Ellsworth v. Cornes

• Decision Date: 12 October 1942
• Docket Number: 4-6754
• Citation: 165 S.W.2d 57,204 Ark. 756
• Parties: ELLSWORTH, ADMINISTRATOR, v. CORNES
• Court: Arkansas Supreme Court

165 S.W.2d 57

204 Ark. 756

ELLSWORTH, ADMINISTRATOR, v. CORNES

4-6754

Supreme Court of Arkansas

October 12, 1942

Appeal from Garland Chancery Court; Sam W. Garatt, Chancellor affirmed.

Decree affirmed.

O H. Sumpter, C. T. Cotham, Stanley D. Campbell, U. A. Gentry House, Moses & Holmes and S. Hubert Mayes, for appellant.

Martin Wootton & Martin, Cooper B. Land and Moore, Burrow & Chowning, for appellee.

OPINION

MCHANEY, J.

Appellant, E. C. Ellsworth, was the administrator in succession of the estate of Frank Eveland who died intestate in Garland county, Arkansas, February 2, 1936, leaving no widow and no direct heirs, his wife having predeceased him. Shortly after Eveland's death, one Davis, a former county judge of Garland county, was appointed and qualified as the first administrator and made and filed an inventory of said estate. A short while thereafter he died and his widow, May Davis, was appointed, qualified and served for a short time and resigned, and appellant, Ellsworth, became her successor. Appellant, Maryland Casualty Company, became the surety on Ellsworth's bond as such administrator. Appellant, Frances M. Varney, is a stepdaughter of said intestate and is claiming the real and personal property of said estate, here involved, as a gift from her stepfather. Other appellants are C. T. Cotham and O. H. Sumpter of Hot Springs, reputable members of the bar of this court of long standing, and Stanley D. Campbell, a member of the bar of Tulsa, Oklahoma, and we presume he is a reputable member thereof.

Appellees are all the collateral heirs of Frank Eveland. They brought this action against appellants in the chancery court to surcharge and falsify the accounts of Ellsworth as administrator in the handling of said estate, and to recover a judgment against him and the surety company for the funds misappropriated, to cancel an alleged void order of the Garland probate court, to cancel a certain deed from said Eveland to Frances M. Varney purporting to convey certain real estate to her and to cancel certain deeds made and executed by her to her attorneys, totaling a one-half interest in the same real estate covered by the deed from Eveland to her, and a deed from Sumpter to Ellsworth, administrator, covering a portion of the part conveyed to him. Judgment was also sought against all the parties, including attorneys, for moneys of the estate wrongfully had and received by them. The prayer of the amendment to the complaint is: "Therefore, plaintiffs pray that they have judgment against the said E. C. Ellsworth, administrator of the estate of Frank W. Eveland, deceased, and the Maryland Casualty Company, a corporation, in the sum of $ 12,909.10, together with interest thereon from July 13, 1938, at the rate of six per cent. per annum until paid; that the defendants, O. H. Sumpter, C. T. Cotham, Frances M. Varney and Stanley Campbell, be required to account for the funds and property illegally paid to and received by them from said estate, and that the deed of Frances M. Varney and the deeds to all persons claiming interest in said real property through her, be canceled and held for naught, and for costs and all other proper relief."

The complaint and the amendment made certain allegations of misconduct on the part of all the individual appellants which we do not consider material to the decisive point or points on which this opinion is based and we do not, therefore, set them out. The complaint did allege that Ellsworth, as administrator, did receive personal property of said estate of the value of $ 15,733.08 and that the lawful expenses of administration and the payment by him of lawful and valid debts was the sum of $ 2,823.98, leaving a net balance of $ 12,909.10, which should have been distributed by him to appellees, as the heirs at law of said intestate, according to the law of descent and distribution of this state; that he had failed and refused to do so, and that they should have judgment against him and the surety company on his official bond therefor, with interest from July 13, 1938, at six per cent. per annum; and that his settlement theretofore made be surcharged in said amount for the use and benefit of appellees. It was also alleged that the administrator had paid to Sumpter $ 600 and to himself $ 492 without any order of the probate court authorizing him so to do, and that each of them should be required to account therefor. Also that the administrator had paid and delivered to Cotham, Varney and Campbell money, stocks and securities of the total value of $ 11,901.10, without lawful authority, and that each of them was indebted to appellees in said sum. As to the real estate, it was alleged that the deed purporting to convey same to Varney was never signed and acknowledged by Eveland, was never legally delivered to her, and that she acquired no title thereto; that mesne conveyances of said real estate were made by Varney, and that Cotham, Campbell, Sumpter and Ellsworth, individually are now the record owners of a one-half interest therein; and that said conveyances by her are void as against appellees who are entitled to have all said deeds canceled. It is also alleged that they acted promptly upon discovery of the actions of appellants which was a short time before the bringing of this suit.

