50 Ark. 34 | Ark. | 1887
OPINION.
The probate courts in this State exercised a limited jurisdiction in the allotment of dower from the passage of the act of February 28th, 1838, until those tribunals were abolished in 1873. Hill v. Mitchell 5 Ark. 608; Menefee's admr. v Menefee, 8 Id. 9; Jones v. Jones, 28 Id. 19; Acts of April 16th and 17th,1873. By the act of April 16th; 1873, all the power and jurisdiction of whatever nature previously exercised, by the probate courts were conferred exclusively upon the circuit courts; and by the’ act of the 17th of April of the same year the office of probate judge was formally abolished. The constitution of 1874 re-established the probate courts and invested them with “ such exclusive original jurisdiction in matters relative to the probate of wills,, the estates of deceased persons, executors, administrators, guardians and persons of unsound mind as was then [“is now,” is the language - of the constitution} vested in the circuit courts or might be- thereafter prescribed by law.” Art. 7, Sec. 34. Section 23 of the schedule of the constitution directed that the probate-courts provided for in that instrument should be regarded as continuations of the circuit courts for the business within the jurisdiction of the probate courts, and that-the papers and records pertainig to the latter should be transferred to them. When the constitution was framed it was the prevailing practice in the circuit courts, authorized by the 11th section of the act of April 16th, 1873, to keep a docket for the probate business separate from the law and equity dockets ; and the papers and records were entitled “In probate,” to distinguish them from the proceedings at law and in equity; and the court for the transaction of all matters formerly cognizable in the probate courts was as easily distinguishable as before the abolition of the separate courts, of probate. Under the act, the circuit courts in probate and the circuit courts in equity ' [where chancery jurisdiction was exercised by the circuit.courts]- exercised concurrent jurisdiction in the allotment of' dower, to the same extent that the probate courts and the circuit courts had previously done. The provisions.of the constitution defining and preparing to put into immediate execution the jurisdiction of the probate courts were framed with reference to the powers and practice of the circuit courts in probate under that act. The design, we must infer, was that, all pending business properly cognizable on the probate side of the circuit court should be continued without break' or interruption in the tribunals newly created to*, succeed them. A proceeding instituted by the widow on the probate side of the circuit court, if properly. cognizable there, would have been- transferred with the other business to the new tribunal as the successor to-that business; for the right of-the-widow to apply to the court exercising probate-jurisdiction, to allot her. dower,'had not been abrogated. Gantt’s Dig. Sec. 2242. The law conferring that right was notin conflict or inconsistent with any provision of the constitution of 1874, and was continued in force by it. Seo. 1 of the schedule. It had been previously ruled under a similar provision of the constitution of 1836, that the act conferred a limited jurisdiction in the allotment of dower on the probate courts, concurrent with the circuit courts in chancery. Menifee v. Menifee, supra. It would seem to follow that, .it was the. intention that the. ancient practice in this respect should continue. Baker v. State 44 Ark. 134; Pulaski County Board of Equalization Cases, 49 Ark. 518.
It will not do to interpret “circuit court” as used in Section 34 of Article 7 of the constitution, to include the circuit court in chancery as well as the circuit court in probate, because by Section 15 of the same article, jurisdiction in equity is vested in the circuit courts until the legislature should deem it expedient to establish separate courts of chancery ; and as was said in Jones v. Graham, 36 Ark. 405, “courts of probate certainly as this court insists, are not courts of chancery with any jurisdiction generally to confer equitable relief.” They have not ousted the chancery jurisdiction exercised by the circuit courts under the constitution of 1886. Hall v. Brewer, sup.; Turner v. Rogers, sup.
If we should construe Section 84 literally, without reference to the other provisions on jurisdiction, no action could be maintained in the circuit court against an executor or administrator to establish a claim against, or that would in anywise affect the estate of a decedent; and the suggestion of the death of a defendant would at once abate a suit at law or in equity. By construing the provisions upon’jurisdiction together, so as to give effect to all, [Art. 7, secs. 34, 11 and 15,) the jurisdiction of the probate and chancery courts is preserved in the allotment of dower. The latter is the more potent, most general and usually resorted to, but when the estate is in course of administration, as it is in the case before us, and it is desired only to allot dower without adjusting any question of title or damage, the probate court has the power and machinery to act on the petition of the widow, Menifee v. Menifee, sup; Mans. Dig. sec. 2606.
It is now conceded that the widow.had no interest in the administrator’s accounts, and that the claim for rents set up by her is purely legal and cognizable at law in a proceeding against the party indebted. The only contention is that the court -erred in not assigning the widow’s dower. No valid objection to the judgment of the probate court was shown. That court having jurisdiction of .the-subject matter, concurrent with the chancery-court, had assumed it at the instance of the widow, had entered a judgment and appointed commissioners to carry it into effect before the chancery jurisdiction was invoked. The chancellor was right in declining to interfere. State v. Devers, 34 Arh. 198, 19.
Affirm.
