Clark v. Hershey

• Decision Date: 08 February 1890
• Citation: 12 S.W. 1077,52 Ark. 473
• Parties: CLARK v. HERSHY
• Court: Arkansas Supreme Court

12 S.W. 1077

52 Ark. 473

CLARK v. HERSHY

Supreme Court of Arkansas

February 8, 1890

APPEAL from Sebastian Circuit Court in Chancery, R. B. RUTHERFORD Judge.

Judgment reversed and cause remanded.

Compton & Compton, for appellants.

1. The appellee elected to take, and did take under the will of Aaron, and thereby lost any right she had as heir. 17 Pick 303; 77 Pa. 160; 84 id., 402; 54 Cal. 207; 63 Ill. 285. The question of election was not in issue, nor decided, in the former case.

2. The court erred as to the interest in the lands which appellee was entitled to under our statute of descents--making the calculations to verify the proposition.

3. The allowance of interest on the claim of appellee was erroneous. 20 Ark. 410. The claim was not liquidated, but was doubtful and disputed, and in such cases interest is not allowed.

4. Instead of being entitled to 11-48ths of lands unsold in Johnson, Perry, Sebastian and Pope Counties, appellee is entitled only to 1-8th of lands in Johnson and Perry, and 1-6th only of one class of lands in Sebastian and Pope, and to 11-48ths in the other class, and this error exists in the money decree, issues and profits.

5. The master seems to have stated no account as to Abram C. Miller and the decree against him is not supported by the evidence.

6. It was error to decree a lien on the interests of appellants, and in directing a sale to pay the money decree. 21 Pick. 559; 42 N.Y. 549; 4 Johns. Chy., 521; 2 Curtis, C. C., 427. Nor was there any lien for owelty, because no partition had been made, and even if there had been, there was no express agreement between the parties to that effect, or for any other purpose. 32 Md. 57. Besides, nearly all the rents decreed against Sarah Clark, arose from her own occupancy of the homestead, which was not sold.

7. By an unreasonable lapse of time, the demand of appellee is stale. 14 Ark. 62; 19 id., 16; Wood on Lim., 121.

8. But aside from laches or staleness, the bill should be dismissed for the long acquiescense of the appellee as to the title of the property; and the use and disposition of it. Wood on Lim. 125, 126. If appellee was mistaken as to the legal effect of the conveyance between Abram and Aaron, and of the joint will of Nancy and Sarah, this can make no difference. Estoppel arises notwithstanding a mistake of law, even in cases of mistake or ignorance of fact after long lapse of time, especially in connection with change of situation, as in this case. 6 Mo. App., 323; 57 Mo. 384; 49 id., 98; 91 Ill. 251; 39 Mich. 270; 16 Wend., 285; 10 id., 104; 25 Cal. 619; 48 id., 395. She was bound, notwithstanding her coverture, by the estoppel. 10 C. E. Green (N. J.), 194; 69 Ill. 174; ib., 452; 3 Bush., 702; 14 Bush., 490; 14 B. Mon., 638; 40 Mich. 29; 56 Miss. 318; 57 N.H. 482; 26 Ohio St. 535; 2 Drewry, 363; L. R., 4 Ch. App., 591.

U. M. & G. B. Rose, for appellee.

1. The facts in this case do not show that Mrs. Hershy ever elected to take under the will of Aaron and Nancy Clark. She cannot be bound by the unauthorized acts of her husband. The will of Nancy Clark was adjudged void. No such issue as that of election was before the court, and the application to inject it in this case was properly refused. 38 Ark. 599.

This was not a case where appellee could be put to an election. 1 Pom. Eq. Jur., sec. 473; 15 N.Y. 366. Elections are only binding when made with full knowledge of the facts and of the parties' rights. 1 Pom. Eq. Jur., sec. 512; 4 Desau's Eq., 274; 29 N.J.Eq. 54; 42 Ga. 521; 30 Iowa 465.

2. Appellee not barred by laches. A married woman can sue at any time during coverture, or within three years, thereafter. 42 Ark. 305; 44 id., 398. But this is res adjudicata. It was decided on former appeal that appellee was entitled to maintain the suit, and though erroneous, it is still the law of the case. 5 Ark. 200; 14 id., 304; ib., 515; 29 id., 174.

3. Nor was appellee estopped by long acquiescence. The first requisite of estoppel is, injury to the party setting up the estoppel; estoppels do not grow out of mere acquiescence, but of improper silence, resulting in prejudice to another. Mrs. Clark was not mislead, nor injured. 11 Ark. 249; 36 id., 114; 15 id., 55; 17 id., 221; 39 id., 131.

