Webber v. Webber

 John L. WEBBER, Franklin L. Webber, 
George E. Webber, Martha L. Roach, and 
Gloria F. Keathley v. Virgie WEBBER

97-602                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 12, 1998


1.   Appeal & error -- chancery cases -- standard of review. -- The supreme
     court tries chancery cases de novo on the record but does not
     reverse a finding of fact by the chancellor unless it is
     clearly erroneous; to demonstrate that a chancellor's ruling
     was erroneous, appellants must show that the trial court
     abused its discretion by making a decision that was arbitrary
     or groundless. 

2.   Deeds -- construction of -- ascertaining intent of parties. -- When the
     supreme court is called upon to construe deeds and other
     writings, it is concerned primarily with ascertaining the
     intention of the parties, and such writings will be examined
     from their four corners for the purpose of ascertaining that
     intent from the language employed.

3.   Deeds -- review of -- court's first duty. -- In reviewing
     instruments, this court's first duty is to give effect to
     every word, sentence, and provision of a deed where possible
     to do so.

4.   Dower & curtesy -- indivisible property -- probate court may order rented
     or sold. -- When a probate court finds that land cannot be
     divided in kind to effectuate dower rights, it may order the
     property rented and the rental divided, or it may order the
     property sold and the proceeds divided; there is no authority
     that would allow the chancery court to receive evidence of the
     property's value and then place a value on the property
     accordingly.

5.   Dower & curtesy -- sale of land to effectuate dower rights -- chancery
     court not clearly erroneous in ordering. -- The supreme court could
     not say that the chancery court was clearly erroneous in
     ordering a sale of the decedent's land and not a division of
     rentals to secure appellee's dower interest where the chancery
     court made its decision based on Ark. Code Ann.  18-60-401
     (1987) after a hearing with testimony from both sides; after
     finding that the land was not divisible in kind, the chancery
     court followed the only appropriate option advanced by
     counsel, a sale, as an appraisal could not be ordered.

6.   Appeal & error -- arguments raised for first time on appeal not addressed.
     -- Where the abstract does not reflect that an argument was
     made in the trial court, the supreme court will not reach the
     merits of the argument on appeal; arguments raised for the
     first time on appeal will not be addressed. 

7.   Property -- "land" defined. -- It is settled law that "land" is
     everything that lies below the surface or is attached thereto
     by the processes of nature or of art.

8.   Property -- crops become personalty when severed. -- Crops become
     personalty when they are severed.

9.   Dower & curtesy -- right of dower remains inchoate until husband's death.
     -- A widow's right of dower, even in real property, remains
     only an inchoate right until the husband's death.

10.  Property -- status of estate fixed upon death. -- The status of an
     estate is fixed upon death, and the property interest is in
     the property as it existed at that time.

11.  Dower & curtesy -- appellee's dower interest in crops vested on husband's
     death -- entitled to one-third share of net proceeds. -- The supreme
     court agreed with the chancery court that appellee's dower
     interest in crops vested upon the death of her husband and, as
     such, was a life estate; thus, she was entitled to a one-third
     share of the net proceeds of the crops in question.


     Appeal from Prairie Chancery Court, Northern District; Jim
Hannah, Chancellor; affirmed.
     Robert M. Abney, P.A., for appellants.
     Randall L. Gammill, for appellee.

     Donald L. Corbin, Justice.
     This is an appeal by Appellants, John L. Webber, Franklin L.
Webber, George E. Webber, Martha L. Roach, and Gloria F. Keathley,
who assert that the Chancery Court of the Northern District of
Prairie County erred in ordering a sale of land and an interest in
crops in the award of dower rights to Appellee Virgie Webber.  Our
jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(16) as this
case involves construction of deeds and the award of dower.  We
affirm.
     Mark Webber, the decedent, owned approximately 348 acres of
land in Prairie County, Arkansas.  On June 18, 1990, a deed was
executed, delivered, and filed from Mark Webber, grantor, to
Appellants as tenants in common and grantees to the real estate
that Mark Webber owned.  Subsequently, on July 6, 1990, a
correction deed was filed from grantor to grantees correcting the
description of the original deed and reserving to the grantor a
life estate in the subject property.  At the time of execution of
the deeds, Mark Webber was married to Appellee, having been married
on May 26, 1984.  She did not join in the execution of the deeds. 
In April of 1996, pursuant to a power of attorney, a deed was
executed from Mark Webber to Appellants for the purpose of
terminating his life estate in the subject property.  Mark Webber
died on June 2, 1996.
     On October 14, 1996, Appellee filed a complaint in the
chancery court of Prairie County, against Appellants and Loy Kee,
Jr., to have her dower, in the real property deeded from Mark
Webber to his children, established and commuted to a present
interest.  Appellee brought her action under Ark. Code Ann.
 18-60-401 (1987), which provides in pertinent part:
     [A]ny persons having any interest in, and desiring a
     division of, land held in joint tenancy, in common, as
     assigned or unassigned dower, as assigned or unassigned
     curtesy, or in coparceny, absolutely or subject to the
     life estate of another, or otherwise, or under an estate
     by the entirety where the owners shall have been
     divorced, except where the property involved shall be a
     homestead and occupied by either of the divorced persons,
     shall file in the circuit or chancery court a written
     petition. This petition shall contain a description of
     the property, the names of those having an interest in
     it, and the amount of the interest shall be briefly
     stated in ordinary language, with a prayer for the
     division and for a sale thereof if it shall appear that
     partition cannot be made without great prejudice to the
     owners. Thereupon all persons interested in the property
     who have not united in the petition shall be summoned to
     appear. 

