James v. Helmich , 186 Ark. 1053 ( 1933 )

STATEMENT BY THE COURT.

This suit is for recovery of certain property devised by will by Karl Bernhard Troeger, his farm and his household goods to Mrs. Lizzie Drees, and the residue of his property to the Lutheran Congregation of Avilla, Arkansas, in which the names of appellants, one of whom was his duly adopted daughter and the other a son of his duly adopted son, were not mentioned therein.

Mr. and Mrs. Troeger never had any children of their own, and, by formal order of the Saline Probate Court, dated December 7, 1891, adopted Homer and Laura Skinner, whose real names were Homer and Laura Hokams, having assumed the name of Skinner, their mother's second husband. Mrs. Troeger died prior to April 23, 1924, on which day Mr. Troeger executed his last will and testament, leaving his farm and household goods to Mrs. Lizzie Drees and the remainder of his property to the Lutheran Congregation of Avilla, Arkansas, naming Rev. Adolph H. Poppe, of Little Rock, as executor of his estate without bond. Mr. Troeger died March 30, 1925, leaving as his only heirs appellants, Laura James, formerly Skinner, and Steve Hokams, son of Homer Hokams, or Skinner. The death of Troeger was not known to either of appellants until 1930, nearly two years after the final settlement of his estate.

The will was admitted to probate in common form on April 27, 1925, without notice given to the parties interested, and letters testamentary issued to Dr. Poppe, who entered upon his duties as executor. On March 26, 1928, after the notice of the filing of the settlement of Dr. Poppe, executor, the probate court entered an order approving his first and final settlement, appellants still being without knowledge of the death of the testator or the proceedings incident to the distribution of his estate. This settlement showed the distribution of the estate, and, after paying the executor and other miscellaneous debts of the estate, said executor paid to the trustees of the Lutheran Church at Avilla, Arkansas, on March 2, 1928, the net amount of $3,090.27. No objections were filed to the report or to the order of March 26, 1928, approving it, nor an appeal taken therefrom, the appellants still being without knowledge of the death of the testator, of which they did not learn until shortly before this suit was brought. Neither did the trustees of the church to which the money was paid know, until the bringing of this suit, that Laura James was the adopted daughter, or that Steve Hokams was the son of the adopted son of Mr. Troeger. The money turned over to the trustees of the church was used in rebuilding, repairing and furnishing the church of the Lutheran Congregation at Avilla, Arkansas.

Suit was instituted in the probate court by appellants against the trustees, naming them, individually and as trustees, and against Mrs. Lizzie Drees and Rev. Adolph H. Poppe, individually and as executor, to recover the said sum of $3,090.27 with interest from March 2, 1928, and from Mrs. Drees the 40-acre farm and household goods. Suit was dismissed as to Dr. Poppe when he testified at the time in probate court that he did not know until after the distribution of the money in his hands as executor that either of the appellants had any interest in the testator's estate. Suit was also dismissed as to Mrs. Drees, when appellants learned that she and her husband had taken care of Troeger during the last 7 years of his life, and that he had agreed to give Mrs. Drees the farm and household goods at his death.

The case was tried on a stipulation of facts that neither of appellants had ever received any part of the estate of Mr. Troeger, although they were his sole heirs living when his will was executed on April 23, 1924, and were not mentioned or in any way referred to in the will.

The suit was dismissed by order of the probate court on November 23, 1931, and, upon an appeal to the circuit court, the cause was submitted to the judge, sitting without a jury, who on July 1, 1932, likewise entered judgment for appellees, from which this appeal is prosecuted. (after stating the facts). Appellants insist that they are entitled to recover in this cause under the provisions of the statute, 10,507, Crawford Moses' Digest, their names being omitted from the will, as though the testator had died intestate, and the contention must be sustained. Rowe v. Allison, 87 Ark. 206,112 S.W. 395.

Under the statute and its construction, appellants are entitled to inherit as though the testator had died intestate, in which event each would be entitled to one-half of the estate, since one was the adopted child and the other sole and only heir at law and legal representative of the other adopted child, and both were living on April 23, 1924, when the will was executed, and neither was mentioned or referred to therein. The rights of legally adopted children are the same as the rights of those born in wedlock. 24 R.C.L. 84.

Neither is there any merit in the objection that the suit should have been instituted in the chancery court instead of the probate court as expressly provided in said statute, 10,507, Crawford Moses' Digest, as construed in Rowe v. Allison, supra. There is no contention that fraud had been perpetrated on appellants in the administration of the estate, it being conceded that the administration of the estate was free from fraud, and it is undisputed that the executor or the church had no knowledge of the adoption of the appellants by the testator until shortly before this suit was filed in 1931.

It is next contended that the claim of appellants to the estate is barred (because no appeal was taken by them from the order approving the final settlement of the executor. It is stipulated that appellants had no knowledge of the death of the testator until more than two years after the settlement had been approved, when it was too late, of course, to take an appeal from the order of approval. The will was probated in common form without notice having been given, and there was no effort made during the administration of the estate of Troeger, which began on April 27, 1925, and was concluded on March 26, 1928, upon the approval of the final settlement and distribution of the executor, to obtain jurisdiction over appellants or any other persons who might have been interested in the probate of the will under the provisions of the statute, 10,522 to 10,525, Crawford Moses' Digest. The order of approval and confirmation of the final settlement of the executor were conclusive only of the matters embraced in the settlement, the court finding only that the assets of the estate had been reported and administered in the proceeding of which appellants had had no notice, either actual or constructive, and it did not operate to bar appellants from asserting their claim to the estate distributed to the trustees of the church upon their learning of the death of their foster parent and the improper distribution of the funds of the estate. Beckett v. Williamson, 92 Ark. 230, 122 S.W. 633. See also Scott v. McNeal, 154 U.S. 34, 30 L.ed. 896. The order of the probate court distributing that part of the estate to the church instead of the children surviving the testator, whose adoption was unknown at the time of the administration, was void as against them.

Since there is no special statute of limitations providing when or the period within which pretermitted children must bring suit to recover their share in the estate, they had 5 years in which to do so under the provisions of the statute, 6960, Crawford Moses' Digest. See also Hill v. Wade, 155 Ark. 490, 244 S.W. 743. The money was not paid by the executor to the church until March 2, 1928, and the rights of appellants could not have arisen until the wrongful distribution of such money, and the statute began to run against them on the said date of its payment, and they were not barred by the 5-year statute of limitations, this suit having been instituted in 1931. Neither were they barred by laches, having brought the suit within the time allowed.

The court erred in not holding the appellants entitled to judgment for their claim, and the judgment must be reversed, and the cause remanded with directions to enter judgment in favor of the appellants, and for their costs. It is so ordered.