Holt v. Werbe

• Decision Date: 09 September 1952
• Docket Number: No. 14519,14531.,14519
• Citation: 198 F.2d 910
• Parties: HOLT v. WERBE et al. WERBE et al. v. HOLT.
• Court: U.S. Court of Appeals — Eighth Circuit

198 F.2d 910 (1952)

HOLT v. WERBE et al. WERBE et al. v. HOLT.

Nos. 14519, 14531.

United States Court of Appeals Eighth Circuit.

September 9, 1952.

Edgar E. Bethell, Ft. Smith, Ark. (O. E. Williams, Fayetteville, Ark., on the brief), for Earl Werbe and Lou Werbe.

E. J. Ball, Fayetteville, Ark. (Rex W. Perkins, Price Dickson, and Lee Seamster, Fayetteville, Ark., on the brief), for Mrs. Jessie Holt.

Before SANBORN, WOODROUGH and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

These appeals are from a judgment in an action involving a controversy between appellee, Earl Werbe, and appellant, Mrs. Jessie Holt, over title to real estate in Fayetteville, Arkansas, each party claiming as grantee under deeds from the same grantor, Frederick Werbe. The action was tried to the court without a jury. The questions presented require a statement of the evidence in detail.

Frederick Werbe, a resident of Fayetteville, Arkansas, died October 21, 1948, survived by Earl Werbe, his son by adoption, his sole heir at law, a resident of Indiana. Some years prior to his death Frederick Werbe had been in ill health. After the death of his wife he had lived in his residence at Fayetteville, Arkansas, the property in controversy, attended by Mrs. Jessie Holt in the capacities of housekeeper, cook and nurse. Mrs. Holt entered the Werbe household during the life of Mrs. Werbe, an invalid, and remained in the capacities stated until Mr. Werbe's death.

After the death of his wife Frederick Werbe was concerned with the problem of the disposition of his estate after his death. The subject was one of discussion with his acquaintances, all and sundry, and, as is not unusual in persons of his condition and situation, he made conflicting statements as to his intentions. Also he prepared conflicting wills over a period of several years. To some of his acquaintances he said that Mrs. Holt would receive all his estate at his death. On occasion he said that he had agreed with Mrs. Holt that she should receive his estate in return for her services to him and his wife during their last years. To others he said that his adopted son, Earl would receive his estate. At times he was severely critical of Mrs. Holt, even suggesting his fear that she would try to secure his estate against his will. At other times he spoke disparagingly of Earl Werbe. But it is significant that Frederick Werbe never at any time, so far as the record discloses, considered the surrender of dominion or control over his property while he lived. On the contrary, in reduced financial circumstances, he clung tenaciously to all he had.

On June 4, 1948, Frederick Werbe executed a will which at his request had been prepared by J. R. Crocker, an attorney of Fayetteville, by which he devised the real property in controversy to Earl Werbe, together with the bulk of his personal estate. On the same day he executed a deed conveying the real property in controversy to Earl Werbe. This deed contained no reservations in favor of the grantor. It recited a consideration of $1 and other valuable considerations. If delivered with the intention to pass title immediately, Earl Werbe would have been entitled to immediate possession of the described property to the exclusion of the grantor.

Crocker placed the will and deed in a safety deposit box in a Fayetteville bank which he had procured for that purpose for Frederick Werbe at his direction.

Frederick Werbe wrote Earl:

"I wrote you a letter on yellow paper so she could see it don\'t pay any attention to it at all. I made a new deed & will they are in the McEllory Bank Box * * * should I die here the will will have to be gone through this court. & I have to get this deed to you while living".¹

In the letter Frederick Werbe asked Earl to address all correspondence to Crocker, the attorney, "otherwise she will get hold of them." There is no evidence that Earl Werbe replied to this letter, but afterwards Werbe gave Crocker written directions as follows:

"Send will and deed to him Earl Werbe.

"tell him to keep will & send deed back to you immediately to have recorded."

On June 23, 1948, Crocker mailed the deed and will to Earl Werbe advising him that the instruments were sent at Frederick Werbe's request and that Frederick Werbe "requests that you retain the will in some secure place and return the deed after you have examined it. The deed is to be returned direct to me." The letter directed Earl Werbe to send any correspondence to Frederick Werbe about the deed or will to Crocker for delivery to Frederick Werbe.

