{
  "id": 1581936,
  "name": "Arkansas Valley Trust Company v. Young",
  "name_abbreviation": "Arkansas Valley Trust Co. v. Young",
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    "judges": [
      "McCulloch, C. J., and Hart, J., dissent."
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      {
        "text": "Wood, J.,\n(after stating the facts). I. As authority for the probate court to make the order under review, appellees invoke section 213 of Kirby\u2019s Digest, which is as follows: \u201cWhen any testator or intestate shall have entered into any contract for the conveyance of lands and tenements in his lifetime which was not executed and performed during his life, and shall not have given power by will to carry same into execution, it sba.ll be lawful for the executor or administrator of such testator or intestate, with the approval of the court, in term \u25a0time, to execute a deed of conveyance of and for such lands pursuant to the terms of the original contract, such executor or administrator being satisfied that payment has been made therefor according to the contract, and reciting the fact of such payment to the testator or intestate, or to such executor or administrator, as the case may be, which deed may be acknowledged and recorded as other deeds, and shall have the same force and effect <to pass the title of such testator or intestate to any such lands as if made pursuant to a decree of court. \u201d\nThe Constitution of 1836, under which the above act was passed, conferred upon probate courts jurisdiction \u201cin matters relative to the estates of deceased persons, executors, administrators and guardians, as may be prescribed by law, until otherwise directed by the General Assembly.\u201d Const, of Ark. 1836, art. 6, \u00a7 10. It was not otherwise directed by the General Assembly until 1873, when a law was enacted conferring on the circuit court \u201cexclusive original jurisdiction of everything properly pertaining to matters cognizable in courts of probate, and all the powers and jurisdiction now possessed by courts of probate.\u201d Act of April 16,1873.\nThe Constitution of 1874 confers on the probate court \u201cexclusive original jurisdiction in matters relative to estates of deceased persons, executors, administrators, etc., * * * as is now vested in the circuit court or may hereafter be prescribed by law.\u201d Const. 1874, art. 7, \u00a7 34.\nThe statute under review is clearly within the above provision of our Constitution. The statute does not take from chancery courts their ancient jurisdiction to enforce the equitable remedy of specific performance as applied to contracts for the conveyance of real estate, nor does it confer such jurisdiction upon courts of probate. That remedy, as enforced in courts of chancery, contemplates adversary proceedings in which the party who conceives that he is entitled to the remedy of specific performance institutes a suit by a bill in chancery against the recusant party to the contract, praying that he be required to specifically perforin the same. 4 Pomeroy\u2019s Eq., \u00a7 1400; 20 Enc. PI. & Pr. 389; 36 Cyc. 543, 758.\n\u201cIn most of the States,\u201d says Mr. Pomeroy, \u201cthe statutes expressly provide for the ease where the vendor dies before completing the contract and leaves heirs or devisees adult or infant. * * * This legislation is of different types. In some States it deals entirely with the suit in equity for a specific performance. In others it provides for a more summary special proceeding by which the contract may be enforced without suit, as a step in the settlement of the deceased vendor\u2019s estate. By the common form of this special proceeding, where a vendor \u2022who had entered into a written contract, dies before completing the contract, and the party entitled to a conveyance has paid or is ready to pay the purchase price, the. probate court which has control of the administration may authorize or order the administrator or executor of the decedent to make the conveyance which the vendor himself should have made had he been alive; and the conveyance so made is declared to have the same force and effect as though it had been executed by the vendor himself.\u201d Pomeroy on Contracts, \u00a7 497, p. 556.\nOur statute takes the form of the special proceeding by which the contract may be performed without suit and as a step in the settlement of the deceased vendor\u2019s estate. We must assume, that the General Assmbly of 1859 was familiar with our statute of frauds, which was a part of the Revised Statutes of 1837, and with the decisions of this court at that time, holding that notwithstanding the statute of frauds specific performance of an oral contract for the sale of lands could be enforced by a bill in chancery where the party seeking such relief had performed or so partly performed the contract on his part as to make it inequitable or a fraud upon his rights not to grant the relief prayed. Rev. Stat. (1838), chap. 30, \u00a7 1; Keatts v. Rector, 1 Ark. 391; Underhill et al., Admrs. v. Allen, 18 Ark. 466; Wynn v. Garland, 19 Ark. 23.