Hubbard v. McMahon

• Decision Date: 12 April 1915
• Docket Number: 309,367
• Parties: HUBBARD v. MCMAHON
• Court: Arkansas Supreme Court

176 S.W. 122

117 Ark. 563

HUBBARD v. MCMAHON

No. 309, 367

Supreme Court of Arkansas

April 12, 1915

Appeal from Mississippi Chancery Court, Osceola District; Charles D Frierson, Chancellor; affirmed.

STATEMENT BY THE COURT.

Appellee is a grandson of W. F. Hubbard, who died in Mississippi County in the fall of 1913, leaving surviving him his widow and the following children: Mrs. Hattie McMahon, Mrs. Mays Mrs. Huggins, Mrs. Dean and Clarence Hubbard, Sr. Mrs. Hattie McMahon was the mother of appellee, and Clarence Hubbard Sr., was the father of Clarence Hubbard, Jr. Mrs. McMahon died leaving surviving her, as her sole heir at law, the appellee. Clarence Hubbard, Sr., also died, leaving surviving him, as his sole heir at law, Clarence Hubbard, Jr. The mother of the above children of W. F. Hubbard died when they were small, in Iuka, Mississippi, where W. F. Hubbard at that time was residing. About the year 1889 W. F. Hubbard failed in business in Mississippi. Judgments amounting to a large sum were rendered against him and it does not appear from the records that they were satisfied. Hubbard moved to Arkansas and settled in Mississippi County. He brought with him a sawmill and a few oxen. He began operating there a sawmill. Mrs. H. M. Potts came with him from Iuka and established a boarding house, where W. F. Hubbard and some of his employees at the sawmill boarded. Mrs. Potts intermarried with W. F Hubbard March 3, 1891. After their marriage a large estate was accumulated in Mississippi County, all in the name of Mrs. H. M. Hubbard, the wife of W. F. Hubbard. Soon after the death of W. F. Hubbard, this suit was instituted by the appellee in the chancery court of Mississippi County against Mrs. H. M. Hubbard and the other appellants, the widow and heirs of W. F. Hubbard, deceased, to have a trust declared of the property in the hands of Mrs. H. M. Hubbard in favor of the estate of W. F. Hubbard, deceased, and that appellee be decreed his portion of the estate and that a receiver be appointed to take charge of the property, etc. The appellants answered, denying that the property was held in trust by Mrs. H. M. Hubbard for the estate of W. F. Hubbard, deceased, and alleged that all of the property at the time of the death of W. F. Hubbard belonged to Mrs. H. M. Hubbard.

The court found that "all of the property conveyed to Mrs. H. M. Hubbard after her marriage to W. F. Hubbard was the property of the said W. F. Hubbard at the time of his death and that the said W. F. Hubbard was the owner of all the personal property of every kind and description in his possession and in the possession of Mrs. H. M. Hubbard and claimed by her at the time of the death of W. F. Hubbard and that the said W. F. Hubbard operated and did business under the name of H. M. Hubbard, and that H. M. Hubbard had no right therein except the right of dower and homestead at the time of death of W. F. Hubbard."

The court decreed that the appellee, as the grandson of W. F. Hubbard, was the owner of a fifth interest in all of the property, subject to the dower and homestead rights of Mrs. H. M. Hubbard. Proper orders were entered appointing a receiver to take charge of the property and appointing commissioners for setting aside the homestead and dower of Mrs. H. M. Hubbard. And from the final judgment of the court approving the report of the commissioners disposing of the estate in accord with the above finding this appeal has been duly prosecuted. Other facts will be stated in the opinion.

Decree affirmed.

J. T. Coston, for appellant.

1. The agreement on the part of Hubbard with appellant prior to their marriage and their subsequent marriage pursuant thereto afforded a sufficient consideration to support the transfer of the property to her. 96 Ark. 531; 132 S.W. 645; 1 Moore, Fraudulent Conveyances, 325.

2. The first conveyance to Mrs. Hubbard was made March 6, 1891, and the last was on December 18, 1911. A trust resulted at the instant of each conveyance or not at all. 20 A. 285; 51 N.E. 153; 36 N.E. 619.

There is no competent evidence in the record to show anything said or done, either by Hubbard or his wife, contemporaneous with the execution of any of the conveyances, showing that it was his intention to reserve a beneficial interest in the property, or her intention to hold it in trust for him. The proof is that while his wife allowed Hubbard a large discretion in handling the property, her word was final as to all transactions and he always consulted her. But, if it be conceded that he used the property in all respects without restraint or control on her part, the evidence is still wholly insufficient to strike down a deed. 71 Ark. 373; 74 S.W. 517; 1 Pomeroy, Equity, § 1041; 171 S.W. 477; 58 N.E. 237; Kirby's Dig., § 5227; 43 S.W. 275; 115 Ark. 416.

