{ "id": 1462490, "name": "Browning v. Berg", "name_abbreviation": "Browning v. Berg", "decision_date": "1938-06-13", "docket_number": "4-5111", "first_page": "595", "last_page": "602", "citations": [ { "type": "official", "cite": "196 Ark. 595" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "122 S. W. 656", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "92 Ark. 292", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1548604 ], "opinion_index": 0, "case_paths": [ "/ark/92/0292-01" ] }, { "cite": "200 S. W. 505", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "132 Ark. 64", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1576714 ], "opinion_index": 0, "case_paths": [ "/ark/132/0064-01" ] }, { "cite": "195 S. W. 674", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "66 S. W. 2d 300", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "188 Ark. 316", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1428331 ], "opinion_index": 0, "case_paths": [ "/ark/188/0316-01" ] }, { "cite": "148 S. W. 1038", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "104 Ark. 187", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1350619 ], "opinion_index": 0, "case_paths": [ "/ark/104/0187-01" ] }, { "cite": "49 S. W. 2d 377", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "185 Ark. 762", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1435141 ], "opinion_index": 0, "case_paths": [ "/ark/185/0762-01" ] }, { "cite": "276 S. W. 586", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "169 Ark. 657", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1374003 ], "opinion_index": 0, "case_paths": [ "/ark/169/0657-01" ] }, { "cite": "195 S. W. 694", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "129 Ark. 301", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1580385 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/129/0301-01" ] }, { "cite": "27 Ark. 295", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885741 ], "opinion_index": 0, "case_paths": [ "/ark/27/0295-01" ] } ], "analysis": { "cardinality": 686, "char_count": 14193, "ocr_confidence": 0.513, "pagerank": { "raw": 8.05696394296089e-08, "percentile": 0.4662910849242562 }, "sha256": "3dac4a798e65d83d88c6705158b0e7d9779f24a55d96fa1c0f8ab0fb54748679", "simhash": "1:ad84b723d4b4b40f", "word_count": 2480 }, "last_updated": "2023-07-14T16:57:18.765663+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Browning v. Berg." ], "opinions": [ { "text": "Griffin Smith, C. J.\nFor herself, and on behalf of her minor children, Julia Koers Browning prosecutes this appeal from a decree awarding dower to Clara Berg Koers. While the suit was pending Mrs. Koers died, and the action was revived in the name of Fred C. Berg, administrator, et als.\nThe administrator\u2019s intestate was the widow of Georg\u00e9 Victor Koers. Mr. Koers is a brother of Mrs. Browning.\nBy will George V. Koers named Union National Bank trustee of his estate, directing payment to his wife of a sufficient sum \u201cto support her in that degree and station of life to which she is entitled,\u201d to be not less than $100 per month; also, that she select any house to be used \u201cfree of any rent or other charges.\u201d There was this provision: \u201cIn the event of the death of my wife, Clara Berg Koers, and there shall be no children of our marriage or any of their descendants surviving her, then upon her death the trust hereby created shall terminate and all of the property in the hands of the said trustee, including my accumulated income thereon, shall be by said trustee transferred, conveyed and delivered to the children of my sister, Julia Koers Browning, including any children which may be hereafter born to her prior to the date of the death of my wife. ... In the event of any sale of real property by said trustee, I hereby request that my sister, Mrs. Julia Koers Browning, be given the opportunity to purchase said property at the price obtainable and acceptable to said trustee.\u201d\nNo children were born to Mr. and Mrs. Koers.\nBy appropriate proceedings Mrs. Koers renounced the will and elected to take dower, thereafter filing her complaint in chancery. By an order of August 2, 1935, from which there was no appeal, the court determined that the value of personal property was $27,413.21, and assigned to Mrs. Koers a one-half interest therein, less $4,000 previously advanced. There was a further finding that certain real properties in Pulaski and Lonoke counties, ormed by Koers at the time of his death, were new acquisitions, and that certain other properties were of ancestral origin. Included in the property acquired during the life of George V. Koers was the homestead in Little Rock. As to all new acquisitions the court found that the widow was endowed of an undivided one-half interest in fee simple. There Avas also a finding designating the ancestral estate, and that the widow Avas entitled to a one-half interest therein for life.\nThere was this further finding: \u201cCommissioners should be appointed to lay off and assign to the plaintiff in severalty and in fee simple title her dower interest in that part of the real estate owned by George Victor Koers at the time of his death as a new acquisition, and to lay off and assign to said plaintiff in severalty, for and during her natural life, her doAver interest in that portion of the aforesaid real estate OAvned by George Victor Koers as an ancestral estate; provided, that of the aforesaid real estate there shall be assigned to the plaintiff, to be held by her as tenant in common, with the owners, as tenants in common, of the other undivided interests therein, [certain other properties described in the decree].