Dodd v. Holden

• Decision Date: 10 May 1943
• Docket Number: 4-7015
• Citation: 171 S.W.2d 948,205 Ark. 817
• Parties: DODD v. HOLDEN
• Court: Arkansas Supreme Court

171 S.W.2d 948

205 Ark. 817

DODD v. HOLDEN

4-7015

Supreme Court of Arkansas

May 10, 1943

Appeal from Jackson Chancery Court; A. S. Irby, Chancellor affirmed.

Decree affirmed.

Ras Priest and Claude M. Erwin, for appellant.

Pickens & Pickens, for appellee.

SMITH J. MCFADDIN and KNOX, JJ., nonparticipating. ROBINS, J dissenting.

OPINION

SMITH, J.

W. L. Dodd was a resident of Detroit, Texas, but died in Ft. Worth, May 3, 1933. He owned lands at the time of his death in the state of Texas and in Jackson county, Arkansas. Under the terms of the instrument, said to be the last will and testament of W. L. Dodd, an undivided one-third interest for life in the Jackson county lands was devised to D. P. Dodd, a son, with the remainder to Ruth and Alice, the daughters of D. P. Dodd.

On the 7th day of December, 1936, D. P. Dodd conveyed to the other heirs of his father "all the undivided interest, share, right, title and equity" of the said D. P. Dodd in and to the lands involved in this action, and these grantees on the same day conveyed the interest thus acquired, together with the interest which they supposed they had inherited from W. L. Dodd, to R. G. and Brouse Holden.

At the time of the execution of the conveyances just mentioned the will of W. L. Dodd had not been probated and was not known to be in existence. This instrument named the testator's wife as executrix, but for some reason, not explained, she did not probate the will. The widow died July 13, 1936, and she appears to have previously delivered the will to her son, D. P. Dodd, who not only failed to probate the will but concealed its existence, and it was found by D. P.'s widow, a second wife, who was not the mother of Ruth and Alice, after his death, among his papers.

The original will was typewritten and was properly attested. Someone made a longhand copy of the will, and this copy, written with pen and ink, was probated in accordance with the laws of the state of Texas. The order admitting the will to probate in Texas, on January 31, 1938, recites that proof was made of the genuineness of the signatures of the testator and that of the attesting witnesses. Thereafter, an authenticated copy, in proper form, of the proceedings in the Texas probate court was filed with the probate court of Jackson county, Arkansas, which court admitted the will to probate in that county on July 29, 1939. But, prior to either of these dates, the Holdens had apparently acquired title to the land from the heirs of W. L. Dodd. An abstract of the title was submitted to and approved by more than one attorney, and but for the will, which was unknown to the Holdens when they bought the land, they acquired title to it. This fact is conceded.

The widow of W. L. Dodd, without probating the will or disclosing its existence, made application for letters of administration in Jackson county, Arkansas, of which county she became a resident, which were issued to her upon affidavit being made that W. L. Dodd had died intestate. After the death of W. L. Dodd's widow, his granddaughter, Ruth (the daughter of D. P.), made application for letters of administration in succession and, in that connection, Ruth made affidavit that W. L. Dodd had died intestate.

When the Holdens negotiated with the parties supposed to be the heirs of W. L. Dodd, an intestate, it was required by them that the administration upon the estate of W. L. Dodd be closed, and Ruth filed what was later approved as a final settlement and the administration was closed.

The Holdens entered into the possession of the land described in their deed and have since continuously remained in possession.

On November 11, 1941, this suit was filed by Ruth Dodd and Alice Dodd Henley, her sister, against the Holdens to recover an undivided one-third interest in the land, and for partition thereof, and for an accounting of rents and profits.

The complaint alleged that W. L. Dodd did not die intestate, but that he left a will under the provisions of which D. P. Dodd had been devised an undivided one-third interest for life in the lands with the remainder to these plaintiffs; that the will had been duly probated in Texas, the state in which the testator resided at the time of his death, and in which state a part of his lands were situated, and that thereafter an authenticated copy of the will had been admitted to probate in Jackson county, Arkansas.

