Ellison v. Smith

• Decision Date: 21 April 1913
• Parties: ELLISON v. SMITH
• Court: Arkansas Supreme Court

156 S.W. 417

107 Ark. 614

ELLISON v. SMITH

Supreme Court of Arkansas

April 21, 1913

[Copyrighted Material Omitted]

Appeal from Montgomery Chancery Court; J. P. Henderson, Chancellor affirmed.

STATEMENT BY THE COURT.

This is a suit by appellees to cancel certain deeds which the appellees allege were executed by the appellee, Lou Smith, to the appellants herein through the wrongful, fraudulent connivance, collusion and misrepresentations of the appellants. The appellants denied the allegations of fraud deceit and misrepresentations set up in the complaint, and averred that the deeds were executed in pursuance of a family settlement made between appellants and appellee, Lou Smith.

John W Ellison was the father of the appellants and Lou Smith, the appellee. He was the owner of considerable real estate in his lifetime, and personal property. He died in May, 1908.

Appellee, Lou Smith, testified that after the death of her first husband, she, at the request of her father, returned to his home and assisted him and her mother in keeping house. Her mother was old and in bad health, and her father persuaded her to return to his home and promised her that if she would do so, he would see that she was well paid. She agreed to do so, and he moved her on the 13th day of December, 1903. She did the household work and also did work in the field. Her mother took to her bed the 1st of April, 1904, and was sick until the 9th day of July, 1904, when she died. Appellee waited on her mother while she was sick, doing all the work about the house. When her mother died, her father, two brothers, and herself and little girl were left at the old home place. They all lived there together, she doing the housework of the family. On the 12th of August, 1906, her brother, Elijah, got married, leaving the rest of them in the family. In February, 1909, her brother, John, got married, leaving her father, herself and little girl at home. She then remained with her father until the 22d day of May, 1908, when he died. She stayed with the family from the time she first went there after the death of her first husband until after her father's death, a period of about five years.

She details certain articles of personal property owned by her father at the time of his death and their value. Her father died suddenly. He frequently told her before his death that he wanted the boys to have their farms if they could, and he wanted certain lands, consisting of eighty acres, divided between the four children. The home place consisted of 166 acres. The personal property he wanted her to have. He told her what he wanted each one of them to receive.

Several years prior to her father's death, her brother, Dan, cleared, fenced and cultivated each year the lands that he now has. Her father paid the taxes on it. John tended a part of what he now has, and her father paid the taxes on it. Her brothers, John and Dan, got all that they made on the land that they worked. Her brother, Lige, remained with her father and worked the bottom lands that he now owns. Her father never conveyed any of his lands to the children before his death. He intended, however, for her brothers to have certain tracts of land that he designated and allowed them to cultivate as their own, but made them no deeds. He promised to let his son, John, have a certain tract of land and took a note for $ 350. He never executed to John a deed to that, and didn't intend for him to keep it. It was to go back to his estate if the note was not paid off.

Her testimony, after much detail, tends to show that her father intended to make an equal division as far as possible of the lands to her brothers, except the home place, six acres, and the tract adjoining it of 160 acres, which he intended for her to have, and as this was not equal in value to the portions that he expected her brothers to receive, she was to have all of the personal property to make her part of the estate equal with theirs, and to compensate her for the work that she had done in waiting on him and her mother before they died. She explained to her brothers after her father died just how he wanted them to do, and her brothers told her it was all right.

Her testimony shows that at the time of her father's death, she didn't know exactly how much money her father had. There was $ 220 in the house that was divided among the children. Her father often told her that he had as much as $ 1,000 buried. She received $ 220. She didn't know how much her brothers received; supposed they got one-fourth each.

Appellee sold, upon the advice of her attorney, a fourth interest in the lands that were her father's at the time of his death, as she was advised, for the purpose of enabling her to bring this suit. Some time after the death of her father, she and her brothers had a settlement in which she executed deeds to them, and they in turn executed deeds to her, in which their wives did not join, conveying to her forty acres of land as her share in the settlement. She didn't remember that the draftsman of the deeds read same over to her. She left the matter of the deeds to the lands all to her brothers. She denied that they stated that if she wanted any more lands that they would deed it to her. She had bought seventeen acres of land from her brother, John, after her father's death, and when the settlement was made, she got a deed to that piece of land and paid him for it when the money was divided.

After the settlement was made, Lige, her brother, came and offered her $ 50.00, and she refused to take it. She states that she didn't call on her brothers for a division of the money before the settlement was made, in which the reciprocal deeds were executed because she thought at the time she signed the deeds she was going to get the money, or she never would have signed them. She told the boys at the time the deeds were executed, that she was to have all of the personal property. She stated that her brother, John, stated to the other boys as follows: "Now, boys, I feel that Lou ain't got her part, and I think we ought to give her $ 20.00," and the other boys objected, and he says, "I am going to give her $ 20.00." John gave her the $ 20.00.

It was shown that the forty acres of land deeded to her was worth about $ 200. When the draftsman wrote out the deeds she was around the house and in the kitchen and in the room where he was part of the time, but didn't pay any attention to what he was doing. He did most of the writing in one room when she was in the other part of the house.

On behalf of the appellants, there was testimony introduced tending to show that within two or three days after the division of the land, appellee stated to a witness that they had divided up everything satisfactorily. She stated that she got the home place, six acres, and one forty of timber land, and in the same conversation the witness asked her, "Is that all the land you got?" and she said, "Yes," that she didn't want it, that she would get her part in other stuff. She didn't state what the other stuff would be, and the witness didn't ask her.

It was shown that John W. Ellison, Sr., in his lifetime, had stated to a certain witness that he had given John and Dan their lands, and that he intended Lige, at his death, to have his. He didn't describe the land by numbers. He didn't tell witness what he had given to his daughter. Said that he intended for her to have a living as long as she lived and stayed with him. Another witness testified that John W. Ellison told him in 1908 that he had given all of his land to his boys. Stated that he had given the lower field to Elijah and the rest of the land to the other boys. He died about a month after this conversation.

The witness who wrote the deeds at the time the division was made testified that he was informed by A. D. Ellison that he and his brothers and sister Lou had agreed to divide their lands, and wanted witness to come up and write their deeds for them, and after some investigation as to the character of the deeds that should be written, he went there "and found Lou and the three boys there expecting him." He asked them if they were ready for him to go to work, and they said they were, and he sat down at the table and wrote the deeds. They told him what they wanted on each one's deed. Lou's (Mrs. Smith's) was the last deed he wrote. After reading them over to them, they all signed their deeds. Three signed one and the other three the other all the way through. After he had written the deeds, and while he was writing the acknowledgments to the deeds, they were all in the other room. About the time he finished writing the deeds, they came back. John and Dan had decided to deed to Mrs. Smith more land. The land they were going to deed to her was timber land. John asked Lou which forty it was she wanted, and she told him she didn't know. They decided among themselves what forty it was. He wrote her a separate deed to that forty in addition to the separate deed to the home place, six acres. After witness put down that forty, John asked Lou if she wanted any more land, and Lou told him no, that was all she wanted; it would be plenty, and it was getting late, and after that they signed up. He read the deeds over to them, to see if he had the description correct, in the presence of all of them, and the numbers in each deed showing what each one got. The plaintiff and the defendants, on that occasion, were all seemingly in good humor. Witness heard of nothing only good feeling, and he heard of no dissatisfaction at all.

The first deed conveying land to Lou Smith described a six-acre and a seventeen-acre tract. The boys called off that seventeen acres in the deed. They told what to write in the deed, and he wrote it as they told him....