Terry v. Logue

• Citation: 87 S.W. 119
• Parties: TERRY et al. v. LOGUE.
• Decision Date: 29 April 1905
• Court: Arkansas Supreme Court

87 S.W. 119

TERRY et al. v. LOGUE.

Supreme Court of Arkansas.

April 29, 1905.

Cross-appeals from Circuit Court, Franklin County, Ozark District; Jeptha H. Evans, Judge.

Action by Mary P. Logue against Sarah Terry and others. Judgment for plaintiff, and both sides appeal. Affirmed.

This is an action in equity to set aside an agreement for the division of property belonging to the estate of plaintiff's former husband. Plaintiff was the wife of Marion F. Terry, who afterwards died without children, leaving the plaintiff, Mary P. Terry, as his widow, who afterwards married one Logue. Marion Terry also left surviving him his mother, Sarah Terry, and certain brothers and sisters, and certain children of a deceased brother. He owed no debts. After Terry died, his widow, the plaintiff, entered into an agreement with his mother to divide the property on the basis of one-third to the widow and two-thirds to his mother; and they left the matter to two of their neighbors to make the division, and give each of them such share of the property as, in the opinion of the persons making the division, she was entitled to receive. It seems that all parties to this division acted in good faith, but under the mistake that the widow was only entitled to one-third of the property, and so it was divided in that way, or at least a part of it was so divided. She afterwards brought this suit to recover an additional amount as dower, on the theory that the contract with the mother of her husband, and the subsequent division of the property, was made in ignorance of her rights, and was without consideration. The chancellor sustained her contention, and decreed accordingly.

Sam R. Chew, for appellants and cross-appellees. W. W. Cotton and T. A. Pettigrew, for appellee and cross-appellant.

RIDDICK, J. (after stating the facts).

We are of the opinion that the judgment of the chancellor should be affirmed. The husband of the plaintiff left no children and no creditors. The real property left by him was a new acquisition, and not an ancestral estate. The chancellor therefore, in our opinion, correctly decided that the widow was entitled to one-half of the estate, both real and personal. Kirby's Dig. § 2709.

The agreement for a division of the property, which was made between the widow and the mother of Terry, the former owner, was made under a mutual mistake as to the rights of the widow in the estate. The chancellor found that this agreement was without consideration, and ...