Henry v. Dollin

• Court: Arkansas Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Henry v. Dollin, 113 S.W.2d 97, 195 Ark. 607 (Ark. 1938)
• Decision Date: 07 February 1938
• Docket Number: 4-4926
• Parties: HENRY v. DOLLIN

113 S.W.2d 97

195 Ark. 607

HENRY v. DOLLIN

4-4926

Supreme Court of Arkansas

February 7, 1938

Appeal from Cross Chancery Court; A. L. Hutchins, Chancellor affirmed.

Decree affirmed.

J C. Brookfield, for appellants.

James Robertson and Walter N. Killough, for appellees.

OPINION

SMITH J.

This appeal is from an order and decree of the Cross chancery court sustaining a demurrer to a complaint containing allegations to the following effect. Joe Henry died intestate May 15, 1933. He had been married three times. His first wife, now deceased, became the mother of a daughter named Agnes, who conveyed her interest in her father's estate to one J. P. Mitchell, who was made a defendant. The first wife became the mother also of a son named Jodie, now dead, but he left surviving him a daughter named Virginia Ruth, eight years old. Virginia is made a party defendant.

Henry's second wife was named Zuby, and she became the mother of a son named Carlos, who was eleven years old when his father died. Carlos was made a party. Henry was divorced from the second wife, who recovered judgment against him in the chancery court on March 25, 1932, which has the present face value of $ 576. The nature of this judgment is not alleged, but the inference is that it was recovered in connection with the divorce proceeding.

Henry's third wife was named Nell, but no children were born to that union. She survived her husband, and was appointed administratrix of his estate. The administration was closed, leaving $ 1,786.48 in debts unpaid. There is no allegation in regard to the personal property, and its value and disposition is not disclosed. It is alleged that the only real estate owned by Henry was a tract of land containing 1.11 acres, which was his homestead.

In addition to the judgment in favor of Mrs. Zuby Henry for $ 576, other debts also were due as follows: A note secured by a deed of trust upon the real estate executed by Henry to W. W. Stacy, as trustee for C. M. Stacy, February 18, 1933, for the sum of $ 143. It was alleged that suit had been filed to foreclose this deed of trust, but that after the suit had been filed the note and mortgage were assigned to plaintiff, Mrs. Zuby Henry. The trustee was named as a party plaintiff.

It was alleged that "A note for $ 275, dated May 16th, 1933, signed by plaintiff and defendant Agnes Henry, now Dollin, to Kernodle Funeral Home, together with an assignment of rents and profits of said real estate to secure same, and assigned to plaintiff Zuby Henry February 18th, 1937, for a consideration of $ 341.92, which note and obligation was given to discharge the lien and charge upon the real estate for funeral expenses, and to which right of lien plaintiff Zuby Henry asks to be subrogated and enforced herein."

It does not appear whether any of these demands were probated, but the complaint recites that "Plaintiff Zuby Henry says that she had paid and discharged all the debts of the estate and is now the sole creditor of such estate and that the defendants are all the heirs of said Joe Henry and that she and her son Carlos are vested with the life estate."

The complaint further alleged "That the plaintiff Zuby Henry has paid, assumed and had assigned to her all of said indebtedness and now seeks to foreclose such of said indebtedness as is a lien upon said real estate; and that plaintiffs have no adequate remedy at law for the reason that the probate court is without jurisdiction to sell such real estate to pay debts during the minority of the children, at which time the remainder interest would have deteriorated and decreased to no value and such liens would be barred by limitation."

Upon these allegations it was prayed that "plaintiffs have judgment against defendants for the $ 1,786.48, or so much thereof as may be so enforced as a lien, and that such liens be foreclosed, and said real estate, or such remainder interest of the defendants, be subjected to the payment thereof, and for costs and for all proper relief."

It does not appear how in any event all these defendants could be held liable for these debts. But aside from that, plaintiffs were not entitled to the relief prayed for reasons presently to be stated.

It does not appear how, after the divorce of Mrs. Zuby Henry, she retained a life estate in the lands of her deceased husband but it is alleged that the minor son has the right of homestead during his minority. McAndrew v. Hollingsworth, 72 Ark. 446, 81 S.W. 610; Burel v. Baker, 89 Ark. 168, 116 S.W. 181; Russell v. Suddoth, 123 Ark. 200, ...