3. Where a husband purchases real estate and takes the title in his wife's name, the law presumes that he intended it as an advancement or gift; and while it is admissible to prove a trust in opposition to a deed, the evidence offered for this purpose must be of such character as to leave no doubt of the fact. 149 S.W. 83; 48 Ark. 173; 104 Ark. 303.

In this case the presumption is not overcome. The proof is that Hubbard did not like the plaintiff, and had said that if he had any property in Arkansas he would disinherit him; had changed an insurance policy some years before his death so as to cut out plaintiff's rights therein, and when appellant took sick he wrote her will in which she gave her husband the use of the property for life and at his death it was to go to Clarence Hubbard, Jr., and the three surviving daughters, thus cutting out the plaintiff. 66 A. 190; 47 N.E. 432; 86 A. 406; 103 N.E. 194. See also 58 P. 544; 16 A. 325; 142 S.W. 925; 50 P. 471; 100 S.W. 583.

The execution of the will at Hubbard's request, the writing of it by him, and the conveyance of several tracts of land to appellant afterward, evidence the fact that they both understood that the property belonged to her and not to Hubbard, and that in case she died without a will he and his children would not get the property. 116 S.W. 192; 89 Ark. 187.

Lamb & Rhodes and Stone & Son, for appellee.

1. The presumption that where a husband buys real estate and takes the title in his wife's name he intended it as an advancement or gift is not conclusive. It may be rebutted by antecedent or contemporaneous declarations and circumstances which tend to prove the intention of the husband that the grantee should hold as a trustee and not beneficially for herself. 40 Ark. 62.

All the facts and circumstances developed in the evidence, Hubbard's financial embarrassment when he left Mississippi, his having a family of children by a former marriage and none by the second, his merging his business identity into that of H. M. Hubbard, his transacting all business in all respects as his own, the making of the will and Mrs. Hubbard's own admissions that she intended to give certain of his children all of his real estate, lead to the one conclusion that they both understood that the property was his, and that she recognized the trust relationship in which she stood. The evidence is so clear, convincing and conclusive that the chancellor could not have found otherwise. 58 N.E. 237, and cases cited; 66 Ala. 55; 44 Vt. 555; 25 Ia. 43; 169 U.S. 398; 67 Neb. 548; 23 Vt. 638.

Trusts of this nature are taken out of the statute of frauds and may be proved by parol, the evidence, of course, to be full, clear and convincing. 41 S.W. 845; 84 S.W. 491; 88 S.W. 999; Id. 949; Id. 573; 96 S.W. 175; 102 S.W. 228; 74 S.W. 516; 151 S.W. 284; 149 S.W. 80; 146 S.W. 867; 117 S.W. 747.

In all cases the courts look to the intention of the parties as shown by acts and circumstances in determining whether a trust resulted from the transaction. Supra; 42 S.E. 547; 23 A. 57; 102 N.W. 774; 72 N.W. 771.

2. It is well settled that the chancellor's findings of facts are conclusive unless clearly contrary to the preponderance of the evidence. 168 S.W. 616; 166 S.W. 740; Id. 636; 165 S.W. 457; Id. 269; 113 Ark. 19; 112 Ark. 134, and many other Arkansas cases.

WOOD J., MCCULLOCH, C. J., and KIRBY, J., Dissenting.

OPINION

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

After the marriage of W. F. Hubbard (who will hereafter be designated as Hubbard) to Mrs. H. M. Potts (who will hereafter be designated as Mrs. Hubbard), real estate was accumulated in the name of Mrs. Hubbard in Mississippi County, Arkansas, that was appraised at $ 40,180, as shown by the report of the commissioners appointed to set apart her dower and homestead.

Mrs Hubbard testified that Hubbard was running a store at Iuka, Mississippi, before he came to this country, and that he turned the store over to a clerk named Jordan and the clerk broke him. "That was why he left there." In explanation of why the real estate was taken in her name, she says: "When he (Hubbard) got the telegram from Jordan that his store was closed, of course I got dissatisfied and packed my trunk to go away. He said: 'Now, if you will stay here and marry me, I will marry you, and what we accumulate in this bottom will be yours.'" When asked if there was any consideration for her marriage to Hubbard other than simple love and affection, she answered: "He told me if I would marry him everything he made in Arkansas would be mine." She further stated that his proposition was accepted by her. In response to the question why all of the deeds were taken in her name instead of Hubbard's, she answered: "Because I would not live in Arkansas except everything was in my name." She also stated that at that time she was engaged to Hubbard, expected to marry him, and when the telegram came telling of the failure of his business in...