Cornish v. Johns
| Decision Date | 11 February 1905 |
| Citation | 85 S.W. 764,74 Ark. 231 |
| Parties | CORNISH v. JOHNS |
| Court | Arkansas Supreme Court |
Appeal from Drew Chancery Court, MARCUS L. HAWKINS, Chancellor.
Reversed.
STATEMENT BY THE COURT.
Joseph Johns died in Drew County, Arkansas, June 18, 1900, leaving surviving him a widow, Harriet E. Johns, a son, W. H. Johns two daughters, Julia A. Hines and Mary F. Yates, and ten grandchildren, the descendants of his son, J. A. Johns, who had died before his father. The estate of Joseph Johns consisted of lands valued at $ 1,900, promissory notes to the amount of $ 15,000, and $ 2,000 or more in cash. He was a very old man at the time of his death, could neither read nor write, and had been blind for a year or two; and his wife transacted most of his business for him. She was his second wife, and was not the mother of either of his children, and at the time of her husband's death was over 70 years old. Besides $ 2,000 which had been deposited in bank, there was certain other money which was claimed by Mrs. Johns as her own money, most of which she claimed had been given her by her husband. Two thousand dollars of this money was in currency, and for some time previous to the death of Johns had been kept by him and his wife concealed in the house part of the time under the carpet and part of the time sewed up in the bed upon which he slept, and was there at the time of his death. There was at the time of his death some $ 1,700 or $ 1,800 more in gold and silver buried in the dairy, but which Mrs. Johns also claimed, but all of this money, except $ 300, was afterwards stolen, so she claimed.
Joseph Johns left a will which had been executed some sixteen years before his death. At the time this will was executed, he had four children living, his son, J. A., not being dead at that time, and the will gave all the property to his wife during her life with remainder to his four children and his granddaughter, Sarah J. Cornish, to be divided share and share alike. The provision in respect to his granddaughter had at his death been erased by having a line from a pen drawn over it. There was also a bequest of $ 1,000 to his great grandson, Ed Cornish, for the purpose of educating him but Ed Cornish at the time of Johns' death was 30 years of age, and had already received his education from means furnished by the deceased Johns.
Soon after the death of Johns Ed Cornish purchased the interests of the three surviving children of Joseph Johns in the estate of their father. He first bought the interest of W. H. Johns and paid him therefor $ 1,400 in cash. He next bought the interest of Mrs. Hines, who was his grandmother, and paid her $ 1,200 in cash and $ 2,000 which she owed the estate. He then bought the interest of Mrs. Yates, paying her $ 900 in cash and $ 250 in notes which she owed the estate, and afterwards conveying her land valued at $ 450, which belonged to the estate. He next bought the interest of the five adult children of J. A. Johns, deceased, paying them therefor $ 65 each. The deed from these heirs was executed on the 25th day of July, 1900, and on the same day Cornish took out letters of administration on the estate of Joseph Johns, and formally took charge of the estate. The will of Joseph Johns appointed J. A. Johns, Joseph A. Hearn and J. A. Thompson, executors of his estate. But J. A. Johns died before his father, and the remaining two, after Cornish had bought out all the adult heirs of the estate, at the request of Cornish, declined to serve, and, as before stated, he was appointed administrator. On the 8th day of October, 1900, the probate court Bradley County made an order authorizing Evaline Johns, the mother and guardian of the minor children of J. A. Johns, deceased to sell the interests of said children in the estate of Joseph Johns, their grandfather, to Ed Cornish for $ 65 each, and afterwards in March, 1901, the guardian conveyed the interests of said minors to Cornish for the consideration of $ 325 in cash, being $ 65 for each of said five minors. In the month of October, 1900, Mrs. Harriet Johns declined to take under the will, and claimed a dower interest in the estate, which was granted by the probate court. On the 5th of November, 1900, Cornish transferred to Mrs. Johns, the widow of Joseph Johns, a half interest in the estate for the consideration of $ 2,000 in cash and her agreement to relinquish her claim of dower in the estate, and to accept instead the property conveyed by the deed.
Afterwards on the 6th day of September, 1901, the heirs of Joseph Johns, deceased, filed a complaint in equity against Cornish and Mrs. Johns, the widow of Joseph Johns, alleging that the defendants had, soon after the death of Joseph Johns, taken possession of the estate left by him, and conspired together for the purpose of procuring the interests of plaintiffs in the estate for less than the value of said interests. That said defendants, having full knowledge of the assets of the estate and the balance thereof, took charge of the same, and, by misrepresenting the value thereof, deceived and misled plaintiffs, and fraudulently induced them to part with their respective interests at a sum far less than its real value. The plaintiffs were without any knowledge of the facts, and relied entirely upon the representations of the defendants in reference to the amount and value of the assets of the estate and the value of their respective interests, and were overreached and misled by such representations. Wherefore they asked that said deed be set aside, and defendant be required to account for the assets of the estate.
