894 CARTER V. 'CARTER. [193 CARTER V. CARTER. • 4-4570 Opinion delivered March 29, 1937. , 1. EXECUTORS AND ADMINISTRATORS.—While the brothers 4::,f R. J.' d., . deceased, had no interest in his estate as -his heirs, , thdy -.were interested in the estate of their mother who . had succeeded to the estate of her deceased , son, and during , her lifetime they had:an • expectant interest in her estate, and, after her death:they, is her heirs, succeeded to her rights in her deceased son's esiate; 'and if the •adminikrator of 'the deceased son's 'estate had failed to account to her, they might maintain an action against . him,,or her * administrator might do so. Crawford &. Moses! Dig., , § 189. 2 : EXECUTORS AND ADMINISTRATORS.—While , the language , of the statute (Crawford & Moses' Dig., § 189) prOviding • that "heirs * may file exceptions to an administrator's acceunt" . may, by a 'literal construction, refer to "heirs," an heir of an heif has the same right, and may prosecute a suit for -the' benefit . of all the heirs. 3. EXECUTORS AND ADMINISTRATORS. Where administration was pending in the probate court and an account , had been , filed,, it was the duty of the court to examine and inquire into such aecount, even though no exceptions had been filed, and to i l equife the • administrator to account properly for all funds coming into his hands as administrator. , • 4. EXECUTORS AND ADMINISTRATORS.—Evidence held to. support findings and judgment against appellant, administrator of his deceased brother's estate, for $22,067.39. APpeal from Woodruff Circuit Court; W. D. Daveo-port, Judge; affirmed.
ARK.] CARTER V. CARTER. 895 Jonas E. Dyson and Roy D. Campbell, for appellant. W. J. Dungan and Ross Mathis, for appellee. MdlIANEY, J. Appellant and his intestate, a brother, R. J. Carter, prior to the latter 's death on January 7, 1918, were 'partners in business, each owning a one-half interest in the . Carter Lumber Company, a partnership doing business in that name. The assets of the firm consisted of two shingle mills, a lot of timber, a home in Cotton• Plant, occupied by the partners, their mother, Mrs. J. D. Carter, until her death on April 19, 1931, and-the daughter of appellant, and also certain accounts reCeivable. Also the firm owed certain debts. R. J. Carter was unniarried,,and at his death his mother, a widow, became his sole heir. In addition to his other assets, above stated, he had a policy of life insurance Made payable to his 'estate- in the sum of $5,000, which, less the indebtedness, - amounted to $4,035.19 net collected. As above Stated; the mOther, Mrs. J. D. Carter, died on April 19, 1931, and she left surviving her appellant and three other sons,.R. C . . ;;Joe, and Elmo Carter, the appellee, .and another heir by a deceased daughter. Shortly after his brether's death in 1918, appellant was appointed administrator of his estate. For more than thirteen years after his • appointment as such, he made no report and settlethent of his account as administrator and not until after the death of his mother did he do so, to-wit : On Jfily 10, 1931. At that time he filed a report and settle, ment showing that he had sold the assets of the Carter. Lumber Company, including two shingle mills 'and a lot of timber for $74,500 .and had collected accounts receivable in the sum of $2,697.78, making a total of $77,197.78, atid that he had paid out for debts of the firm the sum of $29,899.50, leaving a balance of $47,298.28 to be divided. equally between him and his-mother, Mrs. J. D. Carter. His disbursement items listed in this account shows a. distribution ,of . this . entire balance and an indebtedness due. him for ,over expenditures in the sum of $289.15. No vouchers . were filed evidencing these expenditures. Thereafter, on November 15, 4932, exceptions weke filed to the report and .settlement of appellant by . R. C. Carter and.,Elmo Carter, brothers of appellant, challeng-
896 CARTER V. CARTER. [193 ing the entire account and each item thereof, and praying the appointment-of an auditor to state the account. For instance, exceptions were taken to the statement that the assets of the Carter Lumber Company were sold • for $74,500, including timber, whereas the sale price was for the mills and certain timber $70,000, of which $10,000 was paid in cash and the remainder at $10,000 per year for six years at 5 per cent. per annum until paid, and additional timber sold to Southwestern Veneer Company for $4,000 in addition to accounts receivable reported, without any account for interest collected. Exceptions were also taken to the charge against his mother of one-half the home account, amounting to $39,519.98, it being alleged that she was a very old woman, and that her expenses could not have amounted to one-half of said sum. On January 23, 1933, appellant filed a second or supplemental final report and settlement, varying somewhat from the first, •and exceptions were filed to it, and on March 17, 1933, both reports and exceptions were presented to the probate court, and by consent W. M. Sales was appointed auditor to examine and restate the account of appellant as administrator . and to report •his actions to the court. Thereafter, the auditor made a te-port to the court showing that appellant was indebted to the estate of his mother in the sum of $24,643.61. Exceptions were filed by lxith parties