Thompson v. Wilhite

• Decision Date: 05 November 1917
• Docket Number: 209
• Citation: Thompson v. Wilhite, 198 S.W. 271, 131 Ark. 77 (Ark. 1917)
• Parties: THOMPSON v. WILHITE, ADMINISTRATOR
• Court: Arkansas Supreme Court

198 S.W. 271

131 Ark. 77

THOMPSON v. WILHITE, ADMINISTRATOR

No. 209

Supreme Court of Arkansas

November 5, 1917

Appeal from Mississippi Circuit Court, Chickasawba District; W. J Driver, Judge; affirmed.

Judgment affirmed.

R. A Nelson, for appellants.

1.Appellants are not estopped to claim their rights, nor were they waived by any acts or conversations.16 Cyc. 679.

2.The court erred in its instructions.15 Ark. 41;96 Id 222.

W. D. Gravette, for appellee.

1.Appellants are estopped.The instructions are not set out nor abstracted.But the jury were properly instructed and the evidence sustains the judgment.Appellee paid the debts under the instructions of the widow.It was then too late to claim dower.

OPINION

WOOD, J.

W. H. Needham died in December, 1912, leaving his wife and daughter.After his death his wife, Eliza, married Thompson, and his daughter, Gertrude, married Jones.In January, 1913, B. H. Wilhite was appointed administrator of the estate of Needham.On the 30th of October, 1915, the administrator filed his first and only report, showing certain amounts received and collected by him for the estate, and certain amounts paid out.Appellants filed their exceptions to the report, which exceptions were sustained by the probate court, and the administrator appealed to the circuit court, where the judgment on the exceptions was in favor of the appellee, and the appellants have prosecuted this appeal.

The only issue presented on this appeal is whether or not the appellantEliza Thompson, as the widow of Needham, was entitled to a dower interest of $ 377.45 out of the estate of Needham.

The undisputed testimony shows that at the death of Needham there was realized out of the personal property of his estate the sum of $ 1,132.45.The appellee, administrator, contends that at the request of Mrs. Needham he used the money coming into his hands of the estate for the payment of debts, and that she is estopped by her conduct from claiming her statutory dower in this money.The appellant, Eliza Thompson, on the other hand, denies this contention, and claims that she is not estopped, under the facts, from claiming her statutory dower.The testimony on this issue is substantially as follows:

At the death of her husband Mrs. Needham and her attorney called upon Mr. Wilhite and asked him to act as administrator of the estate.She did not tell him anything about selling the property or paying the debts; did not instruct him to pay the debts.Needham never told her what he wanted.He did not owe many bills.There was a $ 1,000 insurance policy, made payable to his estate.She did not tell Mr. Wilhite that Mr. Needham had this policy made payable to his estate in order to have his debts paid.She did not mind the honest debts being paid.After the death of her husband she lived with a man by the name of Fields, who married her aunt, until about two days before she married Thompson.She never told Fields that she wanted Wilhite to pay the debts.She never told him that Wilhite was giving her all the information she wanted about the matter.She stated that she had complained about the way Wilhite had managed the estate before she married Thompson.The first attorney she consulted with reference to her affairs after the death of her husband was Mr. Rodgers.She paid Mr. Rodgers his fee.Her husband told her before his death that he had paid Rodgers for the services that Rodgers had rendered him, and that her husband did not owe Rodgers any attorney's fee.She was relying upon the advice and counsel of Rodgers in the settlement of her husband's estate.Rodgers procured for her an order on the administrator to refund to her the funeral expenses which she had paid, and also secured an order for the administrator to pay her the sum of $ 300 as the widow's allowance.She had received a letter from Mr. Rodgers stating, in substance, that he had procured these two orders, and that he would file another petition to determine her further interest in the estate, and stating that his fee for this service was $ 50, which amount she paid to Rodgers.She stated that she did not, with the administrator, check over any accounts against the Needham estate or authorize the administrator to use her interest to pay Needham's debts.

Witness Wilhite testified that he became administrator of the estate upon the solicitation of Mrs. Needham.The personal property of the estate consisted of an insurance policy for $ 1,000 and a small stock of goods, amounting to $ 132.He had paid out $ 1,026.17 on claims against the estate filed with him.Mrs. Needham instructed him to pay these claims; told him the reason Mr. Needham had the policy made payable to his estate was for the purpose of paying his debts.Nothing could be ascertained from the books and Mrs. Needham went over the accounts with witness; told him which ones to pay and which not to pay, and he paid what she told him to pay.After paying these claims there was a balance in his hands of $ 131.43.Witness was appointed administrator in January, 1913 and did not file any report until October 30, 1915.None of the accounts against the estate are marked "filed."Witness thought that none of the accounts paid by him were presented later than a year after he took out letters of...