Russell v. Wooten

• Decision Date: 23 March 1925
• Docket Number: 252
• Citation: 270 S.W. 953,168 Ark. 297
• Parties: RUSSELL v. WOOTEN
• Court: Arkansas Supreme Court

270 S.W. 953

168 Ark. 297

RUSSELL v. WOOTEN

No. 252

Supreme Court of Arkansas

March 23, 1925

Appeal from Lee Chancery Court; A. L. Hutchins, Chancellor reversed.

Decree reversed, and cause remanded.

H F. Roleson and C. W. Norton, for appellant.

D. S. Plummer, for appellee.

OPINION

WOOD J.

The appellees instituted this action on the 7th day of January 1920, in the Lee Chancery Court, against the appellants. They alleged in substance that they and the appellant, James Lee Grimes, were the only heirs at law of J. M. Grimes, who died intestate on the 8th of August, 1912; that the appellees and appellant, James Lee Grimes, as the heirs of J. M. Grimes, were the owners of the NW1/4 of section 31, township 1 north, range 3 east, containing 160 acres, Subject to the homestead in eighty acres of the same in the widow, Mrs. Mollie Grimes, now Mrs. Mollie Russell; that the homestead had never been set apart and had never been claimed by her as a homestead; that, since the death of their father, the appellants had collected all the rents of the 160 acres and had not accounted to the appellees for rents on the eighty acres belonging to the appellees and James Lee Grimes. They prayed that Mrs. Mollie Russell be required to select her homestead, and that she and appellant James Lee Grimes be required to account to the appellees for five-sixths of the rents collected on the land above described, amounting in the aggregate to the sum of $ 2,520, and that the lands be sold for partition.

The appellants answered and set up, in substance, that, at the May term, 1914, of the Lee probate court, Mrs. Russell, in her own behalf as widow of J. M. Grimes, and in behalf of the heirs of J. M. Grimes, deceased, applied to the probate court for an allotment of dower and homestead in the lands described; that all of the appellees were parties to that proceeding, in which it was finally adjudged that the lands above described were the homestead of the widow and minor heirs of J. M. Grimes, deceased; that no appeal was taken from the judgment of the probate court, and appellants pleaded the same as res judicata of the present action. Appellant also set up that the appellees had received their part of the rent and profits of the tract of land above described continuously since the judgment of the probate court, and were estopped thereby from asserting that the same was not the homestead of the appellants.

The records of the probate court were in evidence, which show that, at the May term of that court, 1914, Mrs. Mollie Russell, widow of James M. Grimes, deceased, petitioned the court for assignment of her dower in his lands, and the following are the excerpts from the record that are pertinent to this action:

"It appearing to the court that J. M. Grimes, at the time of his death, lived upon and occupied as his homestead the northwest quarter of section 31 township 1 N., R. 3 east, which remains the homestead of the widow and minor children, * * * the court grants the petition, and directs that all of the heirs of J. M. Grimes be summoned to show cause, if any they have, against such assignment." Again:

"On this day comes on for hearing the petition of Mrs. Mollie E. Grimes (now Mollio E. Russell), widow of J. M. Grimes, deceased, for dower in the lands of said estate, which said petition was heretofore filed herein, and, it appearing to the court that due notice has been given to all of the heirs of J. M. Grimes, and no objection or other pleas being filed against the same, the court, being fully advised, doth grant said petition. It appears to the court that said J. M. Grimes at the time of his death was the owner of the NW 1/4 of section 31, township one north, range three east, which was his homestead, and which is now occupied by the widow and minor children.

"The court finds that she is entitled to dower to an undivided one-third in value of said lands, and, for the purpose of laying off and assigning such dower, N. M. Blair, Tom Wooten and Nat Ramey are appointed as commissioners to lay off the same, and they will report their proceedings herein to the next term of this court. In assigning said dower said commissioners will find the value of all the lands, including the homestead, and will then lay off to said widow an amount of lands outside of the homestead equal in value to one-third of the whole." And again:

"On this day come the commissioners heretofore appointed for the assignment of dower in the lands of this estate to the widow Mrs, Mollie E. Grimes (now Mrs. Mollie E. Russell), and file their report herein, which is as follows, to-wit: Come the undersigned, heretofore appointed for the assignment of dower of Mrs. Mollie E. Grimes (now Mrs. Mollie E. Russell) widow of the deceased, do respectfully report that, in compliance with the order of this court, we have viewed and appraised the homestead, the same being the NW1/4 of section 31, township one north, range three east, and find the value thereof to be $ 40 per acre, being a total of $ 6,400.

"We have also viewed and appraised the W1/2 S.E. 1/4 and the SE1/4 S.E. 1/4 of section thirty-four, township one north range two east, the other lands belonging to said estate, and have assessed the same in the sum of $ 25 per acre, being the sum of $ 2,800, making the entire valuation of the lands of the said estate the sum of $ 9,200. We have assigned to the widow as dower the said W1/2 of SE1/4 and...