Abramson v. Rogers

• Decision Date: 02 January 1911
• Citation: 133 S.W. 836,97 Ark. 189
• Parties: ABRAMSON v. ROGERS
• Court: Arkansas Supreme Court

133 S.W. 836

97 Ark. 189

ABRAMSON v. ROGERS

Supreme Court of Arkansas

January 2, 1911

Appeal from Monroe Chancery Court; John M. Elliott, Chancellor reversed.

Decree reversed.

Manning & Emerson, for appellants.

There is no laches, because appellant instituted proceedings within one year after the homestead right ceased. The action is not barred, because the statute begins to run, in case of a homestead, not from the time the administration closed, but from the time the right of homestead ceased to exist. 32 Ark 714; 48 Ark. 230; Id. 277; 40 Ark. 102; 40 Ark 433-9; 36 Ark. 254; 37 Ark. 155-9; Kirby's Dig. § 3897; 50 Ark. 329; 56 Ark. 563-7; 69 Ark. 1, 2; Kirby's Dig. § 5073; 63 Ark. 405; 7 Ark. 185; 73 Ark. 440-44; 79 Ark. 570-76; 54 Ark. 65.

Thomas & Lee and John W. & Joseph M. Stayton, for appellees.

1. A court of equity is without power to grant relief to appellants. 14 Ark. 247; 18 Ark. 335; 49 Ark. 55-6.

2. Appellants are barred by the ten years' statute of limitations, and that statute commenced to run from the time the administration was closed. 36 Ark. 401; 48 Ark. 277.

OPINION

HART, J.

This is a suit in chancery to subject lands of a decedent to the payment of debts probated against his estate.

The cause was tried upon an agreed statement of facts, which is as follows: "It is agreed by the parties hereto that the land described in the complaint was the homestead of J. K Stayton. That he died November 1, 1883, leaving Ann Stayton, his widow, who died December 12, 1887, and three children, to-wit: Joseph N. Stayton, who was 14 years of age, Sallie B. Stayton, 18 years of age, who afterwards intermarried J. D. Rogers, and Mabel K. Stayton, who was 21 years of age on August 12, 1904; that said land was occupied by the widow and children as their homestead after the death of J. K. Stayton. That C. C. Herring was appointed administrator December 26, 1883, of the estate of J. K. Stayton by the probate court of said county; that plaintiff's claims, which are the basis of this action, were presented, and the probate court rendered judgment thereon against said estate as alleged in the complaint as follows: July 14, 1884, in favor of Abramson, and on January 12, 1885, in favor of J. F. Taylor, and that each bear 6 per cent. interest per annum, as will more fully appear, reference being had to the following orders of said probate court hereto attached and marked exhibits "A" and "B." That nothing has been paid upon either of said judgments. That there were no assets in the hands of C. C. Herring, either personal or real, because all of the estate was exempt and could not be sold to pay the judgment aforesaid; that on July 13, 1885, C. C. Herring, the administrator, filed his report, showing that the value of the personalty amounted to $ 260, and asked that the same be vested in the widow and children, which was done, and on said day the administrator was finally discharged, and the administration closed, and the order of the court thereon is attached thereto marked exhibit "C." That in April, 1905, plaintiffs applied and obtained an order in the Monroe Probate Court, appointing John S. Black administrator in succession of said estate, and an order was also obtained in said probate court directing Black to sell said lands, and he advertised same for sale to satisfy aforesaid judgments. That afterwards defendants procured an order and judgment of Monroe Circuit Court quashing the letters of Black as said administrator and the order of sale. That within one year thereafter this suit was filed. The foregoing are the facts in the above cause, and it is agreed that the same shall be considered by the court as being established."

The chancery court dismissed the complaint holding that the "statute of limitations began to run against the demands of plaintiffs from the date of the closing of the administration upon the estate of defendant's ancestor, and that more than ten years had elapsed, and at the time of the attempted proceedings to subject the homestead to sale 17 years had elapsed since the close of the administration, and said demands were barred." Plaintiffs have appealed.

The contention of the defendants is clearly and tersely stated by their counsel as follows: "We conceded that if the plaintiffs had procured an order of suspension of the administration in the probate court, instead of allowing it to be closed, this would have been effectual to preserve their right to subject this land to sale for the satisfaction of their claims, but, having failed to do this, they are now barred."

To sustain their position they cite the case of Brown v. Hanauer, 48 Ark. 277, 3 S.W. 27, where it is held (quoting from syllabus): "Where the administration of an estate has been closed and the administrator discharged, the right of a creditor to apply for a sale of the decedent's lands for payment of a probate claim accrues upon the discharge of the administrator, and unless the application is filed within ten years from that time it is barred."

We do not think the decision reaches to the point. There,...