Mayo v. Mayo
Decision Date | 02 July 1906 |
Citation | 96 S.W. 165,79 Ark. 570 |
Parties | MAYO v. MAYO |
Court | Arkansas Supreme Court |
Appeal from Monroe Circuit Court; George M. Chapline, Judge affirmed.
Judgment affirmed.
Thomas & Lee, H. A. & J. R. Parker, and N.W. Norton, for appellants.
1. Heirs, having the legal title, are not required to act in order to protect it. They cannot be kept out of their inheritance unreasonably by the laches of creditors in subjecting the lands to the payment of probated claims. 73 Ark. 440; 37 Ark. 155; 47 Ark. 475; 48 Ark. 277; 54 Ark. 65; 56 Ark. 633; 63 Ark. 405; 70 Ark. 185. The alleged assignment of dower and homestead to Mrs. Mayo was no excuse for delay to enforce the debts. 64 Ark 1; Kirby's Digest, § § 2711 to 2715. See also 52 Ark. 193; 60 Ark. 461; 29 Ark. 418; 56 Ark. 532. If the executor and creditors had notice, they neglected their duty in failing to defend against the proceeding; if they had none, they were not bound, and by showing the irregularity in the proceeding they could have had the order quashed on certiorari. 52 Ark. 213. Such an untimely assignment of homestead was held void collaterally. 66 Ark. 23.
2. A contract cannot rest partly in parol and partly in writing. 29 Ark. 544, and cases cited. All the agreements, etc., made by the heirs at their meeting after the funeral which were not in writing signed by the parties were void; likewise all former conversations, agreements and suggestions. 24 Ark 210; 35 Ark. 156; 21 Ark. 69.
Manning Moore & Bayne and T. K. Riddick, for appellee.
1. The findings of fact by the court will not be disturbed if there is evidence to support them. 60 Ark. 250; 53 Ark. 161.
2. Under the terms of the will it is plain that the testator earnestly desired that his debts be paid in full, and to that end he conferred upon his executors a large discretion. In view of the. very large indebtedness, the heirs necessarily understood that the attempt to pay the debts by leasing out the property involved a long period of time. They cannot complain of delay to which they themselves agreed. Where the executor is one of the devisees, he cannot take advantage of the delay. 63 Ark. 405; 70 Ark. 185.
3. The decree of the probate court allotting dower and homestead cannot be collaterally attacked. 52 Ark. 340; 49 Ark. 397; 57 Ark. 423; 50 Ark. 188; 55 Ark. 37; 57 Ark. 49; 55 Ark. 398; Kirby's Digest, § § 4424, 4425, and notes. See also 63 Ark. 513; 80 S.W. 884; 25 Ark. 60. The existence of the dower and homestead right was, in itself, a sufficient reason for the executor and creditors not having sold the lands covered thereby. 54 Ark. 65; 64 Ark. 1.
4. The will creates an express trust in favor of creditors. 71 S.W. 669; 19 Am. & Eng. Enc. Law (2 Ed.), 1306 and authorities cited in note 3.
This is an action commenced in December, 1902, by appellants against appellee, to recover lands which descended to them from their ancestor, W. M. Mayo, who died in October, 1890, leaving him surviving, his widow, Jane E. Mayo, and seven children--F. A. Mayo, R. D. Mayo, Laura M. Boyce (nee Mayo), Nannie J. Bond (nee Mayo), Wm. J. Mayo, Fannie M. Black (nee Mayo), and Lily M. Black, (nee Mayo).
W. M. Mayo left a will, in which he said:
The testator was the owner of 2510 acres of land in Monroe County, of which there were about 1100 acres cleared and in a state of cultivation. He was heavily in debt. Claims amounting to more than $ 20,000 were probated against the estate. At the time of the death of W. M. Mayo, all his children were of age, and the next day after his funeral said children met at the home of the testator, and entered into a written agreement, which is as follows:
On the same day the heirs and most of the creditors discussed among themselves the amount of the indebtedness against the estate, the value of the lands and the best method to adopt for paying the debts. Not one of them thought that the lands would sell for enough to pay the debts, and appellee stated that he desired to manage the estate as they thought best, and that he would sell, lease or "run" the lands just as they wished. The undisputed evidence was that all the heirs, without a dissenting voice, at that time agreed that appellee should not sell the lands, but that he should lease or run them and undertake to pay the debts out of the rents and profits thereof. The creditors who were present agreed to this course of conduct, and those creditors who were not present were notified of the agreement, and they consented thereto.
Within a few days after this consultation among the heirs and agreement among them for the management of the lands, appellee qualified as sole executor, took charge of the lands, and undertook to pay the debts out of the rents and profits; but, by reason of a succession of disastrous overflows, appellee did not make much more than enough to keep up necessary repairs on the place and pay the taxes. It was shown by the proof that...
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