\n(1) In view of tlie statute of frauds and these decisions, if the Legislature of 1859 had intended to vest courts of probate with jurisdiction to enforce the equitable remedy of specific performance of contracts for the conveyance of lands it can not be doubted that they would in express terms have authorized the vendee or those in privity of right to institute suit for that purpose in the probate court against the personal representatives of the vendor, his heirs, assigns, or devisees. And the Legislature, in express terms, would have conferred upon the probate court jurisdiction to hear the cause and to determine the same according to the rights of the parties. No such procedure is projected, even in outline, by the language of the act under consideration. It does not provide for an action at all to be instituted in probate court for specific performance. The vendee or those claiming under him are not authorized to file any petition or complaint in the probate court asking for the equitable remedy of specific performance. This act simply confers authority upon the executor or administrator of the testator or intestate, with the approval of the court, to execute a deed of conveyance pursuant to the terms of the original contract with the decedent, where the executor or administrator is satisfied that payment has been made according to the contract. The statute does not give to the purchaser the right to insist that this special proceeding be pursued for his benefit. It is only a license or permission granted by the sovereign power to the executor or administrator to make the deed when he finds certain facts and conditions to exist. The license is to be exercised then only upon the approval of the probate court.\nThe executor or administrator, who is an officer of the probate court, has in his hands such property of the decedent, real and personal, as is not exempt under the Constitution, for the purpose of the settlement of the debts of the estate, under the orders of the probate court. He may put the statute in motion, and, with the approval of the probate court, is licensed to make the conveyance as one of the steps in the regular course of the adminis-.' tration of the res in his hands for the payment of the debts of the decedent. It would do violence to the language of the act to construe it as expressing an intention upon the part of the Legislature to confer jurisdiction upon probate courts to enforce the equitable remedy of specific performance of a contract to convey real estate.\nIn the recent case of Oliver v. Routh, 123 Ark. 189, 196, we held that \u201cthe probate court had no power to make an order for specific performance of the contract made by the decedent in his lifetime to convey his homestead to another. \u2019 \u2019 In that case we said: \u2018 \u2018 The authority to grant specific performance of an executory contract to convey land against the executor or administrator of a decedent is a special power conferred upon the probate court. It is to be exercised in a special manner, and not according to the course of the common law. \u2019 \u2019 In that case it was not necessary to the decision and the court did not have under consideration, and hence did not decide, the question as to whether or not the statute now under review was unconstitutional because it invested probate courts with the jurisdiction exercised by courts of chancery to enforce the equitable remedy of specific performance of a contract for- the conveyance of land. True, we there designated the privilege or license conferred by this statute as \u201cthe authority to grant specific performance, \u2019 \u2019 yet what we decided in that case was that the authority under this-statute is a \u201cspecial power,\u201d and not one to be exercised according to the course of thei common law, and that the wife had not joined in the contract for the conveyance of the homestead. That decision is not in conflict, but in harmony with our present holding.