Doss v. Taylor

• Decision Date: 04 March 1968
• Docket Number: No. 5--4492,5--4492
• Citation: 424 S.W.2d 541,244 Ark. 252
• Parties: Bulah W. Taylor DOSS et al., Appellants, v. H. E. TAYLOR, Jr., Appellee.
• Court: Arkansas Supreme Court

Page 541

424 S.W.2d 541

244 Ark. 252

Bulah W. Taylor DOSS et al., Appellants, v. H. E. TAYLOR, Jr., Appellee.

No. 5--4492.

Supreme Court of Arkansas.

March 4, 1968.

Paul K. Roberts, Warren, for appellants.

Huey & Vittitow, Warren, for appellee.

FOGLEMAN, Justice.

This appeal requires that we determine whether the Chancery Court or Probate Court of Bradley County has jurisdiction of the sale of certain lands of decedent, H. E. Taylor, Sr., who died intestate, a resident of that county, on June 16, 1964. Taylor left as survivors: his widow, Bulah W. Taylor Doss; the appellee, a son by a previous marriage; and a minor daughter, of whom the widow is guardian. The widow was also appointed administratrix. She filed her inventory, listing the real estate involved, on August 28, 1964. On December 3, 1965, the probate court made statutory allowances to the widow and minor child. It also made an 'Order of Partial Distribution.' That order recited that there were no unpaid claims pending against the estate and that the real property was already vested in the heirs subject to the widow's dower of one-third for life. The order closed with this sentence:

'The possession of said property is not susceptible of partition in kind and the personal representative or any interested person should file a proper petition in this court to seek the sale of said property for the purpose of distribution.'

Nothing in the record indicates that appellant has ever filed a final account as administratrix.

On March 22, 1967, appellee filed a petition for partition in the chancery court, alleging that the real estate was not susceptible to division in kind. He prayed that the property be partitioned or sold and the proceeds of sale divided among the parties according to their respective interests after the payment of attorney's fee and costs. Appellant demurred to this petition individually, as administratrix and as guardian. The grounds of demurrer included contentions that there was another action pending between the same parties for the same cause and that the chancery court had no jurisdiction of the subject matter.

On June 2, 1967, appellant, as administratrix, filed a petition in probate court for the sale of this real property. Appellee demurred to this petition on the ground that the petition for partition was pending in the chancery court. On June 12, 1967, appellee amended his petition for partition, seeking an accounting for the rents collected by appellant as administratrix. On the same day, the chancery court passed appellant's demurrer 'to be heard after the consolidation of the petition to sell land filed by the Administratrix * * *.' No motion to transfer this petition or to consolidate the petitions had been filed by either party, but the probate court, on the same day, over the objections of the appellant, transferred and removed appellant's petition for sale and the demurrer thereto to the chancery court and consolidated it with the partition proceeding. The next day appellant filed a motion to dismiss the suit on the ground that the court did not have subject matter jurisdiction of the property of which partition was sought. On June 14th, the probate court entered its order finding that the administratrix possessed the property and had collected rents, paid taxes, and kept the property insured under the authority of the order of partial distribution. The chancery court, on the same day, consolidated the probate proceedings with the chancery proceedings for final adjudication, overruled appellant's demurrer and motion to dismiss, both being considered as a demurrer to the record as it then stood. Appellant elected to stand on her demurrers, so the chancery court entered a decree ordering sale of the lands for partition but directing that further proceedings be withheld pending disposition of this appeal. The partition decree contained findings that the administration had not been closed, that the personal representative had been, and then was, in possession of the real estate for the purpose of collecting rentals and preserving the property, and that the property was not susceptible to division in kind without great prejudice to the owners. The decree provided for sale upon three months' credit. It barred the dower of appellant. Fixing of attorney's fees, assessment of costs and expenses of sale, distribution of proceeds and accounting for rents were all continued pending the sale.

It is clear beyond doubt that the probate court had exclusive jurisdiction of the accounting by appellant as administratrix. In Phillips v. Phillips, 143 Ark. 240, 220 S.W. 52, an action in chancery to construe a will, it was held that the chancery court should have refused to entertain any jurisdiction to state accounts between an executor and certain legatees and devisees while the administration of the estate was still pending, there having been no final settlement of the accounts of the executor and no allegations or proof of fraud in the settlement of his accounts. It was clearly said that these matters were exclusively within the jurisdiction of the probate court. Under the direct holding in the cited case, the Probate Court of Bradley County had original and exclusive jurisdiction of the affairs of the Taylor estate relating to the accounts and settlements of the administratrix, and the chancery court erred in taking jurisdiction of the accounting.

In considering the jurisdiction of the chancery court for the purpose of partition, we must determine just what jurisdiction each of the courts could exercise over this property. There can be no doubt that when lands are released to the heirs early in a probate proceeding and there is no reason for the exercise of probate jurisdiction over them, the pendency of the probate proceedings does not preclude the maintenance of a partition suit in chancery. Boyd v. Bradley, 239 Ark. 120, 388 S.W.2d 107. While the court there only mentions specifically that there was no claim that the lands were needed for payment of debts in treating of the exercise of probate jurisdiction, there was no indication that the lands in that case were needed for any probate purpose. One of the authorities cited there was Ark.Stat.Ann. § 62--2401 (Supp.1963). It had previously been said in Cranna v. Long, 225 Ark. 153, 279 S.W.2d 828, another of the authorities cited in the Boyd case, that real property was an asset in the hands of a personal representative only when needed to pay debts or expenses of administration under § 94, Act 140 of 1949, then Ark.Stat. Ann. § 62--2401. ¹ It was recognized in the Cranna case that, if Ark.Stat.Ann. § 62--2714 (for the sale, mortgage or lease of real estate) had been invoked, the status of the real property as an asset of the estate might have been changed. Since that decision, however, § 62--2401 has been amended by Act 424 of 1961 to provide that real property of decedent shall be an asset in the hands of the personal representative when the court finds that it should be sold for any purpose enumerated in § 127 of Act 140 (§ 62--2704). Thus, since the passage of the 1961 Act, title to the real estate of an intestate vests in his heirs at law upon his death, subject to the widow's dower and sale for the payment of debts, the preservation or protection of the assets of the estate, the distribution of the estate, or any other purpose in the best interest of the estate. Ark.Stat.Ann. §§ 62--2401, 62--2704 (Supp.1967).

Under § 62--2714, the probate court is authorized to order sale of real...