Hewitt v. Cox

• Decision Date: 28 March 1891
• Citation: 15 S.W. 1026,55 Ark. 225
• Parties: HEWITT v. COX
• Court: Arkansas Supreme Court

15 S.W. 1026

55 Ark. 225

HEWITT v. COX

Supreme Court of Arkansas

March 28, 1891

APPEAL from Pulaski Chancery Court, DAVID W. CARROLL, Chancellor.

Judgment affirmed.

U. M. & G. B. Rose and P. C. Dooley for appellant.

1. The evidence shows that N. G. Hewitt was a citizen of this State at the time of his death. 5 Am. & Eng. Enc. Law, 857; 43 Ark 549; 3 Gray, 495; 7 Id., 299; 3 H. & N., 594; 1 Wall. Jr 265; 6 How., 185; 124 Mass. 146; 5 Vesey, 786; 1 Flippin 536; 10 Pick., 99; 4 Wash. 101; 1 Woodb. & M., 7; 6 How., 185; 8 Cr., 281; 21 How., 103; 14 id., 423.

2. So far as the real estate is concerned, the personal property belonging to the estate should be applied to remove any encumbrance that may rest upon said real estate, in exoneration of the widow's dower. 1 Bish., Mar. Wom., sec. 604; 2 Jones, Mortg., sec. 1067; 1 ib., sec. 114; Mansf. Dig., sec. 2592; 25 Ark. 277; Mansf. Dig., sec. 171; 2 Woerner, Adm., sec. 494; 3 Williams, Ex., 1694; ib., Am. note (r); 3 Gray, 207; 11 Allen, 139; 1 Scrib., Dower, 550; 3 Ohio St. 766; 28 id., 503. It being the duty of the administrator to pay the debts, secured and unsecured alike, out of the personal estate, the widow's dower on payment of the mortgage debt becomes reinstated, as of course. 10 Rich. , Eq., 285; 2 Hill, Chy., S. C., 250; 3 Metc. (Ky.), 578, 581; 1 R.I. 22, 25; 69 N.C. 67; 15 N.H. 38; 15 Mass. 278; 17 id., 564; 13 id., 525. On the question of the exoneration of the widow's dower, see also 1 Md. Chy., 202; 35 Ala. 497; 57 Ind. 580; 25 id., 274; 49 id., 114; 100 Mass. 224; 3 Paige, 513; 2 Jones, Eq., N.C. 357; Park on Dower, 350. Our statute makes our contention very plain. Mansf. Dig., sec. 2574; ib., 2575; 61 Mich. 621.

3. As to the personal property that was pledged, the court erred in holding that the widow should contribute one-half of the amount for which it was pledged before she could have dower therein. The statute says she shall be endowed of "one-half of the personal estate absolutely and in her own right." Mansf. Dig., sec. 2592. By the pledge no title passed to the pledgee. 32 Ark. 747. The debt was the debt of the husband only. To give the widow dower in the choses in action that were pledged cum onere was not to give it to her absolutely. The rights of the pledgee are not involved in this suit.

4. If this was the domicile of the deceased, the succession as to the personal property, wherever situated, is governed by the laws of this State. 42 Ark. 164.

Dodge & Johnson for appellees.

1. Nelson G. Hewitt, at the time of his death, was a citizen of New York, and the succession as to the personalty is governed by the laws of that State. The administration in Arkansas is ancillary. 34 Ark. 131; 42 id., 166; 16 id., 263; 9 Wall. 741; 129 Mass. 246; 3 Pa. 187; 44 Mass. 114; 8 Pick., 475; 2 Mass. 384; 11 id., 263-4; 13 Pick., 23; 40 Miss. 179. The domicile of deceased was in New York. 43 Ark. 549; Story, Confl. of Laws, sec. 44; 20 N.Y. 103; 42 Mass. 252; 5 Vesey, 760; 22 Mass. 375; 8 Pick., 477; 1 Stark., Ev., 307; 7 East, 279; 10 id., 109; 15 East, 32; 11 id., 504; 9 Allen, 214; 1 Wend., 43; 19 id., 11; 1 Seld., 428; 19 Md. 97; 1 Am. Ld. Cases, 747; 3 Wash. 546; 4 id., 609; ib., 514; 1 Brock., 389; 14 How., 400; 21 How., 153; 36 N.J.L. 221; 13 Man., 232; 8 Wend., 134; 2 Cal. 318; Jarman on Wills, vol. 1, p. 18; 4 Kas., 232; 5 Greene, 143, 396; 5 Md. 186; 15 Beav., 444; 21 L. T. (N. S.), 610; 19 Kas., 176; 10 H. L. Cases, 272; 10 Jur. (N. S.), 717; 1 Jarman on Wills, p. 20, note 13; 21 Wall, 353; 8 Cr., 390; 20 John., 210.

2. The court erred in holding that Mrs. Hewitt was entitled to dower in the funds pledged to Reeve. As to these Hewitt did not die seized. He had parted with the ownership and possession. See 27 Ark. 556; 31 id., 399; 32 id., 444; 51 id., 45.

