Mayo v. Arkansas Valley Trust Co

• Decision Date: 22 December 1917
• Docket Number: 60
• Citation: 200 S.W. 505,132 Ark. 64
• Parties: MAYO v. ARKANSAS VALLEY TRUST CO
• Court: Arkansas Supreme Court

200 S.W. 505

132 Ark. 64

MAYO v. ARKANSAS VALLEY TRUST CO

No. 60

Supreme Court of Arkansas

December 22, 1917

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

Decree reversed and cause remanded.

Hill Fitzhugh & Brizzolara, for appellant.

1. The chancellor erred in his construction of the statute as to the widow's dower. The estate was a new acquisition, and as between the widow and collateral heirs the widow was entitled to one-half of the gross amount of the estate, personalty realty and rents. Kirby's Digest, § 2923; 75 Ark 240; 116 Id. 427; Ib. 400.

2. The amount found in the decree is erroneous under the theory adopted by the court. Kirby & Castle's Digest, §§ 79, 190; 2 Woerner, Adm., §§ 337-9, 340-44; 60 Ark. 461; 20 S.E. 431; 58 Id. 540.

3. The widow was entitled to dower in the Pabst mortgage rents without deduction for the debt. 55 Ark. 225; 68 Id. 449; 121 Id. 64; 58 Me. 271; 15 N.H. 38; 29 Id. 564; 14 Cyc. 918; 7 Cranch, 370; 1 Scribner on Dower, 377; 1 Woerner, Adm., 237.

4. She was entitled to dower in the Ohio rents and the net profits of the business. 1 Woerner, Admr., p. 261.

5. The widow was entitled to subrogation to the rights of creditors. 17 Ark. 581; 52 Id. 499; 68 Id. 499.

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

1. The court properly construed the statute.

2. Rents before and after death of testator were properly construed and distinguished. 14 Cyc. 102; 49 Ark. 87; 46 Id. 373; 21 Id. 62; 14 Cyc. 104; 116 Ark. 400.

3. A reasonable construction of the statute makes it immaterial whether property is real or personal. Black on Int. Laws, 104-6, §§ 48, 74. The widow was not entitled to subrogation. 102 Ark. 322.

4. The widow should be charged with one-half the Pabst mortgage. 14 Cyc. 291; 15 N.H. 38, 43; 29 Id. 564; 5 Johns. (N.Y.) 482; 37 Me. 516; 22 Cent. Dig. 306; 14 Cyc. 922; 61 Mich. 608, 620-22; 18 A. 374-89, etc.; 2 Washb., Real Prop., 565-6; 55 Ark. 225; 68 Id. 449.

5. The widow was not entitled to dower in the Ohio rents. Code Ohio, § 8606; 80 Oh. St. 71; 11 Oh. Ct. Ct. (N. S.) 474; 6 C. C. 570; 22 Oh. Ct. Ct. 409, 416; 55 Ark. 225.

6. Upon the widow's election, the trust estate for her benefit terminated and appellees are entitled to immediate possession. Jarman on Wills, 539; 101 U.S. 788; 249 Ill. 606; 234 Id. 407; 82 Ky. 5; 106 P. 1038; 2 Jarman on Wills, 945, 1378; 141 Pa.St. 201; 32 N.J.Eq. 597; 81 Iowa 701; 147 S.W. 25, etc.

MCCULLOCH C. J. SMITH, J., dissenting.

OPINION

MCCULLOCH, C. J.

Dave Mayo, a citizen of the State of Arkansas, and a resident of the city of Fort Smith, died in the year 1908, leaving a large estate, consisting of personal property and real estate in Fort Smith. He left a widow, Sallie E. Mayo, the plaintiff in this case, and certain collateral heirs, but no children or other descendants. He executed his last will and testament in which the Arkansas Valley Trust Company, one of the defendants, was named as executor, and after the will was probated said defendant qualified as executor and took charge of all of the property of the estate, both real and personal, in this State, and has managed said property since that date, receiving all the personal property and collecting the rent of the realty without objections from either the heirs or the widow. Within apt time after the will was probated the widow renounced any claim thereunder and elected to take her dower, and she instituted the present action in the chancery court of Sebastian County against the executor and heirs to have her dower ascertained and set apart to her. The personal estate of said decedent, exclusive of the minimum allowance of dower under the statute, was more than sufficient to pay the debts of the estate, and payments on dower were made to the widow from time to time without the ascertainment or adjudication of the extent of her rights. There is a controversy now as to the extent of the widow's rights and this appeal involves the solution of those questions.

