Lester v. Kirtley

Wood, J., (after stating the facts.) 1. The chancery court had jurisdiction. Appellants and appellees were tenants in common (section 739, Kirby’s Digest), and as such could go into chancery for partition. See section 5770, Kirby’s Digest; Patton v. Wagner, 19 Ark. 233. The allegations made in appellee’s petition and in the reply to the answer of appellants were sufficient, if true, to give the chancery court jurisdiction. The appellant, J. T. Lester, who had possession of the land, did not claim tO' have title in same or to be holding same adversely to any title or interest of the appellees in the land. His only contention was that the cause should be dismissed, and that the probate court should proceed to determine the matters in controversy. But this suit was begun before the will was filed for probate, and the chancery court, having jurisdiction to make partition, could proceed to adjudge and settle the question of the amount and validity of appellant J. T. Lester’s claim, and, having taken jurisdiction of the cause for partition, it was proper for it to retain it to determine this issue. It was shown that there were no debts against the estate of James Lester, deceased. Appellants, as executors of the will, had no power under the provisions of the will to create a debt against the estate of their testator in their own name and right, or in any other way, for the support and maintenance of their •mother, the widow of James Lester, deceased.. “The entire estate” was to be controlled and managed by the executors for the “use and support of the wife” of James Lester, but. this did not give them the power to sell the real estate or to contract debts against the real estate that would result in its sale. The various provisions of the will, when construed as a whole, show that the intention of the testator was that the entire usufruct of the estate should go to provide for his wife “a - comfortable and snug support.” This intention is clearly set forth in the sixth and last paragraph of the will, where the testator expressly declares such to be his purpose. Appellants therefore had no claim against the estate of the deceased James Lester, and the court very properly refused to dismiss the cause for want of jurisdiction. 2. As we have shown, the purpose of the testator was to devise a life estate in the entire property, both real and personal, which he owned at the time of his death, to his wife for “her use and support.” If the widow married again, the estate for life was defeated in all the property of the estate except the homestead and one hundred and fifty dollars worth of personal property, as is shown by the 3rd paragraph of the will. In case of the defeasance of the life estate in all of the realty except the homestead and the one hundred and fifty dollars of personal property by the marriage of the' widow, the executors were to sell the remainder, or, in case of the death of the widow, to. divide the entire estate into lots and parcels, if it could be done by agreement among the heirs, so as to give them share and share alike; and, if it could not be done by consent, the executors were to sell the entire estate and divide the proceeds equally between them all. All of this shows that the widow did not get a fee in the real estate, and if follows that appellants had no claim which they could maintain against the estate as the property of the mother. For her estate in it ended at her death. That this is the proper construction of the will, see O'Connor v. Rowland, 73 Ark. 422; Frank v. Unz, 91 Ky. 621; Giles v. Little, 104 U. S. 291. 3. Even if the case were not settled by this construction of the will, we would not disturb the finding of the chancellor on the facts as to the lack of evidence to support the claim, and his finding as to laches. No court of chancery could sanction the methods pursued by the appellant J. T. Fester in this case to assert even a valid claim against the estate of his father or mother, and he would be barred by laches for not pursuing earlier the statutory remedies. Kirby’s Digest, § no. On the facts the preponderance is in favor of the chancellor’s finding that appellant’s claim is not supported by the proof. Decree affirmed.