Kitchens v. Jones

• Decision Date: 12 October 1908
• Parties: KITCHENS v. JONES
• Court: Arkansas Supreme Court

113 S.W. 29

87 Ark. 502

KITCHENS v. JONES

Supreme Court of Arkansas

October 12, 1908

Appeal from Phillips Circuit Court; Hance N. Hutton, Judge reversed.

Judgment reversed and cause remanded.

Campbell & Stevenson and J. M. Vineyard, for appellant.

1. This case calls for a construction of sec. 3, Kirby's Digest. It was held, 33 Ark. 824, that the word "estate," mentioned in sec. 3, Mansfield's Digest, signified the entire estate, real and personal of the deceased; but thereafter the present act was passed, repealing the former act (70 Ark. 25) and limiting the allowance of $ 300 to the widow out of the personal estate only. Id.

2. The estate of a mortgagor of land, the equity of redemption, is an estate in land. 11 Am. & Eng. Enc. of L. (2 Ed.), 210 211; 6 Ark. 269, 274; 18 Ark. 85; 1 Jones, Mortg. § 11; id. § 6; 1 Atk. 603; 8 Wall. 318. No foreclosure having been taken at the time of the death of the husband in this case, appellant's rights are fixed by the character of the estate at the time of his death.

M. L Stephenson, for appellee.

The power to convert an estate from real to personal property is well established in this State. 41 Ark. 282; 48 Ark. 557; 69 Ark. 237; 57 Ark. 485; 15 Ark. 681: 9 Enc. Law & Proc. 822. "Whenever the language of a deed of trust expresses the intention of its author that the real estate may be sold and converted into money, the estate thus conveyed and impressed with the character of personalty will, as to the claimant after the death of the maker of the deed, retain that character, and be regarded as personal estate. Id. 828.

OPINION

HILL, C. J.

John Jones died in April, 1906, leaving a widow and children, some of whom were minors. At the time of his death he was the owner of certain real estate in the city of Helena, which was incumbered by a deed of trust. Default had occurred in the performance of the conditions of the deed of trust before his death, and after his death the deed was foreclosed in the chancery court, the property sold by a commissioner of the court to satisfy the mortgage debt. The proceeds of the sale paid off the mortgage, and left a surplus of $ 554.57, which was turned over by the commissioner in chancery to Kitchens, public administrator, who was administering the estate of Jones. The land was not the homestead of the deceased. The dower rights of the widow had been released in the trust deed. This surplus was the only asset of the estate, which was insolvent.

Charity Jones filed a petition in the probate court of Phillips County, representing that she was the widow, and that there were minor children of the said John Jones, deceased; that the estate of her husband exceeded three hundred dollars in value; and she prayed that the sum of $ 300 be paid to her out of said fund for the use of herself and minor children. Trial was had in the probate court, and on appeal in the circuit court upon an agreed statement of facts. The circuit judge granted the petition, and the administrator has appealed.

This appeal involves a construction of section 3 of Kirby's Digest, which reads as follows: "When any person shall die, leaving a widow and minor children, or widow, or minor children, and it shall be made to appear to the court that the personal estate of such deceased person does not exceed in value the sum of three hundred dollars, the court shall make an order vesting such personal property absolutely in the widow and minor children, or widow, or minor children, as the case may be, when the court is satisfied that reasonable funeral expenses of such persons not to exceed twenty-five dollars have been paid or secured; and in all cases where the personal estate exceeds in value the sum of three hundred dollars, the widow and minor children, or widow, or minor children, as the case may be, may retain the amount of three hundred dollars out of such personal property at its appraised valuation."

In Wilson v. Massie, 70 Ark. 25, 65 S.W. 942, it was held that this statute repealed the pre-existing statutes upon this subject and effected a change in the law from an estimate of the whole mass of the decedent's property to an estimate of the personal property alone, in making this allowance to the widow and minor children. This case therefore turns upon the character of the estate of Jones in the mortgaged property.

In State v. Lawson, 6 Ark. 269, the court said: "The equity of redemption is considered to be the real and beneficial estate, tantamount to the fee at law, and is accordingly held to be descendible by inheritance, devisable by will and alienable by deed, precisely as if it were an estate of inheritance at law."

The nature of the equity of redemption is thus stated in the Encyclopedia: "An equity of redemption is an estate in the mortgaged property, and is subject to all the incidents of ownership. It may be conveyed or devised; it descends to the owner's heirs or personal representatives, according to the nature of the mortgaged property, and is subject to curtesy and homestead." 11 Am. & Eng. Enc. 209, 210. The text is well supported by authorities, including several Arkansas cases, cited in the note. It is clear, therefore that the equity of redemption left by Jones at his death was real...