Aycock v. Bottoms

• Decision Date: 14 October 1940
• Docket Number: No. 4-6032.,4-6032.
• Citation: 144 S.W.2d 43
• Parties: AYCOCK et al. v. BOTTOMS et al.
• Court: Arkansas Supreme Court

144 S.W.2d 43 AYCOCK et al.
v.
BOTTOMS et al. No. 4-6032. Supreme Court of Arkansas. October 14, 1940. Rehearing Denied November 25, 1940.

Page 44

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

Suit by William T. Aycock and others against Ida M. Bottoms and others to recover property allegedly constituting the estate of G. W. Bottoms, deceased. From an adverse decree, plaintiffs appeal.

Affirmed.

Tiffany & Tiffany, of Norfolk, Va., Jos. J. Williams, of Richmond, Va., and Marvin J. Quillin and T. B. Vance, both of Texarkana, for appellants.

Burford & Sanderson and Henry Moore, Jr., all of Texarkana, for appellees.

BAKER, Justice.

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

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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-eights 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-eights 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, or 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'...