\n(2) Since our Constitution (art. 7, sec. 34) vests courts of probate with exclusive original jurisdiction in matters relative to the estates of deceased persons, executors, administrators, etc., it can not be questioned that the authority or license contained in this statute is peculiarly germane to the jurisdiction so conferred. Thus, by the organic law, probate courts are made the guardians so to speak, of the estate of deceased persons, and have been given the custody of such estates for the purpose of set'* tling the debts incurred and performing the contracts entered into by the decedent. It is their duty to administer these estates in the most expeditious and frugal manner consistent with the rights and interests of all concerned. The Legislature doubtless had in mind in enacting this law the time and expense usually'incident to adversary proceedings in a suit in chancery for the specific performance of contracts to convey lands. Instead of compelling the one entitled to the remedy of specific performance to pursue a circuitous route through the chancery court to obtain such relief, the Legislature adopted the more direct, simple and inexpensive course prescribed by this statute. Thus the summary proceedings authorized by the act of 1859, as one of the steps in the administration, accomplishes the same purpose that would be attained by the equitable remedy of specific performance, but in a manner far more advantageous to the estate.\nIn Ferguson v. Bell\u2019s Admr., 17 Mo. 347, 350, the court, concerning similar legislation, said: \u201cIndeed this authority was given to the probate courts to be liberally used and exercised for the speedy execution of such contracts, without the delay and expense usually attending a proceeding in chancery.\u201d\nAnd the Supreme Court of California says: \u201cThis special statutory remedy would seem to be a wise provision. It evidently tends to save the expense and delay that would follow a separate action in equity for a specific performance.\u201d In re Garnier\u2019s Estate, 82 Pac. 68, 69.\nThe Constitution of Minnesota vests its probate courts with jurisdiction over the estates of deceased persons. See art. 6, sec. 7, Const, of Minn., Rev. Stat. Minn. 1905, p. 1176. Frank H. Peterson v. Wm. H. Vanderburgh, 77 Minn. 218.\nIn re Mousseau\u2019s Estate, 41 N. W. 977, the Supreme Court of Minnesota held that a statute similar to the one under review was valid and appropriate to the administration of estates under their Constitution. Judge Mitchell, in a concurring opinion, spolce of such legislation as appropriate \u201cfor the purpose of disposing of the decedent\u2019s interest in the land and freeing it from the claims of administration.\u201d\nWe have thus adverted to the wisdom and policy of the statute under consideration for the purpose of showing that as an act providing for one of the steps to be taken in the administration of estates, it does not in any manner conflict with the jurisdiction of courts of chancery to enforce specific performance of contracts, and is not only a valid enactment, but one exceedingly appropriate to the jurisdiction conferred by our Constitution on courts of probate.\nLearned counsel for appellants, in their original brief, among other things, say: \u201cThe Legislature, by this act, gives to the probate court, which is, in a sens\u2019e, a court of limited jurisdiction, a special limited jurisdiction to authorize an administrator to convey lands when his intestate has entered into a contract to convey same during his lifetime. * # * The title of the act is \u2018An Act to enable administrators and executors to make title. \u2019 Thus it will be seen that neither in the title nor in the body of this act, upon which appellees must rely, is there any reference to specific performance. * * * It was never intended to vest in the probate court that chancery jurisdiction which, under our statutes, has always been either in our circuit courts, sitting in chancery, or as, since 1903, in separate courts of chancery.\u201d\nThese statements are a correct and accurate characterization of the act and its purpose. But counsel for appellants, in their \u201cSupplemental Brief in Reply\u201d have made an elaborate argument, endeavoring to show that the act under review is unconstitutional, based upon the erroneous assumption that the act does vest probate courts with \u201cjurisdiction of the pure equitable remedy of specific performance.\u201d Having reached the conclusion that the act does not vest the probate court with such jurisdiction, it would be obiter to decide whether or not such an apt, if it did exist, were constitutional. We therefore pretermit any discussion or decision of the interesting question propounded by counsel, and so exhaustively argued in their \u201csupplemental brief in reply,\u201d towit: \u201cHas a probate court, under the Constitution and laws of Arkansas, jurisdiction of the pure equitable remedy of specific performance?