Less v. Less , 147 Ark. 432 ( 1921 )

Humphreys, J.

The correctness of two decrees is challenged by appellant in this ease. The first was rendered by the Lawrence Chancery Court in the case of Ida Less v. Miriam Less after an affirmance of said cause by this court. The opinion affirming this cause will be found in 131. Ark. 232. The second was rendered by the same court in the case of Miriam Less et al. v. Ida Less, filed in the latter part of the year 1920, for amounts paid by the plaintiff in the cause, the appellees herein, to liquidate mortgage and alimony liéns adjudged against the dower properties in the original case of Ida Less v. Miriam Less et al., and which accrued after the affirmance of the case in the Supreme Court on November 26, 1917.

After affirmance of the case of Ida Less v. Miriam Less et al., Jake and Morris Less, two of the appellees, as administrators of the estate of I. Less, deceased, filed a statement in the cause, of all rents collected by them on the lands assigned to appellant as dower, from the 30th day of January, 1917, the date I. Less died, until December 6,1917, the date appellant acquired possession of her dower properties under the decree of assignment, of date May 21, 1917; also a statement of disbursements made by them upon said properties during the same period.

Upon the issues joined by exceptions to the statement of disbursements, the answer to said exceptions and the evidence adduced, responsive to the issues, the court decreed that appellant was not entitled to rents collected by the administrators from the date of the death of I. Less until the date of the decree assigning dower on May 21, 1917. This is the first decree from which appellant appealed. The court also decreed that appellees were entitled to only two items contained in the account of-disbursements. These items were $400 paid as interest to the Commonwealth Farm Loan Company and $373.22 paid to Mrs. Gussie Less on account of alimony which had been charged against the dower property. In the decree the court found that it was unnecessary to determine whether other disbursements were chargeable against the dower interest in order to determine the cause. The account of disbursements contained other items of interest paid by appellees to the Commonwealth Farm Loan Company as interest on the mortgage against the property; additional items paid to Gussie Less on account of the alimony lien against said property; items of cost entering into the completion of the garage which was in the course of construction at the time I. Less died, on lot 12, block 3, assigned to appellant as a part of her dower property; items paid out for taxes, insurance and repairs on the dower properties after the decree of assignment of dower on May 21, 1917, and before the delivery of said dower properties to appellant on December 6, 1917, a short time after the decree for assignment of dower was affirmed in this court. As to this part of the first decree, appellees prosecuted and perfected a cross-appeal.

Appellant insists that the court erred in refusing to allow her rents from the date of the death of I. Less until the decree assigning dower, of date May 21, 1917. The amount of rents collected during that period was $1,531.62. There can be no question that a widow is entitled to rents on the real estate of the deceased in proportion to her interest therein before the assignment of dower. Section i89 of Crawford & Moses’ Digest provides that, “Until the widow’s dower be apportioned, the court shall order such sums to be paid to her out of the rents of the real estate as shall be in proportion to her interest therein.” Appellees insist, however, that appellant forfeited her rights to such rents by not praying for them in the bill filed by her for the assignment of dower. We pretermit a determination of that question, for appellees are not in a position to raise it. After the affirmance of the decree assigning dower, appellees filed their report of the rents collected from, and the disbursements made on, the properties, and, in doing so, presented the issue of rents and disbursements themselves. They are estopped to claim a waiver on the part of appellant. The court erred in disallowing appellant’s claim for rents on the dower properties from the date of the death of I. Less to the date of the decree assigning dower.

. Appellees, upon their cross-appeal, insist that the court erred in refusing to pass upon the expenditures made by them in relation to the dower properties from the date of the death of I. Less until December 6, 1917, the date the dower properties were delivered to appellant. The undisputed evidence showed that all the items entering into the completion of the garage, which was in the course of construction at the time I. Less died, except the amounts expended on the ceiling, had been made at the time the garage property was assigned .to appellant as a part of her dower; that the widow accepted it at its appraised value in its completed condition as a part of her dower. This being true, appellees received, payment for the improvements they made on this property in completing the garage in the value of property received by them at the time the dower was assigned. If these items had been allowed by the court, appellees would have received double pay for the improvements. While the court should have ruled one way or the other on the items,' the failure to allow them is not in any sense prejudicial to the rights of appellees, and they can not complain. The court, however, did err in failing to pass upon and allow all items paid by appellees' on account of interest due upon.the mortgage of the Commonwealth Farm Loan Company and for alimony items due Mrs. Gfussie Less, from the date of the death of I. Less, because these were burdens in the nature of liens against the entire real estate of which I. Less died seized and possessed, and out of which dower assignments were made. The rule has been established by this court that assignments of dower may be made in mortgaged property, and that the widow takes dower subject to the payment of a just proportion of the indebtedness. Hewitt v. Cox, 55 Ark. 225; Crosser v. Crosser, 121 Ark. 64; Less v. Less, 131 Ark. 232; Mayo v. Ark. Valley Trust Co., 132 Ark. 69. The court also erred in failing to pass upon and allow the items for taxes, insurance and necessary improvements and repairs upon the dower properties after the decree of May 21 assigning dower and the date the dower properties were actually delivered to appellant. Appellant’s insistence is that appellees had no right to expend any amount for any purpose upon the dower properties after the decree of assignment. An appeal was prosecuted from the decree of the assignment of dower, and her right to the possession of the lands assigned as dower was riot decided by the Supreme Court until November 26, 1917. She did not receive possession of the dower properties until December 6,1917. It was during the interim that these expenditures were made on the dower properties', and at the time appellees were collecting rents thereon. ' We think a proper interpretation of section 89 of Crawford & Moses’ Digest is that the widow shall receive her proportionate part of the net rents after the payment of all necessary expenses, such as repairs, taxes, etc., during the time the administrator or heirs continue in possession of the lands and are held to account for the rents.

For the error indicated, the decree will be reversed and the cause remanded with directions to the court to either state, or appoint and have a master state, an account between the parties in accordance with this opinion.

Appellant assails the decree rendered in the last action filed and treated as a part of this suit, upon the ground that the following part of the decree was not within the issues and proof: “It is further ordered and decreed by the court that Ida Less make all future payments on amount to G-ussie Less as alimony, her part, $46.66 per month, to the clerk of this court, each month and all interest items which may be due the Commonwealth Farm Loan Company, or any other party.” The question whether or not appellant, Ida Less, should take her dower interest in the lands of I. Less, deceased, subject to these burdens became the sole issue in the original suit after it became an adversary one. The evidence shows that the lien in favor of the Commonwealth Farm Loan Company was a mortgage lien covering the entire property, out .of which dower was assigned. Likewise, the lien in favor of Grussie Less for alimony was a lien upon certain tracts of land belonging to I. Less at the time of his death, out of which dower was assigned. Appellees could not pay two-thirds of either lien and clear the property which they receive in the division. It was necessary to pay the whole lien in order to clear their part of the property. Appellant was assigned dower in the lands subject to the payment of one-third of the Gf-ussie Less lien for alimony and one-third of the Commonwealth Farm Loan Company’s mortgage lien. They were continuing liens until liquidated, and we think the order within the reasonable inferences deducible from the allegations of the original bill. In no event could the rendition of such a decree be prejudicial to appellant unless the payments required to be made to the clerk are misappropriated or unless appellant is required to pay the amounts directly to the owners of the liens. Upon the happening of either event, appellant could apply for a modification of the order.

The decree of the court rendered upon the second branch of this case is therefore affirmed.