Le Croy v. Cook

• Decision Date: 30 June 1947
• Docket Number: No. 4-8244.,4-8244.
• Citation: 204 S.W.2d 173
• Parties: LE CROY v. COOK
• Court: Arkansas Supreme Court

204 S.W.2d 173

LE CROY v. COOK

No. 4-8244.

Supreme Court of Arkansas.

June 30, 1947.

Rehearing Denied September 22, 1947.

Appeal from Chancery Court, Second Division, Union County; W. A. Speer, Chancellor.

Action by George M. Le Croy against Otho A. Cook, Commissioner of Revenue, and the sheriff of Union County to cancel a distraint warrant issued by Commissioner for collection of additional income taxes and for other relief. From a decree of dismissal for want of equity, plaintiff appeals.

Affirmed.

George M. Le Croy, of El Dorado, and Homer T. Rogers, of Smackover, for appellant.

O.T. Ward, of Little Rock, for appellees.

McHANEY, Justice.

Appellant brought this action against appellees, who are respectively the Commissioner of Revenues for the State of Arkansas and the Sheriff of Union County, to cancel a distraint warrant issued by the Commissioner for the collection of additional income taxes for the years 1939 and 1940 in the sum of $432.95, and which was delivered to the Sheriff for collection by levy as for an execution, and to enjoin them from the collection of any additional taxes. He alleged that, in the year 1911, he entered into a contract with his wife, Lizzie LeCroy, "whereby appellant would, in selling all real property wherein the wife had an inchoate right of dower, and when she joined, released and relinquished same, she would receive one-third of the net proceeds derived from any and all sales in lieu of and in full compensation for her inchoate dower rights so released. Same to become her sole and separate property, which contract has been fully complied with and fully performed". He sets out a number of real estate sales by him during 1939 and 1940 wherein his wife joined to release and relinquish her dower rights and in which she was paid one-third of the net proceeds of said sales. One such sale is particularly stressed, it being an oil leae sold to C. H. Murphy, Jr., on June 20, 1940, subject to the wife's dower rights and which rights were released to Murphy by her on September 30, 1940, by separate instrument and she received from Murphy $400 therefor. He alleged that, notwithstanding no part thereof was paid to or received by him, the Commissioner was holding that it all belonged to him and charged him with same contrary to law, and that he had paid all taxes on income properly chargeable to him.

Appellee answered denying appellant's right to claim credit on his net income for the amount of such sales of real property so delivered to his wife. They alleged that more than thirty days had expired after appellant had been notified by the Commissioner of the assessment of the additional tax, and that no hearing had been requested by appellant and no appeal taken therefrom, and that the court was without jurisdiction. A temporary restraining order was issued.

Trial resulted in a finding by the court that appellant and his wife entered into the oral agreement as alleged by him in 1911, and that said agreement was faithfully and fully complied with since said date, but also found that the temporary order should be dissolved and that the complaint should be dismissed for want of equity. A decree was entered to this effect and this appeal followed.

For a reversal appellant contends, first, that he has the right to contract generally with his wife in regard to her inchoate right of dower in his real estate and that any income accruing to her under such contract is not taxable income to him; and, second, in the absence of any such contract, where he sells property subject to her dower interest and she later, by a separate instrument, releases her rights to such purchaser and receives pay therefor direct from the purchaser, the money paid to her is not taxable to him. These are the principal questions raised by this appeal.

We cannot agree with appellant on either contention. A wife is not endowed of her husband's real estate. Only the widow is so endowed. Section 4396 of Pope's Digest provides that: "A widow shall be endowed of a third part of all the lands whereof her husband was seized of an estate of inheritance (a) at any time during the marriage, unless the same shall have been relinquished in legal form". Until her husband's death the wife's right of dower is inchoate, that is, it is contingent upon his death during her lifetime. While it is a valuable contingent right, it is not such an interest in her husband's property as may be conveyed by her. It may only be "relinquished" by her to her husband's grantee in the manner and form provided by statute. Section 1815 of Pope's Digest provides: "A married woman may relinquish her dower in any of the real estate of her husband by joining with him in the deed of conveyance...