Mayo v. Arkansas Valley Trust Co. , 137 Ark. 331 ( 1919 )

McCULLOCH, C. J.

This controversy concerning the dower of appellant in the estate of her deceased husband comes back on a second appeal. The details of the controversy were stated in the opinion on the former appeal. 132 Ark. 64.

It is contended now by learned counsel for appellant that the chancery court, in rendering the decree on the remand of the cause, disregarded the findings of this court, which became the law of the case and were binding on the chancery court, as well as on this court in the subsequent progress of the case. Counsel are mistaken in their interpretation of the opinion and former judgment of this court. We made no findings of fact and gave no specific directions to the chancery court as to what its decree should be. On the contrary, we said that there appeared to us very little controversy concerning the facts of the case, that the chancellor had merely erred in his construction of the statute, and could readily apply the facts to our interpretation of the law and thus end the controversy. It is true that we made certain observations concerning the facts as we understood them from the record, but that was not intended as an adjudication of the facts, but merely as a statement for the purpose of forming a basis for announcing the law on the subject. In closing the opinion we said that the discussion was sufficient, we thought, “to enable the chancellor to allot the dower of the widow without further controversy as to her rights,” and we remanded the cause for further proceedings in accordance with the opinion. In the judgment of this court, which constituted the last expression on the subject, it was said that the chancery court “erred in its construction of the statute declaring the rights of the widow,” and that the cause would be remanded “for further proceedings to be had therein according to law and not inconsistent with the opinion of this court.” It is thus seen that we gave no directions to the chancellor on the questions of fact, but merely construed the statute for his guidance.

It is also contended that the chancellor’s findings as to the facts are not in accordance with the evidence, but we are unable to say from the abstract of the record furnished that such is the case.

Without restating the issues in the case, we will notice the contentions of counsel that the law was again misapplied by the chancellor, or rather that the chancellor erred in his conception of the law on the subject. In the first place it is contended that the chancellor included the expenses of administration in the aggregate of claims against the estate and erred in charging those expenses against the widow’s dower.

It is true that expenses of administration are not chargeable against the widow’s dower to the extent of the minimum allowed by the statute, for the widow takes dower to that extent regardless of both debts and expenses of administration; but under the statute the widow is endowed of only one-third of the estate as against creditors, and it necessarily follows that, as a widow can not claim more than one-third as against creditors, she can not claim more than that as against the necessary costs and expenses of administering the estate for the benefit of creditors. In other words, she gets the minimum of one-third free from costs and expenses, but her claim for more than that must yield to the claim of creditors, not only to the extent of their debts, but also to the extent of the necessary cost and expenses of administration.

Again it is urged that the court erred in deducting the amount of the Pabst Brewing Company’s mortgage debt from the whole of the rents before distribution to the widow of her share instead of merely applying the rents of that particular property to the discharge of the mortgage debt. The ruling of the chancellor is in accordance with our decision on that subject on the former appeal. We said that on account of the acquiescence of the parties in the act of the executor in collecting rents and applying same in satisfaction of the mortgage debt they cannot complain, and that the rents should be distributed after deducting the amount applied in payment of the mortgage debt. This relates to the whole of the rent and is not confined to the rents accruing from the particular property which was embraced in the mortgage, for the widow does not take her dower interest in severalty until there is an assignment. Arbaugh v. West, 127 Ark. 98. In the opinion on petition for rehearing on the former appeal we inappropriately used the words “gross amount” with reference to the rents to be distributed, and counsel now argue that the opinion ought to be construed as holding that the apportionment of rents to the widow must be of the gross amount without deducting expenses, repairs, taxes, etc. The use of the words just referred to was, as we have said, inappropriate, but it is manifest that we did not mean the words in that sense, and intended to announce that the aggregate amount of the net rents should be distributed after deducting the mortgage debt. In other words, that the residue of the net rents, after deducting the mortgage debt, was to.be distributed. We should have used the word “aggregate” instead of the word “gross,” but the meaning is, we think, clear. It was not the purpose of the lawmakers to distribute to the widow a proportion of the gross rents, but merely of the net rents. The arrangement is only temporary, and the injustice of distributing the gross rents without' deduction of repairs, taxes, etc., is too manifest to warrant the inference that the lawmakers intended that. The statute (Kirby’s Digest, sec. 77) reads that the distribution of rents to the widow shall be ‘ ‘ in proportion to her interest therein, ’ ’ * which, when fairly construed, means that the amount to be distributed is subject to deduction of necessary expenses, such as repairs and taxes.

The amount distributed by the court to the widow out of the estate was, as far as we can discover, in accordance with the principles of law announced by this court.

Decree affirmed.