GREEN V. FORD. VOL. 17 for the provisions, Az., on hand atthe death of her husband, where they have been used by the administrator instead of having been delivered to the widow under sec. 56, chap. 4, Digest. An appeal cannot be taken from the judgment of the probate court, allowing a claim against an estate, after the expiration of the term. MeMoran v. Overholt, 14 Ark. 245. Appeal from Phillips Circuit Court. ON. CHARLES W. ADAMS, Cir-H cuit Judge. Palmer, and Watkins & Gallagher, for appellant. SCOTT, J. This case originated in the probate court of Phillips county. The administratrix having filed a stated account for settlement, the 7th No-vember, 1853, and the usual notice having been given, the guardian came in and filed exceptions to the whole account ; but insists upon objections to but two items. And it is as to these two items that the whole controversy in this case has arisen. One of them thus appears in the stated account, to-wit: "Aud the said Margaret Ford claims to have allowed to her the sum of one hundred aud fifty dollars for a commutation for the first year's provisions, which she should have collected to her under the intent of the statute in such cases, because she was the wife of the *deceased at the time of his [*587 4586*] *GREEN AS GUARDIAN death, for the support of herself and V. the children of deceased the first year after his death, $150.00." FORD ADX. The other appears in the same ac-The terms and subject matter of a submission to count, thus, to-wit: "For amount paid arbitration, when not in writing, and not shown by other evidence, can only be gathered from the to Margaret Ford, voucher16, $229.95." award and what may be shown to have followed : Voucher 16 is as follows, and is thus And where the award is of the widow's claims for supported, to-wit : dower in the personal estate of her deceased hus-"Received of Margaret Ford, as ad-band, and under sec. 57, chap: 4, Digest, the court will not conclude that any other claims, not of the ministratrix of John B. Ford, deceased, nature of dower, were included in the submission. the sum of two hundred and twenty-It is within the legal discretion of the probate nine (229) dollars and 95 cents, in full court, which ought not to be controlled unless for an allowance in my favor against shown to have been used to manifest injustice Ford's estate, by the court of probate (Bankhead v. Hubbard et al., 14 Ark. 298), to allow the widow a certain sum, by way of commutation, of Philips county, Arkansas, at April
JAN. TERM, 1856. GREEN V. FORD. term, 1853. MARGARET FORD." Sworn to and subscribed in open May 11th, 1853. court, May 11th, 1853. "The Estate of John B. Ford, EDW. H. COWLEY, Clerk." May 6th, 1853. To "The foregoing claim being proven MARGARET FORD, For call borrowed by said John B. in open court, is allowed and classed in Ford, deceased, in his lifetime, from the fifth class—April term, 1853. said Margaret, on the 25th day of De-A. G. UNDERWOOD, Judge." cember, 1850, as the same is entered on "Now on this day comes Margaret his cash book of that day, $148 00 Ford, by her attorney, and files a claim For cash borrowed by him against the estate of John B. Ford, de-on the 3d day of March, ceased, founded on an open account for 1851, as the same is entered a balance of two hundred and twenty-on his cash book of that nine-dollars and ninety-five cents, ac-date, $89 50 companied by her affidavit as required by law, and also the affidavit of B. J. $237 50 Knott; and thereupon sp,id claim is presented to the court for allowance, and CREDIT. By cash paid on the above the court being satisfied from the affi-account March 3d, 1851, as en-davit of said Knott, that the book pro-tered on his cash book, $7 55 duced by him was the cash book of the deceased; and also being satisfied from Balance due at his death, $229 95" testimony of Arthur Thompson, that said John B. Ford was a regular mer-"STATE OF ARKANSAS, chant, and had the reputation of keep-COUNTY OF PHILLIPS. ing correct books in his lifetime; and I, Margaret Ford, do solemnly swear further that the entries therein are the that nothing has been paid or deliver-genuine handwriting of the said Ford ed toward the satisfaction of the above made by himself; and being satisfied derriand, except what is credited here-from all the evidence adduced that said on, and the sum of two hundred and claim is just and unsatisfied, do allow twenty-nine dollars and ninery-five the same for the said sum of two hun-cents, above demanded, is justly due dred and twenty-nine dollars and nine-me. MARGARET FORD. ty-five cents, and class it in the fifth 58841 ''Sworn to and subscribed be-class against the estate." fore rne, an acting justice of the peace i lt is insisted that the admin- P589 within the State aforesaid on the llth istratrix is precluded from setting up day of May, A. D. 1853. either of these two items by au arbi-BENI. F. BALL, J. P." tration aud award, between herself as the widow, and the appellant then ad-STATE OF ARKANSAS, ministrator of the estate of Ford, which COUNTY OF PHILLIPS. f by agreement was entered in the pro-Probate court for said county, April bate court, at the April term, 1852, as term, 1853. the judgment and decree of that court. This day appeared in open court, It appears from the transcripts of the Benedict J. Knott, who being legally records in that court, that the appel-sworn, on his oath says, that the book lee filed a very comprehensive petition produced by him is the cash book of for dower, embracing, specifically, John 11. Ford, deceased, and has at all lands, personal property, money, rents, times been so regarded since his death. certain choses in action and sales of B. J. KNoTT. merchandise made after the death of 21 Rep.