Separate answers were filed consisting largely of general denials. Trial resulted in a decree for appellee. The court found it had full and complete jurisdiction of the action and all the parties; that appellees are all the heirs at law of Frank W. Eveland who died intestate at the place and date aforesaid, and, as such heirs, are entitled to all the estate of said Eveland involved in this action; that "the order or orders of the Garland probate court purporting to pass title or find title to the money or other property involved in this litigation or purporting to distribute the estate or any part thereof to Frances M. Varney, E. C. Ellsworth, Stanley D. Campbell, C. T. Cotham or O. H. Sumpter, were void, the probate court being without jurisdiction to enter such orders and that the account of E. C. Ellsworth, as administrator--be surcharged in any amounts paid to the said E. C. Ellsworth, Frances M. Varney, Stanley D. Campbell, C. T. Cotham and O. H. Sumpter out of the estate of Frank W. Eveland under such order or orders or received by them from said estate, together with his bond." The court found all issues of law and fact in favor of appellees and against appellants, "except the issue as to whether there was actual fraud on the part of the defendants (appellants) or either of them, upon which issue the court deems a specific finding unnecessary to its decree, likewise as to alleged forgery of deed," and that appellees are entitled to the relief prayed, including the cancellation of the alleged deed from Eveland to Varney and all subsequent deeds through her appearing in the chain of title to the real estate involved, and to an accounting as prayed in the complaint. Judgment was accordingly entered against Ellsworth and the Maryland Casualty Company for $ 13,367.11, which with interest amounted to $ 15,777.91 on July 15, 1941, to bear interest from said date at six per cent. per annum. Other judgments rendered were as follows:

Against Sumpter $ 2,483.53

" Varney 6,325.55

" Cotham 1,983.53

" Campbell 1,983.53

together with interest on these respective amounts at six per cent. per annum from July 13, 1938, until paid; and that the account of Ellsworth be surcharged with each of said sums. All deeds involving the title to the real estate in question were canceled by the decree, and the right of subrogation, if any, in favor of the surety was preserved. From this decree comes this appeal.

A brief summary of the facts follows: Frank Eveland suffered a cerebral hemorrhage in his home on February 2, 1936, from which he died the same day. His wife, the mother of appellant, Frances M. Varney, and her sister, Lula Pearl Parr, by a former marriage had predeceased him about four months. Mrs. Varney had lived in the home with them for about seven years and had been supported by him as a member of the family. Shortly after Eveland's death Judge Davis was appointed administrator of his estate and went to the home to make an inventory of the property. No inventory was made of the household effects, but Mrs. Varney produced a black box containing bank pass books, certificates of deposit and other evidences of indebtedness due to Eveland, all personal assets of his estate. All household effects, except the radio were later sold by her and appropriated to her own use. The radio and Eveland's automobile were later taken by Ellsworth, he claiming on trial that he paid her for them which she denied. She first refused to surrender the black box and its contents to Judge Davis, claiming that the estate was indebted to her for services rendered the intestate and was told she must file her claim and have it allowed. She also claimed Eveland had given her the black box and contents prior to his death, on an occasion when he was going to the hospital for a dangerous operation. Judge Davis insisted she must surrender the box, which she did when threatened with the police or a court order. The circumstances of the claimed oral gift were that Eveland was afflicted with a double hernia, and on November 4, 1935, (nearly 90 days before his death) he went to the hospital for an operation. A short time before leaving for the hospital, according to her testimony, he handed her a deed to the real estate here involved and the black box, and said: "If I never come back from the hospital, everything here belongs to you." She did not mention having the deed and did not produce it at that time, and did not place it of record...