Branstetter v. Branstetter

• Decision Date: 09 July 1917
• Docket Number: 100
• Parties: BRANSTETTER v. BRANSTETTER
• Court: Arkansas Supreme Court

197 S.W. 688

130 Ark. 301

BRANSTETTER v. BRANSTETTER

No. 100

Supreme Court of Arkansas

July 9, 1917

Appeal from Arkansas Chancery Court; John M. Elliott, Chancellor affirmed.

Decree affirmed.

W. N Carpenter and Sam Frauenthal, for appellant.

1. The evidence shows conclusively that appellant M. S. Branstetter was the owner of an undivided one-half interest in the land by virtue of a deed from P. A. Douglas, and in addition is entitled to whatsoever interest was devised to him by the will of his father.

2. The original will was duly executed and attested. If a codicil was added it was never attested, and did not revoke nor change the original will. Kirby's Digest, § 8012; 85 Ark. 363.

3. But if the codicil is a part of the will, the court erred in the construction of it and the will considered as one instrument. 6 Peters, 68; 151 U.S. 112. The language of the will itself controls in arriving at the intention of the testator. 90 Ark. 152; 23 Id. 378; 3 L. R. A. (N. S). 847; Jarman on Wills, 711-726.

It is clearly expressed in the original will that it was the intent to give M. S. Branstetter a half interest in the estate. 5 L R. A. 223; 27 L. R. A. (N. S.) 1092; 40 Cyc. 1415, note 31.

4. The original order was erroneous on its face and should be corrected. The court has power on Bill of Review to correct a palpable error on the face of the record. 104 Ark. 562; 59 Id. 441; 32 Id. 753; 21 Id. 528.

5. The first order was not final, but merely interlocutory. 123 Ark 620; Freeman on Cotenancy & Partition (2 ed.), 516; Knapp on Partition, 497; 103 U.S. 518; 70 F. 529; 48 Fla. 226; 111 Am St. 77; 30 Cyc. 326; 41 Ind. 398; 204 N.Y. 238.

Botts & O'Daniel, for appellees.

1. The appeal should be dismissed. The decree in the original case, February, 1915, was final. 123 Ark. 620; Kirby's Digest, §§ 1198, 5776-7-8-9, etc., 6228; 34 Ark. 130; 34 Id. 130; 80 Id. 515; 106 Id. 207, 213; 138 Ind. 628; 148 Ill. 321; 145 Id. 500; 62 Iowa; 740-7; 49 Ohio 374; Black on Judgments, § 39; 122 Ark. 255.

2. The Bill of Review is a separate and distinct suit from the original and was properly dismissed. 31 Ark. 103; 68 Id. 288; 26 Id. 603; 104 Id. 568; 59 Id. 445; 25 Id. 603.

3. The original decree was correct. 114 Ark. 154; 40 Cyc. 1098.

STATEMENT BY THE COURT.

This is a suit for partition. The complaint alleged that S. M. Branstetter and M. S. Branstetter, one of the appellants herein, were the owners as tenants in common of the land involved, which they obtained by deed executed to them jointly by one P. A. Douglas; that thereafter S. M. Branstetter died, leaving a will by which he devised one-half of his estate to his son, M. S. Branstetter, and the other half to the heirs of another son, S. F. Branstetter, whose heirs are made parties to the suit. It was further alleged that the appellees, Roberta and Alice Branstetter, were the sole heirs of A. O. Branstetter, who had no right or claim to any of the land involved in the suit, but, as appellants were informed, were claiming some interest therein.

The complaint then alleged that M. S. Branstetter had expended $ 1,244.65 in making permanent improvements on the land and S. M. Branstetter had expended the sum of $ 619.56 in making permanent improvements; that M. S. Branstetter and the heirs of S. F. Branstetter own each a one-half interest in the land.

The complaint further alleged as follows: "Plaintiffs say that they are entitled to have the property rights of all of the legatees under said will of S. M. Branstetter in and to the above described property adjusted and declared; that the property is not susceptible of division in the kind between the said several parties in interest, and that after the exact rights and interest of each party hereto has been declared by the court that said property should be sold by the decree of this court and the proceeds to be applied to the various claims and interests of the various parties hereto. * * * Wherefore, plaintiffs pray that a decree of this court be rendered declaring and defining the rights of all the parties in and to the aforedescribed lands."

