| Ark. | Dec 16, 1899
(after stating the facts.) Caldonia Cash admitted on the trial of the cause that she had been, but a short time before the trial, convicted of petit larceny, and this admission, made against her interest, dispensed with further proof of the fact. Having been convicted of petit larceny, she was incompetent to testify, as there is no proof she had been pardoned.
It is in evidence that she married in due form of law Jno. H. Cash. The court properly held that the presumption of law is that this was a legal marriage, and that the burden to show its illegality was upon the party attacking the validity of the marriage on the ground of illegality to show it by evidence. It is not presumed that the appellee violated the law. The presumption that the marriage was legal is stronger than the presumption that Miles Hankins, to whom she was first married, was living at the time of the second marriage. Her marriage is presumed to have been “lawful, innocent and not criminal.” Halbrook v. State, 34 Ark. 518.
The judgment of the court allowing the appellee $148 at appraised value in articles selected by her, belonging to the estate, and articles worth $300 according to appraised value, was correct, but seems to have been based upon the appraisement made for the administrator, instead of an appraisement made at the instance of appellee, according to the requirements of section 74, Sandels & Hill’s Digest. This was irregular. But was it prejudicial/
The pertinent sections of the statute are as follows:
“Sec. 3. When any person shall die leaving a widow and children or widow or children, and it shall he made to appear to the court that the personal estate of such deceased person does not exceed in value the sum of three hundred dollars, the court shall make an order vesting such personal property absolutely in the widow and children, or widow or children, as the case may be; and in all cases where the personal estate does not exceed in value the sum of eight hundred dollars, the widow or children, as the case may be, may retain the amount of three hundred dollars out of such personal property at cash price.
“Sec. 4. When any person shall die, leaving children but no widow, the court shall, upon application made to him for said children, appoint appraisers and cause to be made appraisement of the personal property of the estate for the purpose of the vestment of such property, as provided by section 3.
“Sec. 74. Any widow desiring to avail herself of the provisions of sections 3, 4 and 74 [73], shall, within thirty days after the death of the deceased, cause to be made an appraisement of all the personal property of the estate by three disinterested householders of the county, whose duty it shall be to view and appraise all the personal property of the estate except such articles as are reserved as the absolute property of the widow by section 73, and shall make a full and complete list of the same, describing each article and the value thereof, and showing the total value of the appraisement, which shall be signed by them, or any two of them, and attach thereto an affidavit reciting that they are not of kin to the widow or the deceased, and not in any way interested in the estate, and that they have to the best of their abilities appraised the property to them shown, and each of said appraisers shall receive for his services the sum of one dollar for each day he may have been engaged in making said appraisement, to be paid by the person for whose benefit the same was made, and the list of appraisement shall be immediately filed with the clerk of the county court of the county; provided, no widow or 'children of any deceased person shall ever be barred of any of the benefits of sections 3 and 73 by failure to make appraisement, or file list of the same within the time specified in this section.
“See. 75. In addition to the property specified in section 73, the widow, when the the estate is not insolvent, may take such pei’sonal property as she may wish, not to exceed the appraised value of $150, and the executor or administrator shall deliver to the widow such articles as she may select, not exceeding the value aforesaid, and shall take her receipt therefor, which shall be a good voucher in the settlement of his accounts.”
Was it proper to render the alternative judgment in this case. The widow was certainly entitled to $150 worth of property at appraised value, and in specific articles selected by her; but, if not selected by her; and not delivered to her, upon a selection by the administrator, could she have judgment for money sufficient to cover the value of property not delivered to her? The evidence does' not show whether the property was in hands of the administrator, or had been sold or disposed of, at the time the judgment was rendered. If on hand, it seems the court ordering it delivered to the widow might enforce its judgment by proper orders. The judgment of this court is that the administrator should have obeyed the order of the court by delivering to the appellee the $148, and the $300 of personal property in specific articles at appraised value. The alternative judgment for the money value of the property was improperly given.
The judgment of the court below is affirmed, with this modification: that there shall be no judgment in the alternative, but judgment only for delivery of the property as indicated at appraised value, to be selected by the appellee; and it is so ordered.