Mayo v. Arkansas Valley Trust Company

• Decision Date: 17 February 1919
• Docket Number: 110
• Citation: 209 S.W. 276,137 Ark. 331
• Parties: MAYO v. ARKANSAS VALLEY TRUST COMPANY
• Court: Arkansas Supreme Court

209 S.W. 276

137 Ark. 331

MAYO v. ARKANSAS VALLEY TRUST COMPANY

No. 110

Supreme Court of Arkansas

February 17, 1919

Appeal from Sebastian Chancery Court, Fort Smith District; W. A Falconer, Chancellor; affirmed.

Decree affirmed.

Hill Fitzhugh & Brizzolara, for appellant.

1. This is the second appeal in this case. 132 Ark. 64. The facts and evidence are substantially the same. The law is settled by the former decision and the court below disregarded the findings of this court on remand of the case and the findings of the chancellor are against the evidence. The court below erred in allowing the widow only one-third dower on $ 40,403.14 personalty, when the amount should have been increased by the rents and the basis should have been one-half. Also in giving Mrs. Mayo credit for only $ 26.20 out of the net profits of running the business. She should be credited with one-half of the $ 573.56 instead of one-third of the net profits. Kirby & Castle's Digest, § 2923. The real estate was a new acquisition. One-half the personal property was insufficient to pay the debts, but it did not require two-thirds for that purpose. The statute means that the widow where there are no children takes as dower one-third against creditors and one-half against collateral heirs even it takes all the remainder to pay the debts. 7 Ark. 402; Ib. 542. All questions before the court before are now res adjudicata. 26 Ark. 17; 14 Id. 575; 56 Id. 170.

2. The debts did not exceed two-thirds of the personal estate. The rents were available to pay the debts. The cost of administration is not to be considered in allowing the widow dower and she was entitled to dower in the net rents. The court below erred in its refusal to treat $ 573.66 as the net profits of the beer business, and in allowing the widow only one-third instead of one-half. The Pabst debt was properly included in the probated debts and it was largely paid out of accrued rents. The decree below is fundamentally wrong in excluding the rents. All the rents should be included in assigning dower.

C. A Reid and Read & McDonough, for appellee.

The decision on former appeal directed the chancellor to hear additional testimony and clear up any ambiguity existing. Such a practice is supported by our decisions. 75 Ark. 452; 76 Id. 377; 98 Id. 105; 92 Id 350; 83 Id. 591; 88 S.W. 995; 134 Id. 948; 122 Id. 945; 98 Id. 958. To get the truth new testimony was adduced and appellant made no objections. There was only an issue of fact before the chancellor and his findings are conclusive as he followed the directions of this court. The law has been settled. 132 Ark. 64. The widow was entitled to share in the rents. Kirby's Digest, §§ 2709 and 77. The former opinion left the entire matter of finding the facts to the chancellor. This court found no facts at all. The debts did exceed two-thirds of the personal estate. There is no proof that the rents from real property come within the rule of 60 Ark. 461. The lower court has settled all question of facts and the decree should be affirmed.

OPINION

MCCULLOCH, C. J.

This controversy concerning the dower of appellant in the estate of her deceased husband comes back on a second appeal. The details of the controversy were stated in the opinion on the former appeal. 132 Ark. 64.

It is contended now by learned counsel for appellant that the chancery court, in rendering the decree on the remand of the cause, disregarded the findings of this court, which became the law of the case and were binding on the chancery court as well as on this court in the subsequent progress of the case. Counsel are mistaken in their interpretation of the opinion and former judgment of this court. We made no findings of fact and gave no specific directions to the chancery court as to what its decree should be. On the contrary, we said that there appeared to us very little controversy concerning the facts of the case, that the chancellor had merely erred in his construction of the statute, and could readily apply the facts to our interpretation of the law and thus end the controversy. It is true that we made certain observations concerning the facts as we understood them from the record, but that was not intended as an adjudication of the facts, but merely as a statement for the purpose of forming a basis for announcing the law on the subject. In closing the opinion we said that the discussion was sufficient, we thought, "to enable the chancellor to allot the dower of the widow without further controversy as to her rights," and we remanded the cause for further proceedings in accordance with the opinion. In the judgment of this court, which constituted the last expression on the subject, it was said that the chancery court "erred in its construction of the statute declaring the rights of the widow," and that the cause would be remanded "for further proceedings to be had therein according to law and not inconsistent with the opinion of this court." It is thus seen that we gave no directions...