GREEN V. FORD. Void. 17 her husband, both for cash and on 1st. The widow is entitled to credit, together with application for dower to the extent of I of $150, under the provisions of the 57th the cash on hand at de-section of the administration law, cedent's death, say $521, $173.33i and a commutation for such grain, 2d. of the value of the , meats, vegetables, groceries and other watch, say $30, 10.0C
provisions as the inventory showed 3d. *of the cash sales since the was on hand at the time of her hus- death of Ford, say $201.66, 67.22 band's death, necessary for the sub- 4th. of proceeds of credit sistence of her family for twelve sales of gonds in same months after the death of her hus-time, $13S7.38, 461.12 band, under the provisions of the 56th 5th. of the goods now on section. And also prayed to be allowed hand, say S1601.07, 533.60 out of the estate the amount of the 6th. of rents of storehouse, claim for $229.95, alleged to be for ready say $95, 31.66g money loaned to her husband during 7th. The sum allowed by stat-the coverture. ute over and above dower, 150.00 The court with a liberal hand decreed to her all she asked, but the then $1427.03 administrator took a bill of exceptions From this sum should be de-and appealed to the circuit court. It ducted the amount of the does not however appear that this ap-account in favor of the es-peal was ever prosecuted ; on the con-tate against the widow since trary, it is to be inferred that the arbi-the death $203.62 tration at once intervened and put a The amount for which the de-stop to it. Nor does it appear with cree should be, is $1223.41 certainty what was submitted to arbi- Which amount should be recorded tration. That is to say, whether only in favor of the widow, to be paid be-the matters in dispute in reference to fore any other allowance. dower, or the whole of the matters em- The lauds I have not taken in the braced in the petition and decree. All above estimate. The court should that appears in the record, throwing have directed the commissioners ap-any light upon this point, is the fol- pointed, to have ascertained whether lowing, to-wit: the lands and house could have been " Margaret Ford v. The estate of John divided in kind, and if it should turn B. Ibrd, deceased. APPLICATION IN out that such could not be none, then, THE PRORATE COURT FOR THE AL- in that case, the court should have di-LOTMENT OF DOWER IN THE ESTATE OF rected that the lands and the house be DECEDENT — T he result of my investi- rented out, and the one-third part of gation into the ease above stated, is, the amount arising therefrom, after that the decree of the probate court paying the taxes and thszt amount ex-as entered of record is wrong, pended necessary to keep the same in and should have been as follows, as good repair, to be given to the widow 5901 far as it pertains to the allot- as her dower interest therein. ment of dower in the personalty. I THOMAS B. HANLY. therefore reform the decree as follows, May 20th, 1852." and hope that the parties will be satis- the matter of the assign- r591 fied with the allotment which I make ment of dower to Margaret Ford, widow below, believing it equitable and legally of the late John B. Ford, deceased, it is correct, to-wit : agreed by and between Barton W.
JAN. TERM, 1856. GREEN V. FORD. Green, as administrator of the estate as the judgment and decree of the proof John B. Ford, deceased, and Mar-bate court. garet Ford, widow of the said John B. As the submission, which is always Ford, that they will abide by the fore-the law of each particular case sub-going allotment and apportionment of mitted to arbitration, does not in this dower (made by T. B. Hanly, who was case, appear to have been in writing, it called upon by the partiesas arbitrator, is to be supposed that it was by parol and the mutual friend of the parties, and this is indicated in the case also and at the instance and request of the from what follows the award, over the said parties). And we agree that the signature of the parties. When this is same be and remain as a full and final the case, the terms and subject matter allowance made to the said Margaret of the submission, when not shown by out of the personal estate of the said other evidence, as in this case, can only John B. Ford, deceased, as her dower be gathered:from the award, and what interest and other right therein, as may be shown to have followed. The above stated and shown ; and the said award is simply as to dower, and "the Margaret agrees that this shall be re-sum allowed by statute, over and above ceived and accepted by her in full of dower, $150," seeming to point to her right of dower in the personal the 57th section of the administra-property belonging to said estate, and tion law, where the specific sum is al-agrees hereby that a decree may be en-lowed the widow in property, at the tered accordingly, in the probate court appraised value, when the estate is not of Phillips county, in lieu and in the insolvent, as was alleged and seemed place of the one heretofore entered by to be admitted in the proceeding of the-said court in her behalf. probate court in this case. Digest, fn witness whereof, we, the said par-chapter 4, page 121, section, 57. The. ties hereunto set our hands and seals agreement, which follows.the award in this 22d day of May, A. D. 1852. all its terms of expression, seems to. [SEAL] B. W. GREEN. follow it with the utmost closeness, [SEAL] MATARET FORD. alluding to nothing but dower, except In the above agreement the fourth in the single expression, "and other in-item is not to be paid until the amount terest therein as above stated," whereof the credit sales is realized and col-by the other interest in the personal lected, and if any loss is sustained there-property thereby spoken of, is expressly in, the loss shall be computed at the limited to the claim of l 50, under the same rates as the parties are interested. 