Dunn v. Bradley

• Decision Date: 31 October 1927
• Docket Number: (No. 272.)
• Citation: 299 S.W. 370
• Parties: DUNN v. BRADLEY et al.
• Court: Arkansas Supreme Court

299 S.W. 370

DUNN v. BRADLEY et al.

(No. 272.)

Supreme Court of Arkansas.

October 31, 1927.

Rehearing Denied November 28, 1927.

Appeal from Circuit Court, Union County; W. A. Speer, Judge.

Action by Blanche Bradley Dunn against Robert William Bradley and others. On appeal from an order of the probate court dismissing the petition, the circuit court entered judgment sustaining demurrer to and dismissed the petition, and plaintiff appeals. Affirmed.

Powell, Smead & Knox, of El Dorado, and Smith & Little, and Gaughan & Sifford, all of Camden, for appellant.

Mahony, Yocum & Saye, of El Dorado, for appellees.

WOOD, J.

Blanche Bradley Dunn instituted this action on October 13, 1925, by filing her petition in the Union county probate court, in which petition she set up that J. P. Bradley died on the 18th day of November, 1913, leaving his widow, Ida Bradley, and the petitioner, his only child and heir at law; that an instrument purporting to be the last will and testament of J. P. Bradley, hereafter called Bradley, was filed in the office of the clerk of the probate court soon after the death of Bradley and was admitted to probate on the 13th of April, 1914; that Bradley gave his wife, Ida, all his property real and personal during her life and bequeathed and devised to Robert William Bradley, an adopted son of Ida Bradley, all his property, subject to the life estate of Ida Bradley; that he gave to the petitioner the sum of only $5; that one Frank Murph was named as the executor and qualified as such; that the widow took possession of the property and continued in possession thereof until her death. After her death W. J. Murph qualified as administrator of her estate and by order of the probate court paid the surplus of funds remaining in his hands as administrator to John Murph, the guardian of Robert Bradley, a minor. The petition then sets forth that under the terms of the will a large sum of money went through the hands of the guardians of Robert Bradley, and, after he became of age, into his hands.

The petitioner sets forth that Bradley, her father, was twice married, she and her deceased brother being the only children of the first marriage; that after the death of her mother her father married Ida Bradley; that her stepmother, through hatred of the petitioner and by undue and sinister influence, induced petitioner's father to disinherit her. She alleged, in substance, that at the time the will was made her father was so weakened by disease and narcotics given him to relieve his suffering and to enable him to sleep that he did not have testamentary capacity; that her stepmother took advantage of this condition, and, by reason of the undue influence and fraud and duress practiced upon petitioner's father, he was induced to execute the purported will which had been admitted to probate; that she had not discovered that the purported will was executed under the above conditions and circumstances until a few weeks before the filing of her petition; that the purported will was not executed and signed in the presence of attesting witnesses and was not attested as the law requires.

She further sets forth that at the time of the probate of the will petitioner resided in Calhoun county and was not present when the application for probate was made and had no notice of the proceedings until more than one year after the probate of the will. She alleged by an amendment to her petition that the filing of the paper purporting to be the last will and testament of Bradley under the circumstances was a fraud upon the court because the beneficiaries under the will knew, at the time, of the fraud, duress, and undue influence that had been practiced upon Bradley to induce him to sign the paper purporting to be the will, and they knew at the time the paper was executed that Bradley did not have the mental capacity to make a will. Petitioner prayed that Robert Bradley and his former guardians be summoned into court, and that the former probate of the will be set aside and held for naught, and that Robert Bradley and the former guardians be required to account to the petitioner for all money and property of every description which had come into their hands from the estate of Bradley and his wife, Ida, and for all proper relief.

Mary Saunders and Percy Saunders intervened, setting up that they were heirs at law and next of kin of Robert Bradley and the owners of his estate. They filed a demurrer to the petition; also R. E. Wood, a former guardian, filed a demurrer to the petition, alleging:

"First. That the petition shows on its face that this court is without jurisdiction of the subject-matter mentioned in the said petition. Second. For the reason that the petition does not state facts sufficient to warrant the court in setting aside the judgment rendered by it herein on April 13, 1914. Third. The petition shows on its face that Blanche Bradley Dunn is barred by the statute of limitations."