We find it unnecessary to state all the details of the controversy for the reason that we have reached the conclusion that the chancellor erred in his construction of the statute of this State with reference to the dower rights of the widow, and the decree must be reversed. There is little, if any, controversy concerning the facts, and a statement now of the law applicable to the case will enable the chancellor to readily apply the facts when the case is remanded for further proceedings.

The principal controversy turns upon the construction of the following statute, declaring the dower rights of a widow where there are no children or other descendants of the decedent:

"If a husband die, leaving a widow and no children, such widow shall be endowed in fee simple of one-half of the real estate of which such husband died seized, where said estate is a new acquisition and not an ancestral estate; and one-half of the personal estate, absolutely and in her own right, as against collateral heirs, but, as against creditors, she shall be endowed with one-third of the real estate in fee simple if a new acquisition and not ancestral, and of one-third of the personal property absolutely. Provided, if the real estate of the husband be an ancestral estate she shall be endowed in a life estate of one-half of said estate as against collateral heirs, and one-third as against creditors." Kirby's Digest, § 2709.

The real estate owned by Dave Mayo constituted a new acquisition, and this fact brings the case within the operation of the statute just quoted. One-half of the personal property was insufficient to pay the debts, but it did not require two-thirds of the personalty for that purpose. It is conceded that the widow is entitled to one-third of the estate, both real and personal, regardless of the amount of the debts, but the controversy arises over the proper rule of division where, as in this case, more than one-half, but less than two-thirds, of the personal estate is required for the payment of the debts. The defendants contend and the learned chancellor held that under those circumstances the widow, being entitled to one-third in any event, the balance of the personalty after paying the debts should be equally divided between the widow and the collateral heirs. That is not a correct interpretation of the statute, which means that the widow, where there are no children, takes as her dower one-third of the personalty as against creditors and one-half as against collateral heirs. It means that, though the widow can take only one-third as against creditors, she is entitled to one-half as against collateral heirs, even though it takes all of the remainder to pay the debts, and that if more than one-half of the estate is required to pay the debts, she is, as against collateral heirs, entitled to the remainder. There is, we think, no reason for construing the statute to mean that where more than one-half of the estate is required to pay the debts, the surplus over the one-third which the widow is entitled to as against creditors should be divided between her and the collateral heirs. The collateral heirs get nothing under the statute unless one-half of the estate is more than sufficient to pay the debts, and then they get what is left out of that one-half after the payment of the debts, but in no event can their rights encroach upon the rights of the widow who is given a preferential right to one-half of the estate as against collateral heirs. The same rule applies as to realty which constituted a new acquisition of the decedent, but we are only discussing the question of the rights in the personalty inasmuch as it is conceded that the real estate is not needed for the payment of the debts.

Counsel for defendants argue the injustice of this interpretation of the statute, but with that we have nothing to do. It may be stated, however, in reply to that suggestion that it has been the plain policy of the laws of this State to favor the widow as against collateral heirs, and that policy is made manifest in the plain letter of the statute now under consideration. It was doubtless thought by the lawmakers that the moral claims of collateral heirs upon the estate of a decedent were so remote that they ought not to participate in the estate unless something is left after the widow is given one-half and the debts of the decedent paid out of the other one-half. It is not within the province of the court to find fault with the policy of the lawmakers, even if different views concerning that policy should be entertained.

The conclusion is reached, therefore, by a majority of this court that the chancellor erred in confining the rights of the widow to one-half of the surplus personal estate in excess of one-third after payment of debts.

There is a further controversy between the parties concerning the disposition of the rents collected by the executor of the real estate owned by the decedent. It appears from the record that without objections from either the heirs or the widow--in fact it was with the acquiescence of them all--the executor took charge of the real estate, though not needed for payment of the debts, and rented the property and collected the rents from the time of the decedent's death up to January 1, 1916. The executor received gross rents aggregating $ 13,775.44, and paid out for taxes, repairs, insurance, etc., $ 3,364.15, leaving a net sum of $ 10,411.29. The property consisted of a lot referred to as the "beer depot" and two storehouses on Garrison avenue. The amount of the rents of the beer depot was $ 2,830 gross. There was a mortgage on the beer depot executed by the decedent to the Pabst Brewing Company to secure a debt which, with accumulated...