\u201d\nII. Counsel for appellants also, in their original brief, urge that the statute is applicable only to written contracts. They say, \u201cThe only character of contract with reference to lands recognized by our statutes or by courts of law generally are written contracts.\u201d Hence, they now contend that the present contract because of the statute of frauds could not be performed by courts of probate.\nThe jurisdiction conferred on probate courts under our Constitution is general and exclusive in the matters ' relating to the estates of deceased persons, administrators, executors, etc., and they may determine all issues arising within the sphere of their jurisdiction according to the principles of law involved. If the issue is one that can only be decided correctly by the application of the rules and principles of equity, then the court having plenary power over the subject-matter must so decide it. This special act confers jurisdiction upon the probate 'court to approve the making of a deed by the personal representative of a decedent, and when it is made, under the direction of such court, it has the same force and effect to pass title as if made pursuant'to a decree of court. Therefore, if the approval of the probate court is sought under the statute for permission to make a deed where an oral contract is involved, the court, in deciding the issue, must apply the principles applicable to the performance of such contracts just as they are applied in courts having jurisdiction to enforce the remedy of specific performance. But this power is quite another and different thing from having jurisdiction to hear and determine causes of action cognizable only in courts of chancery.\nIn Cresswell v. McCaig, 11 Neb. 222, it is held (quoting syllabus): \u201cThe statute of frauds does not render a contract void, but voidable, at the option of either party; but it does not require a party to ignore considerations of moral obligation, equity and good faith by pleading the same, and a creditor can not do so.\u201d See, also, Wright v. Jones, 105 Ind. 17; Kemp v. National Bank, 109 Fed. 48; Minns v. Morse, 15 Ohio 569; Cahill v. Bigelow, 18 Pick. 369.\nThis court, in El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 186, said: \u201cA parol agreement is neither illegal nor void. A plea of the statute of frauds is a plea or defense which may be waived.\u201d\nIn Ferguson v. Bell\u2019s Admr., 17 Mo. 347, an infant executed a deed, and after coming of age, expressed satisfaction with her bargain and received part of the consideration and spoke of her intention to make a confirmatory deed, but died suddenly without doing so. The probate court held that sales by infants were not void, but voidable only; that the privilege of avoiding or disaffirming the contract or deed of an infant was one that could be exercised by his personal representative or his privies in blood, but not by his assignees or privies in estate only. The administrator of the infant refused to disaffirm the contract, and the Supreme Court sustained his action, saying: \u2018 \u2018 The probate court of St. Louis County had ample jurisdiction over the whole subject-matter of the petition, and the probate court erred in refusing to order the deed to be made by the administrator upon the proof as preserved by the petitioners on this record.\u201d\nThe general statute of limitations, when set up in actions on contracts to which it applies, is analogous to the statute of frauds. The effect of both alike in actions on contract to which they apply is to bar recovery, though the contract sued on be valid. In one of the earlier cases this court, through Judge Fairchilds, speaking of the statute of limitations, said: \u201cIt is an obligation resting upon no man to discharge an honest subsisting debt by the plea of limitations.- What would be infamous by a man when alive can not be commendable or legally binding to be done for him by his representatives when he is dead.\u201d Conway v. Reyburn, 22 Ark. 290. See, also, Jacoway v. Dyer, 50 Ark. 228; Williams v. Risor, 84 Ark. 61; Rhodes v. Driver, 108 Ark. 80.\nHonest men are always anxious and willing to perform their contracts when they are able to do so. When death only prevents one from performing a contract, his personal representative is not compelled to set up the statute of frauds to defeat the performance of such contract. To so hold would be to convert a statute which was intended to shield from fraud into an instrument by which fraud could be perpetrated. For, if the personal representative could be compelled to set up the statute of frauds to defeat a contract which the decedent not only intended to perform, but the performance of which could have been enforced, this would be a fraud upon the rights of parties to contracts and perpetrated by the personal representative whose duty it is, as far as possible, to perform those contracts. We can never underwrite such a doctrine.