Fowler v. Frazier

Kirby, J., (after stating the facts). (1) It is well settled that the probate court is without jurisdiction to try contested claims of title to property. In Shane v. Dickson, 111 Ark. 357, the court said: “The probate court has no jurisdiction of contests between an executor or administrator and third parties over property rights or the collection of debts due the estate. Its jurisdiction is confined to the administration of assets, which come under its control, and incidentally to compel the discovery .of .assets. ” Moss v. Sandefur, 15 Ark. 381; Fancher v. Kenner, 110 Ark. 117, 161 S. W. 166; Mobley v. Andrews, 55 Ark. 222. (2) It is also unquestionably true that the probate court has no jurisdiction to adjust partnership accounts between an executor or administrator of a decedent and a surviving partner. In Choate v. O’Neal, 57 Ark. 299, the court held, quoting syllabus: ‘ ‘ The probate court has no jurisdiction to settle partnership accounts between a decedent and his surviving partner.” See, also, Nelson & Wife v. Green, 22 Ark. 547; Tiner, Admr., v. Christian, Admrx., 27 Ark. 306; Culley & Son v. Edwards, Admr., 44 Ark. 423. The probate court was without jurisdiction to try the question of title to the property and render judgment for it or the value thereof, or to. adjust the partnership accounts and make a settlement thereof and allow the claim for any amount found to belong to the surviving partner. The testimony tended to show that the suit was for the recovery of specific articles of property, or the value thereof, or for the appellee’s share and interest in the partnership property, no settlement of 'the partnership having been shown to have been made between the partners by agreement or otherwise, nor ascertainment of such interest. It follows that the probate court was without jurisdiction of the cause, and since upon appeal the circuit court tries the case de novo and renders such judgment or makes such order as the probate court should have made, it acquired no jurisdiction on appeal. ■ The court erred in not granting appellant’s motion to dismiss the suit for want of jurisdiction. The judgment is reversed and the cause dismissed.