Barron v. Stuart

• Decision Date: 11 November 1918
• Docket Number: 237
• Citation: 207 S.W. 22,136 Ark. 481
• Parties: BARRON v. STUART
• Court: Arkansas Supreme Court

207 S.W. 22

136 Ark. 481

BARRON v. STUART

No. 237

Supreme Court of Arkansas

November 11, 1918

Appeal from Greene Chancery Court; Archer Wheatley, Chancellor reversed.

STATEMENT OF FACTS.

Appellants who were the daughters and grandchildren of J. W. Stuart deceased, brought this suit in equity against appellee, who were the sons and the widow of J. W. Stuart, deceased, and the object of the suit was to establish a trust in certain property devised by said J. W. Stuart to his wife, M. R. E Stuart.

Appellees answered, denying the trust and averring that the property was left to Mrs. M. R. E. Stuart absolutely under the terms of the will.

J. W Stuart was born in Greene County, Arkansas, and lived there all his life. He was sixty-eight years old when he died, and he and M. R. E. Stuart had lived together as husband and wife for forty-eight years. He left surviving him five sons, two daughters and the children of three deceased daughters. Neither J. W. Stuart, nor his wife, M. R. E. Stuart, were able to read or write, but J. W. Stuart had a strong mind and possessed to a marked degree the ability to make money. At the date of his death he possessed property variously estimated at from $ 111,000 to $ 250,000. His property consisted of a number of improved farms, a large tract of wild land, a large number of cattle and horses, a great quantity of corn and cotton, also some wheat, due bills, promissory notes, and a large amount of money deposited with various banks and mercantile establishments in the cities of Paragould and Jonesboro, Arkansas. During the last eight or ten years of his life, his oldest son, J. A. Stuart, signed his name to checks and looked after his business affairs generally. In July, 1916, J. W. Stuart was kicked by a mare, and died in about eleven days thereafter as a result of his injuries. The mare kicked him on Tuesday, the 18th day of July, 1916, and he died on Friday, the 28th day of July following. Two days after J. W. Stuart was hurt his son, J. A. Stuart, went to a justice of the peace and brought him to the house for the purpose of preparing and acknowledging a deed from his father to Ab Stuart, his youngest son. On his way up there the justice of the peace met up with the attending physician, who told him that J. W. Stuart was fatally injured and that he ought to make a will. The justice of the peace prepared the deed and took the acknowledgment of J. W. Stuart thereto as requested. He was then asked to prepare another deed and declined because he had no more blank deeds. The attending physician also told J. A. Stuart that his father was not likely to get well. On Thursday night following the injury the attending physician told J. A. Stuart that he had lost all hope of his father recovering from his injuries. The wife of J. W. Stuart was in constant attendance at his bedside from the time he was injured until he died. His children and grandchildren, a brother and other relatives were there most of the time after he received his injuries until he died. It was late Thursday night when the attending physician told J. A. Stuart that his father could not recover. J. A. Stuart informed his father and the other children around his bedside that he could not recover. J. W. Stuart broke down and cried when he was told that there was no chance for him to recover from his injuries. After a little while he rallied and began to talk to his children about the disposition of his property. He called over his farms by name and told which one he wanted each of his children to have. He also spoke of the timber lands which he owned and directed how they should be divided. He also directed how the corn and cotton, which was being raised on his various farms that year, should be divided when gathered. He told them how to divide his horses and cattle and the money and other personal property which he possessed. He wanted his wife to keep the home place and certain stock on it and $ 10,000 in money. His idea seemed to be to divide up his property among his children and to give his wife sufficient to live on in comfort so that she would not have to work any more or be worried with looking after a lot of property. On the next morning it was suggested that he was too weak to be bothered with the details of dividing his property and that he should make a will leaving all his property to his wife and that she could divide it after his death in accordance with the directions which he had already given. Such a will was executed on Friday morning. On their way home, the lawyers who had written the will remembered that it was void under our statutes because the children had not been mentioned in it. They returned again on Saturday and explained this defect to the parties interested. J. W. Stuart was better then, but executed another will, leaving all his property to his wife as in the first one. He died on the following Friday, living only one week after executing the first will. After his death his wife executed deeds to the various children and grandchildren to the improved farms as had been directed by her husband in his lifetime, but she refused to execute a deed to her daughters and her grandchildren to any of the timber lands or to divide the personal property equally between all the children. She expressed her intention of holding the property absolutely and dividing it among her children as she liked. She denied that she had received the property in trust, but claimed it absolutely as her own under the will. Hence this lawsuit. Other facts will be stated and referred to in the opinion.

The chancellor found that the trust attempted to be established by the will was void under our statute of frauds, and it was decreed that the complaint of appellants should be dismissed for want of equity. The case is here on appeal.

Decree reversed, and cause remanded. Motion denied.

