Sanders v. Taylor, 4-4639.
Decision Date | 03 May 1937 |
Docket Number | No. 4-4639.,4-4639. |
Citation | 104 S.W.2d 797 |
Parties | SANDERS v. TAYLOR. |
Court | Arkansas Supreme Court |
Appeal from Circuit Court, White County; W. D. Davenport, Judge.
Proceeding by Ethel B. Sanders for determination of her right in the estate of T. N. Sanders, deceased, in which B. E. Taylor was appointed guardian ad litem for Martha Louise Sanders and another. From the judgment, Ethel B. Sanders appeals.
Affirmed.
Culbert L. Pearce, of Searcy, for appellant.
B. E. Taylor, of Searcy, for appellee.
This action was begun in the probate court and submitted upon an agreed statement of facts from which the following appears: On November 16, 1910, Mrs. Ethel B. Sanders and T. N. Sanders were married and lived as husband and wife until his demise. No children were born of this union or to T. N. Sanders by any former marriage. On December 12, 1932, by proper order of the probate court, T. N. Sanders and Ethel B. Sanders adopted two children who were given the names of Martha Louise and Dorothy May Sanders. On December 20, 1933, T. N. Sanders executed a last will and testament and later added two codicils. On October 14, 1935, the testator died leaving Ethel B. Sanders, his widow, and his said adopted daughters his sole heirs at law and the principal beneficiaries under his will. The will and codicils were filed for probate as the last will and testament of the decedent and were duly admitted to probate and recorded. The person named by the testator as executor declined to serve as such and the court thereupon appointed the widow as administratrix with the will annexed. She duly qualified and is now acting as such administratrix.
A petition was filed in the probate court by Mrs. Sanders as administratrix alleging that she was entitled to take under the will, or under the law, at her election, but is unable to properly make decision without first knowing what she would receive under the law; that she believes she is entitled to one-half of the real and personal property of the estate as dower, subject only to the rights of the creditors. She further alleged that the rights of the adopted children are affected. She prayed that a guardian ad litem be appointed to intervene and defend for them and that the court ascertain and declare whether the petitioner, as widow, is entitled to dower under section 3536 of Crawford & Moses' Digest or under other provisions of the statutes, and that she be granted all other and proper relief.
The probate court appointed appellee, a practicing attorney, as guardian ad litem, to appear and defend for Martha Louise and Dorothy May Sanders, the adopted daughters who were minors. An answer was filed by the guardian ad litem admitting the material allegations of the petition and alleging the joint adoption of the minor children by petitioner and her deceased husband. Contention was made in said answer that petitioner was not entitled to endowment under section 3536, supra, but was under the other statutes relating to the dower rights of widows. Without objection the probate court entertained jurisdiction of the questions raised by the petition and answer and found as a matter of law upon the facts as agreed, that petitioner was entitled to one-third of the personal property of said estate absolutely and to one-third of the real estate during her natural life as dower, which rights are fixed by the provisions of sections 3514 and 3535 of Crawford & Moses' Digest; that the rights of the adopted minor children are such as if said children were born in legal wedlock to the petitioner and deceased.
On appeal to the circuit court and on the same agreed statement of facts that court declared the law in accordance with the declarations made by the probate court. On appeal from that judgment the appellant insists that she is entitled to endowment under section 3536, supra, which statute is as follows: "If a husband die, leaving a widow and no children, such widow shall be endowed of one-half of the real estate of which such husband died seized, * * * and one-half of the personal estate, absolutely and in her own right, as against collateral heirs." The contention that this is the applicable statute is based upon the idea that dower is an estate superior to one of inheritance, that Act No. 137, page 384, of the Acts of 1935 enlarged the right of inheritance of adopted children, and to that extent diminishes petitioner's right of dower as it existed prior to the enactment of that s...
To continue reading
Request your trial