189 S.W.2d 797 | Ark. | 1945
This is the second appeal of this case. In the former appeal, Dowell v. Dowell,
When the original suit was instituted, appellant was the owner in fee of 240 acres of land upon a part of which the "home place" of the parties was located. A finding of the chancery court that these, and other lands in which appellant had an interest, were not susceptible of division in kind was approved by this court on the former appeal. That part of the original order which directed sale of the lands in solido was held erroneous and a resale and distribution of the proceeds thereof according to law was directed. On remand of the cause, sale was held in compliance with this court's order and appellant became the purchaser of the 240-acre tract of land for $7,020.
In the decree from which is this appeal the chancellor held appellee entitled to one-third of the proceeds of the sale of these lands, less one-third of the sale costs, under the statute, and appellant has appealed from this part of the decree. Appellant is correct in this contention that the trial court erred in decreeing to appellee one-third of the proceeds of the sale, after deducting her proportionate one-third of the costs thereof. This court so held in Allen v. Allen,
Since it was the duty of the trial court to determine the present value of appellee's interest, the question of the manner of ascertaining such value is presented. The interest which a wife takes in her husband's real estate upon obtaining a divorce under the statute (4393, supra) has been discussed in many cases. In Beene v. Beene,
The courts have employed a variety of methods in determining the present value of such life estate where the lands are sold because such interest cannot be allotted in kind. Some courts in this country have followed the English or common-law rule which considers an estate for life as equal in value to one-third of the fee. McCommon v. Johnson,
It is appellant's contention that the present value of appellee's interest should be based upon the expected net profits which might accrue to the life tenant. Testimony was introduced tending to show that the 240-acre tract of land had an annual rental value of only $150 although the property sold for $7,020, has a good residence and barn located on a part of it, and much of it is good land subject to cultivation. When calculated upon this basis, the present value of appellee's life estate is fixed at $565. We do not approve this method of computation. The prevailing practice is to calculate a life tenant's share of the proceeds of the sale with reference to the interest which such proceeds would produce if invested, rather than with reference to the value of the use of the property. 30 Am.Jur. 771; 102 A.L.R. 993. We think the latter method is not only more definite and less speculative, but one that is likely to result in a more accurate and equitable adjustment of the life tenant's interest.
Some courts hold that the amount to be paid according to the annuity tables is subject to variation on account of the habits and unusual vigor or frailty of health of the life tenant. McLaughlin v. McLaughlin,
We conclude, therefore, that the present value of appellee's interest should be computed by use of legally recognized life and annuity tables on the basis of appellee's age at the time of the sale, and on the basis of the proceeds realized by the sale after deducting her proportionate part of the costs of the sale. Since there is no proof *179
of the prevailing interest rate in the locality affected, the legal rate of six per centum should be used. Such present value may be readily ascertained by use of the tables found in the appendices to Volume II, Scribner on "Dower," Second Edition, and pages 10-15 of "Dower and Curtesy Tables" by Giauque and McClure. Use of these tables was approved by this court in the recent case of Rockamore v. Pembroke,
An appeal is also prosecuted from that part of the decree which granted appellee judgment for the sum of $118.37 as her interest in a part of the cattle owned by appellant and his son jointly. These cattle were sold under an execution issued by the circuit court in satisfaction of a fine imposed upon appellant. This execution was issued, and the property sold, prior to the institution of the original suit for divorce. Appellant contends that, the cattle having been disposed of prior to the institution of the original suit, appellee was not entitled to claim an interest therein under 4393, Pope's Digest, and we think this contention should be sustained.
It is true that in the former appeal it was held that the interest of the son in these cattle could not be charged with the satisfaction of the fine imposed upon appellant. The sale of the cattle by the sheriff under the execution was not shown to be an attempt by appellant to defraud appellee in the collection of her one-third interest in his personal property. This is not a case of a voluntary conveyance by a husband in anticipation of his wife's suit for divorce nor was any attempt made to set such sale aside.
In the early case of Arnett v. Arnett, et al.,
The decree is accordingly reversed and the cause remanded with directions to proceed in a manner not inconsistent with this opinion, the costs of this appeal to be shared equally by the parties.