Armstrong v. Cashion

Decision Date23 May 1891
Citation16 S.W. 666
PartiesARMSTRONG <I>et al.</I> v. CASHION <I>et al.,</I> (two cases.)
CourtArkansas Supreme Court

Appeal from circuit court, Crittenden county; J. E. RIDDICK, Judge.

This embraces two cases. The first, filed January 19, 1886, by Nancy E. Cashion and others, heirs of Samuel D. Rives and W. C. Urie, the child of the widow of Rives by a subsequent husband, against A. H. Ferguson, administrator of Peter G. Rives, alleges that Sam D. and Peter G. inherited from their father certain wild lands in Crittenden county, and died in possession of them in 1865; that defendant, Ferguson, qualified as administrator of the respective estates; that he fully administered that of Samuel D., and was discharged in February, 1875, but that the administration of Peter has not yet been closed; that under the order of the probate court he sold Samuel D.'s undivided half of said lands to pay debts; that they were purchased by his widow, Mrs. Margaret D. Rives, and have never been divided, but are yet held by Ferguson as her agent, and as acting administrator of Peter G.'s estate; that the names and homes of the heirs of Peter G. are to them unknown, and therefore this petition for partition is filed against Ferguson, administrator. At the October term, 1886, the petition of Bettie Rives and others, heirs of Peter G. Rives, to be made parties defendant was filed, admitting the ownership by plaintiffs of the Sam D. Rives undivided half; that Ferguson has, as administrator, been for a very long time in possession of the Peter G. Rives half, and that there is good reason for a partition; that there are not, and never have been, any claims legally due from the estate of Peter G., and, if there had been, the rentals in the administrator's hands long since discharged them. The answer is made a cross-complaint against Ferguson, with prayer that he account, etc. In April, 1888, B. L. Armstrong was, on petition, made a party, and filed an answer and cross-complaint showing a contract with the heirs of Peter G., by which he had agreed to prosecute their claims in the matter at his own expense, and to receive therefor one-half of his recovery, with prayer accordingly. At the July term, 1888, a consent order was entered consolidating this cause with B. L. Armstrong v. Bettie Rives et al., which again sets out plaintiffs' contract with the heirs of Peter G., and alleges that their subsequent attempted revocation of his power of attorney is void on account of his vested rights in the premises. Prayer for partition, for an accounting with Ferguson, for the appointment of a receiver, and for the specific execution of said contract. The Cashion party, including Urie, Sam D. Rives' heirs, answer, admitting the ownership of the property, and the administrator's sale of Sam D.'s land to Mrs. Margaret Rives, under whom they claim, and that Ferguson has surrendered to Cashion and wife the lands formerly belonging to Margaret and Sam D., but that he collected rents up to and including 1886. By way of cross-complaint they charge that a verbal agreement of partition was made by Sam and Peter while living, Sam taking that part west of Fletcher's bayou, and Peter that part east of it; that Ferguson, as administrator of Sam D., made leases looking to the clearing of the same, and nearly all so cleared is on his portion; that when said Margaret purchased, he acted as her agent, and continued the clearing in her behalf; and they submit that said partition is final, and that they alone are entitled to the rents of the western part. They make the Peter G. Rives party, Ferguson, and plaintiff cross-defendants, and pray the confirmation of the alleged original partition, for partition of any of said lands not already partitioned, for an account with Ferguson, and for general relief. Ferguson answers, alleging that when Sam's interest was sold he furnished his widow the money with which to purchase it, and that he has since expended other sums for taxes and improvements, and he asks that these sums be allowed him, with reasonable compensation for services. At the trial Ferguson testified that before Peter's death he received a letter from him authorizing him to take charge of the entire tract; that under order of court he sold Sam's undivided interest to pay debts; that after Sam's widow bought it she placed it in his care; and that he accordingly paid the...

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  • Watson v. Henderson
    • United States
    • Arkansas Supreme Court
    • February 27, 1911 the probate court is imperfect or inadequate, or where the proceedings have miscarried through fraud, accident or mistake. 23 Ark. 94; 16 S.W. 666; 48 Ark. 544; 34 Ark. 45 Ark. 505; 27 Ark. 595; 26 Ark. 373; 49 Ark. 51; 16 Cyc. 96. OPINION WOOD, J., (after stating the facts). The Constit......

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