Dowell v. Dowell

• Decision Date: 22 October 1945
• Docket Number: 4-7720
• Parties: Dowell v. Dowell
• Court: Arkansas Supreme Court

189 S.W.2d 797

209 Ark. 175

Dowell v. Dowell

No. 4-7720

Supreme Court of Arkansas

October 22, 1945

Appeal from Boone Chancery Court; J. M. Shinn, Chancellor.

Reversed.

Ben C. Henley and J. Smith Henley, for appellant.

OPINION

Millwee J.

This is the second appeal of this case. In the former appeal, Dowell v. Dowell, 207 Ark 578, 182 S.W.2d 344, that part of the decree granting appellee a divorce was affirmed, but the cause was remanded for further proceedings in accordance with that opinion relative to a division of property under § 4393, Pope's Digest.

When the original suit was instituted, appellant was the owner in fee of 240 acres of land upon a part of which the "home place" of the parties was located. A finding of the chancery court that these, and other lands in which appellant had an interest, were not susceptible of division in kind was approved by this court on the former appeal. That part of the original order which directed sale of the lands in solido was held erroneous and a resale and distribution of the proceeds thereof according to law was directed. On remand of the cause, sale was held in compliance with this court's order and appellant became the purchaser of the 240-acre tract of land for $ 7,020.

In the decree from which is this appeal the chancellor held appellee entitled to one-third of the proceeeds of the sale of these lands, less one-third of the sale costs, under the statute, and appellant has appealed from this part of the decree. Appellant is correct in his contention that the trial court erred in decreeing to appellee one-third of the proceeds of the sale, after deducting her proportionate one-third of the costs thereof. This court so held in Allen v. Allen, 126 Ark. 164, 189 S.W. 841. In that case, as here, the wife was granted a divorce and the trial court awarded her one-third of the sale proceeds under Kirby's Digest, § 2684, now Pope's Digest, § 4393. Chief Justice McCulloch, speaking for the court, said: "The statute, it will be noted, only gives the wife who is granted a divorce one-third of the real estate for life, and the effect of the court's decree was to give her an absolute interest in the property by turning over to her one-third of the gross amount of the proceeds. It is true the statute further provides that if the real estate cannot be divided without prejudice to the parties, the court shall order a sale thereof by a commissioner and that 'the proceeds of every such sale after deducting the cost and expenses of the same, including the fee allowed said commissioner by said court for his services, shall be paid into said court and by the court divided among the parties in proportion to their respective rights in the premises.' Kirby's Digest, § 2684. The fact that the wife is only allowed an estate for life in the lands set apart to her precludes the idea that she is to have the total amount of the proceeds arising from the sale of that interest, but it is the duty of the court in cases of sale to ascertain the present value of the interest and order it to be paid over to her, or otherwise protect her in the enjoyment of her interests."

Since it was the duty of the trial court to determine the present value of appellee's interest, the question of the manner of ascertaining such value is presented. The interest which a wife takes in her husband's real estate upon obtaining a divorce under the statute (§ 4393, supra) has been discussed in many cases. In Beene v. Beene, 64 Ark. 518, 43 S.W. 968, the court described such interest as being "exactly or substantially the same as would be her dower interest in case of the death of her husband. . . ." In Lance v. Mason, 151 Ark. 114, 235 S.W. 394, the court cited Crosser v. Crosser, 121 Ark. 64, 180 S.W. 337, and described the interest acquired under the statute as being "analogous to the interest she would have taken in the estate of her husband had he died." In the case of Taylor v. Taylor, 153 Ark. 206, 240 S.W. 6, the award to the wife under the statute was said to be "in the nature of dower." The effect of the statute, therefore, is to give the wife obtaining a divorce a vested life estate in one-third of the husband's lands.

The courts have employed a variety of methods in determining the present value of such life estate where the lands are sold because such interest cannot be allotted in kind. Some courts in this country have followed the English or common-law rule which considers an estate for life as equal in value to one-third of the fee. McCommon v. Johnson, 123 Pa.Super. 581, 187 A. 445. This method was rejected by this court in the case of Allen v. Allen, supra. As stated in 33 Am. Jur. 770, "At the present time the usual practice as to cases in which it is necessary to ascertain the present value in gross of a life tenant's interest in the proceeds of property upon sale seems to be to estimate the value of a life estate with reference to the life tenant's expectancy of life as shown by recognized mortality tables."

It is appellant's contention that the present value of appellee's interest should be based upon the expected net profits which might accrue to the life tenant. Testimony was introduced tending to show...