Under Ark. Code Ann.  18-60-410 (1987), if any person summoned, as
provided in 18-60-401, desires to contest the rights of the
petitioners or the statements in the petition, he shall do so by a
written answer, and the questions of law and fact thereupon arising
shall be tried and determined by the court.  Under Ark. Code Ann.
 18-60-411 (1987), if any of the parties duly notified by personal
service or publication shall not appear and plead within the time
allowed by the court for that purpose, the default shall be
entered.  Kee was a tenant of the property.  The chancery court
found that Kee was served with a summons and complaint, but having
failed to file an answer, was in default.
     As provided in Ark. Code Ann.  18-60-412 (1987), the court
declared the rights, titles, and interests of all the parties to
the proceedings, petitioners as well as defendants. On February 26,
1997, the chancery court issued an order finding that Appellee was
entitled to a dower interest in the approximate 348 acres of
property, which dower interest would be a one-third interest for
life.  The court ordered that the property should be sold and from
the sale proceeds the dower interest should be commuted to a
present value and paid to the Appellee.  The court ordered further
that Appellee was awarded a one-third share of the 1996 crop
proceeds, as Mark Webber died prior to the crop being harvested.  
     Appellants raise two issues on appeal.  First, they assert
that the chancellor erred in ordering the sale of the property and
not a division of rentals.  They assert that Ark. Code Ann.  28-
39-306 (1987) provides for a sale only in probate courts and not in
chancery courts and is therefore in conflict with Ark. Code Ann. 
28-39-305 (1987) where a surviving spouse can be awarded one-third
of the net rental for life in lieu of dower.  Second, Appellants
contend that the chancellor also erred in awarding Appellee one-
third interest in the 1996 crop proceeds.  The crops were growing
at the time of her husband's death and, Appellants assert, the
husband had no interest in these crops at that time.
     We try chancery cases de novo on the record, but we do not
reverse a finding of fact by the chancellor unless it is clearly
erroneous.  Barber v. Watson, 330 Ark. 250, 953 S.W.2d 579 (1997). 
In order to demonstrate that the chancellor's ruling was erroneous,
Appellants must show that the trial court abused its discretion by
making a decision that was arbitrary or groundless.  Id.  When this
court is called upon to construe deeds and other writings, we are
concerned primarily with ascertaining the intention of the parties,
and such writings will be examined from their four corners for the
purpose of ascertaining that intent from the language employed. 
Brewer & Taylor Co. v. Wall, 299 Ark. 18, 769 S.W.2d 753 (1989). 
In reviewing instruments, this court's first duty is to give effect
to every word, sentence, and provision of a deed where possible to
do so.  Davis v. Griffin, 298 Ark. 633, 770 S.W.2d 137 (1989).  
     The chancery court ordered that Appellee was entitled to a
one-third interest in the land for her life as she did not join in
the execution of the deeds.  Under Ark. Code Ann.  28-11-201(a)
(1987), no act, deed, or conveyance executed or performed by one
spouse without the assent of the other spouse, evinced by
acknowledgment in the manner required by law, shall pass the estate
of dower or curtesy.  In her petition, Appellee alleged the real
property could not be divided in kind.  At the hearing on the
petition to allot dower, the chancery court heard testimony from
Appellants John L. Webber, Martha L. Webber Roach, and Appellee
Virgie Webber as to the description and possible uses of the
approximate 348-acre tract.  
     The testimony provided information to the court as to whether
the tract was divisible in kind.  The land consisted of a rice
farm, which requires irrigation.  There is a submersible well in
the northwest corner, one well by the house on the eastern boundary
and another on the western boundary.  The property had been in the
family since 1907.  As this was an ancestral estate, Appellants
requested the court to consider an appraisal of the land to
determine the value.  In her petition, Appellee sought an order to
sell the land so that the proceeds could be divided.
     Appellants contend the chancery court erred in ordering a
sale.  When a probate court finds the land cannot be divided in
kind to effectuate dower rights, it may order the property rented
and the rental divided, or it may order the property sold and the
proceeds divided.  Sections 28-39-305, -306; In Re:  Estate of
Jones, 317 Ark. 606, 879 S.W.2d 433 (1994); Harrison v. Harrison,
234 Ark. 271, 351 S.W.2d 441 (1961); Johnson v. Johnson, 92 Ark.
292, 122 S.W. 656 (1909).  Appellee filed her petition in chancery
court pursuant to section 18-60-401, which permits a person with an
unassigned dower interest to petition for a division and sale if it
appears that a partition would be prejudicial to the owners. 
Appellants requested an appraisal of the land at the hearing below. 
However, there is no authority that would allow the chancery court
to receive evidence of the property's value and then place a value
on the property accordingly.  Estate of Jones, 317 Ark. 606, 879 S.W.2d 433.  
     We cannot say that the chancery court was clearly erroneous. 
The court below made its decision based on section 18-60-401 after
a hearing with testimony from both sides.  After finding that the
land was not divisible in kind, the court followed the only
appropriate option advanced by counsel, a sale, as an appraisal
could not be ordered.  Appellants argue that a sale under section
28-39-306 applies only to probate courts, while section 28-39-305,
which provides for a division of rentals, does not specify a
jurisdiction and should have been utilized by the chancery court. 
However, this argument was not made below, and the chancery court
order specifically states that the sale was to be brought pursuant
to section 18-60-401 and does not include any mention of section
28-39-306.
     In any event, on appeal, Appellants contend that the chancery
court should have ordered a division of rentals under section 28-
39-305, which provides:
          In cases where lands or tenements will not permit
     division, the court, being satisfied of that fact or on
     the report of the commissioners to that effect, shall
     order that the tenements or lands be rented out and that
     one-third (1/3) part of the proceeds be paid to the
     surviving spouse in lieu of dower or curtesy in the lands
     or tenements. 

