. In the instant case there is no question of what is an ancestral estate within the scope of the broad meaning of this Arkansas statute, nor is there any question of construction or application of that statute presented to this court. The question here is as to whether such estates are estates of inheritance within the meaning of and excepting the less comprehensive provision of our own statute, which must be construed as narrowly as the language used will permit. Under this provision of our statute an estate is not one of inheritance unless it clearly and absolutely belongs to this class of estates; and an estate, partaking of the nature in part only of an estate of inheritance, cannot be so classified here. And, as clearly shown by the dissenting opinion of Mr. Justice SHARP, these estates are not estates of inheritance within the meaning of this exception to our own statute.