Collins v. Paepcke-Leicht Lumber Company

• Decision Date: 28 January 1905
• Citation: 84 S.W. 1044,74 Ark. 82
• Parties: COLLINS v. PAEPCKE-LEICHT LUMBER COMPANY
• Court: Arkansas Supreme Court

84 S.W. 1044

74 Ark. 82

COLLINS v. PAEPCKE-LEICHT LUMBER COMPANY

Supreme Court of Arkansas

January 28, 1905

Appeal from Chicot Chancery Court MARCUS L. HAWKINS, Judge.

Reversed in part.

STATEMENT BY THE COURT.

H. H Collins died childless in 1862, the owner of the lands in controversy, leaving his widow, Elizabeth B. Collins, and seven brothers, to whom, by his last will and testament, he devised all his property, one-half to his wife, Elizabeth B for life, and the remainder to his brothers, or those of them who should be "true to the South in her (then) present struggle." The will further provided that in the event "that as much as two-thirds of my property be taken by the Federals, or destroyed during the war, then my wife is to take all of what remains of the wreck of my property one-half of which I give to her as her absolute property, and the remaining half of what is not so lost or destroyed to be held by her for and during her natural life." The widow intermarried with O. L. Richardson, and, after his death with Jas. H. Warner, who died December 20, 1900, having occupied the land in controversy until her death.

O. L Richardson qualified as administrator of the estate of H. H. Collins on May 9, 1866, and acted in that capacity until his death in 1872. He filed an inventory of personal property, showing valuation aggregating the sum of $ 2,572.75, and three settlement accounts.

In February, 1873, Elizabeth B. Richardson was appointed administratrix of the estate of H. H. Collins, deceased, and at the April term, 1873, of the Chicot County Probate Court filed her petition, seeking a sale of the lands for the balance found in the first and third settlements of O. L. Richardson, as administrator of said estate, as expenses of administration in the sum of $ 3,590.33. A suit was filed by a part of the heirs of H. H. Collins in the circuit court of Chicot County in chancery to enjoin the sale sought, and said case was disposed of as shown in Collins v. Warner, 32 Ark. 87.

James H. Warner intermarried with said Elizabeth B., and became administrator de bonis non of the Collins estate, and also administrator de bonis non of the estate of O. L. Richardson, deceased. The lands were sold by Jas. H. Warner, as administrator of the Collins estate, and purchased by said Elizabeth B., pursuant to an order made by the probate court on October 11, 1880, in the following words:

"James H. Warner, as administrator de bonis non, with the will annexed, of the estate of Henry Collins, deceased, and as administrator de bonis non of the estate of Owen L. Richardson, deceased, and Elizabeth B. Warner, as a legatee in said will as creditor of the estate of Henry H. Collins, deceased, against Sanford Collins, Thomas Collins, Samuel Collins, John H. Collins, James Edward Collins, in his own right and in right of his wife and children, and Robert Collins, legatees under the will of Henry H. Collins, deceased, Ann Eliza Collins, Bettie Collins, Benjamin Collins, Ephia Collins and Henry Collins, children and heirs at law of Tolbert Collins, deceased, a legatee under said will, all of whom are residents of the State of Kentucky.

"On this day this cause came on to be heard upon the petition as originally filed, and the answer thereto and the reply, and the evidence from the assessment books of the county for 1860, 1861, 1862 and 1865, a part of the complaint of the defendants in a proceeding to enjoin this suit, and the depositions of the present plaintiffs or petitioners. And thereupon, after argument of counsel, the case was submitted to the court for determination, and the court, after due consideration, doth find for the petitioners, and, the court being fully advised of what order should be made in the case, it is therefore adjudged and ordered by the court that the claim of $ 3,590.33 in favor of representative of said estate of Owen L. Richardson, deceased, against the estate of said Henry H. Collins, deceased, and now amounting, with interest thereon at 6 per centum, to the sum of $ 5,313.68, be paid as expenses of administration. And it is further ordered that the lands of said estate, comprising as they do the greater part of Island 82, or so much thereof as may be necessary to pay said sum of $ 5,313.68, with interest and costs, be sold at public auction by said administrator de bonis non with the will annexed of the estate of Henry H. Collins," etc.

* * * *

"And it is further adjudged and decreed that the said Elizabeth B. Warner is, under the will of said Henry H. Collins, entitled to have, hold, receive and retain as her own property, in fee simple absolute, one-half of all the property of said estate, after the payment of said $ 5,313.68 and costs, and any additional expenses of administration attending the final settlement of said estate. And that she is entitled to have, hold, retain and receive as her own property, for life, the remaining one-half of said estate."

The sale under this order was reported to the probate court at the next term thereafter, and confirmed. Elizabeth B. Warner, during her occupancy of the land, executed several mortgages thereon to Thomas H. Allen & Co., and finally, on May 15, 1891, by her warranty deed conveyed the same to Thomas H. Allen; and the appellee herein acquired its claim of title through these conveyances made by said Elizabeth B. Warner.

On March 7, 1901, this suit was commenced in the chancery court of Chicot County by the heirs of the brothers of H. H. Collins named in said will against appellees, asking that the several conveyances made by said Elizabeth B. Warner and the conveyance to appellee be cancelled, and the title decreed to be in the plaintiffs. They also alleged that the defendant was cutting valuable timber from the lands, and prayed that it be enjoined from so doing, and that plaintiffs recover possession of the lands and the value of the timber cut.

Appellee answered, setting up title under the probate sale to Elizabeth B. Warner, and also pleaded laches on the part of plaintiffs in failing to assert their alleged rights in due season, and also pleading, respectively, the five and seven years statute of limitation.

From a decree dismissing the complaint for want of equity the plaintiffs appealed.

Decree affirmed.

Cook & Kendall and Joe T. Collins, for appellants.

No title passed by the administrator's deed. 50 Ark. 188; 51 Ark. 34; 62 Ark. 439. The land could not be sold until the personalty was exhausted. 37 Ark. 157; 46 Ark. 373; 52 Ark. 322. The sale was void because fraudulently obtained. 26 Ark. 256; 47 Ark. 471; 48 Ark. 277; 56 Ark. 601; Mansf. Dig. §§ 170, 171. A void judgment may be collaterally attacked. 48 Ark. 151.

F. M. Rogers, for appellee.

The judgment of the probate court is final, unless reversed on appeal. 13 Ark. 507; 31 Ark. 74; 47 Ark. 413; 52 Ark. 341. As a condition precedent to avoidance, the remaindermen must reimburse the life tenant all sums paid to remove incumbrances. 4 Kent, 75; 20 Ark. 381; 49 Ark. 242; 20 Ark. 359. Appellee is subrogated to Mrs. Warner's right to repayment. 47 Ark. 421; 50 Ark. 361; 56 Ark. 563.

MCCULLOCH, J., HILL, C. J., not participating, BATTLE, J., dissents on the ground that the chancery court had no jurisdiction.

OPINION

MCCULLOCH, J., (after stating the facts).

The jurisdiction of the chancery court to hear and determine this cause has not been challenged by appellee, either here or in the court below. The defendant being in possession of the lands holding adversely to the plaintiffs, as shown by the complaint, and no ground for equitable relief being alleged, it is clear that the suit should have been commenced in the law court, or, after having been commenced in the court of equity, should have been transferred to the proper court; but, as appellee made no motion to transfer and submitted to trial of the issues without objection in the court of equity, it is held to...