Sursa v. Wynn

• Decision Date: 16 December 1918
• Docket Number: 37
• Parties: SURSA v. WYNN
• Court: Arkansas Supreme Court

207 S.W. 209

SURSA v. WYNN

137 Ark. 117

No. 37

Supreme Court of Arkansas

December 16, 1918

Appeal from Clay Circuit Court, Western District; R. H. Dudley Judge; affirmed.

STATEMENT OF FACTS.

This is an appeal by the widow from a judgment of the circuit court affirming the judgment of the probate court in refusing to allow certain exceptions filed by her to the final account of the administrator of her deceased husband's estate. The material facts are as follows:

In September, 1915, W. R. Wynn died intestate in Clay County Arkansas, leaving surviving him his widow, Ada Wynn and a son and daughter named, respectively, T. W. Wynn and Ardie Tipton. At the time of his death, W. R. Wynn owned about 1,950 acres of land in Clay County, and personal property of the value of about $ 25,000. His widow relinquished her right to administer upon his estate and by consent of all parties his son, T. W. Wynn, was appointed administrator.

According to the testimony of his son, T. W. Wynn, W. R. Wynn had begun to erect a hay barn for the purpose of storing the hay grown by him for that year. After his death his widow and two children agreed that the erection of the barn should be finished for the purpose of storing the hay and that each would pay one-third of the cost thereof.

The Attorney General brought suit for the State of Arkansas against the widow and two children for the amount of the inheritance tax due by the estate of W. R. Wynn, deceased. By consent of all parties the amount of the inheritance tax was fixed at $ 802.30, and the widow and two children agreed to pay each, one-third thereof.

There were also ditch taxes due on the land in the sum of over $ 350 and the widow and two children agreed that each would pay one-third of them. They also agreed for the administrator to gather the crop and divide the proceeds equally between them. They also agreed that a tombstone should be purchased by the administrator and erected over the grave of the deceased husband and father and that the expense should be borne equally between them. The administrator paid the claims which were probated against the estate and filed three accounts current. His final settlement was filed with the probate court on the 21st day of July, 1917. Attached to it is a receipt signed by Mrs. W. R. Wynn and sworn to before a notary public in which she stated that she had received in full the balance due her as dower in the personal property from the administrator of her deceased husband's estate. Since then she has re-married and is now Ada Sursa.

According to the testimony of Ada Sursa, she did not agree that one-third of the inheritance tax should be charged against her dower and did not agree to pay any part of the ditch taxes. She, also, denied agreeing that the hay barn should be completed and the cost thereof charged as expenses of administration. She denied that she had agreed to pay any part of the price of the tombstone, and also, testified that when she signed the release she did not know that the items embraced in the exceptions had been charged against her. Other facts will be stated or referred to in the opinion.

The probate court refused to allow any of the exceptions filed by the widow and upon appeal to the circuit court, that court refused to allow her exceptions and affirmed the judgment of the probate court. The case is here on appeal.

Judgment affirmed.

C. T Bloodworth, Jerry Mulloy and S. A. D. Eaton, for appellant.

1. The court erred in refusing to allow the widow's exceptions to the account current. The undisputed evidence shows that the personal estate of W. R. Wynn, which came to the hands of appellee was of the value of $ 29,833. She was entitled to one-third of this absolutely and her rights were paramount to those of the heirs or creditors, and without regard to decedent's debts or expenses of administration. Kirby's Digest, § 2708; 5 Ark. 608. The value of one-third is $ 9,944.33. This she was entitled to and to $ 300 under § 3, Kirby's Digest and $ 150 under § 74 Id., making a total of $ 10,394.33 due her. 102 Ark. 322. She has only received $ 7,654.04 and there is due her $ 2,730.29.

2. The claim for pro rata part of expenses of administration and inheritance tax is unfounded and untenable. Acts 1913, p. 825; 5 Ark. 618; 53 Id. 255.

3. Appellant is not estopped by her receipt. Appellee was a trustee of appellant in said estate. 8 Ark. 9; 52 Id. 1; 78 Id. 114; 84 Id. 554. She relied on the statements made to her by appellee when she executed it. A fraud was thus perpetrated on appellant. 39 Cyc. 300; 14 S.W. 593; 99 Id. 254; 52 Ark. 1; 78 Id. 114; 84 Id. 554; 128 S.W. 855.

4. Appellee has totally failed to charge himself in his settlements with the sums of $ 2,457.50, $ 386.99 and $ 2,160.09, making a total of $ 5,004.58. Appellant was "tricked" by appellee into signing the receipt and her exceptions should have been allowed.

J. L. Taylor and G. B. Oliver, for appellee.

1. The widow was only entitled to one-third out of each kind of personal property of which her husband died seized. 102 Ark. 325. She has received all she was entitled to as the court found. She was chargeable with one-third of the expense of cutting and saving the hay and crops and collecting the notes and accounts, etc., and the work on the barn. By agreement she was to pay one-third of the tombstone.

2. She agreed to pay one-third of all these and her part of the inheritance tax. She is bound by her agreement and her receipt in full, no fraud being shown.

3. The findings of the court below have the same weight as the verdict of a jury and should not be disturbed. 125 Ark. 136; 123 Id. 428; 104 Id. 154; 100 Id. 166; 96 Id. 606.

4. She voluntarily paid her part of the inheritance tax even if not liable. If a mistake it was one of law, not of fact. Fetter on Equity, p. 118, 79; 16 Cyc. 73. But this is a suit at law and money paid under mistake of law cannot be recovered back. Pomeroy Eq. Jur. § 851; 92 Ark. 306; 46 Id. 157; 86 Id. 175; 102 Id. 152; 110 Id. 303.

5. She was liable for her part of the taxes and ditch taxes as they were a lien. She has received one-third of the land personalty plus $ 450 allowed her under §§ 3 and 7 of Kirby's Digest, and plus the household and kitchen furniture under § 72. Altogether she has received more than she was entitled to.

OPINION

HART, J., (after stating the facts).

The administrator charged himself with the value of the estate at $ 19,696.65, as shown by the inventory. Subsequently he charged himself with...