\n(3-4) The statute under consideration contemplates that the personal representative of a decedent may, on his own motion, put the same in operation by seeking the approval and direction of the probate court concerning the subject-matter contained in the statute. It necessarily follows that it is not incumbent upon him to set up the statute of frauds. The statute of frauds has no application to proceedings under this statute, for no adversary proceedings are provided for. The personal representative only is authorized to take the initiative and make the deed, and thus perform the contract of the decedent under the statute in those cases, where the conditions exist that render the statute of frauds inapplicable. Where the personal representative of a decedent can not plead the statute, a judgment creditor can not do so, even under the broad provisions of the act of 1909, p. 956. At the time the act of 1859 became a law, oral contracts for the sale of land, as we have seen, were not void, but voidable only, and the performance of same conld be enforced where the conditions essential to such performance existed, notwithstanding the statute of frauds. See Keatts v. Rector; Cahill et al., Admrs., v. Allen; Wynn v. Garland, supra.\nSince the Legislature must have known of these decisions, the conclusion is irresistible that if it had intended that the statute should apply only to written contracts, it would have said so in plain terms. We may assume, also, that the Legislature, while they had under consideration the passage of this act, had their attention drawn to similar legislation in other states. At that time our neighbor State of Texas had a similar law, only it specified contracts in writing. Now, with such a model before them, if they had intended to limit the operation, of the statute to written contracts, they would have followed the model and have put into the statute the words \u201cwritten contracts.\u201d Instead, they have deliberately chosen to write into the act of 1859 the words \u201cany contracts,\u201d showing unmistakably an intention not to limit the operation of the statute to written contracts only, but to make it apply to oral contracts as well. At any rate, the language \u201cany contracts\u201d is certainly broad enough to include oral contracts. To construe the statute as meaning only written contracts, would, in effect, change its language by writing into it the word \u201cwritten\u201d before the word \u201ccontract.\u201d Where the language of a statute is unambiguous, the intention of the Legislature must be gathered therefrom. If we change it, we thereby encroach upon the peculiar function of the sovereign power lodged in a co-ordinate branch of the Government. Although as individual judges, some of us doubt the wisdom of lodging the important power prescribed by this special statute in probate courts, whose judges are not required to be lawyers, and who may not therefore have the technical knowledge necessary to best determine such an issue, yet it nevertheless appears to a majority of us that the law is so written, hence it must be enforced as enacted.\nIII. The appellants contend in the last place that the proof is not sufficient to sustain the findings and judgment of the court. The broad language \u2018 \u2018 any contracts \u2019 \u2019 is sufficient to confer jurisdiction upon probate courts over the subject-matter regardless of whether the contract has been partly performed. 'Whether probate courts would abuse their discretion and commit reversible error in making the order in cases where the contract had not been performed or partly performed by one of the parties to it, does not arise and need not be decided now. For here the contract was sufficiently performed by the association.\n(5) The facts briefly stated, are as follows: D. J. Young died February 21, 1915. He was indebted to the association in the sum of $24,154.59. The court found, and there is no evidence in appellant\u2019s abstract to the contrary, that his estate was solvent. The association, for some time prior to Young\u2019s death, had been pressing him for a settlement. On October 12, 1914, a written agreement was entered into by which Young aclarowledged indebtedness to the association in the sum of $25,000, and executed notes in the aggregate for $15,000 of the indebtedness, evidenced by three notes for $5,000, payable at future dates named, with interest, and as security for the payment of these notes at the times mentioned, Young pledged stock in certain corporations shown to be of the face value of $56,700, and to have almost that actual value. Young, in several letters, had offered to settle his indebtedness to the association by a conveyance of unincumbered real estate. Young was also indebted to the First National Bank of Fort Smith, and it held a mortgage on certain of his real estate to secure that indebtedness.