171 S.W.2d 294 | Ark. | 1943
In a petition filed September 1, 1938, W. E. Owen asked Columbia chancery court to quiet his title to the property described. Owen v. Dumas,
On this record the trial court's action in cancelling W. E. Owen's deed to forty acres was affirmed, but the decree quieting his title to 200 acres was reversed.
After mandate had issued here in the Owen-Dumas case, and W. E. Owen's response had been filed, Elza Dumas and others petitioned this court to prohibit further proceedings, allegation being that Columbia chancery was without jurisdiction. In a decision handed down February 24, 1941, the issue was determined adversely to petitioners' contention. Dumas v. Smith, Chancellor,
A master was named September 26, 1940. In the order of appointment there is reference to ". . . the motion for a master and an accounting heretofore filed by the defendants . . . and the amendment to their answer." In the amendment (May 20, 1939) the right was asked to strike 7, 8, 9, and 11 of their motion wherein appointment of an accountant master was prayed. Effect of the amendment was to eliminate the words, ". . . and that an accountant . . . be appointed to state an account between the heirs, of their property." There was the further statement that y "[defendants] deny that plaintiff is entitled to a lien on the land described in his complaint and to subrogation for moneys alleged to have been paid. . . ." *779
There were other pleadings which we deem it unnecessary to identify.
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While the deed obtained by W. E. Owen to 200 acres was cancelled in the decision of May 13, 1940, necessary effect of our opinion in the case denying prohibition was to approve the chancellor's course requiring an account to be stated. Appellants insist the issues are res judicata; that with filing of our mandate the litigation necessarily terminated and thereafter all rights were referable to the will of E. L. Owen. They also contend that no view of the transaction could justify the chancellor in impressing a lien upon lands of the estate to reimburse W. E. Owen.
Other defenses are that many items W. E. Owen claims to have paid were barred by limitation; that certain findings affecting the amount adjudged to Owen were not supported by a preponderance of the evidence, and that provisions of the will (as summarized in the Owen-Dumas opinion,
Conceding correctness of the general principles expressed by appellants, we think an answer is to be found in the fact that, although the amendment of May 20, 1939, nullified the prayer for appointment of an accountant, and withdrew the offer to pay "all indebtedness that had accrued under the will," the request made by defendants for appointment of a master remained unimpaired. We do not understand it was ever contended by appellants that moneys advanced by W. E. *780 Owen to his mother or paid on her account within the will's terms should not be repaid. Certainly it was the testator's purpose to permit his widow (within the limitations prescribed) to handle the property without recourse to any court. The decree questioned by this appeal is inexact in declaring a lien in appellee's favor "against the estate of E. L. Owen." A more appropriate expression, perhaps, would have been that the lands included in the estate were, in the circumstances shown, subject to charges authorized by the will. These charges, whether created by direct action of the widow, or arising through subrogation, were (if not inconsistent with the testator's plan) transactions contemplated when E. L. Owen looked into the future and visualized emergencies that might arise; and, to the extent of the obligations approved by the chancellor, the lands were subjected to the debts.
Final question relates to sufficiency of the evidence. The decree recites that the cause was submitted upon the master's report, pleadings and evidence in the original cause, "together with the additional evidence taken orally before the master and properly transcribed and filed as a part of the record in this cause along with said report."
Although there are references to testimony, that part abstracted does not sustain appellants' contention that the decree was not supported by a preponderance of the evidence.
Affirmed on appeal and cross-appeal.