Self & Patton, Block & Kirsch and Huddleston, Fuhr & Futrell, for appellants.

1. Notwithstanding the statute of frauds, a trust arises where upon making a will, or thereafter a devisee or legatee promises the testator expressly or impliedly, by not dissenting, that he will hold for or give to another the property devised or bequeathed to him, whereby the testator is prevented from making the disposition by will he intends, or is persuaded not to alter a will already made. The true rule is stated in note to 21 Ann. Cas. 1385. This rule has been followed in many cases. 16 Am. Dec. 575; 26 Id. 123; 42 Ala. 60; 48 N.J.Eq. 102; 21 A. 943; 27 Am. St. 466; 15 W.Va. 567; 47 N.W. 408; 69 P. 428; 24 Am. Dec. 413; 16 A. 464; 53 N.E. 767; 21 Ann. Cas. 1379. See also Pom. Eq. Jur. (2 ed.), § 1054; 24 Am. Dec. 413; 16 A. 464; 53 N.E. 767; 106 Am. St. 94; Perry on Trusts, etc., § 181; 106 Am. St. 94; 84 Ark. 189; 73 Id. 310, etc.; 110 Id. 389; 109 Id. 335; 101 Id. 451; 114 Id. 128; 113 Id. 36.

2. Plaintiffs should recover upon the theory of constructive trusts. Bispham, Eq., §§ 91-93; 52 N.E. 58; 61 Id. 1040; 73 Id. 319; 48 Am. Rep. 640; 17 P. 689; 27 Id. 186; 14 N.W. 385; 19 Id. 691; 37 Am. St. 501; 32 P. 171. A fiduciary or confidential relation exists between husband and wife. 74 P. 143; 118 Id. 430; 71 A. 559; 29 N.E. 1116; 30 Id. 318; 77 A. 797; 88 Am. St. 620; 62 N.E. 666; 131 N.Y.S. 891; 120 Id. 18; 54 P. 352; 39 L.R.A. (N. S.), 925; 73 N.E. 319.

3. When it appears that the testator did not intend for the devisee to take the entire beneficial interest, and no direction is given as to who shall take the beneficial interest, a trust results in favor of the testator's heirs. There is no known principle of law by which a dry trust can be converted into a beneficial estate. Pom., Eq. Jur., §§ 1031-2; 1 Perry on Trusts, §§ 159-160; 3 Pom. Eq., §§ 1031, 981. This case is squarely within the rule of Pom., Eq., § 1031. See also as to this character of trusts, 47 Am. Rep. 53; 26 N.E. 876; 16 S.E. 614.

4. All fraud in this record is imputable to Mrs. M. R. E. Stuart, although she may not have been guilty of any of it. 1 Perry, Trusts, § 172; 2 Pom. Eq. Jur., § 918; 1 Perry, Trusts, § 211; 22 A. 191.

5. There has been sufficient performance to take the case out of the statute of frauds. 27 Conn. 335; 56 Ind. 569; 39 L.R.A. (N. S.), 928, note.

6. Appellee did not plead the statute of frauds as a defense. 105 Ark. 638, etc.

Lamb & Frierson and Hawthorne & Hawthorne, for appellees.

1. The evidence does not sustain the contention that any of the property was ever held by Mrs. Stuart as a trustee. Mrs. Stuart made no promise to convey to the children, nor did she suggest that a will be executed. No trust was created. 73 Ark. 310; 109 Id. 335; 101 Id. 451; 84 Id. 189; 113 Id. 36; 110 Id. 389; 114 Id. 128; 113 Id. 279-282; 19 Id. 30; 3 Pom. Eq. Jur., §§ 1053-1056; 1 Perry, Trusts, § 181; 1 Story, Eq. Jur., §§ 256, 192; 2 Id., § 781.

2. Mere silence or acquiescence was not sufficient to raise a trust. 95 N.Y. 403; 80 Pa.St. 405; 1 Watts, 163; 42 Ala. 60; 62 Id. 579; 90 Id. 91; 95 Id. 541.

3. There was no constructive trust. 170 S.W. 1021; 98 Ark. 540; 101 Id. 451.

4. The rule announced in 73 Ark. 310-312-13 is a rule of property. 62 Ala. 570 (590).

5. It was unnecessary to specifically plead the statute of frauds. 19 Ark. 39; Ib. 23; 101 Id. 460; 49 L.R.A. (N. S.) I and note, p. 16.

6. The question of part performance of an alleged but unenforcible trust is not involved here as no trust arose. 73 Ark. 310.

7. Laura Barron has no right in law or equity to the wild land claimed.

8. The decree should be affirmed because (1) there is no foundation for a trust; (2) there was a request that certain farms be conveyed to certain children; (3) there was no request that wild land be conveyed or personal property be distributed and (4) the conveyance of the farms is not a...