Beal-Burrow Dry Goods Co. v. Kessinger

HART, J., (after stating the facts). (1) Under our statutes the widow is entitled, as part of her dower, absolutely in her own right, to one-third of the personal estate. Kirby’s Digest; § 2708. The statute gives the widow an absolute estate in the personal property which vests immediately upon the death of the husband. She takes absolutely an undivided one-third interest in the personal property and immediately upon the death of her husband her interest becomes subject to transmission by conveyance or inheritance. She therefore had a right to assign her dower in the personalty to the plaintiff. (2) There being no statute to the contrary, the plaintiff had a right to sell the stock of goods to J. S. Kessinger and retain the title in itself until the goods were paid for. Jones v. Bank of Commerce, 199 S. W. 103, 131 Ark. 362. Kessinger had not paid any of the purchase price of the goods at the time of his death. The release by the plaintiffs of their right to assert title in the goods and their agreement to file their claim as a common creditor of the estate at the instance of the widow, formed a valuable consideration for the agreement whereby she assigned to it her dower interest in the personalty. See Harrow v. Johnson, 3 Mete. (Ky.) 578. (3) It is now well settled that courts of equity have concurrent jurisdiction in cases of dower in legal estates. Johnson v. Johnson, 84 Ark. 307, and cases cited, and Pomeroy’s Equity Jurisprudence, vol. 4, (3 ed.), § 1382. At first the jurisdiction of equity was ancillary to proceedings at law. The jurisdiction in equity developed until it could afford complete relief between the parties. Among the advantages in equity named by the same author are that a partition of undivided interests could be decreed and an account could be taken, fraudulent conveyances could be set aside, and antagonistic claims to the subject-matter could be determined without multiplicity of suits. The jurisdiction of courts of equity to assign dower was acquired while' the widow was only entitled to dower in the real estate 'of her deceased husband. Some, at least, of the same reasons would have existed for the exercise of the jurisdiction of courts of equity in the assignment of dower had the widow been entitled at common law to dower in the personal estate of her deceased husband. This is shown by analogy in the equitable jurisdiction for the partition of personal property. Although the inception of equitable jurisdiction for the partition of chattels is not traceable with certainty, the jurisdiction itself is unquestionable; and where a literal partition is not practicable, the chancery court will order a sale. Pomeroy’s Equitable Juris., vol. 4, (3 ed.), § 1391. Courts of equity in the partition of personal property have assumed jurisdiction to determine as well the issue of title as any other issue pertinent to the case. I'b., <§> 1392. The same reason would exist for the exercise of equitable jurisdiction in the assignment of dower in personal property as would exist in the partition of personal property. It follows that the decree will be reversed and the cause will be remanded with directions to assign the dower interest of Alice J. Kessinger in the estate of James Kessinger to the plaintiff as requested in the complaint.