Dowell v. Dowell
| Decision Date | 26 June 1944 |
| Docket Number | 4-7384 |
| Citation | 182 S.W.2d 344,207 Ark. 578 |
| Parties | Dowell v. Dowell |
| Court | Arkansas Supreme Court |
Appeal from Boone Chancery Court; J. M. Shinn, Chancellor.
Affirmed in Part and Reversed in Part.
Ben C. Henley and J. Smith Henley, for appellant.
Lessie Williams, for appellee.
Mrs. Lillie Dowell brought this suit for a divorce from her husband, Lewis Dowell, and as grounds therefor alleged that he had been guilty of such cruel and harsh treatment as to endanger her life, and that he had been convicted of a felony. She alleged also that her husband was disposing of his property with the intent and for the purpose of depriving her of the benefit of § 4393 of Pope's Digest, this being the section of the statute providing for the division of property of a married couple where a divorce is granted. She prayed that such disposal be enjoined, pending the hearing of her suit for divorce, and that prayer was granted.
An answer was filed in which defendant Dowell admitted that he had been convicted of a felony, to-wit, the crime of manslaughter, but he alleged that the party killed was his wife's paramour. He prayed that a decree of divorce be granted him, on account of his wife's infidelity, and that she be denied any share of his estate.
After hearing much conflicting testimony, the court awarded the wife a divorce, and made division of the husband's property pursuant to the statute above mentioned, from which decree the husband has appealed.
Disposing first of the right of the wife to a divorce, it may be said that the husband told a fantastic story of his wife's attempt to poison him, and of her infidelity to him; it was wholly uncorroborated, which the chancellor did not credit, nor do we.
The parties were married in 1913, and so far as the record before us reflects, only one child, a son named Frank, was born to this union, at any rate he was the only living child when the marital troubles of these parties began in July, 1941. The father, at the suit of the son, was committed to the State Hospital for Nervous Diseases, where he remained until April 29, 1942. Returning home from the hospital he killed the man who, according to his testimony, was his wife's paramour, and he later shot his son. For the first offense he was sentenced to the penitentiary; for the second a fine of $ 500 was imposed. The son later died, whether from the effect of his wound does not appear.
The decree from which is this appeal contains the finding that, at the time of its rendition, the husband owned certain lands, and finds also, that at the time of the son's death, he, the son, was the owner of other lands, which were also described. Probably the most important question in the case is whether the lands owned by the son were ancestral or were new acquisitions. The son had title to the lands owned by him, at the time of his death, under three separate deeds from different grantors, but the major portion of his lands were acquired under a deed from his father and mother, the lands thus conveyed having belonged to the father.
The relevancy and importance of the question just stated is that the answer thereto determines the interest which the mother takes in the lands of her son, who died intestate, unmarried, without issue and without creditors. By § 4338 of Pope's Digest, it is provided that:
Section 4347 of Pope's Digest provides that: "In cases where the intestate shall die without descendants, if the estate come by the father, then it shall ascend to the father and his heirs; if by the mother, the estate shall ascend to the mother and her heirs; but if the estate be a new acquisition, it shall ascend to the father and mother for life in equal shares, and upon the death of one parent, the share enjoyed by such parent during his or her life shall pass to the sole surviving parent for life, and then, both shares shall descend in remainder to the collateral kindred of the intestate in the manner provided in this act. . . ."
The court found that the lands owned by the son at his death, were a new acquisition, and upon that finding, awarded to each parent an equal undivided one-half interest in the son's lands, in fee, and in addition directed that the wife take, under § 4393, Pope's Digest, a one-third interest in the land which the father had inherited from his son. There was error in this respect. If the lands were a new acquisition as found by the court (a finding which appellant questioned, and which will later be reviewed) then each parent took an equal undivided one-half interest, but neither took the title in fee, as found by the court. Under § 4347, Pope's Digest, above quoted, each parent took only a life estate. But in addition to the interest which the mother took as the heir of her son, she was entitled to share, under § 4393, Pope's Digest, in the interest which her husband took as heir of his son.
As stated, the husband questioned the finding that the son had title as under a new acquisition, the insistence being that the lands conveyed to him by his father and mother, but which had been owned by the father, constituted an ancestral estate, and that having come to the son from the father, they should, as an ancestral estate, ascend to the father alone, and to the exclusion of the mother.
We think, however, that the court was warranted in finding that the son's estate in the lands owned by him at his death, was not ancestral, but a new acquisition. The deed to the son from his parents recites that it was executed, "For and in consideration of the sum of one dollar and other good and valuable considerations, to us paid by Frank Dowell, do hereby grant, bargain and sell unto the said Frank Dowell, and unto his heirs and assigns forever, the following described lands . . .," which are then described.
It was held in the cases of Martin v. Martin, 98 Ark. 93, 135 S.W. 348, and McElwee v. McElwee, 142 Ark. 560, 219 S.W. 30, that ancestral estates come from no other consideration but that of blood; all others are new acquisitions. Our cases on this subject were reviewed in the case of Webb v. Caldwell, 198 Ark. 331, 128 S.W.2d 691, 122 A. L. R. 814, where we quoted, with approval, the following statement from the case of McElwee v. McElwee, supra: "In order to constitute a gift from a parent to a child an ancestral estate within the meaning of our statute, the conveyance must be entirely in consideration of blood and without any consideration deemed valuable in law, . . ." We think the court was warranted in finding that there was a consideration other than that of blood, this being the labor of the son, both before and after the conveyance to him, in the management of his father's business.
The real estate here involved was unencumbered, and its sale in solido was ordered. It is insisted that this order was erroneous, and that the lands should have been divided in kind. The sheriff, county judge and circuit clerk of the county were appointed commissioners and directed to consider this question, and an adjournment of the hearing was had to enable the commissioners to report on the question and they found in a unanimous report that the lands were not susceptible of division in kind, and, upon the approval of that report, the lands were ordered sold. We approve this order, but we think it was error to direct the sale of the land in solido. The value of the respective tracts of land is not shown, and if they were sold in solido, there would be no way of knowing what one tract brought as distinguished from the others. The father has title to certain...
To continue reading
Request your trial
-
Skokos v. Skokos
...the former of his or her interest in the property. Pierson v. Barkley, 253 Ark. 131, 133, 484 S.W.2d 872, 873 (1972); Dowell v. Dowell, 207 Ark. 578, 182 S.W.2d 344 (1944). In Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.2d 28 (1975), the wife was granted a divorce but appealed the Chancellor's d......
-
Chekuri v. Nekkalapudi
...former of his or her interest in the property. Pierson v. Barkley , 253 Ark. 131, 133, 484 S.W.2d 872, 873 (1972) ; Dowell v. Dowell , 207 Ark. 578, 182 S.W.2d 344 (1944). In Ramsey v. Ramsey , 259 Ark. 16, 531 S.W.2d 28 (1975), the wife was granted a divorce but appealed the Chancellor’s d......
-
Strang v. Strang, 75--14
...in determining her share of his property, and the same declared to be a lien on the land so fraudulently conveyed. In Dowell v. Dowell, 207 Ark. 578, 182 S.W.2d 344, we held that where testimony supported a finding that a chattel mortgage was executed in fraud and to defeat the wife's marit......
-
Ginsburg v. Ginsburg
...assets to defeat his wife's property rights in a pending or anticipated divorce suit may be found to be fraudulent. Dowell v. Dowell, 207 Ark. 578, 182 S.W.2d 344 (1944); Wilson v. Wilson, 163 Ark. 294, 259 S.W. 742 (1924); Austin v. Austin, 143 Ark. 222, 220 S.W. 46 (1920). It cannot be do......