Maxwell v. Awtrey

Hart, J., (after stating the facts). The decision of the chancellor was wrong. It was the duty of Mrs. Free as sole heir at law of her deceased son to allot dower to his widow in the lands belonging to his estate. She proceeded to do this by bringing a suit for that purpose in the chancery court of Montgomery County where the lands were situated and making the widow a defendant thereto. The suit was an appropriate one. The original equity jurisdiction over the subject of dower has never been doubted, and it has been uniformly held in thi's State that the statutory remedies for the allotment of dower do not exclude courts of equity from their jurisdiction in the premises. Johnson v. Johnson, 84 Ark. 307, and cases cited. The heir at law and the widow had the right to settle their respective interests in the estate of Henry Maxwell, deceased, and to carry out their agreement by the execution of deeds to the lands which each of them was to receive. The issue involved in the case pending in the chancery court of Montgomery County was the allotment of dower to the widow by the heir. Two farms belonging to the decedent’s estate .were situated in Montgomery County. It was agreed between the parties that Mrs. Maxwell, the widow, should receive one of these farms as dower, and that Mrs. Free, the mother and sole heir at law, should receive the other as her distributive share of the estate. The farm deeded by Mrs. Free to Mrs. Maxwell became her dower, and Mrs. Maxwell executed a deed to Mrs. Free to the other farm, not for the purpose of conveying to Mrs. Free her dower interest in the land, but for the purpose of showing that she had been allotted dower in the land which had been deeded to her and made no claim to dower in the land which she conveyed by quitclaim deed to Mrs. Free. There were no children, and the real estate owned by Henry Maxwell at the time of his death was a new acquisition. Under the statute Mrs. Maxwell, as his widow, became endowed of one-half of the lands as dower, and no adjudication of a court was necessary for that purpose. Kendall v. Crenshaw, 116 Ark. 427. The suit in the chancery court by Mrs. Free against Mrs. Maxwell to assign dower was for the purpose of setting apart to Mrs. Maxwell the portion of the lands which the statute gave her as dower, and the parties accomplished this purpose by the execution of the quitclaim deeds to each other. The deed from Mrs. Free to Mrs. Maxwell was to show what lands had been allotted to the latter as dower by the former as heir. The quitclaim deed from Mrs. Maxwell to Mrs. Free was for the purpose of showing that dower had been allotted to Mrs. Maxwell and that she made no claim to dower in the lands which she deeded to Mrs. Free. Of course, this might have been accomplished by other means, but the one adopted by the parties was an appropriate one for that purpose. It follows that the chancery court erred in enjoining the administratrix from selling the lands in question to pay the debts of her decedent’s estate, and for that error the decree will be reversed and the cause remanded with directions to dismiss the complaint of the plaintiff for want of equity.