Felton v. Brown

• Decision Date: 18 March 1912
• Citation: 145 S.W. 552
• Parties: FELTON et al. v. BROWN et al.
• Court: Arkansas Supreme Court

145 S.W. 552

FELTON et al. v. BROWN et al.

Supreme Court of Arkansas.

March 18, 1912.

Appeal from Lonoke Chancery Court; Jas. B. Reed, Special Chancellor.

Action by Mary A. Felton against Carrie Brown and others. From the judgment, plaintiff and certain defendants bring cross-appeals. Affirmed in part, and reversed in part, with directions.

Trimble, Robinson & Trimble, of Lonoke, for appellants. A. C. Martineau, of Little Rock, for appellees.

WOOD, J.

1. This is a suit by the appellant Mary A. Felton to have homestead allotted and dower assigned to her in certain real and personal property. She is the widow of Marion Felton, deceased. At the time of his death, he owned and occupied 160 acres of land, which constituted his homestead. He also owned about 193 acres of other land, 20 acres of which was well improved, and adjoined the homestead on the west. The rest was unimproved. He owned personal property of the value of something more than $400, and had in the bank $550. His children were Alice, George, Garland, Watt, Louis, Carrie, and Media. Louis and Carrie were the youngest, and lived with Felton and his wife at the time of Felton's death. After his death, Carrie intermarried with one Brown, and before his death Media had intermarried with one B. F. Smith. Alice was also married. Louis and Carrie, and her husband, Brown, were made parties defendant to the suit. The defendant Louis Felton did not resist the claim of appellant Mary A. Felton. The defendant Carrie Brown and her husband filed an answer and cross-complaint, in which they set up that a certain agreement had been entered into between appellant Mary A. Felton and Louis and Carrie, by which certain of the real estate and personal property belonging to her father at the time of his death were allotted to appellant Mary A. Felton as her share, and prayed that said agreement be carried out. She made Louis a defendant to her cross-complaint. Louis and Mary A. replied to the answer and cross-complaint, in which they denied the agreement alleged therein, and set up that instead there was a different agreement entered into between them as to the division of the property.

The appellee Alice Lamb was the daughter of Marion Felton by a former wife, and a half-sister of Carrie Brown and Louis Felton. She intervened in the suit, claiming one-third interest in the estate of her father, Marion Felton. Mary A. Felton and Louis Felton answered the intervention, denying that Alice Lamb had any interest in the subject-matter of the suit as one of the heirs of Marion Felton. Alleged that she had received her interest by way of advancement, and that as evidence of that fact she had executed a deed of release unto the other heirs of all her interest in the estate. Alice Lamb replied to this answer, admitting that she did sign the deed of release, but alleged that same was obtained by fraud and undue influence, and that there was no consideration paid for same. She prayed that the deed of release executed by her be set aside and canceled. The court found that the deed of release executed by Alice Lamb was procured from her by her father, Marion Felton, by undue influence, and was without consideration and void, and entered a decree canceling the same and alloting to her a one-third interest in the estate, making her share equally with her half-brother, Louis Felton, and her half-sister, Carrie Brown. This presents the first question for our attention.

There was adduced in evidence a deed, executed by Alice Lamb to the heirs of Marion Felton, in which, for an alleged consideration of $1,100, she released unto the other heirs all of her "right, title and interest in and to the real and personal estate of the said Marion Felton." There was testimony on behalf of appellee Alice Lamb tending to show that she inherited 40 acres of land from her mother. Alice Lamb testified that on the 23d of November, 1880, she joined with her father and with her stepmother, Mary A. Felton, in conveying her interest in the land she inherited from her mother to one Edward Chapman; that on the same day her father and Mary A. Felton conveyed to her (she then being unmarried), in exchange for this land, the 80 acres on which she now resides; that she afterwards married with Eagle, and immediately took possession of the 80 acres conveyed to her by her father in exchange for her interest in her mother's estate. She stated that she and her husband built a house on the property, and that in July, 1884, the house burned, and with it the deed which she had received from her father to the 80 acres, but which had never been recorded. She further testified that after the deed was destroyed she asked her father to make her a new deed; but this he refused to do, unless she would execute a deed of release. She stated that her father represented to her that she would lose her title to the land, and that she, being ignorant of the law and relying upon him, executed the release in evidence to the other heirs. She further testified that the consideration named in the release of $1,100 was never paid her by her father, and that he had never given her anything in money or property, and that the only consideration for the release was the deed of her father to the 80 acres of land on which she was then residing.