\nAfter considerable negotiation, evidenced by letters and as shown by personal interviews, the association accepted Young\u2019s proposition and agreed to take real estate in settlement of his debt. They agreed upon the real estate that should be conveyed, which included a part of the real estate of Young upon which the bank had a mortgage. To secure the release of this mortgage, Young and the bank entered into an agreement whereby the association was to deliver the stock which it held as collateral for Young\u2019s debt to the bank, and the bank agreed to take this stock as security for its debt, and in consideration of this stock, to release the real estate from the mortgage included therein, which Young had agreed to convey to the association. This agreement was consummated on the part of the bank, and the association in January, 1915, and was evidenced by written receipt of the bank showing that the association had delivered and it had accepted the stock in pursuance of the agreement.\nAfter the real estate to be conveyed had been definitely agreed upon, Young instructed the representative of the association to draw up the deed, which was done, and was ready to sign two or three days before Young\u2019s death. The representative of the association went to Young\u2019s residence with the deed for him to sign, but Young was then so near death\u2019s door that he was unable to sign the deed.\nOn April 15, 1915, the probate court ordered the administrators of Young\u2019s estate to execute the deed, and thus carry out the agreement entered into between D. J. Young in his lifetime and the association. The deed was executed the 19th day of April, 1915, and was signed by Angie E. Young and J. Ross Young, administrators, and also by Angie E. Young, the widow, and the heirs of D. J. Young, in their individual rights.\nThe mortgage of the association to the bank was introduced in evidence, showing that it had been filed for record December 14, 1914, and the release of the real estate covered by the three party agreement was endorsed on the mortgage under date of April 27,1915.\nIt was shown that as a part of the agreement entered into between Young and the association, the association was to pay the taxes which had accrued on the property, amounting to the sum of $1,409.19. These taxes were not paid by the association until after the probate court had ordered an execution of the deed.\nThe evidence was sufficient to sustain the finding and judgment of the court. The contract was proved, and such part performance thereof on the part of the association as would have entitled it to have the contract performed by Young had he lived. The surrender by the association of the valuable collateral to the creditor of Young, the benefit of which Young received, in pursuance of the agreement to do so, was sufficient to constitute a part performance. The surrender was irrevocable because the stock had been delivered by the association to, and received by, the bank, and the effect of this transaction, under the agreement, constituted a release of the real estate covered by the agreement and embraced in the mortgage from the time the stock was delivered to and accepted by the bank. The entering of the release or satisfaction upon the mortgage afterward was but an evidence of what, in legal effect, had already taken place. See King v. Williams, 66 Ark. 333. A more meritorious case for the application of the statute could scarcely be conceived.\nThe judgment is correct in all things, and it is therefore affirmed.\nMcCulloch, C. J., and Hart, J., dissent.\nAct 53, p. 113, Acts 1873\u2014Reporterv",
        "type": "majority",
        "author": "Wood, J.,"
      }
    ],
    "attorneys": [
      "Bead S McDonough and Kimpel & Daily, for appellant.",
      "John II. Vaughan, Geo. F. Youmans and Nagel <& Kirby, of St. Louis, Mo., for appellees.",
      "Bead & McDonough and Kimpel & Daily, for appellants, in reply.",
      "John H. Vaughan, George F. Youmans and Rose, Hemingway, Cantrell, Loughborough & Miles, for appellees."
    ],
    "corrections": "",
