Crowley v. Mellon

• Decision Date: 15 June 1889
• Citation: 11 S.W. 876,52 Ark. 1
• Parties: CROWLEY v. MELLON
• Court: Arkansas Supreme Court

11 S.W. 876

52 Ark. 1

CROWLEY v. MELLON

Supreme Court of Arkansas

June 15, 1889

APPEAL from Greene Circuit Court in Chancery, T. P. McGOVERN, Sp Judge.

Lucy Mellon, the appellee, brought this suit in chancery against B. H. Crowley, administrator of Thomas J. Mellon, deceased and the sureties on his bond. Her complaint seeks to set aside and restate the final account of Crowley as such administrator, and to recover, as dower due to her, one-half of an amount collected by him on certain notes belonging to the estate of Mellon. The defendants, by answer, resisted a recovery on grounds which are sufficiently stated in the opinion. From the pleadings and evidence it appears, that Thomas J. Mellon died about the year 1863, leaving the plaintiff, his widow, and no children. P. K. Lester, who claimed to be the sole legatee and devisee of Mellon, was appointed administrator (with the will annexed) of his estate. Lester, under an agreement with the plaintiff, and as devisee of her husband's lands, conveyed to her, in fee simple, a certain part thereof, which the complaint alleges was received in lieu of her dower in all the real property of the deceased. The answer of defendants alleges the fact to be, that the conveyance from Lester was accepted by the plaintiff in full of all her dower in the whole estate. The administration of Lester ceased before the estate was settled, and the defendant, Crowley, was appointed administrator de bonis non. Crowley filed in the Probate Court an inventory showing that the assets which had come into his hands consisted of five promissory notes executed to the deceased by Lester, each for the sum of $ 1400. Mrs Mellon filed her petition in the Probate Court to obtain dower in these notes. Her petition was granted, and the administrator appealed. On the appeal the Circuit Court found, among other things, that Mrs. Mellon, at the time she received the conveyance from Lester, in lieu of dower, was ignorant of the existence of the notes referred to; that they were in the possession of Lester, and that he concealed from her the fact of their existence. That court also rendered a judgment awarding Mrs. Mellon one-half the amount of the notes as dower. While this proceeding was still pending, and before the judgment of the Circuit Court therein, Crowley, in a suit brought on the notes as administrator of Mellon recovered judgment against Lester's administrator for the sum of $ 3000. Crowley's attorney collected $ 1070.50 on this judgment, and assigned the residue of it to A. M. Davis, a creditor of Mellon, in satisfaction of a claim probated against the estate. Crowley reported to the Probate Court the recovery of the judgment against Lester's administrator, and its assignment to Davis. The disposition thus made of the judgment, appears to have been shown by the administrator's final settlement, which was approved by the Probate Court. This action was commenced after his discharge. The court below allowed him for an attorney's fee in the suit against Lester's administrator, for commission on the sum recovered and for actual expenses, credits amounting to $ 540, and gave judgment against the defendants for one-half of the balance of the sum recovered on the notes ($ 1230) together with interest thereon at six per cent. per annum.

The defendants appealed.

Decree affirmed.

Sam W. Williams, for appellant, Crowley.

The complaint is fatally defective. It states too little and too much. It fails to specifically charge fraud in procuring the confirmation of his final settlements and final discharge by the administrator. It states too much in setting out that final judgment. It fails to show that the administrator ever received any money in trust for the widow, or that he was bound to her for any sum so received. The widow is not an heir or distributee, and the administrator owes her no duty to collect or protect her dower interest. He is not liable except for money had and received, or specific property in kind. Here Crowley neither had her money nor her property in kind, but her own and his attorney and Davis received the proceeds, and Davis is liable, if any one.

She takes her dower in specific property by way of lien, not as distributee, and her dower is carved out of the specific property. 5 Ark. 608; 8 Ark. 9; 19 Ark. 424. It is true, if the administrator gets possession of property in which the widow is entitled to dower, he is a trustee for her until her dower is assigned. Cases supra; 17 Ark. 581. It is not the duty of the administrator to gather up, collect or save her dower (Mansfield's Digest, sec. 62), or make him responsible for negligence to her, for she, having a specific lien, is able to protect herself by action in her own name as a creditor or distributee cannot do.

The court below labored under three errors.

1. That the administrator was bound to protect the widow's dower as he is that of a legatee or creditor. This is not tenable. See cases supra.

2. That the judgment of discharge of Crowley was a fraud on Mrs. Mellon, simply because the proof disclosed that there had been a judgment, by a special judge, that five notes should be divided in kind, an impossibility on its face, if this nondescript were otherwise good, and this too regardless of the facts that appellee's attorney, as well as Crowley's, and through him herself, had assigned the judgment to Davis to relieve her own lands from the lien of the judgment, and that appellee had accepted a fee in lands in full of all dower.

3. That the judgment in discharge was void and did not protect Crowley. Now it is evident that judgment is the last adjudication, and, being of a court of competent jurisdiction, binds the world. 11 Ark. 519, and other cases Ark. Rep.

4. That discharge cannot be questioned collaterally, by showing that a special judge decreed that five notes should be divided in two; a judge whose election is not shown, and which is void, for consent cannot give judicial power. 7 S.W. 384.

5. The judgment of discharge could not be avoided by showing that Crowley filed an inventory of the notes, sued Lester and recovered judgment. That does not prove fraud, for the presumption is against fraud. And it was proven, first, that Mrs. Mellon consented, through her attorney, to the transfer of the judgment to relieve her dower lands. Second, that the judgment was not recovered on the notes at all, but on a compromise. Third, that Mrs. Mellon accepted a conveyance of land from the sole devisee, in full of all dower.

6. The judgment discharging Crowley was in rem and bound the world, and certainly those interested in the estate. 35 Ark. 331. They should have excepted to the confirmation of the accounts.

7. The notes in this suit accrued before the passage of the act giving the widow dower therein. The act was not retroactive, and the widow's dower was governed by the act of 1839, which postponed the widow until the creditors were paid.

L. L. Mack and J. N. Cypert, for appellee.

1. An administrator is a trustee for the widow as well as creditors, and pays out or misapplies the assets at his peril. Crowley is estopped from disputing that the assets came to his hands by his report to the Probate Court.

2. The judgment of the Circuit Court, adjudicating plaintiff's right of dower, can not be attacked collaterally. But if the judgment was void, the Chancery Court had jurisdiction, and there is enough in the complaint to entitle her to dower, Crowley having fraudulently obtained his discharge, he is liable to have his account restated, and a decree against him for the amount found due.

3. The widow was entitled to dower in the specific property, and the Probate Court the proper forum. Const. Ark. Art. 7, sec. 34; 5 Ark. 608.

4. The widow could waive her right to dower in the lands and elect to take dower in the notes, the proceeds of the sale of the Lester lands. Equity impresses the proceeds with the character of the property sold.

Even if the judgment was wrong, it is binding unless appealed from, as the court had jurisdiction, and simply committed an error.

The administrator occupied the same trust relation to the widow for her dower in the personalty that he does to creditors and any act which defeats her rights is as much a fraud as...