On June 29, 1948, Earl Werbe returned the deed to Crocker with the following letter:

"Received your letter and both Deed and Will. After having looked them over I find them to be in order. * * *

"I think that the Deed should be recorded. * * *"

The deed was not recorded, but after Earl had mailed the deed to Crocker, Crocker called Earl Werbe and received his consent to return the deed to Frederick Werbe.² This telephone call was made from the office of Price Dickson, an attorney, who had advised Frederick Werbe in his business affairs for many years.

Earl Werbe testified that Frederick Werbe had written him to return the deed. He did not produce the letter. He testified that following the telephone conversation with Crocker he talked with Frederick Werbe by long distance telephone and told him the deed should be recorded, that Mrs. Holt broke in on the conversation and promised that the deed would be recorded. A neighbor of Frederick Werbe claimed to have overheard this conversation — that Frederick Werbe told Earl that the deed to him would be recorded. This conversation loses significance since it occurred after Earl Werbe had returned the deed to Crocker in response to Crocker's letter transmitting it to Earl for "examination."

After the telephone conversation with Earl, Crocker, accompanied by Dickson, delivered the deed to Frederick Werbe at his residence. After Crocker left, Frederick Werbe destroyed the deed in Dickson's presence and instructed Dickson to prepare a deed conveying the real property to Mrs. Holt, and a new will devising his estate to her. Dickson prepared the deed and will as directed and both were duly executed on July 13, 1948. The will contained the following item:

"Jessie Holt has lived in our home for many years and cared for my wife during her lifetime and since then has acted as my housekeeper, and it is my desire that she be rewarded for her services and I, therefore, give, devise and bequeath to the said Jessie Holt all of my property, real, personal and mixed of whatsoever description or wheresoever located."

As originally prepared by Dickson the deed conveying the real property to Mrs. Holt contained no reservation of a life estate in the grantor. Frederick Werbe refused to sign the deed until Dickson had amended it to include this reservation. As amended and executed the deed was delivered to Mrs. Holt and by her placed of record on July 16, 1948. The recited consideration was $1 and other valuable considerations.

Following the death of Frederick Werbe in October 1948, Mrs. Holt, named as executrix in the will of July 13, 1948, presented it for probate in the State Probate Court. Earl Werbe, within the time allowed by law, appeared in the Probate Court to contest the will, alleging that it was the result of undue influence of Mrs. Holt on the testator at a time when he was lacking in testamentary capacity. Earl Werbe claimed the Werbe estate as the sole surviving heir at law. There were two trials of this will contest in the State Probate Court and two trials in the State Supreme Court, with the result that the will was sustained and Earl's contest dismissed.

About the same time that Earl Werbe instituted his action contesting the will in the Probate Court, he brought a separate action in the State Chancery Court against Mrs. Holt, attacking the deed to Mrs. Holt on the ground that it was void because of undue influence of the grantee over the grantor, and claiming title as the heir at law of Frederick Werbe. The prayer of the complaint in this action was that the deed to Mrs. Holt be cancelled as a cloud on Earl Werbe's title as Frederick Werbe's sole heir at law. Mrs. Holt's answer to this action was a denial of the allegations of the complaint, and a cross-complaint in which she alleged that she entered the employment of Frederick Werbe prior to March 1934 under an oral contract made at the time by which Frederick Werbe agreed that, if she would remain in his employment as housekeeper for the balance of his life, "he would give to her either by will or deed the property which he then owned and which is set forth in plaintiff's complaint, and all other property that he might own or possess at the time of his death." She alleged full performance of this agreement by the parties, Frederick Werbe's performance evidenced by the will and deed of July 13, 1948. She also alleged that in the event the will contest was determined adversely to her she was entitled to specific performance of the contract. The prayer of the cross-complaint was that "in the event for any reason the will of the deceased heretofore filed and probated in the Probate Court be held invalid that she have specific performance of the contract as herein alleged, and that the title in and to all the property both real and personal owned by the deceased at the time of his death be vested in her."

After the filing of this cross-complaint Earl Werbe amended his original complaint to set up the deed of June 4, 1948, alleging that the deed was duly delivered and accepted by him, and that title to the real property in dispute thereby vested in him. This amended complaint concluded with the prayer that the alleged deed of July 13, 1948, to Mrs. Werbe be cancelled. This action in the State Chancery Court was held in abeyance pending the conclusion of the will contest.

When the will contest was decided against the contestant, ...