Crouch v. Edwards
52 Ark. 499
Ark.
1889
Check Treatment
Cockrill, C. J.

The Circuit Court found as a fact, that M. W. Edwards, as administrator of the estate of Thomas J. Edwards, deceased, had in his hands a sum of money realized from personal assets of the estate, at the time the Probate Court directed the payment of the widow’s dower; that the widow neglected for two years thereafter to collect what was due her; and, the administrator having died without accounting for the amount, held, that the widow lost her right by her laches; and declared that she was barred for the further reason that she was one of the sureties of the defaulting administrator, and could not claim indemnity out of the real assets of the estate, until she had discharged her liability arising by reason of her suretyship.

administration parties. It is not necessary to examine the details of the facts disclosed by the record to ascertain if the conclusion reached by the court is that which the law pronounces upon the facts found, because there is a total want of legal evidence to prove the main fact which is the basis of the finding and judgment; that is, that the administrator was indebted to the estate when the judgment for dower was rendered, and at the time the petition herein was filed. The finding is based upon a judgment of the Miller Circuit Court in a suit to surcharge the administrator’s accounts, wherein the default is found and adjudged as the court in this case declared. But neither the defaulting administrator nor his administrator, nor any of the sureties upon the bond, was a party to that proceeding. Creditors of the estate of T. J. Edwards, deceased, were plaintiffs, the only defendant being the administrator de bonis non of the estate of Thomas J. Edwards. But he was not authorized to represent the bondsmen of the first administrator, nor to make a settlement for them, and the judgment against him was res inter alios acta and not binding upon them. It proved nothing against them. State v. Drake, ante, 350; 12 S. W. R., 706.

Liability sureties. The judgment of the Probate Court settling the accounts of the administrator for whom Mrs. Edwards was surety, show ° nothing due from him, and until they are overturned in a court of equity, no liability rests upon his bondsmen.

Dower: Subrogation. If it be true, as recitals in the Probate Court records indicate, that the administrator (who before assignment of her dower in personalty, is trustee for the widow) applied the personalty to the payment of the debts of the estate without paying off her claim for dower, she is equitably entitled to be subrogated to the rights of the creditors, whose demands have thus been discharged, and to be reimbursed out of the real estate. Wells v. Fletcher, 17 Ark., 581.

Reverse the judgment and remand the cause for a new trial.