The defendants appeared, and answered. They denied the allegations of conspiracy, fraud and misrepresentations, and alleged that the plaintiffs relied on their own knowledge of the estate, and sold because they were convinced that it was to their interest to do so. Wherefore they asked that the bill be dismissed.
On the hearing the chancellor found: "that the defendant Ed Cornish became an intermeddler with the assets of the estate of Joseph Johns, deceased, and took upon himself a fiduciary relationship towards the heirs of said estate; that he took advantage of his knowledge of the status and affairs of said estate and the ignorance of said heirs; that he paid an inadequate consideration to the plaintiffs for their interests in the estate, and that the several deeds from the heirs to him should be set aside and cancelled." He thereupon entered a decree in favor of plaintiffs, from which defendants appealed.
Judgment reversed and cause remanded.
Blackwood & Williams, for appellants.
A family agreement entered into upon the supposition of a right is binding. 36 Ga. 191; 9 S. & R. 276; 6 Watts, 48; 5 Wheat. 226; 6 Pa.St. 228; 52 Pa.St. 370; 105 Pa.St. 31; 105 Ib. 121; 172 Ib. 104; 17 R. I. 406; 32 S.C. 262; 1 Head, 573; 7 Heisk. 235; 10 Lea, 421; 91 Am. Dec. 761; 50 Mo.App. 1; Story, Eq. Jur. § 131; 4 Ves. 840; 1 Atk. 10; Bisph. Eq. § 189. Schoul, Dom. Rel. § 271; 11 Am. Dec. 729; 11 Gray, 506. The adequacy of the consideration will not be questioned. 36 Ga. 191; 1 Head, 564; 55 Vt. 391; 17 Am. Dec. 124; 24 Ga. 402; 21 N.C. 182; 105 N.C. 121; 17 R. I. 406; 15 Beav. 300; 36 Ga. 184. The compromise is conclusive on plaintiffs. 26 Am. Dec. 52; 99 Ib. 492; 57 Ala. 267; 21 Ill.App. 258; 46 Mich. 173; 14 Vt. 410; 132 U.S. 318; 44 N.W. 959; 35 Mo.App. 426; 66 U.S. 80. A mistake of fact will not avoid the agreement. 2 So. 426; 12 Ga. 121; 12 Ky. 637; 34 Mo. 477; 12 Vt. 377; 32 Ala. 415; 36 Kan. 697; 20 Am. St. Rep. 239. If fraud had been proved, there could have been no recovery. 1 N.E. 146; 64 Am. Dec. 467; 16 Am. St. 330; 5 N.E. 799; 29 Ib. 123; 83 N.Y. 300; 43 Am. Dec. 651. Settlement without an administration is favored in law. 52 Pa.St. 370. A party seeking to rescind for fraudulent misrepresentation must act promptly before the rights of third parties become vested. 14 Barb. 597; 17 Ib. 429; 27 Ib. 654; 54 N.Y. 415; 7 Daly, 408.
Wells, Williamson & Cotham, for appellees.
The appellant is not protected by the doctrine of family settlements. If one intermeddles, and qualifies as administrator, his letters relate back and legalize his previous acts. 38 Ark. 636; 49 Ark. 468; 1 Perry, Tr. § 245; 2 Story, Eq. Jur. 1255; 2 Pom. Eq. Jur. 1053; 9 S.W. 713; 81 N.Y. 308; Bisp. Pr. Eq. §§ 238, 93; 1 Perry, Trusts, § 210. The burden is upon appellant to prove adequacy of consideration. Bisp. Pr. Eq. § 220; Perry, Trusts, § 194; Kerr, Fraud, 151; 41 Ark. 269; Bump. Fr. Con. 583; Perry, Trusts, § 201. A gift inter vivos must be completely executed. 8 Am. & Eng. Enc. Law, 1313; 43 Ark. 318. Gifts from deceased husband to wife must be clearly proved; the presumptions are against a gift. Rice, Ev. 989. Mrs. Johns' testimony concerning any communications made by her husband was incompetent. Sand. & H. Dig. § 2915; 43 Ark. 314; 9 Am. & Eng. Enc. Law, 807; 29 Ib. 628; 33 Ark. 774; 19 Am. & Eng. Enc. Law, 131. The defense of a former suit pending, to be available, must be pleaded. 27 Ark. 315; 8 Am. & Eng. Enc. Law, 549. There can be no appeal from an ex parte order. 2 Enc. Pl. & Pr. 96.
OPINIONRIDDICK, J., (after stating the facts).
This is an appeal from a decree rendered in favor of the heirs of Joseph Johns, deceased, in an action by them against Ed Cornish and Harriet E. Johns, the widow of Joseph Johns, deceased, setting aside certain deeds executed by the heirs to Ed Cornish and charging Mrs. Johns with certain money which she claimed in her undivided right, but which the chancellor found to be the funds of the estate.
A consideration of the evidence convinces us that the allegation that Cornish by misrepresentation and fraud induced W. H. Johns and his two sisters to convey their interests in the estate of their fath...
To continue reading
Request your trial