\u201d\nThe commissioners named in the decree listed real property under eight descriptions of the aggregate value of $40,000. Following the itemization there is this: \u201cTaking into consideration the cash or extrinsic value of said property, together with the quantity, quality and intrinsic value thereof and the legal interests of the plaintiffs and defendants in and to said property, and in carrying out the terms of the decree herein to lay off and assign to the plaintiff, Clara Berg Koers, in severalty her dower interest in the aforesaid real estate, we . . . have laid off and assigned to the'plaintiff in severalty and in fee simple title the following.\u201d Five tracts were then described, of the aggregate value of $16,500, and it was said: \u201cAfter making said assignment of said property in severalty and in fee simple title to the plaintiff as her dower interest in the real estate described in said decree, there is left to the defendants in this action the following described real estate in fee simple title.\u201d\nThree tracts of the aggregate value of $23,500 are set out, with the comment: \u201cYour commissioners further state that they have used their best efforts in making the assignment of dower to the plaintiff in accordance with the provisions and terms of the decree.\u201d\nAmong the five items aggregating $16,500 assigned (o the widow in fee were lots 11 of block 425, and 19- of block 22, one-half being of ancestral origin, and one-half new acquisition. Full values were $2,500 and $4,500, respectively. Deducting one-half the value of lot 11 ($1,250), and one-half the value of lot 19 ($2,250) as interests apportionable to ancestral classification, it will be seen that of the five pieces of property recommended by the commissioners to be assigned to the widow in fee simple, one-half of the aggregate value of lots 11 and 19, or $3,500, was of ancestral origin, and such values were used by the commissioners in arriving' at the recommended award of $16,500 to the widow in fee.\nReport of the commissioners was filed January 22, 1936. March 26 exceptions were filed, in which it was stated: \u2018 \u2018 The commissioners . . . have laid off and awarded to Clara Berg Koers, the widow, all of the lands in which she holds any fee simple interest, although she only holds from a one-fourth to a one-half interest in each of said pieces of property; that they awarded to the defendants herein in fee only those properties which they already owned the entire fee of and in which Clara Berg Koers owns no portion of the fee. That said division is further unjust and unequal.in that the properties awarded to Clara Berg Koers have an estimated net income annually of $2,355.87, whereas the property awarded the defendants has an estimated net annual income of only $1,309.98. That the proper division to make, of said lands would be to divide the lands held as a new acquisition in said estate by awarding equal portions of said lands in value to plaintiff and to defendants and to permit the properties of the ancestral estate to continue in the possession of the trustee appointed in the will, or such other trustee as may he selected by the court, and have said trustee divide the net income on said property between the plaintiff and the defendants.\u201d\nThe report was approved and confirmed May 6,1936.\nSeptember 28, 1936, there was this order: \u201cThe death of Clara Berg Ivoers is suggested, and the court is of the opinion that the decree heretofore rendered in this cause should be vacated. . . . This order is granted to enable the defendants to present the matter at the coming term of court. \u2019 \u2019\nIn response to motion of November 7, 1936, to revive, it was urged: \u201cFinal decree was entered in this cause on the 6th day of May, 1936, and no appeal has been taken therefrom. Clara Berg Koers died August 24, 1936. The order entered in this action on the 28th day of September, 1936, vacating and setting aside the decree, was made without notice to these defendants and without any petition being filed setting forth grounds for vacating said, decree and without any testimony being heard in support of the order. . . . Said order . . . is therefore null and void. The term of court in which said decree was entered has lapsed, and this court does not now have jurisdiction to revive this action for any purpose whatever.\u201d\nA demurrer to the response was sustained, followed [December 8, 1937] by a decree confirming the report of the commissioners. There appears this language: \u201cThe order entered September 28, 1936, setting aside the decree entered in this action on May 6,1936, was not made upon a determination by the court that the decree entered May 6, 1936, was wrong, but solely upon the ground that the term of court was about to expire, and the decree was vacated solely for the purpose of enabling the defendants to present the matter further at a subsequent term of the court.\u201d\n. ' The first question to be determined is whether the court erred in setting aside the decree of May 6.\nThe decree was set aside during the term in which rendered, and it is conceded by appellees that the general rule is that courts have the inherent right, during term, to set aside judgments and decrees. It is urged, however, that there is an exception to the rule. Counsel say: \u201cEven though the court did possess the inherent power to set aside and vacate the decree, appellees earnestly contend that it could not legally do so without good cause being shown therefor, or at least that it abused its discretion in so doing, and that the decree of May 6, 1936, became final and binding upon the appellants, and that an appeal from the decree of December 8, 1937, cannot afford them any relief.