Watson v. Henderson

CourtSupreme Court of Arkansas
Citation135 S.W. 461,98 Ark. 63
Decision Date27 February 1911

Appeal from Monroe Chancery Court; John M. Elliott, Chancellor reversed.


L. H Watson died in 1891, owning and occupying as his homestead the northeast quarter of the southeast quarter of section 13 township 4 north, range 3 west, in Monroe County, Arkansas. Mrs. Delia Watson, the widow of L. H. Watson and appellant who was the minor son of L. H. and Mrs. Delia Watson continued to reside on the land, or rented it, until 1899. The land was of the value of about $ 2,000, and rented for $ 200 per year.

In 1899 Mrs. Delia Watson (then Mrs. Simpson) and appellant, by his guardian, petitioned the chancery court of Monroe County for a sale of the land, setting up that "the land was without fencing or buildings, that they could no longer cultivate it, and that it ought to be sold and the proceeds invested in a home for them." The court granted their petition, and ordered the land sold at private sale by the guardian for the sum of $ 600. The land was sold to appellee, deeds were executed by Mrs. Simpson, and by the guardian of appellant. The sale as thus made was afterwards confirmed by the chancery court. Appellant became of age April 13, 1908, and on October 5, 1908, filed a bill of review, in which he alleged substantially the above facts, and further that the appellee was in possession of the land, and had been since 1899, enjoying the rents and profits amounting to $ 1,600. He further alleged the sum of $ 1,600 was sufficient to reimburse appellee his purchase money with interest and for all the improvements he had made, and taxes and interest. He averred that if, upon accounting, it should be shown that the annual rents were insufficient to fully reimburse appellee then appellant was ready to pay such additional sum as might be necessary. He prayed that the decree be set aside, and that the deed made by the former guardian be set aside as a cloud upon appellant's title, and that appellant be given possession of his property.

Appellee demurred to the bill. The court sustained the demurrer, and dismissed the cause. Appellant duly prosecutes this appeal.

Judgment reversed and cause remanded.

N. W. Norton and C. F. Greenlee, for appellant.

The chancery court was without jurisdiction to order a sale of a minor's property for reinvestment, because that power is expressly and exclusively given by the Constitution and statutes of this State to the probate courts. Art. 7, § 34, Const. 1874. The words "exclusive original" jurisdiction used in the foregoing section of the Constitution have a significant meaning, differing in this respect from the language employed in any former Constitution. See art. 6, § 10, Const. 1836; art. 6, § 12, Const. 1861; art. 7, § 12, Const. 1864. The acts of April 16, 1873, conferred "such" jurisdiction in all matters of probate and administration upon the circuit court, but in 1874 the present Constitution was established, containing the above article and section conferring exclusive original jurisdiction upon the probate court. See to the same effect, Kirby's Digest, § 1340, enacted in 1875; 33 Ark. 728, 734. Chancery courts may act as a shield to protect the property of a minor from the effects of fraud, accident or mistake, and for the prevention of irremediable mischief, and has jurisdiction for that purpose, but should not exceed that necessity. Myrick v. Jacks, 33 Ark. 425, is not against appellant's contention, because a fraud had been committed upon a child by a probate court. See also 40 Ark. 393, 401; 48 Ark. 544; 100 S.W. 1052, 1070; 42 N.E. 8.

Thomas & Lee, for appellee.

