Carter v. Younger

Wood, J., (after stating the facts). 1. The petition of the appellee properly stated sufficient facts to give the probate court jurisdiction to assign her dowér in the property. Probate courts of this State are vested with jurisdiction in matters of dower. Kirby’s Digest, § 1340; Jones v. Jones, 28 Ark. 19. See Ex parte Hilliard, 50 Ark. 34; Hilliard v. Hilliard, 52 Ark. 283. The court therefore did not err in refusing to dismiss the appellee’s petition for allotment of dower. This jurisdiction of the .court to assign dower as shown by appellee’s petition could not be defeated simply by a denial of appellants that she was entitled to dower, nor upon an allegation that she had relinquished her dower by an agreement of separation. The answer, however, set up other facts which, if true, were sufficient to restrict the jurisdiction of the probate court and to show that the case was cognizable alone in a court of chancery. See Bowers v. Hutchinson, 67 Ark. 15. Appellant, however, replied to the answer, in which she admitted the agreement set up, but alleged that same had been abrogated. Under these allegations of the pleadings, we are of the opinion that it was within the province of the probate court as incident to its jurisdiction to assign dower to determine whether the separation agreement which she admits that she executed was afterward abrogated by the parties who made it. For if the separation agreement was not abrogated, appellee having admitted that she executed it, would be bound thereby and would not be entitled to dower. On the contrary, if the separation agreement had been abrogated by the parties to it again assuming the marital relation, then appellee would be entitled to dower. This is as far, however, as the probate court had jurisdiction to inquire. It had no jurisdiction to determine as to whether or not the separation agreement was fair and just. These were issues that could only be determined in another forum. The probate court had no jurisdiction to grant equitable relief. 2.’ Where the parties to a valid separation agreement afterward come together, and live together as husband and wife, where their conduct toward each other is such that no other reasonable conclusion can be indulged than that they had set aside or abrogated their agreement of separation, then such agreement should be held as annulled by the parties to it, and their marital rights determined accordingly. See Dennis v. Perkins, 129 Pac. R. 165. The court, without objection, sent this issue to the jury, and this was the only issue that should have been submitted. It could serve no useful purpose to set out in detail the testimony tending to show on one hand that the contract was abrogated and on the other that it was not. We are of the opinion that there was testimony to warrant a finding that the contract had been abrogated by the appellee and her husband'again assuming the marital relation and that they sustained this relation to each other at the time of his death. The court, however, did not properly submit the issue to the jury. The third instruction granted at the request of the appellee put the burden of proof on the appellant to show that appellee was not entitled to dower; whereas, under the pleadings, the burden was upon the appellee to show that she was entitled to dower. Appellee having admitted that she entered into the agreement set up in the answer after separation from her husband, the burden was upon her to show that such agreement had been abrogated; otherwise, under the pleadings, she would not have been entitled to dower, and the burden of proof was upon her to show that fact. As to whether or not there had been an abrogation of the agreement concerning the separation was an exceedingly close question of fact, under the testimony, and the instruction, placing -the burden upon the appellants to show that appellee was not entitled to dower, was prejudicial. Other objections are reserved and urged as to the rulings of the court upon the admission of certain testimony, and also as to the granting and refusing of prayers for instructions, but we are of the opinion that what we have already said is sufficient to indicate what the rulings of the court should be on these matters at another trial. For the error in granting appellee’s prayer for instruction as to the burden of proof, the judgment is reversed and the cause will be remanded for a new trial. Hart, J. The probate court, under our statute, has only a limited jurisdiction in the assignment of dower. I think the title to dower is involved in this suit, and that therefore the probate court had no jurisdiction to ■assign dower.