Hall v. Cox

• Citation: 149 S.W. 80,104 Ark. 303
• Parties: HALL v. COX
• Decision Date: 24 June 1912
• Court: Supreme Court of Arkansas

149 S.W. 80

104 Ark. 303

HALL v. COX

Supreme Court of Arkansas

June 24, 1912

Appeal from Sharp Chancery Court, Northern District; George T Humphries, Chancellor; reversed in part.

STATEMENT BY THE COURT.

This is a suit by the appellants as collateral heirs of S. Alice Cox against appellee to falsify and set aside certain settlements of the latter as administrator of the estate of S. Alice Cox deceased.

It is alleged, among other things, that in 1904 the appellee defendant below, "fraudulently caused to be allowed against the estate of S. Alice Cox, deceased, in his favor, a demand in the sum of $ 264, comprising the following items:

Feb. 10, 1903--To funeral expenses

$ 100.00

Dec. 28, 1903--To monument

100.00

Dec. 28, 1903--To base to monument

10.00

Jan. 10, 1904--To walling and improving grave

50.00

Jan. 10, 1904--To hauling monument

4.00

Total amount

$ 264.00

It is also alleged that defendant, on the 22d day of March, 1903 "fraudulently caused to be allowed by said probate court a false, fictitious and fraudulent claim against said estate in the sum of $ 1,210 for improvements falsely claimed to have been made on the farms and lands belonging to his said wife, described in said complaint." It also alleged that the claim was "stale and should not be enforced in a court of equity."

The complaint also set up that the defendant fraudulently obtained from the probate court an order directing him, as administrator, to sell certain lands for the purpose of paying debts of the deceased, S. Alice Cox; that the defendant fraudulently conducted the sale, setting forth specific acts alleged to constitute the fraud. The complaint then alleged that S. Alice Cox, deceased, was seized at the time of her death of the lands thus alleged to have been fraudulently sold, which are described.

Plaintiffs alleged that at the time of the death of S. Alice Cox they "became the owners and entitled to the possession of all the real, personal and mixed estate of the said S. Alice Cox she having died without living issue and the plaintiffs being all her collateral heirs."

There were other allegations in the complaint as to the fraudulent obtaining of letters of administration and concealment of the personal property of the intestate, and the filing of fraudulent inventories of the personal property, all of which it is unnecessary to set forth. The complaint concluded with a prayer that "defendant's letters of administration be cancelled; that the sale of the personal property be held fraudulent and set aside; that the inventory be set aside for the same reason; that the order of the probate court approving the sale of the personal property be held void that the account and allowance in the sum of $ 264 be held fraudulent and void and be set aside; that the allowance in the sum of $ 1,210 be set aside for the same cause and for laches; that the order of the probate court of March 19, 1907, authorizing and directing a sale of the lands for the payment of debts and the sale thereunder, be held void and of no effect for the fraud of said defendant in procuring it; that the title and possession of all the property of which said S. Alice Cox died seized be decreed to plaintiffs, and for all other proper equitable relief."

The answer of the defendant admitted that he had filed a claim against the estate in the sum of $ 264, as alleged; averred that he furnished the material and incurred the expense in the burial of his wife, as charged in his account, and that the monument charged for was not paid for out of the means of the deceased, but paid for out of his own means. He also admitted that he filed a claim in the sum of $ 1,210, and alleged that it was allowed by the court. He admitted that on the 19th of March, 1907, he applied for and obtained an order of the probate court directing him, as administrator, to sell certain lands belonging to the deceased at the time of her death for the purpose of paying the debts probated against her estate; and he admitted that at the time of her death the said S. Alice Cox held the legal title to the lands in controversy.

He disclaimed any intention to perpetrate a fraud in his conduct as administrator in conducting the administration of the estate; alleged that he was lawfully married to the deceased, S. Alice Cox, and that children were born alive to them in lawful wedlock.

The other allegations of the answer consisted in denials of certain allegations of the complaint.

