Jameson v. Davis

Wood, J., (after, stating the facts). The appellant contends that she was entitled to an undivided one-half interest in fee simple in the lands in controversy, not as dower but by inheritance from her husband, and that inasmuch as the title in fee simple to the one-half interest was vested in her by inheritance at her husband’s death the probate court had no jurisdiction to allot this interest to her as dower. Section 2709 of Kirby’s Digest provides .that, if a husband die leaving a widow and no children, his widow shall be endowed in fee simple of one-half of the real estate of which her husband died siezed where said estate is a new acquisition, etc. In Barton v. Wilson, 116 Ark. 400, 405, we held that the widow, under the above statute, “takes absolutely an undivided interest in fee simple, and it is such an interest as immediately vests, and without assignment becomes subject to transmission by conveyance or inheritance.” We also held in that case that “it is a mistake to assume that the widow takes as an heir, for the statute expressly declares that the widow shall be endowed in fee simple of one-half of the real estate of which such husband died -seized.” And, quoting from the Supreme Court of Maine, we said: ‘£ The statute does not change the status of the widow with reference to her deceased husband's estate. It enlarges her interest by giving her an estate in fee instead of an estate for life. She still takes, not as heir, but as widow. ’ ’ Golder v. Golder, 95 Me. 259. In McGuire v. Cook, 98 Ark. 118-120, we said: £ £ The interest which the widow possesses in the lands of her deceased husband is known as dower. * * * By this enactment we do not think the Legislature intended to, create in the widow an estate in her husband's lands different in any essential from the estate of dower known at the common law, except as therein expressly provided.” While the statute enlarges the quantity and extends the duration of the estate, it in -no manner changes the character of the estate nor the method by which it is set •apart or allotted to the widow. Probate courts in this State are vested with jurisdiction ■ in matters of dower. Carter v. Younger, 112 Ark. 483-487. It follows that the probate court has jurisdiction to allot dower to appellant by setting apart to her one:half of all the lands described in the petition, and the circuit court did not err in so holding. But appellant is correct in her contention that the appellees as executors had no power to allot dower in the lands to appellant. “It -shall be the -duty of the -heir at law of any estate of which the widow is entitled to dower to lay off and assign such dower as soon as practicable after the death of the’ husband of such widow. Section 2717, Kirby’s Digest; Hill’s Admrs. v. Mitchell, 5 Ark. 608. And those who have an interest in the lands must be made parties to the proceedings for- the allotment of dower. Kirby’s Digest, § § 2720 and 2721. The devisees of Jameson had an interest in the lands embraced in the petition and they were necessary parties to any proceedings for the allotment of dower. The court erred, therefore, in directing the probate court to proceed to the allotment of dower. The appellant was not .asking such allotment and the appellees could not have it allotted. The judgment is, therefore, reversed, and the cause is remanded with directions to dismiss the petition.