    "head_matter": "Arkansas Valley Trust Company v. Young.\nOpinion delivered March 12, 1917.\n1. Administration\u2014agreement op deceased to convey land\u2014 POWER OP PROBATE COURT TO ORDER A CONVEYANCE.\u2014Kirby\u2019s Digest, \u00a7 213, gives an administrator, with the approval of the probate court, authority to convey land belonging to deceased to a third party in pursuance of an agreement between deceased and the third party, where the administrator is satisfied that payment has been made therefor according to the contract. The statute merely grants to the administrator this discretion, and does not confer upon the probate court jurisdiction to enforce the equitable remedy of specific performance.\n2. Administration\u2014authority op probate courts.\u2014Probate courts are the guardians of the estates of deceased persons, and have the custody of such estates for the purpose of settling the debts and performing the contracts entered into by the decedent. It is their duty to administer these estates in the most expeditious and frugal manner consistent with the rights and interests of all concerned. Kirby\u2019s Digest, \u00a7 213, gives a more direct and expeditious relief than that under the right of specific performance in proceedings in chancery.\n3. Administration\u2014agreement to convey land by deceased\u2014 oral agreement.\u2014Deceased agreed orally to convey certain land to one A. but died before making the conveyance. Held, under Kirby\u2019s Digest, \u00a7 213, the administrator may make a valid conveyance of the same to A. with the approval of the probate court.\n4. Administration\u2014statute op frauds.\u2014Where the personal representative of a decedent cannot plead the statute of frauds, a judgment creditor cannot do so.\n5. Administration\u2014contract to convey land\u2014deed by administrator.\u2014Deceased was indebted to one A. and in order to pay the debt agreed to convey certain lands to him, A. in turn surrendering certain securities which he held as collateral. Before the deed was executed deceased'died. Held, the facts presented a case for the application of Kirby\u2019s Digest, \u00a7 213, and that a conveyance by the administrator to A., under authority of the probate court, was valid.\nAppeal from Sebastian Circuit Court, Fort Smith: District; Paul Little, Judge;\naffirmed.\nBead S McDonough and Kimpel & Daily, for appellant.\n1. Probate courts are not courts of equity\u2014they have no chancery jurisdiction to enforce the specific performance of contracts. Any authority to justify the order here must be found under Kirby\u2019s Digest, \u00a7 213, Acts 1859, No. 181. This is a special power and must be exercised as such. Courts of chancery do, under certain circumstances, decree specific performance of oral contracts for the conveyance of real property. This is an equitable remedy and is exercised only by courts of chancery, and by them with caution. 39 Ark. 429.\n2. This statute has been on the books since 1859. The probate court is one of limited jurisdiction, and the Legislature could not authorize an administrator to make a conveyance. The order was void. 50 Ark. Law Eep. 90.\nIt was never intended to vest in probate courts jurisdiction to enforce or decree specific performance. Eev. St., chap. 23, \u00a7 1; Kirby\u2019s Digest, \u00a7 \u00a7 213, 214, 209, 212, etc.\n3. The proof was not sufficient to authorize specific performance by a court of chancery on the ground of partial performance. 41 Ark. 97.\nJohn II. Vaughan, Geo. F. Youmans and Nagel <& Kirby, of St. Louis, Mo., for appellees.\n1. The estate was solvent as found by the probate court.\nThe probate court had jurisdiction to make the order under the act of February 21, 1859, Kirby\u2019s Digest, \u00a7 \u00a7 213, 214. The homestead is not involved here as in 50 Ark. Law Eep. 90. This is the only case construing this act. The contract here is one that could have been enforced against Young specifically if he had lived. 66 Ark. 333; 50 S. W. 695.\nBead & McDonough and Kimpel & Daily, for appellants, in reply.\n1. Probate court 'had no jurisdiction to make the order. There was no written contract. In 123 Ark. 189 this court did not decide that the probate court had equitable jurisdiction to decree specific performance of an oral contract upon proof of part performance.\nThe contract here was void under our statute of frauds. 51 Me. 423; 49 Cal. 469, and cases cited in our brief, supra.\n2. There is no proof of part performance in the lifetime of Young.\nJohn H. Vaughan, George F. Youmans and Rose, Hemingway, Cantrell, Loughborough & Miles, for appellees.\n1. Oliver v. Routh, 123 Ark. 189, does hold that section 213 does confer the power upon the probate court to enforce an oral contract to convey lands where partial performance is shown under the equity rule. Section 213 is a valid statute. Const. 1836, art. 6, \u00a7 \u00a7 6 and 10; Acts 1873, p. 113; Const. 