\u201d Attention is directed to Underwood v. Sledge, 27 Ark. 295; Midyett v. Kerby, 129 Ark. 301, 195 S. W. 694; T. J. Moss Tie Co. v. Miller, 169 Ark. 657, 276 S. W. 586; American Building & Loan Association v. Memphis Furniture & Mfg. Co., 185 Ark. 762, 49 S. W. 2d 377, and Hare v. Ft. Smith & Western Ry. Co., 104 Ark. 187, 148 S. W. 1038.\nIn none of these cases is there a holding that courts do not have the power, during term, to vacate judgments or decrees, and the law is otherwise. In Union Sawmill Company v. Langley, 188 Ark. 316, 66 S. W. 2d 300, it is said: \u201cWe have repeatedly held that, during the term of court at which a judgment is rendered, the court has the inherent power to set aside the judgment, and it may do so without stating any cause. . . . We know of no case . . . that prohibits a court from controlling its orders and judgments during* the term in which they were entered.\u201d In an older case, Midyett v. Kerby, 129 Ark. 301, 195 S. W. 674, we held that: During the term in which judgment was rendered, it might be set aside for sufficient cause without notice to the party affected, unless notice is required by statute or rule of court.\u201d\nIt may be urged that the language in the Langley Case, . . . \u201cit may do so without stating a cause,\u201d impliedly holds there must be cause, but that such cause need not be stated by the court. In the instant case the chancellor, at the term from which this appeal comes, explained what his purpose was. Yet, regardless of the apparent sufficiency or insufficiency of the reason, the fact remains that it was the court\u2019s intention to set the decree aside, and this right is not to be denied. A sufficient purpose was stated: . . . \u201cto enable the defendants to present the matter at the coming term of court.\u201d\nSection 442.1 of Pope\u2019s Digest is: \u201cIf a husband die leaving a widow and no children, such widow shall be endowed in fee simple of one-half of the real estate of which said husband died seized, where said estate is a new acquisition and not an ancestral estate; ... if the real estate of the husband be an ancestral estate she shall be endowed in a life estate of one-half of said estate as against collateral heirs. \u2019 \u2019\nThe order of the court was that the commissioners should . . . \u201clay off and assign to the plaintiff in severalty and in fee simple title her dower interest in that part of the real estate owned by George Victor Koers at the time of his death as a new acquisition. \u201d...\nThe commissioners, in their report, stated that they had used their best efforts in making \u2022 assignment of dower \u201cin accordance with the provisions and terms of the decree.\u201d\nNo doubt the commissioners felt that the assignments were equitable; and, although the court, after having once confirmed and'then set aside the report, again confirmed it, the presumption that the chancellor concluded to vary the original order must attach. It was within the power of the court, even after the commissioners made recommendations at variance with directions, to .confirm the report on the theory that the result was equitable, and the original directions will be treated as amended. But this can not be.done if recommendations are out of harmony with statutory provisions, or with decisions of this court..\nIn Mayo v. Arkansas Valley Trust Company, 132 Ark. 64, 200 S. W. 505, it was said: \u201cUnder the statute, the widow\u2019s dower is divided into two classes for the purpose of estimating dower, real and personal, and dower is to be set apart in each class separately, and no deficiency in one class can be made up from the other.\u201d\nIn Schribner on Dower, Second Edition, Vol. 2, page 585, it is said: \u201cIt is not competent to assign to the widow a portion of the land in fee, equal to her dower in the whole, for this would be, in effect, to make her a coheir. \u2019 \u2019\nIn Johnson v. Johnson, 92 Ark. 292, 122 S. W. 656, it was held that the widow\u2019s dower should either-be carved out of the specific property possessed by the deceased husband or be allotted out of the proceeds of a sale thereof when it cannot be divided without prejudice, and that such portion of the proceeds should be paid to the widow in lieu of dower as to the court may seem equitable and just. [Quoting headnote.]\nAt the time this cause was finally heard, the widow had died, thereby terminating the life estate.\nThe will of George Y. Koers expresses his wish that Mrs. Browning succeed to all rights not reserved to the widow; and, even if the widow did renounce the will, we must not lose sight of the fact that it was the testator\u2019s purpose to pass the property on to his own collateral heirs, should he and Mrs. Koers die childless..\nIf the showing had been that division of the real property could only be made through resort to substitutions not contemplated by the letter of the law, it would have been within the power of the chancellor to direct an equitable division by vesting and divesting titles within reasonable limitations. Here, however, there was no such showing. The decree is reversed, with directions to set aside the order of confirmation, to reopen the controversy, and to proceed in a manner not inconsistent with this opinion.", "type": "majority", "author": "Griffin Smith, C. J." } ], "attorneys": [ "John Sherrill, and Frank Wills, for appellants.", "Donham & Fulk, for appellees." ], "corrections": "", "head_matter": "Browning v. Berg.\n4-5111\nOpinion delivered June 13, 1938.\nJohn Sherrill, and Frank Wills, for appellants.\nDonham & Fulk, for appellees." }, "file_name": "0595-01", "first_page_order": 613, "last_page_order": 620 }