Appellees Alice and Roberta Branstetter answered, in which they denied that the appellants were the sole owners of the land. They alleged that S. M. Branstetter died leaving a will in which he made provision that the appellees were to receive a certain judgment which he held against the estate of their father in the sum of $ 617.36; that thereafter the said S. M. Branstetter and the guardian of the appellees entered into an agreement by which the said S. M. Branstetter accepted a small sum for said judgment, and that thereafter the same S. M. Branstetter made an alteration in his will by executing a codicil thereto as follows:

"DeWitt, Ark., Nov. 3, 1905.

"I, S. M. Branstetter, as Lizzie Roberta and Sabina Alice has settled the judgment that I hold against the estate of A. O. Branstetter, I will them an equal share with S. F. Branstetter airs according as the will directs."

They alleged that the will, with the codicil, was duly probated.

Appellees prayed that "their rights be determined and decreed by this court in the property above mentioned, and to all other relief to which they are entitled."

The will, with the purported codicil, was attached and made an exhibit to the answer.

The appellants replied, in which they denied that the above purported codicil to the will of S. M. Branstetter constituted any part thereof, and alleged that it was merely a leaf pinned to the will and was of no force or effect, and denied that the appellees had any rights in the lands by reason thereof.

The will, with the purported codicil, was duly presented to the probate court, and there was a contest concerning the codicil to the will, and the court, after hearing evidence, admitted the will, together with the purported codicil, as the last will and testament of S. M. Branstetter, deceased. An appeal was taken to the circuit court from this order of the probate court, and the circuit court approved the finding and judgment of the probate court, and its judgment was certified down and a final judgment was entered by the probate court admitting the will, with the purported codicil, as the last will and testament of S. M. Branstetter.

The deposition of M. S. Branstetter was heard and a deed from Douglas to S. M. and M. S. Branstetter was introduced, and the court, after hearing the testimony, found, that M. S. Branstetter is the owner of one-third of the land involved in the suit; that the heirs of S. F. Branstetter, deceased, who are specifically named in the decree, are the owners of one-third interest in the land, and that the appellees, as the children and heirs of A. O. Branstetter, are the owners of one-third of the estate of S. M. Branstetter, deceased. The court further found that the parties to the suit were entitled to have the lands divided according to their respective interests, and entered a decree that the five acres (describing it) be partitioned and divided, giving to M. S. Branstetter a one-third thereof in severalty; to Nettie Branstetter, widow of L. N. Branstetter, a one-ninth interest for her life; to the children and heirs of S. F. Branstetter (naming them) a one-third interest (dividing the same in severalty between them); and to the children and heirs of A. O. Branstetter (appellees here) the remaining one-third.

The court then appointed commissioners to make partition according to the decree and directed them to report their acts to the court. This decree, as appears by nunc pro tunc entry, was rendered on February 1, 1915. An appeal was prayed from this decree, and on appellee's motion such appeal was dismissed by this court on the ground that if the decree was final, the time for appeal had expired, the transcript not having been lodged with the clerk of this court within six months from the rendition of the decree; and, if not, the appeal was premature.

On September 25, 1916, the commissioners appointed to make partition having reported that the land was not susceptible of division, the court entered a decree approving said report of the commissioners and directing that the lands be sold for the purpose of the partition, and directing that the proceeds of the sale should be distributed pro rata according to the respective interests of the parties as set forth in the original decree. From this decree, directing the sale of the lands for partition, this appeal has been duly prosecuted.

On January 13, 1917, the appellants filed what they designated as a "Bill of Review," in which they asked the court to review and correct its original decree, on the ground that on the face of the record it appeared that the title to the land had been acquired from Douglas by appellant M. S. Branstetter and his father, S. M. Branstetter; that the appellant, in his own right, owned a one-half interest in the whole land, and that the appellees, who only claimed title through the father of M. S. Branstetter, could only have had an interest in one-half, so that on the face of the record it appeared that there was a palpable error in giving the appellant M. S. Branstetter only a one-third interest in the entire land.

The chancellor dismissed the bill of review, from which appellants also prosecute an appeal.

Appellants' counsel, in their brief, state that both appeals are prosecuted for one purpose, which is to correct an alleged error on the part of the chancellor in declaring what were the respective interests of the parties in the land and the proceedings thereon.

OPINION

WOOD, J., (after stating the facts).

Appellees demurred to the complaint on the ground that the court did not have jurisdiction, and the demurrer was overruled and they excepted to the ruling, but...