There was evidence in her behalf tending to show that the land she inherited from her mother, which she claims to have given in exchange for the 80 acres deeded to her by her father, was very valuable, being cleared and on a public road, and that the land which her father deeded to her in exchange was at the time unimproved and worth only about $300; that soon after the exchange was made her husband began to pay taxes on the same. The deed of release was executed on the 29th day of May, 1885, over four years after the alleged deed of Alice Lamb, conveying to her father her interest in her mother's estate.

Witness H. T. Bradford testified concerning the deed of release that the same was acknowledged before him as justice of the peace; that he had no recollection as to whether any money consideration was talked of or not at the time. He gave it as his opinion that the consideration was a certain tract of land she got. He said that, in his opinion, a deed which bears the same date as the deed of release was the consideration for the $1,100 mentioned in the deed of release.

Mary A. Felton testified concerning this that the land that Alice inherited from her mother was not more valuable than the land she got from her father; that the land that she inherited from her mother was about worn out; that Alice received as much of the estate as the other children; that she got 80 acres of land and a horse, also a cow and calf; that Mr. Felton, during his lifetime, made advancements to his children as they became of age and married. Alice got her part just as the others had got their part. The 80 acres of land she got was good land; between 12 and 15 acres of it was fenced, and had been worked a year. She saw Alice frequently after Mr. Felton conveyed her the land, and Alice never expressed any dissatisfaction; on the contrary, she said that she got the pick of the estate; that she got a fine piece of land that would make her a good home, and she was well satisfied with it. She sold to her father the land that she inherited from her mother. Witness knew Alice's father paid her for the land.

Geo. Felton testified that his father made provision for all of the children, except Louis and Carrie, during his lifetime; that he gave them their part of the estate. The same arrangements were made with Alice as were made with the others. The 80 acres given to Alice was given her as her part of the estate. He gave her also horses, cows, and hogs, and gave to her husband at that time provisions to run the place. "When any of us married," said the witness, "Pa would give us our part of the estate. The only ones he didn't provide for were the two youngest, Carrie and Louis. Alice got as much as the balance of us did. I signed my right to the balance of the heirs when I got my part of the estate, and so did she."

Another one of the heirs, W. L. Felton, testified substantially to the same state of facts. And these witnesses say that their father put up himself one house on the 80 acres of land that he gave Alice as her part, and helped put up another that was burned. One of these witnesses said that when Alice went to marry her father told her that "she would have to have a home, and he was going to give her that 80 acres of land. Father said to her, `I have a mare here I will give you, and put you up a house on that land for your interest in the Burris place,'" referring to the land Alice Lamb inherited from her mother. Witness further stated that Alice accepted it; and he never heard of her making any complaint regarding the part of the estate she got from her father until after the suit came up, which was 25 or 30 years after she had received the 80 acres of land from her father.

Carrie Brown testified that she heard her father say that he gave Mrs. Lamb the 80 acres where she was living for her interest in his estate.

The testimony of all these witnesses was to the effect that it was the intention of their father that Carrie and Louis, the youngest children, should share equally in the estate that was undisposed of at the time of his death, reserving to Mrs. Mary A. Felton her homestead and dower interest.

We are of the opinion that the court erred in finding that the deed of release executed by Alice Lamb to the other heirs was procured by her father under undue influence and without consideration. The clear preponderance of the evidence tends to show that this release was executed in consideration of the fact that she had before received her share of the estate, and was in recognition of that fact. It is scarcely believable that the father, who is shown to have been so generous and fair to all of his children...