Aycock v. Bottoms

• Decision Date: 14 October 1940
• Docket Number: 4-6032
• Citation: 144 S.W.2d 43,201 Ark. 104
• Parties: AYCOCK v. BOTTOMS
• Court: Arkansas Supreme Court

144 S.W.2d 43

201 Ark. 104

AYCOCK v. BOTTOMS

4-6032

Supreme Court of Arkansas

October 14, 1940

Appeal from Miller Chancery Court; A. P. Steel, Chancellor affirmed.

Case affirmed.

Tiffany & Tiffany, Jos. J. Williams, Marvin J. Quillin and T. B Vance, for appellants.

Burford & Sanderson and Henry Moore, Jr., for appellees.

BAKER J. GRIFFIN SMITH, C. J., disqualified and not participating SMITH, J., dissents.

OPINION

BAKER, J.

No effort will be made to furnish a statement complete in details. We adopt in part almost identical language of some of the brief writers, particularly as to those parts of the background out of which has grown this litigation. We are told that Mr. and Mrs. Bottoms were married in 1882 and they lived together for 42 years, until Mr. Bottoms died, September 3, 1924. They had no children. At the time of Mr. Bottoms' death considerable property had been amassed, practically all of which then appeared in the name of Mrs. Bottoms as owner. In 1917, Mr. Bottoms prepared a statement, deposited in a lock box accessible to both himself and his wife. It is proper, perhaps, to suggest that Mrs. Bottoms never saw or, at least, never read this paper during the lifetime of Mr. Bottoms. The instrument dated January 11, 1917, and signed by Mr. Bottoms is the foundation upon which this suit was built. We copy said instrument:

"Texarkana, Arkansas,

"January 11, 1917.

"In the belief that at some time in the future a statement of the foundation of the means accumulated by myself and my wife might be of interest, I hereby make the following declaration:

"Prior to the year of 1885, I was employed as a clerk in various mercantile concerns at a small salary, but I always made it a rule to spend less than I made and saved a little money from year to year. In the year 1885, I became a partner in the lumber manufacturing firm of E. W. Frost & Company and contributed $ 4,000 to the firm's capital, the other members of this partnership being E. W. Frost and W. T. Ferguson each one of the three members having contributed the same amount of capital.

"Of the $ 4,000 capital contributed by me, I furnished $ 1,500 out of my own savings and my wife, Ida M. Bottoms, furnished $ 2,500 which amount she received from her father as a gift. The business of this firm was profitable and with the profits received from this enterprise I made other investments from time to time, which also proved profitable and the original investment has thus grown to a substantial sum.

"Since my wife contributed five-eighths of the amount of the original business investment out of which our present means have been accumulated she is in fact the owner in her own right of five-eighths of all the property we now have, whether the title to same stands in her name or mine.

"Transfers of property, acquired as above stated, which I have made or may hereafter make to my wife are therefore not gifts but conveyances of property actually belonging to her, to the extent of the proportionate amount of money furnished by her for the first investment above mentioned.

"(Signed) G. W. Bottoms."

Counsel for appellee say that Mr. Bottoms' purpose in executing this instrument was to avoid payment of death taxes as to the particular part his wife already owned and which he planned to transfer and give to her. That there may have been such purpose motivating the preparation of this writing is possible, and an understanding of its meaning will, to a great extent, settle the most important of the disputed questions.

Plaintiffs insist that it was Mr. Bottoms' intention to create a trust affecting at least three-eighths of the property standing in the name of himself and his wife; that the other five-eighths belonged to the wife and that she had the absolute title thereto. Appellants have identified the instrument and have frequently mentioned it in their brief as a "declaration of trust."

It is their contention that from an original investment of $ 4,000, $ 2,500 of which Mrs. Bottoms furnished as money she received from her father, and $ 1,500, the earnings and savings of Mr. Bottoms, the entire fortune was accumulated, and that the questioned instrument denotes a gravely planned design on the part of Mr. Bottoms to retain as his own, three-eighths interest even though the legal title to all of the property might appear in his wife's name and after Mr. Bottoms' death his widow, the appellee here, with full knowledge of this intention as evidenced by this paper-writing concealed the fact that this three-eighths interest belonged to her deceased husband and appropriated all of said property and used it as if it were her own.

