Dudgeon v. Dudgeon

• Decision Date: 31 May 1915
• Docket Number: (No. 30.)
• Parties: DUDGEON v. DUDGEON et al.
• Court: Arkansas Supreme Court

Page 402

177 S.W. 402

DUDGEON v. DUDGEON et al.

(No. 30.)

Supreme Court of Arkansas.

May 31, 1915.

Appeal from Clay Chancery Court; Chas. D. Frierson, Chancellor.

Suit by J. A. Dudgeon against Amanda M. Dudgeon and others to establish a destroyed will. Decree denying probate of the will, and plaintiff appeals. Affirmed.

C. T. Bloodworth, of Corning, for appellant. G. B. Oliver, of Corning, for appellees.

SMITH, J.

This is an action to establish a destroyed will under section 8062 of Kirby's Digest, and was begun December 13, 1912. Plaintiff alleged that Joseph Dudgeon died testate March 14, 1902, and named as devisees his widow, Amanda Dudgeon, and their children, Bertha Hawks, Pearl Schnables, Ella Jellard, Arthur Dudgeon, and J. A. Dudgeon, who was the plaintiff below and is appellant here; that the said Joseph Dudgeon by his will disposed of all his property, which consisted of a livery stable in Corning, certain lots in that town, and some lands near there, and that by the terms of the will the widow was to have the choice of a horse and buggy from the livery stable, and the remainder of the personal property was given to appellant and his sister, Pearl Schnables; that the widow was given the rents and profits of all the real estate during her life; and that, subject to this life estate, there was devised to appellant in fee simple one half of all the real estate, and the other half was devised to all the other children. It was further alleged that the will was properly executed, and that upon the death of the testator the will was read in the presence of all the devisees, and was delivered into the custody of the widow, who kept it for some years, and then destroyed it without ever having probated it. Appellant gave testimony supporting all the allegations of his complaint, and offered evidence corroborating his own testimony. It is undisputed that Mr. Dudgeon made a will, but the evidence does not support appellant's contention as to its provisions.

The evidence appears to establish the following facts: The will was read at a gathering at which all the children and the widow were present, and it was found that the will did not mention the names of Ella Jellard, Bertha Hawks, and Arthur Dudgeon, and, indeed, made no disposition of the real estate. All the children were of age at that time. Appellant testified that after the will was read he left the room, and was not present at the conference which thereafter took place, and was not a party to the agreement then made by those who remained. All the others testified, however, that it was then agreed by all the devisees that, inasmuch as the will did not dispose of the real estate, and was void as to three of the children, the will should not be probated, and it was further agreed that the personal property willed to appellant and his sister Mrs. Schnables should be turned over to the widow, and that she should have the rents and profits from the real estate during her life, in consideration for which she should assume and pay all the debts of her husband.

Appellant admits that he agreed for his mother to take the personal property and pay the debts, but...