Barton v. Wilson
Decision Date | 18 January 1915 |
Docket Number | 119 |
Citation | 172 S.W. 1032,116 Ark. 400 |
Parties | BARTON v. WILSON |
Court | Arkansas Supreme Court |
Appeal from Pope Chancery Court; Jordan Sellers, Chancellor affirmed.
Decree affirmed.
J. G Wallace & Sons, for appellants.
Our position is two-fold.
1. That the widow having died before her dower was assigned, and without asserting her claim or right to have dower assigned she was not vested, immediately upon the death of her husband, with an estate of such character as would pass at her death to her heirs or legal representatives. Kirby's Digest, § 2709; Tiedeman on Real Property, § 85; 61 Ark. 61; 84 Id. 558; 15 Pet. (U.S.) 21; 21 Ark. 347; Ib. 62; 31 Id. 334; 62 Id. 313; 60 Id. 478; 14 Cyc. 961; 59 Hun. 538; 49 N.J.Eq. 66; 16 S.W. 119; 105 Ark. 653; 98 Id. 118; 11 Id 212; 5 Id. 608; 14 Id. 421; 53 Id. 279; 60 Id. 169; 30 Id. 775; 55 Id. 235; 2 Scribner on Dower, 27.
2. The intention of the act giving the widow title in fee simple to one-half the real estate of which her husband died seized, when said estate is a new acquisition, and one-half of the personal estate absolutely, makes her statutory heir of her husband and vests title in her by descent, which would, at her death, without issue or direct descendants, revert to his heirs. 32 Ind. 497; 74 Ind. 563; 13 Ind. 508; 117 Id. 194; 19 N.E. 776; 136 Ind. 391; 16 Id. 437; 143 Mass. 389; 9 N.E. 747; 52 F. 371, etc.
As to personal property it is held that the husband or wife are heirs to each other. 29 Ill.App. 643; 62 Ill. 471; 52 Ill. 62; 126 Id. 158; 5 Kan. 384; 64 Conn. 240; 38 Oh. St. 473; 100 Mich. 215. 83 Ark. 293 is not in point. It is clear that the widow takes by descent and not by purchase. Cases supra.
R. B. Wilson and O. James Ferguson, for appellees.
1. The assignment of the widow's dower under section 2709, Kirby's Dig., in the lifetime of the widow is not essential in order for her heirs to inherit her dower estate. Her dower at common law and by our statute, section 2687, Kirby's Dig., vested on the death of the husband and before any assignment. 14 Cyc. 960; 74 Ga. 278; 57 Ia. 66; 60 N.J. 234; 37 Vt. 9; 53 Neb. 375; 68 Am. St. 608; 134 Id. 397; Tiffany, Modern Law of Real Prop., p. 469; 14 Cyc. 896; 98 Ark. 118; 31 Id. 576; 53 Id. 279; 60 Id. 169; 29 Id. 650; 62 Id. 51; 84 Id. 558; 60 Id. 478.
2. Under the common law prior to assignment of dower the widow had no vested freehold estate. 14 Cyc. 961; 21 Ark. 62. At common law and under section 2687, Kirby's Digest, dower was a life estate and was confined to real estate. Wash., Real Prop., 174; 60 Ark. 476. There was no interest in personal property during the husband's lifetime. 2 Bl. Com. 433; 2 Kent Com. 130; 42 Ark. 164; 32 Id. 443. But after the husband's death, the widow may claim her distributive share. 2 Bl Com. 515-16; 2 Kent Com. 427; Schouler, Dom. Rel., par. 205.
3. But her dower estate is now enlarged by statute to an absolute estate. Act April, 1887; Kirby's Dig., &S 2709; 14 Cyc. 63; 38 Ill. 522; 21 Mo. 519; 8 Ind. 54; 41 Vt. 467; 26 Conn. 349; 57 Ia. 66; 19 Fla. 778; 5 Ark. 612; 52 Id. 8; 16 S.W. 119; 75 Id. 240; 80 Id. 262; 98 Id. 118. The case of 83 Ark. 29 settles the controversy here.
4. The widow is not an heir of the husband. Kirby's Dig., § 2636; 53 Ark. 261; 8 Id. 9; 5 Id. 618; 88 Ill. 251; 89 N.E. 896; 50 Id. 873; 137 S.W. 924; 42 Ia. 464; 18 Mass. 189; 98 Ark. 118 120.
5. The widow's dower is a new acquisition. 98 Ark. 93, 99. Her estate is not ancestral. Walker's Am. Law (4 ed.) 409; 31 Ark. 576; 98 Ark. 118; 98 Ind. 429; 37 S.C. 285. The widow is not blood kin to the husband, and marriage is a valuable consideration. 98 Ark. 99, and 102, and cases supra.
