Cockrill, C. J. 1. dower: In choses in action: Judgment assigning. It is apparent that Mrs. Mellon was not entitled to have dower assigned to her out of the notes executed by Lester to her husband. Her right to dower was fixed by the law in force at her husband’s death. The statute governing the matter at that time did not give the widow an absolute right to dower in her deceased husband’s choses in action, but only in what was left after the payment of his debts. Acts of 1859, p. 299. The law was changed by act of March 8, 1867, so as to make her right of dower in such property superior to the claims of creditors. After the passage of the latter g.ct, Mrs. Mellon petitioned the Probate Court, where the administration of the estate of her deceased' husband was pending, to compel the administrator to assign her dower out of the Lester notes. The court granted the-prayer of her petition and the administrator appealed to the Circuit Court, where judgment was again rendered in favcr of the widow. The answer does not deny the validity of the judgment nor is it pretended that it has ever been reversed or set aside. We must then treat it as in force. It is the judgment of a superior court having jurisdiction of the subject matter and parties; and although the court which pronounced it erred in applying the act of 1867 to the assignment of the widow’s dower, the validity of the judgment cannot be questioned collaterally. It is, therefore, the insurmountable obstacle to what would otherwise appear to be a fair and just solution of this controversy.
2. Sam: Same-The proof does not show a suspicion of intentional fraud on the part of the administrator. No part of the proceeds of the notes went actually into his hands. But the attorney whom he had empowered to collect them for the estate, converted what he had collected to his own use, and without previous authority from the Probate Court, assigned, in the administrator’s name, the residue of the judgment for their recovery, to a creditor of the estate in payment of his probated claim. The collection of the money by the attorney was in legal contemplation a collection by the administrator, and the latter made the assignment of the judgment his own act by adoption by reporting the fact to the Probate Court in the course of his administration, and obtaining its approval by that tribunal. The title to the judgment was thus vested in the creditor to whom it was assigned, and he was empowered to collect the amount due upon it as he did, thereby depriving Mrs. Mellon of the power to have dower assigned out of the notes (or the judgment into which they had merged) in pursuance of her judgment for dower.
3. same:Conversation of widows interest in notes. The matter stands as though the full amount of the judgmeat rendered for the recovery of the notes had been collected by the administrator, and devoted wholly by him to purposes other than the satisfaction of the widow’s dower as fixed by her judgment against him. But personal property belonging to the estate out of which the widow is entitled to dower, is held by the administrator in trust for her, to the extent of her interest, (Menifee v. Menifee, 8 Ark., 9; Bob v. Powers, 19 ib., 440), and he becomes liable to her in his official capacity for the value of her interest, if he deprives her of the benefit of it. Howard v. Menifee, 5 Ark., 668, and cases snpra.
4. Same: But, conceding that to be true, it is argued that the widow is debarred of enforcing her right in this case for several reasons. It is said that the attorney whose mismanagement appears to have involved the parties in this controversy, was the attorney of Mrs. Mellon. The answer so alleges, but the proof does not sustain the allegation. There is no proof to the point except what is found in Crowley’s deposition. He says that some time after the year 1871, before suit was instituted by him on the Lester notes, he agreed with Mrs. Mellon and one of the heirs cf Mellon’s estate to prosecute the suit with them for the benefit of all, the widow and heir to pay the expenses, and that he employed attorneys with that understanding. But Mrs. Mellon and the other party, he says, failed to comply with their agreement, and the suit was brought in his name alone, as administrator. He thereafter speaks of the attorney who conducted the suit as his attorney. He never thereafter recognized Mrs. Mellon’s right to dower in the notes, so far as the proof discloses, although her object, he says, in proposing to join him in the suit, was to collect her •dower interest. But on the contrary, while he was pressirtg the suit to collect the notes, he was resisting Mrs. Mellon’s suit to recover dower in them; and, although the former suit was pending for several years, it was determined before the widow succeeded in concluding her suit for dower. When the latter was heard and determined, the attorney had already collected a part of the judgment for the recovery of the notes and assigned the residue. But no defense appears to have been made in the suit for dower upon the ground that he was acting as the widow’s attorney. If it was, the judgment is conclusive that the question was determined against the administrator
Again, it is argued that Mrs. Mellon had accepted a conveyance in fee simple from the sole devisee of her husband’s lands in full of all dower. But that defense was interposed .against the widow’s right to dower in her petition for its assignment and was adjudicated against the administrator. That adjudication precludes further inquiry into the question.
5.Same: Widows right not affectedby probate proceedings. It is further ar5gued that the judgment of the Probate approving the administrator’s settlement (which showed the disposition he had made of the judgment on the Lester notes), and discharging him from the trust, is a bar to this suit. But it is only persons whose rights are affected by an administrator’s settlement who are charged with notice of its filing and are bound by the judgment of confirmation. Jones v. Graham, 36 Ark., 401. The widow is not named as one of the parties required to except to his reports (Mans. Dig., sec. 128), for the obvious reason that she is not concerned in the administration. Her right is superior to that of creditors and independent of the administration. She cannot, therefore, be said to be a party to the probate proceedings; and orders made by the court, in the course of the administration, although made in reference to property out of which her dower is to be carved, are void as to her, like the judgments of other courts acting without the jurisdiction of the parties. Goodman v. Moore, 22 Ark., 196; Webb v Smith, 40 ib., 24; Hutchinson v. Lemcke, 107 Ind., 121; Dieffenderfer v. Eshleman, 113 Pa. St, 305. Nor did Mrs. Mellon’s petition to compel the administrator to assign her dower in the personalty make her a party to the administration. Her judgment for dower was upon its face the end of her litigation ; it left nothing open for further action ; it consummated her dower right and vested in her the legal title to the property described in it. When the term expired the judgment passed beyond the court’s power of interference. Thereaftei it could be set aside or annulled only in a superior tribunal, and the subsequent order of the Probate Court confirming the disposition the administrator had made of the judgment, had no more binding force upon the widow than have the orders of that tribunal upon any other stranger to its proceedings. As well might it be said, that one who is without knowledge that his property has been converted into assets by the administrator to be used in the payment of his decedent’s debts, is bound by an order of the Probate Court confirming the administrator’s disposition of it. But’in addition to this, there is nothing to indicate that the court intended to affect the widow’s interest by the order of confirmation. The administrator held a part of the judgment as assets of the estate; he reported that he had assigned it'to a creditor in payment of his probated claim; the questions of the widow’s dower and of her interest in the judgment were not presented to the court for adjudication. The order should therefore be limited as against the widow, so as to apply only to so much of the judgment as was assets in the administrator’s hands. Webb v. Smith, sup. In no view can it operate as a bar to the widow’s recovery.
6. subrogation: Of administratorto right of creditor. In so far as the administrator has paid a debt of the estate with assets which he is compelled to refund to the widow, he will be subrogated to the rights of the creditor of his íate, and may resort to any remedy the creditor would have against the assets of the estate that remain unadministered. Finding no error, the decree is affirmed.