Gray v. Parks

• Decision Date: 21 February 1910
• Citation: 125 S.W. 1023
• Parties: GRAY et al. v. PARKS et al.
• Court: Arkansas Supreme Court

125 S.W. 1023

GRAY et al. v. PARKS et al.

Supreme Court of Arkansas.

February 21, 1910.

Appeal from White Chancery Court; Jno. E. Martineau, Chancellor.

Suit by James F. Gray and others against Martha A. Parks and others. From a decree dismissing the bill, complainants appeal. Reversed and remanded, with directions to overrule demurrer to bill and for further proceedings.

This was a suit brought by the appellants. The complaint set up that Jesse L. Gray died in White county, leaving a supposed will in which he bequeathed to his son, Harrison T. Gray, who had departed this life prior thereto, $5, but making no mention of plaintiffs, children of Harrison T. Gray and grandchildren of testator.

The appellants also alleged that the will was obtained through the fraud of one Rufus B. Gray, practiced on Jesse L. Gray. The complaint alleged in detail the acts of fraud of Rufus B. Gray (which it is unnecessary here to set forth), and then continued as follows: That as a consequence of such deception the said father caused his said supposed last will to be written in accordance with the false idea so caused to be in his mind by the said Rufus B. Gray as aforesaid, and in the same way caused the said supposed codicil thereto to be written and executed as aforesaid, giving the said Harrison T. Gray and the said James F. Gray the nominal sums of $5 each, and the said Walter Gray $150 and hereinabove set forth; whereas, the facts were, and the said Rufus B. Gray at the time well knew the facts to be, that the said estate of the said Jesse F. Gray, now deceased, amounted to vastly more than the said aggregate sum of 11 times $500 over and above enough to pay the debts and funeral expenses, to wit, the sum of $5,500; that is, that it amounted to about the sum of $10,000 over and above enough to pay the said debts and expenses. That the shares of the said James F. Gray, Harrison T. Gray, deceased, and Walter Gray, deceased, instead of being $500 each, were more than $900 each. That therefore, instead of being entitled to receive $150, the said Walter Gray, deceased, was entitled to receive more than $550 out of his father's estate. That instead of the said Harrison T. Gray, deceased, being entitled to receive a nominal sum only, because of having theretofore received $500 in advancements, his heirs were entitled to have received more than $900. That instead of the said James F. Gray being indebted to the estate of his said father, and so being entitled to receive nothing therefrom, he was entitled to have received more than $900 therefrom. And further alleged: "That the said Rufus B. Gray was appointed executor of the estate of the said Jesse F. Gray, deceased, by the said supposed last will and testament, and he, as such executor, presented the said supposed last will and testament to the probate court of White county for probate; that the said Rufus B. Gray, as such executor, by falsely and fraudulently representing to the said probate court that the said will was duly executed by and was the will and deed of the said Jesse F. Gray, deceased, deceived the said probate court and induced the said court to admit said last will and testament to probate in the common form."

The complaint contained these further allegations: "That the plaintiffs, who are the children of said Harrison T. Gray, at the time of the making of said will and at all times thereafter until more than one year after the date of the probating of said will were residents of the state of Oklahoma; that they were ignorant during all that time of the death of the decedent, and so had no opportunity to be represented in said probate court nor to appeal from its judgment." It was also alleged that Jesse F. Gray, deceased, at the time of his death, owned 560 acres of land in White county which is described; that each person, party to this suit, both plaintiff and defendant, save and except only David G. Gray, is entitled to a distributive share in the said real estate, as hereinabove set forth; that the said land is not capable of being divided in kind among the several persons entitled to a share thereof as aforesaid, without great damage and prejudice to the parties in interest. The prayer was that the will and codicil be set aside and held for naught, and that the plaintiffs, appellants, be admitted to share in the distribution of the estates according to their respective interests as son and grandchildren of Jesse L. Gray, and for "an order directing the sale of said land, the proceeds of such sale to be divided among the various parties entitled thereto as aforesaid, pursuant to the orders of this court, and for all further and proper relief."

The appellees demurred,...