Jas. H. Johnson, for the Travis heirs.
1. Lands which come by purchase do not descend as an ancestral estate. 14 Cyc., § 4, p. 32; 15 Ark. 555; 20 Id. 19; 98 Id. 93.
2. The half blood inherit equally with the whole blood. 14 Cyc., par. H, p. 45; 15 Ark. 555; 20 Id. 19; 53 Id. 261; Kirby's Dig., §§ 2709-2710. The assignment of dower is as essential now as at common law.
3. For dower under the common law, see Co. Lit. 30-A; 2 Bl. Com. 130; 4 Kent Com. 35; Wash., Real Prop., 146; 53 Ark. 279; 53 Id. 235; 60 Id. 169. Prior to assignment the dower right is not assignable to a person not vested with the fee. 14 Cyc. 964; 62 Ark. 51; 31 Id. 334. It is merely a right to a chose in action. 14 Cyc. 960, par. 2; 21 Ark. 62.
4. Dower dies with the widow. Tiedeman, Real Prop., § 141, p. 111. When she dies without asserting her claim, neither her personal representatives, nor those of her assignee, can maintain an action to have dower admeasured. 59 Hun. 538; 49 N.J. 66; 98 Ark. 118. Dower must be assigned before the death of the widow, if not her dower abates as to her collateral heirs and representatives. Cases supra.
OPINION
Appellant M. F. Barton instituted this action in the chancery court of Pope County to establish and quiet her title to certain lands lying in that county, and also a large amount of personal property, all of which she claims by inheritance from her brother, J. K. Bowers, who died without lineal heirs. A portion of the lands owned by decedent, J. K. Bowers, came to him by inheritance from his father, and therefore constituted an ancestral estate; the remaining portion of the lands which is quite the largest part of his estate, were lands which he acquired himself by purchase. J. K. Bowers died in Pope County on November 27, 1912, and was survived by his wife, who died one day later without having had her dower assigned to her. Mrs. Barton was the only collateral heir of J. K. Bowers of the full blood, but he left other heirs of the half blood, namely, descendents of his half brother, W. A. Travis. Mrs. Bowers was a Boyd before her marriage and she died childless, leaving collateral heirs who were made parties to this proceeding. The Travis heirs were also made parties, as was the administrator of the estate of said decedent.
The court in its decree awarded the ancestral lands to the appellant, Mrs. Barton; and divided the personal property and the land constituting the new acquisition, one-half to the Boyds, as heirs at law of the widow of J. K. Bowers, and one-fourth to appellant, Mrs. Barton, and the other fourth to the Travis heirs. The Travis heirs have cross-appealed from that part of the decree which awards a portion of the estate to the Boyd heirs and also from the part of the decree which awards all of the so-called ancestral lands to appellant.
The contention of appellant is that because the widow died before her dower was assigned, and without asserting a claim of her right to have it assigned, she did not become immediately vested with an estate of such a character that it passed at her death to her heirs; and it is also contended that if the widow took any interest in the land, it was as heir of the decedent in the nature of an ancestral estate, which upon her death went back to the source whence it came, i. e., the blood of the original donor, and that her heirs took nothing by inheritance.
The controlling statute on the subject of widow's dower reads as follows: Kirby's Digest, § 2709.
The argument of appellant is based upon decisions of this court to the effect that the widow's dower right, before allotment to her in severalty of her share, is not transferable to a stranger so as to confer any rights enforceable at law. Jacoway v. McGarrah, 21 Ark. 347; Jacks v. Dyer, 31 Ark. 334; Weaver v. Rush, 62 Ark. 51, 34 S.W. 256; Flowers v. Flowers, 84 Ark. 557, 106 S.W. 949. From this premise it is argued that, under the present statute, if the widow dies without asserting her claim, neither her personal representatives nor heirs can maintain an action to recover the land nor for personal property not assigned to her as dower before her death. The statute quoted above was enacted in 1891 and worked a very material change in the law on that subject. Prior to the passage of that statute, the widow took only a life estate, but now, in certain instances, she takes land in fee simple. It has always been the law of this State that the widow's right to dower in personal property is not lost by her death, but descends to her personal representatives for the benefit of her creditors or heirs, and this is so for the reason that her dower right in personalty is absolute. The statute now under consideration gives the widow an absolute estate, and therefore it necessarily follows, for the same reason, that the interest conferred by the statute vests immediately upon the death of the husband and descends to the heirs of the widow, whether the assignment is made before her death or not. She takes absolutely an undivided interest in fee simple, and it is such an interest as immediately vests and without assignment becomes subject to transmission by conveyance or inheritance.
The following is laid down as the rule with respect to personal property, and we think it is equally applicable to real estate where an interest is conferred in fee simple: "If the surviving...
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