84 Ark. 92 | Ark. | 1907
John S'. Black, one of the heirs at law of S. R. Black, deceased, and a creditor of the estate of said decedent, and Mallory, Crawford & Co., creditors of said estate, instituted a suit in chancery against F. J. Robinson, administrator of said estate, and against Polk Montgomery to set aside a sale of lands made to Montgomery and to hold Robinson accountable for the rents and profits of the lands. The chancery court rendered a decree in favor of the plaintiffs setting aside the sale to Montgomery and directing “that the defendant, F. J. Robinson, report by proper statement and account to the probate court of Monroe County for all rents from said lands and give the S. R. Black estate credit therefor in his settlement accounts as administrator of said estate, less the pro rata share thereof which the judgment of defendant Robinson bears to the Martin judgment against Charles Adams.” The court did not ascertain the amount of such rents and profits. The defendants appealed to this court, and the decree of the chancery court was affirmed. Montgomery v. Black, 75 Ark. 184. Reference is made to the opinion in that case as reported above for more definite statement of the facts.
This court, in affirming the decree, ordered that “the cause be remanded with directions to enter a further decree for the sale •of the land by a commissioner of the court upon such terms as the court may direct, and that the net proceeds of sale shall be applied first to reimbursement of appellant Robinson for the amounts paid by him in redeeming the lands from tax sales and subsequently paid for‘taxes, and nes?t pro rata on the two said judgments against Adams.” On the filing of the mandate of this court in the court below, a decree for sale of the lands was entered in accordance therewith, but, without any further pleadings having been filed, the court further decreed that defendant Robinson should be charged with all the rents and profits of the lands, and appointed a master to take testimony and state an account of rents and profits collected by him. The master heard testimony, and made the report at the next term, charging Robinson with rents found to have been collected by him from the year 1895 up to and including the year 1905, with interest to date of the report, amounting in all to the sum of $2,491.12, and crediting him with the sum of $485.68 found to have been paid out for taxes on the land and in redemption from tax sales, with interest. The court overruled exceptions to the report, and approved it, and rendered a decree against Robinson for $1,594.73 as the proportionate part due the Black estate of the net amount of rents found to have been collected by Robinson. The court directed Robinson to pay over this amount to the solicitors of record of the plaintiffs. Robinson appealed.
When the case was formerly here, the decree of the chancery court was affirmed, and the.cause was remanded for the sole purpose of having the lands sold in order for the proceeds to be divided. The litigation was then at an end as to all matters which were adjudicated or which could have been adjudicated when the final decree was entered by the chancery court. The chancery court should, in the former hearing, have ascertained the amount of rents collected by Robinson and the proportionate part thereof due the Black estate, and then directed the probate court to charge him with that amount in his settlement as administrator. It failed to do that, however, but simply decreed that he account to the probate court for the rents collected, leaving it to the probate court to ascertain the amount. The plaintiffs did not appeal from the decree, and did not call the attention of this court to that part of the decree, so it was affirmed. It therefore became final, and passed beyond the control'of the chancery court or of this court. After having made that disposition of the rents collected up to the time of the decree below, it was beyond the power of the court to take up that matter again. Collins v. Paepcke-Leicht Lumber. Co., 82 Ark. 1.
It was competent for the court to enter upon a further investigation to ascertain the amount of rents collected by Robinson since the date of the original decree (Collins v. Paepcke-Leicht Lumber Co., supra.) for the purpose of directing the probate court to charge him with the proportionate amount due the Black estate, but it should not have done so without appropriate supplemental pleadings alleging that he had collected rents which he had not accounted for in his settlement with the probate court.
It was also error to direct the payment of the amount found due over to the plaintiffs or their solicitors. Administration was still pending in the probate court, and the chancery court, after ascertaining the amount of rents with which the administrator should have charged himself, should have left it to that court to charge the amount to the administrator in settlement, and order it distributed to creditors and heirs, along with the other assets of the estate. A chancery court should not lift an estate out of the probate court and proceed to administer it, but, having interposed on account of fraud or other ground of equitable interference, should, after the special matter which called into exercise its peculiar powers has been disposed of, send the cause back to the probate court with instructions for further proceedings in the regular course of administration. Shegogg v. Perkins, 34 Ark. 117; Hankins v. Layne, 48 Ark. 544; Brice v. Taylor, 51 Ark. 73.
The decree is therefore reversed, and the cause is remanded with leave to the plaintiffs to file supplemental pleadings concerning the rents of lands collected by appellant Robinson since the date of the original decree on February 14, 1902, and for further proceedings with reference thereto not inconsistent with this opinion.