Appellants did not make this argument below.  Where the abstract
does not reflect that the argument was made in the trial court, we
will not reach the merits of the argument on appeal.  See Reeves v.
Hinkle, 326 Ark. 724, 934 S.W.2d 216 (1996).  The abstract reflects
in the hearing that Appellants asserted only that the land should
be appraised.  There is no further indication in the abstract that
Appellants made the argument concerning a division of rentals.  The
abstract does not contain an answer by Appellants, nor does it
demonstrate that the issue of division of rentals was addressed by
the chancellor either during the hearing or in the order.  We
reject Appellants' argument because it was not properly raised
before the trial court, and this court has repeatedly stated that
arguments raised for the first time on appeal will not be
addressed.  See, e.g., Houston v. Knoedl, 329 Ark. 91, 947 S.W.2d 745 (1997); Sebastian Lake Pub. Util. Co. v. Sebastian Lake Realty,
325 Ark. 85, 923 S.W.2d 860 (1996). 
     Appellants also contend that the decedent did not have an
interest in the crops when he died, therefore Appellee should not
have been awarded any dower interest in the crops.  The land in
question produced a crop which was harvested after Mark Webber died
on June 2, 1996.  It is settled law that "land" is everything that
lies below the surface or is attached thereto by the processes of
nature or of art.  Lewis v. Delinquent Lands, 182 Ark. 838, 33 S.W.2d 379 (1930).  Crops become personalty when they are severed. 
Bostic v. Bostic Estate, 281 Ark. 167, 662 S.W.2d 815 (1984).  A
widow's right of dower, even in real property, remains only an
inchoate right until the husband's death.  Mickle v. Mickle, 253
Ark. 663, 488 S.W.2d 45 (1972).  The status of an estate is fixed
upon death, and the property interest is in the property as it
existed at that time.  See Atkinson v. Van Echaute, 236 Ark. 423,
366 S.W.2d 273 (1963).  We agree with the chancery court that
Appellee's dower interest vested upon the death of her husband and,
as such, is a life estate.  Thus, she is entitled to a one-third
share of the net proceeds of the 1996 crops.
     Affirmed.
     Imber, J., not participating.