4. The question of the interests of the parties in the lands was submitted to a master; he reported upon it, and no exceptions were taken to his report. Exceptions must be made in the trial court. They cannot be made here for the first time. 108 U.S. 72; 18 How., 510; 13 Pet., 368.

5. Six per cent. interest properly allowed since July 13, 1868. See Gantt's Dig., sec. 4277. The receipt by defendant of money belonging to plaintiffs raised an implied contract, and makes a case within the statute. 8 Ark. 202; 25 id., 100; ib., 134; 27 id., 365. The right to interest before that time is equally plain. Gould's Dig., ch. 92, sec. 1.

6. A tenant in common, who receives more than his share of the joint property, is liable to suit for money had and received. 7 Pick. 132; 2 Gray, 424.

7. No exception was filed to the allowance of interest by the master. It is too late now. See supra.

8. In suits for partition and account, the person in whose favor the balance is declared has a right to have that balance declared a lien on the interest of his co-tenant. 11 N.J.Eq. 276; 49 Ill. 78; 11 Gill. & J., 98; Freeman on Cot. and Part., sec. 512.

SMOOTE, SP. J. SANDELS, J., being disqualified, did not sit in this cause.

OPINION

SMOOTE, Sp. J.

This is the second time this case has been before this court. See, Hershy v. Clark, 35 Ark. 17.

Abram and Aaron Clark were brothers. They owned, as tenants in common and in equal shares, certain real and personal property. Besides this, neither of them, during their joint lives, seems to have owned any other property. The real estate owned by them was, and is, situated in the Counties of Sebastian, Pope, Johnson, Perry and Yell.

The two brothers, during their lives, and on the 11th day of May, 1850, mutually agreed, in writing, that the survivor should take and become the sole owner of the whole of the property, real and personal, and hold the same as his own absolutely. Afterwards, and on the 17th day of May, 1851, Abram Clark died, without having made any other testamentary disposition of his property than that contained in the said written agreement between the brothers. He died unmarried and without issue of his body, leaving him surviving, his mother, Nancy Clark; his brother, Aaron Clark, and his sisters, Sarah Clark, Susan Clark, Elizabeth Miller, and Ann E. Hershey, his only heirs-at-law and distributees.

Upon the death of Abram, Aaron took possession of all the property as his own, and Nancy, the mother, by her deed of the 8th of December, 1851, conveyed her entire interest therein to him, and he held possession of all of the property, claiming it as his own until his death.

Susan died during the lifetime of Aaron, in 1851, unmarried, without issue and intestate, leaving her surviving the said Nancy, her mother, and the said Aaron, Sarah, Elizabeth and Ann E., her brothers and sisters, her only heirs-at-law and distributees.

Aaron died on the 14th day of November, 1855, unmarried and without issue, after making and publishing his last will, which was duly probated. By this will he bequeathed all of his personal property, and devised all of his lands lying in Sebastian and Pope Counties, to his mother Nancy and his sister Sarah, to hold in common; to his sister Elizabeth he devised all his lands lying in Johnson and Perry Counties, and to his sister Ann E., he devised all his lands lying in Yell County, and any other lands undisposed of by the will. Aaron during his lifetime, acquired lands other than those owned by himself and his brother Abram in common.

All of the legatees and devisees under the will of Aaron (except perhaps Ann E., about whom as to this, there is a question in the record), seem to have accepted under the will, and entered upon the enjoyment of the property therein bequeathed and devised to them, and remained in undisputed possession thereof until about the time this suit was instituted, except Elizabeth Miller, who so remained in possession until she died in 1867, leaving her surviving Abram C. Miller, her only heir-at-law and distributee, who has been in possession since her death.

The mother, Nancy, died, on the 27th of November, 1861, after making jointly with Sarah what purported to be her last will, the contents of which it is unnecessary to notice here. She left surviving her, her said daughters Sarah, Elizabeth and Ann E., her only heirs and distributes.

Ann E., instituted this suit in October, 1870, the principal defendants being Sarah Clark, and Abram C. Miller, the son of said Elizabeth Miller, deceased. The only other defendants are S. F. Clark, as executor of the will of Aaron Clark, and her husband, B. F. Hershey, as administrator of the estate of Nancy Clark, who are little more than nominal defendants. The object of the suit is to have partition and an account of rents, profits and the proceeds of the sales of such of the lands as had been sold, and of certain personal property, and the like, as part of the estate and property hereinbefore mentioned, and to have her interest therein ascertained and enforced.

Sarah Clark and Abram C. Miller answered, relying principally on the written agreement made by the brothers in their lifetime, the deed of her interest by Nancy, the mother, to Aaron, his will, and the joint will of Nancy and Sarah, in support of their rights to the property; they also interposed the statute of limitations, and made their answer a cross-complaint.

At the hearing in the Circuit Court the Chancellor dismissed the bill for want of equity,...