Davis v. McCandless

WOOD, J., (after stating the facts). The petition for dower alleged that the administrator has sold land belonging to the estate of J. A. McCandless, and that ap-pellee as the widow was entitled to one-third of the proceeds of such sale. The affidavit for appeal set up that the appeal was prayed “from the order of the White Probate Court, allowing and setting aside to Mrs. M. J. McCandless the sum of $577.45 as her dower interest in the sale of certain lands made by the administrator. ' The order of the probate court shows that the case was heard upon “the petition of M. J. McCandless, as widow of J. A. McCandless, praying an allotment of dower to funds in the hands of B. F. Davis, administrator,” and that the sum in his hands was $1,732.35, the proceeds of the sale of lands “belonging to the estate of her husband. ’ ’ ' The judgment of the circuit court shows that the cause was “submitted to the court upon the pleadings and the testimony of witnesses.” And the circuit court found that there was,$1,732.35 in the hands of the administrator, and affirmed the judgment of the probate court allowing appellee $577.45 as dower. (1) The court erred in granting to appellee the absolute title to one-third of. the amount of the proceeds from the sale of these lands, and this error appears on the face of the record. It was, therefore, unnecessary for the appellant to' have filed a motion for a new trial and to have presented a bill of exceptions in order to have this court review the error on appeal. Where an error appears upon the face of the record no motion for a new trial and bill of exceptions is necessary. Anthony v. Sills, 111 Ark. 468, 474, and cases cited; Baucum v. Waters, 125 Ark. 305, 308, and cases cited. (2) Mr. Woerner says: “The surplus of the proceeds of a sale (of real estate) ordered for the payment of debts remaining after the debts and expenses of administration have been discharged retains the character of real estate for the purpose of determining who is entitled to receive it, and goes to the persons to whom the real estate would have gone but for the conversion. ’ ’ 2 Woer-ner on Administration, p. 481. In Kitchens v. Jones, 87 Ark. 502, we held (quoting syllabus): “"Where decedent left real property subject to a mortgage, which was subsequently foreclosed by order of court, the surplus of the proceeds of the foreclosure sale retained the character of real estate for the purpose of determining who was entitled to receive it.” The Chief Justice, after reviewing the authorities, concludes his opinion as follows: “In this case his equity of redemption descended, at his death, to his widow and children, according to the statute of descent and distribution, as realty. Its subsequent conversion to pay the debts against it does not let them in to share in it as personal property, for the only purpose of the conversion was to pay the mortgage debt, and not to change the status of the property.” The doctrine announced in that case rules this. It follows that the appellee was entitled to her dower in the surplus proceeds of the sale of the lands belonging to the estate of her deceased husband, but the court, by appropriate order, should have assigned her dower interest as in realty, and not absolutely as in personalty. The court should have ascertained the amount of her dower interest in the proceeds and should have awarded to her such interest for her use and benefit during her life. Appellee contends that the court below may have found from the evidence that the funds in the hands of the administrator was the result of the collection of land notes in the possession of the administrator, or that the sale was made by the commissioner of the chancery court under an agreement that the widow should have one-third of the proceeds of the sale. The answer to this is, that this court can not assume that evidence was adduced beyond the scope of the issues set forth in the pleadings. The petition, as we have seen, shows that appellee sought dower out of the proceeds of the sale of lands belonging to the estate of her husband. The administrator had no right to sell the lands except for the payment of debts, and her dower in any surplus went to her, as real estate and not personalty. It appears on the face of the judgment that it was not responsive to the issues raised by the pleadings, and the judgment will therefore be reversed and the cause remanded with directions for further proceedings according to law and not inconsistent with this opinion.