Lambert v. Tucker
| Decision Date | 08 July 1907 |
| Citation | 104 S.W. 131,83 Ark. 416 |
| Parties | LAMBERT v. TUCKER |
| Court | Arkansas Supreme Court |
Appeal from Hot Spring Circuit Court; Alexander M. Duffie, Judge reversed.
Reversed and remanded.
E. H Vance and Andrew I. Roland, for appellant.
Hardage & Wilson, for appellees.
Wm. Ohaver died intestate in December, 1903, leaving a widow and no children. His nearest of kin were two sisters. He owned a homestead, consisting of eighty acres, and his personal property was variously estimated from $ 700 to $ 1,000 in value. The record is silent as to whether he owed any debts. There was no appraisement of the estate, and no administration until after this suit was begun.
After the death of Ohaver, his widow married Tucker, and they occupied the homestead and took charge of the personal property of the estate. Wm. Lambert was given power of attorney by the heirs at law of Ohaver to represent their interest in the estate. They were non-residents. He came into possession of two mules that had belonged to Tucker, and a wagon that had been purchased by Tucker, partly with his own means and partly in exchange for a wagon belonging to the estate.
Lambert testified that J. F. Tucker, the husband of the widow, and Luke Tucker, his brother, came to his house with the mules and wagon; one was drunk and the other was drinking. That he thought the property belonged to Ohaver, and that Ohaver's sisters were entitled to it, and that he, having power of attorney for them, was entitled to take possession of this team as their agent. He does not say that he took the possession of the property away from Tucker, but evidently he thought he had a right to take it.
Another witness testified that he went to Mr. Lambert's when the Tuckers were there. That one was drunk, and the other was drinking; and that Mr. Lambert asked them to stay over night, as they were in no condition to go home. That they left the mules and wagon in controversy at Lambert's, but did not stay there themselves. That is all the testimony as to how Lambert acquired possession of the property.
Afterwards, Tucker and his wife brought a replevin action against Lambert, but showed no demand for the property nor any refusal of Lambert to give it up. It may be inferred from the testimony that Lambert, having come peacefully into the possession of the property, detained it as the representative of the sisters of Ohaver.
Lambert filed an answer in the replevin suit, setting up the title of the sisters of Ohaver and claiming the right to the possession of the property by virtue of his power of attorney from them. Subsequent to the filing of the suit Lambert was appointed administrator of the estate of Ohaver, and by leave of court intervened in the replevin suit, and set up his claim to the property as such administrator.
The case went to the jury upon several issues, one of which was whether Mrs. Tucker was entitled to the property at the time of the institution of the action, the court declaring that, if there was no legally appointed administrator at the institution of the suit, then the widow would be entitled to the possession of the property. There was also an issue as to whether Mrs. Tucker and Ohaver were ever husband and wife; but that issue has been decided in favor of Mrs. Tucker, and there is no substantial testimony against her positive statement that she and Ohaver were married.
Other issues were sent to the jury as to the right of the widow to the property in question as a part of her husband's...
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Mcgraw v. Miller
...is conclusive of the necessity for administration, and cannot be collaterally attacked. Stewart v. Smiley, 46 Ark. 373. " In the Lambert case, supra, the administrator was to recover possession of the personal property from the widow because the value of the estate was from $ 700 to $ 1,000......
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...right of possession of the personal property of a decedent vests in his administrator upon his appointment. In the case of Lambert v. Tucker, 83 Ark. 416, 104 S.W. 131, we held: 'An administrator is entitled to possession of the personal property of his intestate as against the widow and he......
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...acquired after suit has been brought. Witherspoon v. Choctaw Culvert & Mach. Co., 56 F.2d 984, 986 (8th Cir. 1932); Lambert v. Tucker, 83 Ark. 416, 104 S.W. 131 (1907); McKennon v. May, 39 Ark. 442 Medlock argues first that by virtue of the assignment to the bank, Garoogian had no interest ......
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