Galloway v. Sewell

Hart, J., (after stating thfe facts). The third paragraph of the will of J. W. Dickey gave Martha L. Dickey, his wife, full power and authority to sell and dispose of any of the property of his estate and to make proper deeds therefor when, in her judgment, it would be for the best interest of said estate. In the same clause the will directs that she shall never he held to account for the disposition of any of said property which she may use, sell, or dispose of during her natural life. Conceding that this clause of the will gave her the power, as life tenant, to convey the estate absolutely and thereby defeat the estate of the remainderman, as decided in Archer v. Palmer, 112 Ark. 527, it need only be said that it does not appear from the record that she disposed of any part of her husband’s estate, and consequently she did not exercise or attempt to exercise the power thus conferred upon her by the will. This brings us to a consideration of what estate was vested in her under the will and what right she had in its use. The second paragraph of the will devises - and bequeaths to Martha L. Dickey all the property of every land of the testator,- for and during the term of her natural life, “to have and to use, manag-e, control and enjoy for said term.” The same clause directs that the remainder of the estate of the testator should descend to his legal heirs. In the third- clause of the will the testator again directs that Martha L. Dickey be permitted “to manage, direct, control, use and enjoy all of his property during her natural life.” As a general rule the use of a thing does not mean the thing itself, but means that the user is to enjoy, hold, occupy, or have in some manner the benefit thereof. If the thing to be used is in the form or shape of real estate, the use thereof is its occupancy -or cultivation, etc., or the rent which can be obtained for its use. If it is money or its equivalent, generally speaking', it is the interest which it will earn. Blanton v. First National Bank, 142 Ark. 404; and Special School District No. 5 v. State, 139 Ark. 263, and cases cited; 39 Cyc. 845, and cases cited; 29 Amer. & Eng. Cyc. of Law, 2 ed. p. 444, and cases cited; Crane v. Van Dyne, 9 N. J. Eq. 259; Cross v. Hoch, 149 Mo. 325; Rountree v. Dixon, 105 N. C. 350; Russell v. Andrews, 120 Ala. 222; and Warren v. Webb, 68 Me. 133. Under this rule Martha L. Dickey was entitled to hold and occupy the real estate devised to her for her natural life and to receive the income or rent therefrom. She was also entitled to the money received from her husband’s estate and to the interest on it during her natural life. It did not make any difference whether she used or needed the rents from the real estate or the interest on the money for her support and maintenance. She was entitled to receive the same, and was not required to account for it, under her husband’s will. At her death, whatever was left of the rents from the real estate' or the interest from the money became a part of her estate, and, under our law of descents and distributions, went to her legal heirs. Her administrator could only he required to account to the administrator of her husband’s estate, or to the remaindermen under the will, for the principal of the money she received under the terms of her husband’s will. It is not claimed that she received any personal property under her husband’s will, except money. If there was any small amount of personal property left at her husband’s death, it was doubtless consumed by use under the rule stated in Fields v. Kline, 161 Ark. 418. As we have already seen, Martha L. Dickey did not attempt to dispose of any of the real or personal property which she received under the will. The basis of this suit is to require an accounting from her administrator of the personal property which she received under her husband’s will, and which was undisposed of at the date of her death. The proof shows that, at the date of her husband’s death, he had on deposit in one hank $81.90 and in another $484, making a total of $565.90. In a few days after his death she placed on deposit in a hank two sums totaling $9,350. It was not shown that she had any money of her owm, except $800 which she had received from her father’s estate. It is suggested that she should he entitled to interest on this amount from the time she received, it until her husband’s death, and that the interest should be added to the principal and the whole sum counted as belonging to her. If she had lent out the money and received interest on it, of course, it would belong to her, but there is no proof in the record that she ever put her money out at interest, and we cannot rely upon surmise or conjecture in the matter. Before she would be entitled to interest, she is required to prove that she had received interest, and the administrator of her estate has failed to meet the burden of proof in this respect. She did expend, however, $400 in erecting a monument over her husband’s grave. His will directed that all his just debts be paid by his executrix. The monument on his grave was a proper charge against his estate. Credit should be allowed for a reasonable expenditure for a tombstone or monument for decedent. 24 C. J. 93, and cases cited. A reading of the cases cited shows that it is quite generally held in the case of solvent estates that the necessary cost of a reasonable tombstone placed at the grave of a deceased person is properly classed as funeral expenses, or expenses of administration, which may be allowed to an executor or administrator in settlement of his account. Therefore in arriving at the sum which Martha L. Dickey received from her husband’s estate, under his will, the amount of money which' she owned, $800, and the $400 for the monument, making a total of $1,200, should be deducted from the money which she deposited in the bank. One thousand two hundred ($1,200) dollars taken from $9,350 leaves $8,150. To this amount should be added $565.90 on deposit by her husband when he died, making a total of $8,715.90, which she received under her husband’s will and which went into the hands of her administrator at her death. It is fairly inferable from the evidence that she had no money or property except the $800, as above stated, and it is also fairly inferable that she received the rest of the money, which she put into the bank shortly after her husband’s death, from his estate.. The result of our views is that the chancellor properly held her accountable for the amount of money which she received from her husband’s estate, and which, after deducting all proper allowances, we find to be the sum of $8,715.90. J. W. Dickey had a policy of insurance in which Martha L. Dickey was the beneficiary. She collected this policy, and was entitled to it. It does not appear, however, that this was any part of $8,350 or the $6,000 deposited in bank. Both these deposits bear date of Oct. 25, 1907, and the proceeds of the life policy bear date of Jan. 3, 1908. The learned chancellor erred in requiring her to account for any part of the income or rents derived from the real estate or interest on the money of her husband which she had loaned out. It follows that the decree will be reversed, and the cause remanded with directions to render a judgment in favor of the plaintiff against the defendant for said sum of money, together with 6 per cent, interest thereon from the date of the decree in the court below, which was on the 12th day of October, 1922. It is further ordered that the costs in the court below and of this appeal be paid by the plaintiff.