A demurrer to the complaint having been overruled, an answer was filed interposing various defenses, among others, laches and estoppel, neither of which defenses was sustained by the court below. We do not discuss either of these defenses, as the complaint was dismissed as being without equity (and from that decree is this appeal) upon another and a sound ground which we now consider.

It is conceded that the alleged will of W. L. Dodd, admitted to probate in Texas, was not the original will of W. L. Dodd, but was a copy thereof. The will in Texas was admitted as a holographic will, and the testimony of Ruth Dodd, and others, was there heard to the effect that the will was in the handwriting of W. L. Dodd and bore the genuine signatures of two persons who had signed as attesting witnesses.

What is now said to be the genuine last will and testament of W. L. Dodd was not a holographic will, but was a typewritten instrument a correct copy of which was filed for probate.

Testimony upon these issues was dispensed with by a stipulation as to the facts, which reads as follows:

"(1) That the instrument in writing which on January 31, 1938, was by the county court of Red River county, Texas, admitted to probate as the holographic will of W. L. Dodd, deceased, and afterwards upon the record of said court admitted to probate by the Jackson probate court, a photographic copy of which was exhibited to the depositions of Mrs. Margarte E. Boatner, and appears in the record in three parts as exhibits 2, 3, and 4, (and which by reference is made a part thereof) is not in the handwriting of W. L. Dodd, deceased.

"(2) That the signature of the testator to said will is not the signature of W. L. Dodd, deceased; that the names of William Ramsey and A. C. Tisdale on said purported will are not the signature of either of said witnesses.

"(3) That the above-mentioned will was on the 31st day of January, 1938, admitted to probate by the county court of Red River county, Texas, as a holographic will.

"(4) That a certified copy of the will and the order of probate of the same will were admitted to probate in Jackson county, Arkansas, on the 29th day of June, 1939, and a copy of said proceedings is attached to the complaint of the plaintiffs herein, and shall be considered in evidence without formal introduction.

"(5) That the typewritten instrument which was introduced in evidence as Exhibit '1' to the depositions of W. W. Metcalfe, and which by reference is made a part hereof, and of which the instrument admitted to probate is in words and figures a true copy, bears the genuine signatures of W. L. Dodd, deceased, as testator and of A. C. Tisdale and of William Ramsey as attesting witnesses.

"(6) Being entered into for the purpose of dispensing with further evidence as to the genuineness of said instruments these stipulations shall not be construed as a waiver by the plaintiffs of their objections to the jurisdiction of the court to determine the validity of the judgment of the Jackson probate court admitting said instrument to probate and record, or to the competency of the evidence offered to impeach the same in this or any subsequent proceedings, and the stipulations shall in no wise be considered as a waiver of any objection to the introduction in evidence of the instrument named in paragraph five thereof, and shall not be considered as an admission on the part of the plaintiffs that the said handwritten instrument was offered for probate in bad faith or with fraudulent intent."

The undisputed testimony is that the Holdens paid a fair price for the land and bought it in entire good faith upon the opinions of attorneys who had approved the title, as shown by the abstract thereof, and that D. P. Dodd received one-third of the purchase money, to which he would have been entitled if W. L. Dodd had died intestate. Ruth Dodd, the administratrix in succession, was advised of and assisted in the negotiations for the sale of the lands and, as a means to that end, made a final report of her administration and received her discharge, although she testified that "My father always left the impression that he knew there was a will and had tried to find it, but couldn't" and that she told one of the Holdens that she believed there was a will and if it was ever found she would probate it. The Holdens denied having been told anything about the will until after they had bought the land, and one of them testified that the filing of this suit gave him his first knowledge of this claim. There was no testimony that Alice had any part in the negotiations or had any knowledge of the will.

It is first insisted that the order of the probate court of Texas admitting the will to probate in that state is binding upon the courts of this state under § 14534, Pope's Digest, which authorizes the probate in this state of the will of a nonresident by filing in this state a copy of the record of the foreign state admitting the will to probate where a copy of these proceedings authenticated as required by the Act of Congress pursuant to § 1, art. 4, of the federal constitution, commonly referred to as the "full faith and credit clause" of that instrument, is filed in this state.

We do not agree. We have many cases dealing with the enforcement of judgments of other states, one of the most recent of which is that of ...