The probate court sustained these demurrers and the petitioner refused to plead further and the petition was dismissed. She duly prosecuted her appeal from the judgment of the probate court to the circuit court. In the circuit court the cause was dismissed as to R. E. Wood, the former guardian, and Robert Bradley, whose disability of minority had been removed by the court, was authorized to defend the action in his own name, and he filed a demurrer in which he set forth the following:

"(1) The petition does not allege facts sufficient to give the probate court jurisdiction of this matter, and, the probate court having no jurisdiction, none was acquired by the circuit court upon appeal.

"(2) That the petition does not state facts sufficient to constitute a cause of action against the appellee.

"(3) That the petition does not allege facts sufficient to show that a fraud was perpetrated upon the probate court of Union county in obtaining the order of April 13, 1914, admitting to probate the will of J. P. Bradley, deceased.

"(4) That the petition shows upon its face that the appellant has not acted with that degree of diligence required of her by law in moving the court to set aside the order of the Union probate court of April 13, 1914.

"(5) That the petition shows upon its face that the appellee and Ida Bradley have had the control, management, and possession of the property involved in this controversy for a period of more than 7 years, under claim of ownership, and have acquired good title to said property by limitations, even if it should be found that the will of J. P. Bradley, deceased, is void.

"(6) That the petition shows upon its face that appellant's cause of action herein, if any she has, was in existence when Act No. 100 of the Acts of the General Assembly was approved on February 20, 1919, and that she failed to institute this suit within one year from the passage of said act, and she is therefore barred by said act from maintaining this action."

The court sustained the demurrer on the ground:

"That the facts stated in said petition are not sufficient to constitute a cause of action against the respondent Robert William Bradley."

The petitioner refused to plead further and stood upon her petition, whereupon the court dismissed her petition, from which judgment is this appeal.

1. There is an allegation in the petition:

"That said purported will was not signed by the said J. P. Bradley in the presence of each of the attesting witnesses, both being present together, and that said attesting witnesses did not attest said will at the request of the testator."

The original will itself is brought into the record as a part of the pleadings and the record of its probate, and these show that the will bore the signature of the testator, J. P. Bradley, and the signatures of two witnesses as the statute requires, and the order of the court showing that, after examination and proof, the will was found to be regular and was admitted to probate and ordered recorded.

2. In the amended petition it will be observed that the petitioner alleged that the application for probate and the hearing and proceeding had was a fraud upon the court; the beneficiaries therein well knowing at the time that fraud, duress, and undue influence had been practiced upon the said J. P. Bradley to induce him to sign said paper, and that at the same time the said parties well knew that the said testator was not of sound and disposing mind and memory. The probate court is a court of record and its judgment probating a will in common form under section 10526 of C. & M. Digest, is, after the lapse of its term, a final judgment, until vacated or set aside in some manner authorized by law. One of the grounds for vacating a judgment of the court after the expiration of the term is "for fraud practiced by the successful party in the obtaining of the judgment or order." Section 6290, C. & M. Digest, subdiv. 4.

The will named Murph as executor. It was the moral, if not the legal, duty of the executor to present the will for probate. In 2 Schoulder on Wills, § 730, it is said:

"The first and most pressing duty of every executor nominated as such is to have the will, by virtue of which he claims the rights of representative, admitted to probate."

And in 40 Cyc. at page 1226, it is said:

"There is a moral obligation, if not an imperative legal duty, resting upon the person named in the will as executor to produce the will for probate."

See, also, 28 R. C. L. § 361. We have no statute declaring it to be the duty of the executor to present the will for probate, but, in the absence of a statute, such at least would be his moral duty. There is no allegation in the petition as to who filed the will for probate, but there is an allegation that after the probate of said purported will the said Frank Murph, executor, qualified as such, etc. We cannot assume, in the absence of allegation, that the beneficiaries named in the will presented the same, and that the same...