Petition by J. G. McAndrew, as administrator of the estate of Seth Hollingsworth, deceased, for the sale of certain real estate to pay debts, to which Deborah Hollingsworth and another filed objections. From a judgment striking objectors' answer from the files and granting the petition, objectors appeal. Affirmed.
J. G. McAndrew, as administrator of the estate of Seth Hollingsworth, filed his petition in the probate court of Benton county, asking for an order to sell a certain city lot in the town of Siloan Springs, Benton county, Ark. The appellant Deborah Hollingsworth, who was the widow, and appellant Minnie Strange, who was the daughter, of Seth Hollingsworth, were made parties to the petition in the probate court. That cause proceeded to judgment; the probate court making an order to sell the lot to pay debts probated against the estate. Appellants appealed from that judgment to the circuit court. The circuit court reversed the judgment of the probate court, and entered judgment directing a dismissal of appellee's petition for a sale of the lot, from that judgment appellee appealed to this court, and this court reversed the judgment of the circuit court, and remanded the cause "with instructions to the court to render a judgment in accordance with this opinion." That opinion was handed down June 4, 1904. McAndrew v. Hollingsworth, 72 Ark. 446, 81 S. W. 610. The mandate of this court on the former appeal was filed in the clerk's office of Benton county in vacation July 18, 1904. At the September term, 1904, of the Benton circuit court the case was docketed and called, whereupon on the 28th day of September, 1904, a day of said term, the appellants filed the following answer to the petition of appellee in this case: "Comes Deborah Hollingsworth and Minnie Strange, who was formerly Minnie Hollingsworth, and state to the court that they were each made parties defendant in the probate court of Benton county, Ark., to the petition of J. G. McAndrew as administrator of the estate of Seth Hollingsworth, deceased, which petition he had filed in said court praying for an order to sell certain city lot belonging to the defendants to pay the debts of his intestate. That from the order and judgment of said probate court ordering the sale of said property belonging
to these defendants, they appealed to this court, and now ask leave of the court to file this their answer to plaintiff's petition, and for answer thereto say: That on the ____ day of January, 1904, Seth Hollingsworth was a citizen and resident of Siloam Springs, in Benton county, Ark., and was the owner in fee simple of lot No. 5 in block No. 3 in said city of Siloam Springs, Benton county, Ark., as described on the plat of said city according to the original survey of said city. That he resided on said lot as his homestead. That the defendant Deborah Hollingsworth, was his wife, and the defendant Minnie Strange, who was then Minnie Hollingsworth, was his daughter. And that the said Seth Hollingsworth together with his wife and daughter, Minnie, constituted his family, and they all occupied and resided on said lot as the homestead of said Seth Hollingsworth, deceased. That on said day Seth Hollingsworth executed his last will and testament in which he devised said lot to this defendant, Deborah Hollingsworth, in fee simple. That on the ____ day of January, 1894, said Seth Hollingsworth departed this life in Benton county, Ark.; that at the time of his death he still occupied said lot as his homestead. That, thereafter, on the ____ day of ____, 189—, said will was duly probated by the probate court of Benton county, Ark., and at this time the said defendant Deborah Hollingsworth, is the owner in fee simple of the remainder. (2) These defendants deny that J. G. McAndrew was ever appointed administrator in succession of the estate of said Seth Hollingsworth, deceased, by the probate court of Benton county, Ark., and deny that he was the administrator in succession of said estate at the time he filed said petition to sell said lot described therein. (3) For further answer these defendants deny that there has ever been a judgment rendered by the probate court of Benton county, Ark., in favor of the Philadelphia Construction Company against the estate of Seth Hollingsworth, deceased. (4) For a further answer these defendants deny that there has been probated in the probate court of Benton county, Ark., a claim, debt or demand against the estate of Seth Hollingsworth, deceased, and deny that said court has ever ordered the administrator of said estate to pay any claim, debt, or demand probated by said probate court and allowed. That on March 27, 1897, the defendant, Deborah Hollingsworth, sold said lot to said defendant, Minnie Strange, who was then Minnie Hollingsworth, for the expressed consideration of $5,000 and on said day executed to her a warranty deed for the said lot. That said deed was filed and recorded in the recorder's office in Benton county, Ark. on March 2, 1898. That on March 30, 1900, the said defendant, Minnie Strange, and her husband, W. G. Strange, sold and conveyed to the defendant, Deborah Hollingsworth, an estate for the life of said Deborah in said lot aforesaid, and the appurtenances thereto belonging. That on said date the said defendant was residing upon said lot as her home. That she has held the actual possession of said lot and house situated thereon, as her homestead from the date of said deed to this time. That prior to selling and conveying to said Minnie, she, the said Deborah Hollingsworth, had owned and held the possession of said lot and appurtenances from the date of the death of her husband, Seth Hollingsworth, to the date of the deed to the said Minnie. That she occupied the same during that time as her homestead, and at the time of the filing of the petition of said plaintiff as administrator as aforesaid by him as such administrator against said estate. (5) For a further answer to said petition, these defendants say that they have been in the actual, open, notorious, adverse possession of said lot, claiming title thereto under and by virtue of the will of said Seth Hollingsworth, deceased, executed as aforesaid, claiming title to said lot thereunder, adverse to the creditors of said Hollingsworth, deceased, and to the administrators of his estate for more than 10 years last past and that any right, or claim, or lien, claimed by said administrator or any creditor of said estate is barred by the statute of limitations and laches on the part of said administrator, or any creditor of said estate. And that said lot is not now subject to debts of said deceased."
On October 4, 1904, appellee filed his motion to strike said answer from the files of the court, whereupon the court proceeded to hear said motion, and after hearing the same the court made the following finding, and the following judgment and orders on said motion and rendered the following judgment in the case:
"Now on this day, the plaintiff files motion to strike from the files the answer heretofore filed by the defendants at the present term of this court. And the same coming on for hearing and both parties announcing ready, the court proceeds to hear the same upon said motion and answer and upon the mandate and opinion and decision of the Supreme Court in this cause, and upon the briefs of attorneys in said court in said cause and upon the judgment of this court originally rendered herein and...