The chancery court had the power to order the sale of the land in question, and its jurisdiction coexists with that of the probate court. The same jurisdiction may exist in more than one tribunal, to be exercised by the one first acquiring it. 45 Ark. 46, 48; 53 Ark. 43; 33 Ark. 425. "The court of probate shall have power to appoint guardians for minors, and possesses the control and superintendence of them." Kirby's Dig. § 3753. But "the jurisdiction of a court of chancery extends to the care of the person of an infant so far as necessary for his protection and education," etc. * * "and this jurisdiction is not taken away by the like power conferred by statute on the probate court." 38 Ark. 406. Where equity has original jurisdiction, it is not taken away by statute conferring jurisdiction in similar cases upon another court unless the statute expressly or by necessary implication excludes the equitable jurisdiction. The jurisdiction becomes concurrent or ancillary or auxiliary in the two courts. 55 Am. Dec. 74; 28 Ala. 629; 49 Ala. 99; 18 Ark. 583; 28 Ark. 19; 53 Ga. 36; 53 Ill. 214; 15 Mo. 662; 27 N.J.Eq. 408; 27 N.H. 513; 23 Miss. 236; 44 Miss. 805; 1 Phill. Eq. 69. That the chancery courts had jurisdiction over the persons and estates of minors under the Constitution of 1836 was never questioned; and "the Constitution of 1874 restored the probate system as it existed under the Constitution of 1836." 40 Ark. 434, 441; 33 Ark. 575; Id. 727; 34 Ark. 63; Id. 117; 36 Ark. 383. The act of April 22, 1873, conferring jurisdiction upon circuit courts (now chancery courts) has never been repealed, hence jurisdiction over a minor's business still remains in the chancery courts. Acts 1873, p. 120, §§ 4, 33, 34. In this case the sale was not for the education and maintenance of the minor but for reinvestment in another home. The probate court has no jurisdiction to sell the homestead of a decedent during the minority of his children. 52 Ark. 213; 56 Ark. 563; 56 Ark. 574. Chancery jurisdiction, being auxiliary or ancillary and corrective, can be exercised where the relief afforded by the probate court is imperfect or inadequate, or where the proceedings have miscarried through fraud, accident or mistake. 23 Ark. 94; 16 S.W. 666; 48 Ark. 544; 34 Ark. 117; 45 Ark. 505; 27 Ark. 595; 26 Ark. 373; 49 Ark. 51; 16 Cyc. 96.


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

The Constitutions of this State prior to the present one provide that the probate court shall "have such jurisdiction in matters relative to the estates of deceased persons as may be prescribed by law." Const. 1836, art. 6, § 10; Const. 1861, art. 6, § 12; Const. 1864, art. 7, § 12. See also Const. 1868, art. 7, § 5. As early as December 23, 1846, the Legislature gave to the probate court jurisdiction to order guardians "to sell lands belonging to any estate." Acts of December 23, 1846, p. 116; Gould's Digest, p. 134; Reid v. Hart, 45 Ark. 41. They continued to have such jurisdiction until the act of April 16, 1873, giving to the circuit court "exclusive original jurisdiction of everything properly pertaining to matters cognizable in courts of probate, and all the powers and jurisdiction now possessed by courts of probate." At that time the jurisdiction of the probate court to sell the lands of wards was only concurrent with that of the equity court, which had always possessed such power in this State. Shumard v. Philips, 53 Ark. 37, 44, 13 S.W. 510.

The act of April 16, 1873, supra, in express terms lodged all the jurisdiction that had been formerly possessed by courts of probate in the circuit courts, and gave to these courts, whether exercising their common law or equity powers, exclusive jurisdiction. The act of April 22, 1873, gave to guardians or curators power to sell the land of wards and to invest the proceeds in other land when it appeared to be for the benefit of the ward to do so. The sale could only be made, however, after obtaining an order from the circuit court. Acts of 1873, p. 194. Thus the law was written when the present Constitution was adopted, which provides: "The judge of the county court shall be the judge of the court of probate, and have such exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians, and persons of unsound mind and their estates as is now vested in the circuit court or may be hereafter prescribed by law." Art. 7, § 34.

Now, when the Legislature of 1873 took away from the probate courts the jurisdiction to sell the lands of wards, and invested the circuit court with exclusive jurisdiction to order the sale of such lands, the intention was that only the circuit courts should possess such jurisdiction. Likewise, when the framers of the present Constitution divested the circuit courts of such exclusive jurisdiction and invested it in the probate courts, the intention was that the latter courts should possess that jurisdiction to the exclusion of all other courts. The word exclusive means: "possessed to the exclusion of others." Webster's Unabridged Dict.; Century Dict., "Exclusive."

To support their contention that chancery courts have jurisdiction under the Constitution of 1874 to sell a minor's land for reinvestment, appellee relies upon the decision of this court in Myrick v. Jacks, 33 Ark. 425, where we said: "The general jurisdiction over the persons and property of minors belonged to the chancery courts. Courts of probate have by statute limited power over the estates of minors in the hands of administrators and guardians, but the statute is the limit of their power, and their orders, not authorized by the statute, are void. They have no authority to direct an investment of a minor's funds in land."

This language was used in passing upon an order of the probate court made in 1865 authorizing the guardian of a minor to invest the proceeds of the sale of her land in other lands. Myrick was seeking to hold Jacks liable for moneys or securities received from her guardian during her minority as a result of the order of the...

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