Plaintiffs tender proof that they did not know of this instrument allegedly so concealed, nor of its effect until a few months before the institution of this suit. This is a matter asserted as the reason or cause of their delay of approximately fourteen years before suing Mrs. Bottoms for the three-eighths interest claimed by them as constituting the estate of G. W. Bottoms.

They also charge that about six months after Mr. Bottoms death a letter was written to Mrs. Bottoms inquiring about the Bottoms estate. This letter was answered by Mr. Wheeler as her agent who untruthfully advised that Mr. Bottoms had given to Mrs. Bottoms his entire estate, but that Mrs. Bottoms intended to remember G. W. Bottoms' heirs in her will. They averred also that Mr. Wheeler made no mention of this declaration by Mr. Bottoms, which they discovered or learned of about fourteen years thereafter. The effect of this pleading is to charge that Mrs. Bottoms took over the three-eighths of the property which was a trust fund and that her failure to disclose the fact of this trust in her hands, tolled the statute of limitations until the discovery of her fraudulent concealment. All plaintiffs were at the time of Mr. Bottoms' death more than 21 years of age.

Some of the controverted matters presented upon this appeal arise out of the fact that the appellant alleged that many of the facts they desired to establish, or prove were peculiarly within the knowledge of Mrs. Bottoms who had always had possession of all the papers and instruments of writing and muniments of title as to all matters related to the estate since the death of her husband, and that true and correct answers by her to interrogatories propounded by them would establish their claim to three-eighths of the value of the property whether held in the name of G. W. Bottoms or Ida M. Bottoms. This particular proceeding was under the provisions of the statutes now identified as § 1472, et seq., Pope's Digest.

The defendant, Mrs. Bottoms, did not make categorical answers to the interrogatories propounded, but pleaded her inability to do so for the reason that during the long delay of approximately 14 years she had kept no books, and that she had now grown old and did not remember many details of facts, but she expressly reserved the right to make correct answers in lieu of any of said answers made by her that might later be determined to be inaccurate.

Appellants sought to have Mrs. Bottoms answers to the interrogatories stricken for the reason that they were modified expressions and not positive declarations and that having failed to answer directly and positively, appellants insisted on a summary judgment against Mrs. Bottoms on account thereof. The court overruled this motion for a summary judgment and this was urged as one of the errors of the trial court.

While we are inclined to agree with the appellants that ordinarily when interrogatories are propounded because the answers thereto are peculiarly within the knowledge of the party questioned the proceeding is then within the contemplation of such statutes and untruthful or evasive answers should not be given, nor should they be accepted by the court, if it may reasonably be determined that the party answering is not acting in good faith.

But these provisions of the law, intended to simplify the procedure and to elicit facts, perhaps otherwise not discoverable, in order that justice and right might prevail, were not formulated to be used as an engine of oppression, to take away one's rights for the sole reason that the party questioned was unable to make reply satisfactory to the questioner.

As we understand the issues presented, as they arose from time to time in this rather lengthy proceeding, the chancellor deferred nearly all rulings until the final hearing upon the trial.

Whether that be true as to this particular issue, we find that the record discloses that Mrs. Bottoms, although she had at one time been very active, had attained the age of 79 years, was suffering with the physical weakness frequently present at that age and on account of that, a degree of senility; was nervous, and somewhat easily disturbed, and she was, by her physician, found to be in no condition to be present in court to give her testimony, and be cross-examined.

We know of no authority, and appellants have not cited any to the effect that the trial court might not exercise a sound judicial discretion, under the circumstances prevailing, and deny the motion of appellants for a summary judgment. To hold otherwise would establish a rule that the more helpless physically or mentally a party to a suit might be, or become the more easily he could be stripped of his property by a summary judgment without error on the part of the trial court. Certainly, no such purpose was ever written into the law and we will not add such an one by interpretation. Mrs. Bottoms' answers to the interrogatories disclosed that she had, perhaps, something more than $ 400,000 which had been issued to her in stocks in several different corporations. Most, if not all of these...