In an amended answer and cross complaint, the defendant set up that the legal title "to the 244.29 acres of land and town lots (which are described) were vested by deed in his wife, the said S. Alice Cox, at the time of her death," but alleged that she only held said legal title in trust for her husband, the defendant; that he purchased all of it, paid for it with his own money, and caused the legal title to be vested in her for his benefit and in trust for him, and that it was always understood by and between them that the property belonged to him, and that he managed and controlled it as his own. His answer and cross complaint concludes with a prayer that a decree be entered, "declaring a resulting trust in the lands in his favor and a divestiture of title out of the collateral heirs of S. Alice Cox, deceased, and vesting it absolutely in himself; or, if the evidence should not warrant this, that the court, by its decree, recognize his right of curtesy in the lands in controversy."

The plaintiffs answered the cross complaint of appellee, denying its allegations, and prayed that no resulting trust be declared, and that defendant's claim of curtesy in the lands be denied, and his cross complaint dismissed.

The court, after hearing the evidence in the case, which was voluminous, found that there was no illegality or fraud in the demand in favor of the defendant, F. M. Cox, in the sum of $ 264, allowed by the probate court; that the claim for the sum of $ 1,210 was stale, barred by limitations and so tainted with fraud as to render the same void, and found for the plaintiffs on that allegation of the complaint.

In regard to the lands, the court found "that the defendant bought and paid the purchase money for all the lands in controversy, and in doing so became the equitable owner; that in taking deeds in the name of his wife she became a trustee for his benefit, and that a resulting trust should be declared and the deeds conveying the legal title to her should be cancelled, and the legal as well as the equitable title should be vested in defendant, F. M. Cox; and entered a decree accordingly.

The plaintiffs prosecute their appeal to reverse the rulings of the court in refusing to set aside the judgment of the probate court allowing judgment for the sum of $ 264 against the estate, and in declaring a resulting trust in favor of the defendant as to the lands.

Judgment reversed, and cause remanded.

Joseph B. Judkins and Sam H. Davidson, for appellants.

1. At the common law appellee was himself liable for the funeral expenses of his wife. 53 Ala. 89; 100 Cal. 345; 6 L. R. A. (N. S.) 917, and cases cited in note.

If the separate estate of deceased was liable for any part of the account of $ 264 it was for that part denominated "funeral expenses" only; but, if it was primarily liable, the husband, on account of his ultimate common-law liability, can not recover from the estate. 20 Man. Rep. 444. In any event but a small per cent. of the demand comes under the head of funeral expenses. Webster's Dict., "Funeral."

2. The burden of proof is on the party seeking to establish a trust. 10 Am. & Eng. Enc. of L. 29, 32; 44 Ark. 365; 48 Ark. 173. And the evidence must be full, clear and convincing. 44 Ark. 365, 370; 48 Ark. 174; 54 Ark. 99; 10 Am. & Eng. Enc. of L. 32, notes; 11 Ark. 82; 19 Ark. 39; 45 Ark. 472; Id. 481; 48 Ark. 169; 64 Ark. 115; 75 Ark. 446.

Where the husband purchases property and has title thereto conveyed to his wife, or expends money to improve her property, the law will presume that it was intended as an advancement or gift. No promise to repay the amount so expended will be presumed, nor that a trust was intended to be created in his favor. 86 Ark. 451; 40 Ark. 62; 71 Ark. 377; 48 Ark. 17. The evidence to rebut the presumption of advancement must be as explicit as that required to establish a resulting trust. 41 W.Va. 332; 56 Am. St. Rep. 837.

OPINION

WOOD, J., (after stating the facts).

1. The appellants contend that the allowance of $ 264 for funeral expenses, monument, etc., was not a proper charge on the estate of S. Alice Cox, deceased, and that the court erred in not setting aside such allowance. Conceding, without deciding, that this claim was not a proper charge against the estate, under the evidence there was no fraud practiced upon the court in the procurement of the judgment. The fraud, if any, consisted in the original cause of action only. It consisted in the appellee's presenting a claim for amounts which were false amounts, alleged to have been paid out by him for the various items mentioned in his account. These items might have been contested before the probate court and defeated there, or, if not, then by appeal. The question as to whether they were legal charges against the estate was one of law for the court to determine. It was not a fraud on the court to present such claim for allowance. A fraud that entitles a party to impeach a judgment "must be a fraud extrinsic of the matter tried in the cause. It must not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment that is thus assailed. It must be a fraud practiced upon the court in the procurement of the...