to the report, but on a hearing the court entered judgment against him for said amount. An appeal was prosecuted to the circuit court, where, after trial de novo, judgment was entered against appellant in the sum of $22,067.39, Elmo Carter, in the meantime having been appointed administrator of his mother's estate, and made a party to the action. An appeal has been taken from this judgment. For a reversal of the judgment against him appellant first insists that Elmo Carter and R. C. Carter had no interest in the estate of their brother, R. J. Carter, deceased, and for that reason, had no right to file exceptions to the settlement of the R. J. Carter estate, and that the additional fact that Elmo Carter was appointed administrator of his mother's estate on May 11, 1934, is an admission that he had no interest in the estate of
ARK.] CARTER V. CARTER. 897 R. J. Carter, and, therefore, had no right to file exceptions to a settlement therein. We think appellant is in error in this contention. While it is true that the brothers of R. J. Carter, deceased, had no interest in his estate as bis heirs, it is also true that they were interested in the estate of their mother who had succeeded to the whole estate of her deceased son, as her heirs, and even during her lifetime they had an expectant or prospective interest in her estate, and certainly after her death they succeeded to all her rights in her deceased Son's estate as her heirs, and if the administrator of the deceased son's eState, appellant, had failed to properly account to her.for. such estate, they might, as her heirs, maintain -an action against him, or her administrator might do so. Under § 189, Crawford & Moses' Digest, it is provided that heirs, legatees and creditors may file exceptions to an administrator's account, and while that language may, by a literal construction, refer to heirs, legatees and creditdrs of the deceased person whose estate is being administered, it would seem that an heir of an heir would necessarily have the same right. A similar contention is made that Elmo Carter, as administrator of his mother's estate, had no right to pursue appellant on appeal to the circuit court, but we think the administrator would have the right to prosecute the suit for the benefit of all the heirs of Mrs. J. D. Carter's estate. Nor do we think the circuit court erred in refusing to revoke the letters granted to Elmo Carter. Appellant insists that even though it be true that he had not accounted to his mother for all funds coming to her from the estate of R. J. Carter, deceased, and that even though he had filed a false and fictitious statement of the payment of these funds to her, that the remedy of the other sons would have been an action in chancery court to cause a proper accounting of the same in such court. We cannot agree. The administration was pending in the probate court. An account.had been filed, and it was the duty of the probate court to examine and inquire into such account even though no exceptions had been filed, and to require appellant to account properly for all the funds coming into his hands, as ad-
898 CARTER V. CARTER. [193 ministrator. Shicklin v. Galloway, 99 Ark. 56, 137 S. W. 804. • • • The real question in the case is whether the account of appellant as administrator of his brother's estate, as shOwn by the judgment of the circuit court, is supported by substantial evidence. We have carefully read the evidence as abstracted by the parties, and have reached the conclusion that the court's findings and judgment are supported by substantial evidence, and that a• larger judgment, in fact, -might 'have been . sustained: We think the court was very liberal' with appellant, for, beginning with the sale of the • assets 'of the Carter Lumber Company, a 'short • time after the death of B. J. .Carterin 1918,.the court gave appellant credit for .the . full .amount of his mother's personal account and one-half the home account, as claimed by him. • The court also credited appellant with $2,500, being one-half .of the $5,000.advanced to J. D. Carter with which to go Into business; whereas it •might properly have refused . such credit and charged the whole 'amount advanced to J. D. :Carter, to appellant. It, also, a.ppears from the coart's account that appellant was s charged with-interest on the balance ,due his mother from the date of her death only, whereas during all of ,the thirteen years appellant . had been handling the:funds, he had been collecting interest on.the Elsberry &,Carnahan notes given for the purchase price of $60,000 of the assets of 5 .per • dent. per annUm, and on large: sums on.time deposit at. 4.per cent. per annum, which' sums were funds realized frota the assets of the . partnership: We think the court might well have' .charged appellant with..one-half the interest he collected during this •period of time because one4half of the funds he held . in his hands belonged to his .mother's estate: . • . • We do not undertake' to set out . this account in . full as. it could serve no . useful purpose as a • precedent in the future. Suffice it to say that . we have carefully considered •all the evidence bearing upon 'the questions at issue, and find subStantial evidence to' support the. judgment of the circuit court, and it is; therefore, affirined..
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.