1874, art. 7, \u00a7 \u00a7 15, 34, etc. The jurisdiction is now the same as it was before the transfer of probate jurisdiction to the circuit court by Acts 1873. 33 Ark. 575, 727; 50 Ark. 34.\nThe act merely provides a cumulative remedy. Suth. on Stat. Const., \u00a7 505, p. 505, and cases cited; 8 Ark. 9; 50 Id. 34; 119 Mass. 482.\nThe giving of a limited jurisdiction to enforce specific performance, etc., of contracts to convey land, entered, into by the testator or intestate during life is a subject-matter properly within the jurisdiction \u201cpertaining to probate courts\u201d and the \u201cestates of deceased persons,\u201d and is not foreign to such jurisdiction. Woerner un Adm. (2 ed. star, p. 350); 5 Sawy. (U. S.) 229; 217 U. S. 331; 53 Atl. 746, 750; 54 Id. 938; 51 Me. 423; 82 ' Pae. 68; 104 N. W. 467; 81 Pac. 334-6; 117 S. W. 730; 89 Pac. 477; 41 N. W. 977; 20 Wall. 375; 128 U. S. 53, 86; 17 Mo. 347; 80 Pac. 38; 20 Ga. 142; 38 Conn. 86; Pom. Spec. Perf., \u00a7 497, and others.\n2. The contract was enforceable in equity. 66 Ark. 333; 107 Id. 473; 81 Id. 70.\n3. The statute of frauds does not apply and this proceeding is not one within the usual cognizance of courts of equity. 36 Cyc. 543, 758; 20 Enc. PL & Pr. 389; 3 Pom. Eq., \u00a7 1400.\nThe probate court has jurisdiction over matters affecting the estates of deceased persons, to the extent prescribed by law. 67 Ark. 522; 123 Id. 211, 222; 82 Pac. 68; 61 N. H. 624; 95 N. E. 973; 163 U. S. 625; 94 Id. 320; 170 Id. 288; 203 Id. 552, etc.\n4. The defense of the statute of frauds may be waived. 96 Ark. 186, 194; 71 Id. 302. A stranger nor a creditor can not plead it. 11 .Neb. 222; 49 Tenn. 127; 71 Ala. 202; 72 Ind. 505; 109 Fed. 48. A contract within the statute is voidable only, not void. 15 O. 569, 572; 17 Mo. 347; 18 Pick. 369; 22 Ark. 290; 108 Ark. 80; 84 Id. 61; 50 Id. 228. An administrator is not bound to plead limitation or the statute of frauds.\n5. The statute is not confined to written contracts. See also 1 Fed Cases, 132.\nSTATEMENT BY THE COURT.\nAppellees, as administrators of the estate of D. J. Young, deceased, presented a petition to the probate court of Sebastian County, alleging that D. J. Young, a short time prior to his death, agreed with the Anheuser-Busch Brewing Association (hereinafter for convenience called the association) to convey to it certain real property, describing it, in satisfaction of his indebtedness to it in the sum of $24,154.59. They alleged that D. J.-Young was solvent; that the widow and heirs of Young desired to carry out the agreement he made with the association and pursuant thereto had executed a deed conveying the property described in the petition to the association. They set forth that if the real property described in the petition were conveyed to the association in satisfaction of Young\u2019s debt to it that there would be ample assets of the estate left for the payment of all other debts and liabilities; that the satisfaction of the debt of Young to the association would be a fair consideration for the real property described in their petition, and they prayed an order of the probate court authorizing and directing them to make the conveyance.\nThe probate court granted the prayer of the petition and entered an order directing the administrators to execute a deed conveying the property described in the petition to the association in satisfaction of Young\u2019s indebtedness to it.\nThe appellants, who were judgment creditors of the estate of Young, duly prosecuted their appeal to the circuit court, and in that court they demurred to the petition, and also answered denying specifically all of its allegations, and setting up that there was no contract entered into between D. J. Young and the association and no memorandum in writing of the alleged agreement between Young and the association for the conveyance of real property signed by him or any one by him properly authorized. Appellants contended that a conveyance under the order of the probate court would be void under the statute of frauds, and also challenged the jurisdiction of the court to make the order.\nIt is conceded that there was no written contract between Young and the association by which the former agreed to convey to the latter real estate in payment of a debt. But it was contended by the petitioners that the testimony .showed an oral contract with such part performance on the part of the association as would have entitled it to a deed had Young lived. The circuit court so found and entered its judgment affirming the judgment of the probate court directing the petitioners to make the deed. This appeal followed from that judgment. Other facts stated in the opinion."
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