Edwards v. Swilley

• Decision Date: 27 June 1938
• Docket Number: No. 4-5095.,4-5095.
• Citation: 118 S.W.2d 584
• Parties: EDWARDS et al. v. SWILLEY et al.
• Court: Arkansas Supreme Court

118 S.W.2d 584

EDWARDS et al. v. SWILLEY et al.

No. 4-5095.

Supreme Court of Arkansas.

June 27, 1938.

Appeal from Union Chancery Court, Second Division; Walker Smith, Chancellor.

Separate suits for cancellation of certain quitclaim deeds by Anna Clay Edwards and another against W. L. Swilley and others. From a decree adverse to plaintiffs, they appeal.

Affirmed.

C. B. Crumpler, of El Dorado, and C. A. Barnett, of Ruston, La., for appellants.

Tom Marlin and W. A. Speer, both of El Dorado, for appellees.

GRIFFIN SMITH, Chief Justice.

Suits by Julia Clay Crawford and Annie Clay Edwards for cancellation of certain quitclaim deeds they had executed, and for other equitable relief, were consolidated for trial. From an adverse decree they have appealed.

W. R. Clay owned an ancestral estate of 120 acres in Union county, upon which he and his wife resided prior to their deaths May 20, 1919. There were no children.

It is alleged that each of the plaintiffs, by virtue of inheritance from their brother, W. R. Clay, is the owner of an undivided one-fifth interest in the land, subject to the life estate of Dr. J. A. Clay, father of W. R. Clay; that W. R. Clay died intestate leaving five brothers and sisters that execution of the quitclaim deeds was induced through fraud practiced upon the plaintiffs by W. L. Swilley, R. W. Rhodes, and Hugh Rhodes, and that such fraud was accompanied by threats and intimidation.

Early May 21, 1919, the bodies of W. R. Clay and his wife, Jessie Britt Clay, were found in the ruins of their fire-destroyed home. Frank Livingston, negro, lived nearby. Appellees offered witnesses who heard Livingston confess to having murdered the couple. Livingston's statement was that he killed the husband about dark; that he went to the house complaining to Mrs. Clay of a headache; that when Mrs. Clay opened a bureau drawer to get aspirin tablets he grabbed her, and about eleven o'clock that night when she undertook to get away he hit and killed her with a shotgun barrel. He then dragged and carried Mr. Clay's body into the house and set the building on fire.

Mrs. Clay was survived by her father, R. M. Britt; also by her mother, four brothers and sisters, and three children of deceased sisters.

There is testimony that members of the two families met and divided the personal property, agreeing that Dr. J. A. Clay and R. M. Britt should have the farm. Testimony on behalf of appellants is that there was no such family meeting of which they had knowledge.

August 31, 1919, Dr. J. A. Clay and R. M. Britt and their wives, by warranty deed, conveyed the land to Hugh Rhodes for $1,200 — a fair price at that time for the fee. This deed was recorded December 20 of the same year. The money was divided equally between the grantors.

Appellees undertook to show that W. R. Clay had executed a will in favor of his wife; that the husband died first, and that under such will title to the land passed to Mrs. Clay. Testimony of witnesses who claimed to have heard Livingston confess to the murders and to having narrated the sequence of execution was objected to. Such testimony, being the best evidence, was competent. 1 R.C.L. page 500, §§ 41, 42; St. Louis, I M. & S. Ry. v. Gibson, 113 Ark. 417, 168 S.W. 1129.

But existence of the will at the time of the testator's death was not satisfactorily established. Witnesses who claimed to have seen it and to have partially read it, and to have discussed it with the testator, were not sufficiently clear, nor did the time of such discussions and inspections preclude subsequent alterations or...