57th s-etion of the administration law, [SEAL] as stated in the award. MARGARET FoR'D. [SEAL] There is nothing to indicate wit h any B. NV. GREEN. certainty that the submission was Received on the above, seven hun-more comprehensive than this. dred and sixty-two dollars and twenty-Although the administrator was dis-nine cents, in part payment of the satisfied with the decree of the court, above allotment of dower in the per-it may have been that the special mat-sonal estate of John B. Ford, deceased, ters of dissatisfaction were as to dower, this 22d day of May, 1852. and this particular allowance over and MARGARET FORD. above dower, and hence that , lie sub-Attest mitted nothing else to arbitration. GEont;E \V. It is very true tlmt the deekiit olan 592'1: "It is stated ili the hill of ex-arbitrator. tlaat g h apparently on a 1200 ,, IN that aWard ,h1:21e hl ji,,
GREEN V. FORD. VOL. 17 more than one, as the judgment on settlement in this case, were also sub-that may be a negation as to others. mitted to the arbitration. As in this case, the award of dower It either view, therefore, we see in the various items of money, what seems to be sufficient reason to rents, sales of merchandise, &c., hold that the defense upon this point &c., specifically, is a negation as to has not been made out. 593e ] *allowance of dower in any- It follows that the probate court thing else—as dower in the county might, therefore, have considered the scrip for instance—but an award of application for commutation, under dower is no negation of a claim over the 56th section of the statute, without and above, and not of the nature of prejudice from the arbitration, a.ad in dower ; nor is an award of one claim, its legal discretion in the premises, not included in dower, any negation of which ought not to be controlled, 'any other distinct claim, as for in- °unless shown to have been [0594 stance, a claim of a debt against the abused to manifes■, injustice (Bank-estate, or under a different provision head v. Hubbard et al., 14 Ark. Rep. of the statute. 298), allowed the claim to the extent it It is difficult to say, then from any- did—finding, it is to be presumed, in thing upon the face of this record, that the absence of anything in the record it has been shown, that anything else to the contrary, from an inspection of than the matter of dower and the mat- the inventory, and from other evi-ter of the claim under the 57th section dence, that grain, meats, vegetables, of the administration law, was ever groceries and other provisions were submitted or arbitrated. And it was actually on hand at the death of the incumbent upon the guardian setting intestate, and had been taken hy the ad-up the contrary, to show it in proof. ministrator, iustead of being given up And it cannot be maintained that mat- to the widow for the subsistence of the ters not submitted to arbitration, can family for twelve months thereafter.' be affected by an award as to such mat- The other item does not seem, upon ters, only, as were submitted. the face of this record, to stand upon There is another view in which this any such meritorious ground; although point may be regarded. The chief ob- it was entitled to be considered by the ject of common law, in setting on foot probate court, to a like extent, un-and sustaining arbitrations and awards, prejudiced by the award. Because, to was to settle controversies and termi- say the least of it, as it is presented in nate litigation ; hence, that law does this record, it must be considered a not countenance, in general, awards very remarkable claim, alleged, as it is, that are only of parcel of the things to have originated in an alleged con-submitted to arbitration, and will al- tract made during coverture, between ways disregard such awards if appa- a wife and a husband in respect of rently injurious to the party taking ex- money apparently not shown to be ceptions to them. 7 East 81; Kyd on other than the husband's own iu point Awards 175; 7 Cranch Rep. 171. of law. But we design to decide noth-Within the reason of this rule : it ing as to this, as we properly cannot ; might, therefore, be a matter of dif- because,no question as to that point can ficulty to uphold the award in this case, come up in this collateral way in the if it should be true, as is contended, case before us. The probate court hav-that not only the matters to which it ing allowed this claim at the April relates, but also the other distinct mat- term, 1853, and no appeal having been ters embraced by the exceptions to the 1. On dower see Hill v. Mitchell, 5-612, note 1.
JAN. TERM, 1856. taken from that judgment. of allowance, all inquiry is now shut out (Mc-Moran v. Overholt, 14 Ark. Rep. 245) from all, except the chancellor, upon proper allegations to him as to this judgment of allowance ; and, consequently, this judgment, as long as it stands, sustains unavoidably, the item in the account excepted to, that remained to be passed upon by us.2 It is our opinion, therefore, upon the whole case, that the judgment of the circuit court affirming that of the probate court, must unavoidably be affirmed by this court 2. Judgments are final at dote of term. Note 2, Smith v. Stinnett, 1-501.
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.