Neel v. Carson

• Decision Date: 13 November 1886
• Citation: Neel v. Carson, 2 S.W. 107, 47 Ark. 421 (Ark. 1886)
• Parties: NEEL v. CARSON
• Court: Arkansas Supreme Court

2 S.W. 107

47 Ark. 421

NEEL v. CARSON

Supreme Court of Arkansas

November 13, 1886

APPEAL from Jefferson Circuit Court in Chancery, Hon. J. A WILLIAMS, Judge.

Decree reversed and cause remanded.

M. L Bell for Appellant.

Met. L Jones for Appellees.

OPINION

BATTLE, J.

The object of this action is to set aside an administrator's sale and to recover the rents and profits derived from the land sold. The facts in the case are substantially as follows: Samuel Carson died on or about the first day of September, 1875, seized and possessed of a valuable plantation and body of lands lying in Jefferson county, and considerable personal property, and left a last will and testament. He bequeathed to his son, Andrew C. Carson, $ 5000, and directed it to be paid out of the first money received; then directed that his debts be paid; and after the payment of his debts and the legacy of $ 5000, bequeathed and devised one-half of the residue of his estate to Andrew C. Carson and the other half to his grandchildren, Grant A., Samuel A. and Henry N. Vaughan; and directed that Andrew C. Carson remain in possession of the plantation, and the live stock and other personal property thereon, and use the same until his estate should be fully administered and divided, the son paying a reasonable rent therefor; and appointed Andrew C. Carson executor. The will was proven and admitted to probate by the Jefferson probate court on the 6th of September, 1875; and letters testamentary were issued to Andrew C. Carson, on the 14th of said month, he having made the necessary affidavit and bond.

On the 15th of October, 1875, Grant A., Samuel A., and Henry N. Vaughan being minors, James F. Vaughan, their father, was appointed their guardian, and qualified and entered upon his duties as such. On the 25th of October, 1875, Andrew C. Carson, by deed, conveyed to and settled upon his wife, Minnie Carson, all his property of every nature, kind and description, especially the property bequeathed and devised to him by his father, Samuel Carson. The deed was filed for record on the 8th of November, 1875. Pursuant to the will, Andrew C. Carson took possession of the Carson place, the plantation owned by Samuel Carson at the time of his death, and the personal property thereon, and attempted to cultivate the plantation.

To enable him and his wife to do so during the years 1877 and 1878, C. M. Neel, under an agreement with them, furnished them with money and supplies, and they secured him in the payment of such amount as should be due him therefor by a deed of trust, bearing date the 6th of February, 1878, thereby mortgaging to him one undivided half of said plantation and lands, certain personal property therein described, and the crops raised by them on the Carson place in the year 1878. On the 22d day of November, 1878, their indebtedness for these moneys and supplies amounted to the sum of $ 6914.33. The cotton crop was delivered to Neel to be sold, with the understanding that the proceeds of the sale should be appropriated to the payment of this indebtedness so far as they would extend, which was done, and there still remained a balance of $ 3828.15 due and unpaid.

In April, 1878, Andrew C. Carson filed his second annual settlement with the estate of Samuel Carson, deceased, and showed therein a balance of assets in his hands, unadministered, amounting to $ 2846.98. To this settlement J. F. Vaughan, as guardian of the Vaughan devisees and legatees, filed exceptions, thereby and therein stating and insisting that Andrew C. Carson had failed to charge himself in his settlements with various amounts with which he should be charged, and had wrongfully and unlawfully given himself credits to which he was not entitled, which together with the sums with which he should be charged and failed to charge, amounted in the aggregate to the sum of $ 2674.61; and that he had not been and should be charged in addition thereto a reasonable sum for the use of the personal property belonging to the estate of his testator which had been used by him. These exceptions, it appears, were not disposed of until after the death of the executor.

On the 1st of July, 1878, Andrew C. Carson died, and on the 28th of August, 1878, C. M. Neel administered on his estate. On the 2d of July, 1878, J. B. Trulock was appointed administrator de bonis non, with the will annexed, of the estate of Samuel Carson, deceased. On the 21st of October following Trulock, as such administrator, filed a petition in the Jefferson probate court for an order to sell the lands of the estate of Samuel Carson, deceased, to pay the debts of the estate and a balance due on the $ 5000 legacy stating therein, among other things, that Andrew C. Carson had appropriated the personal property of the estate to his own use and accounted for it at its appraised value in his settlements, and that at the filing of his last settlement there was a balance of assets in his hands to the amount of $ 2846.98; that this amount was not sufficient to pay the $ 5000 legacy; that the amount due on the claims allowed against the estate, including interest, was about $ 2700; and that there were no assets belonging to the estate to pay this amount and the balance due on the legacy, except the lands. On the same day J. F. Vaughn, as guardian, filed his remonstrance against the granting of Trulock's petition and as his reason for so doing stated that the personal property and the rents of the land which had gone into the hands of Andrew C. Carson, executor, and the rent of the Carson place for 1878, were sufficient to pay the debts of the estate and the legacy. About the last of October or first of November, 1878, Mrs. Carson agreed with Neel to sell him her interest in the lands of the estate of Samuel Carson, deceased, for the sum of $ 3250, which Neel agreed to place to her credit on her account, and to pay her any balance thereafter due her on final settlement; and she further agreed to file a petition in the Jefferson probate court, asking for the same relief prayed for in Trulock's petition, which she did on the 2d day of November, 1878 stating therein that Andrew C. Carson had transferred to her the $ 5000 legacy, and that no part of it had ever been paid; that Andrew C. Carson had died leaving three minor children his only heirs and distributees at law, of whom she is the mother and natural guardian; and that the personal assets of the estate of Samuel Carson, deceased, were not sufficient to pay his debts and the legacy. On the 6th of December, following, she conveyed to Neel one undivided half of the lands of the estate of Samuel Carson, deceased, and covenanted with him that she was seized, in fee simple, of the one undivided half of said lands; that she had a lawful right to convey the same; and to warrant and defend the title thereto unto Neel and his heirs against the lawful claims and demands of all persons. Neel gave her credit on her account with him for the $ 3250, and there still remained a balance of $ 578.15 due him from her. On the 4th day of November, 1878, J. F. Vaughn, as guardian of Samuel A. Vaughn, Grant A. Vaughn and Henry N. Vaughn, in consideration of $ 3000 to be paid and a pair of mules to be delivered to him by Neel, in writing agreed with Neel to sell and did undertake to sell and convey to him (Neel) all the interest of his wards in and to the estate of Samuel Carson, deceased, and to withdraw his exceptions and remonstrance and join Trulock in his petition for an order to sell lands. He withdrew his exceptions and remonstrance, and on the 11th of November, 1878, filed a petition in the Jefferson probate court, asking for an order directing Trulock as administrator, to sell the lands of the estate of Samuel Carson, deceased, to pay debts and the legacy, stating it as his belief that such...