3. The court did not err in assigning the widow dower in the city lot cum onere. It was not the duty of the administrator to remove the encumbrance for her benefit, or in exoneration of her dower. 16 A. 669; 5 John. Chy., 452; 1 ib., 45; 5 id., 513. She was dowable only in the equity of redemption. 40 Ohio St. 394; 35 Hun., 127; 48 Barb., 457; 10 Paige, 164; 13 Mass. 167; 10 id., 364; 3 Pick., 152; 15 N.H. 38; 9 Foster, 464; 1 Washb. R. P., p. 186, sec. 21, and p. 188, sec. 23; 17 Me. 369; 54 Mass. 137; 21 Oh. St., 515; 1 Scribner on Dower, pp. 488, 521.

P. C. Dooley and U. M. & G. B. Rose for appellant, on motion for modification.

The personal property must be administered according to the laws of this State. 42 Ark. 164. When the personal property has been disposed of by the executor or cannot be reached by legal process, the widow's claim for dower is not defeated, and stands as any other claim against the estate. 19 Ark. 440; 52 id., 8; 32 id., 576; 33 id., 306; 40 id., 25.

Dodge & Johnson for appellees.

The widow is entitled to dower to be carved out of the specific estate. 5 Ark. 614. The duty of the ancillary administrators is pointed out in 42 Ark. 164. She would then be entitled to dower out of the residuum when paid over to the principal administrator here. 16 Ark. 265; 30 id., 242; 31 id., 541; 34 id., 131. Mrs. Hewitt, under these decisions, is not entitled to dower in the personalty in New York until the estate is wound up there, the debts due there paid, and the residuum paid to the administrator here.

OPINION

BATTLE, J.

On the 30th day of May, 1887, Laura S. Hewitt, widow of Nelson G. Hewitt, filed a petition in the probate court of Pulaski county, in which she stated, among other things, that her husband had died on the 6th of February, 1887, a citizen of the State of Arkansas, and a resident of Pulaski county; that he left a last will and testament, by which he made Sandford Hewitt, H. N. Hewitt, John P. Hewitt, Louisa Hewitt and Ann Eliza Hewitt, citizens of the State of New York, his devisees and legatees; that the probate court of Pulaski county, on the 19th of February, 1887, appointed N.W. Cox administrator of his estate, and that he is acting as such administrator; that she had conveyed, by deed of release, to the heirs, devisees and legatees of the deceased the devises and legacies which were left to her under the will; and that the deceased left certain lands and personal property, described in the petition, at the time of his death; and asked that dower be assigned to her in such property.

Cox, as administrator, the heirs, the executors of the will, and the devisees and legatees of the deceased were made defendants. John P. Hewitt, one of the devisees and legatees, answered and denied that the deceased was a citizen and resident of the State of Arkansas, and alleged that he was a citizen of the State of New York, and was domiciled in Peru in that State, when he died; that he left a last will and testament, and that it had been admitted to probate in New York; that letters testamentary had been taken out, and his estate was in the course of administration in that State; that the estate was being administered in Arkansas; that the administration in this State is ancillary; and that the personal property should be disposed of according to the laws of New York.

The probate court assigned to petitioner dower in the personalty and realty of the deceased, and Hewitt and Cox appealed to the Pulaski circuit court. On the trial in the circuit court evidence to show where the domicile of the deceased was at the time of his death was adduced. It was proved that he left no children, and that he died seized and possessed of real estate in this State, and that of this estate one city lot was encumbered by a deed of trust executed by the deceased, in his life time, to George E. Dodge, as trustee, to secure a debt that he owed to Mrs. Van Horn, and that petitioner as his wife had joined in the execution of it, and thereby relinquished all her claim or possibility to dower in the lot, and had acknowledged the deed in legal form; that something over $ 4000 in scrips were placed in the hands of David Reeve by the deceased to sell and pay the proceeds to Mrs. Van Horn on his debt to her; and that, to this end, the deceased gave to Dodge, as trustee, an order on Reeve for the amount of the scrips, which Dodge presented, and Reeve promised to honor it by paying the proceeds of such sale to the trustee. It was also shown that $ 3000 in the bonds of Jefferson county were pledged by the deceased to P. C. Dooley, as trustee, to secure a debt that he owed to Mrs. Stoddard.

The court found that the domicile of the deceased, at the time of his death, was in the State of Arkansas; and set apart to the petitioner, as dower in the real estate, the city lot, subject to the encumbrance of the deed of trust, and one-half of the money and scrips in the hands of Reeve, and one-half of the bonds pledged to Dooley, subject to he charges on them; and refused to direct the administrator to appropriate any part of the personal property in his hands to the removal of the encumbrances on the property so set apart, in exoneration of her dower. From this judgment petitioner and Cox and Hewitt have appealed.

Four questions are presented for our consideration:

First. Was the domicile of the deceased in the State of Arkansas?

Second. Should the personal property belonging to the estate of Hewitt be applied to remove the encumbrance that rested upon the lot that was set apart to the widow, in exoneration of her dower?

Third. Should the widow contribute one-half of the amount for which the bonds were pledged before she can have dower therein?

Fourth. Was she entitled to one-half the funds placed in the hands of Reeve free of encumbrance or charge?

1. As to the domicile the evidence is voluminous and conflicting. In any view that may be taken of what is necessary to constitute a domicile or change...