| Ark. | Dec 13, 1920
(after stating the facts). It is first sought to uphold the judgment on the ground that the probate court had no jurisdiction. It is true, as held in Shane v. Dickson, 111 Ark. 353" date_filed="1914-02-16" court="Ark." case_name="Shane v. Dickson">111 Ark. 353, that the probate court has no jurisdiction of a contest between an executor and others over property rights, and that its jurisdiction is confined to the administration of the assets which come under its control.
It is equally well settled, however, that where the question of title to property arises collaterally as a necessary incident to the determination of other matters, which are within the court’s jurisdiction, then the court can determine the question of title to the property. 15 C. J. 1017 and cases cited, and Youngson v. Bond (Neb.), 5 Ann. Cas. 191. While the jurisdiction of the probate court was confined to the administration of the assets that came under its control in settling the account of the executor under the will of ft. D. Smith, deceased, it was necessary for the executor to pay the legacies to the legatees, and the probate court had jurisdiction on a judicial accounting to ascertain the title to any legacy, to the end that the executor might pay it as directed by the will.
The exceptions filed by the administratrix put in issue in the probate court the validity of the bequest of 'the personal property in the will of said ft. D. Smith, and it was necessary for the probate court to determine the question in order to settle the account of the executor. Hence the probate court had jurisdiction to pass on the exceptions filed, and the circuit court acquired such jurisdiction on appeal.
This brings us to a consideration of the casé on its merits, and this is determined by the construction to be placed upon the third section of the will. The section is set out in our statement of facts and need not be repeated here.
It is claimed by counsel for appellant that at common law and under the decision of this court in Patty v. Goolsby, 51 Ark. 61" date_filed="1888-05-15" court="Ark." case_name="Patty v. Goolsby">51 Ark. 61, life estates can not be created in personal property. Hence they contend that under section 3 of the will that the personal property went to Virginia Smith absolutely. We can not agree, with counsel in this contention. Under the plain language of the will the testator gave his personal property to his wife, Virginia Smith, for her natural life and at her death the remainder of his personal property went to his daughter, Ida Dixon. There is nothing decided to the contrary in Patty v. Goolsby, supra. In that case the court was talking about perishable personal property, or such articles as are consumed in the using. Besides that, the court in express terms said that the construction of the will as to the personal estate was not in issue. At common law it is well settled that an estate for life may be created in personal property of a durable nature with remainder over, and in such cases the property remaining is to be distributed to the remainderman. 2 Kent’s Com. (14 ed.), p. 352; 2 Lewis’ Blackstone’s Com., p. 398; Griggs v. Dodge, 2 Day (Conn.), 28; Taber v. Packwood, 2 Day (Com.), 52; McCall v. Lee (Ill.), 11 N.E. 522" date_filed="1887-03-23" court="Ill." case_name="McCall v. Lee">11 N. E. 522.
In Wescott v. Cady, 5 Johns. Ch. 334" date_filed="1821-07-14" court="None" case_name="Westcott v. Cady">5 Johns. Ch. 334, Chancellor Kent said: “The law is too well settled to be drawn into question at this late day that a.limitation of personal goods and chattels or money in remainder after a bequest for life is good.” It may be said in passing that numerous decisions which sustain the text are cited by the author in 40 Cyc., p. 1614, to the same effect.
It follows that Ida Dixon was entitled to the remainder of the personal property of R. D. Smith after the death of his widow, Virginia Smith, and that Henry Stevens as executor under his will properly accounted to Ida Dixon for the same. Hence the circuit court correctly held that the exceptions to his account current should not be sustained and was right in confirming the same. Therefore, the judgment will be affirmed.