Bertig v. Higgins
| Decision Date | 18 January 1909 |
| Citation | 115 S.W. 935,89 Ark. 70 |
| Parties | BERTIG v. HIGGINS |
| Court | Arkansas Supreme Court |
Appeal from Green Circuit Court, Frank Smith, Judge; reversed.
Judgment reversed and case dismissed.
J. D Block and Huddleston & Taylor, for appellant.
The appellee, suing as administratrix, is not entitled to maintain this action. 24 Ark. 561; 33 Ark. 824; 38 Ark. 243; 51 Ark. 43; 70 Ark. 246.
W. W Bandy, for appellee.
If it be conceded that appellant by his foreclosure suit obtained such title as appellee herself had, yet the interest of the minor children could not be obtained in that way, and their interest and that of creditors at least, could be protected through the administratrix. The reason for granting the letters of administration cannot be questioned in this case. 46 Ark. 373. And, the letters being granted, appellee was compelled to follow the statute. Kirby's Dig. § 56. This court has said: "Either the heirs at law or the widow might lawfully have possession of the property belonging to the estate until an administrator was appointed then the rights of either must give way to the administrator." 83 Ark. 416.
J. R. Higgins, appellee's intestate, executed to one Fisher a chattel mortgage on two mules to secure the payment of a promissory note for $ 200, and after the maturity of the note and after the death of J. R. Higgins the widow induced appellant to purchase the note from Fisher, taking an assignment thereof. She represented to appellant that the two mules now in controversy were the ones embraced in the mortgage, but it was proved at the trial of this case below that they were not the same mules, and that the two embraced in the mortgage had been traded off by J. R. Higgins in his lifetime.
Upon default being made in payment of the mortgage debt, according to agreement with appellant when he purchased the note, he demanded possession of the mules, which being refused, he instituted an action before a justice of the peace to recover possession for the purpose of foreclosing the mortgage. He obtained judgment, foreclosed the mortgage regularly according to law and the terms of the mortgage, and purchased the mules at the sale. Mrs. Higgins then took out letters of administration on the estate of her deceased husband, and instituted this action against appellant to recover possession of the mules. A trial before jury in the circuit court resulted in a verdict and judgment in favor of appellee.
It is undisputed that all of the personal property owned by J R Higgins at the time of his death did not exceed in value the sum of three hundred dollars. He left surviving his widow and minor children. It is contended on behalf of appellant that, as the personal property of J. R. Higgins did not exceed $ 300 in value, the title thereto vested in the widow and minor children by virtue of the statute [Kirby's Digest, § 3], and that the administratrix cannot maintain an action to recover it. Under those circumstances the personal property, like the homestead of a decedent, is exempt from administration proceedings and does not pass into the hands of an administrator. The title is vested absolutely by virtue of the statute in the widow and minor children, and they alone are authorized to sue for possession. This court has construed former statutes of similar import to so vest the personal property without an...
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Mcgraw v. Miller
...allowed to recover possession of the personal property from the widow because the value of the estate was from $ 700 to $ 1,000. In the Bertig case, supra, as is there pointed out, the widow, and not the administratrix, authorized to sue because the value of that estate did not exceed $ 300......
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McGraw v. Miller
...but that it was proper to have an administrator and guardian parties. The next case to which attention is called is Bertig v. Higgins, 89 Ark. 70, 115 S. W. 935. The court in that case, however, said that the grant of letters of administration was conclusive of the necessity of appointment,......
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Raymond v. Raymond
...... children, and not the personal representative of the. decedent. Counsel for defendant cite the case of. Bertig v. Higgins, 89 Ark. 70, 115 S.W. 935, in support of that contention. It does not appear in the. record that there are any minor children of the ......
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