Hudson v. Hudson, 4-9536

• Decision Date: 02 July 1951
• Docket Number: No. 4-9536,4-9536
• Parties: HUDSON v. HUDSON et al.
• Court: Arkansas Supreme Court

Page 154

242 S.W.2d 154

219 Ark. 211

HUDSON v. HUDSON et al.

No. 4-9536.

Supreme Court of Arkansas.

July 2, 1951.

Rehearing Denied Oct. 8, 1951.

G. T. Sullins, Rex W. Perkins and E. J. Ball, Fayetteville, for appellant.

C. D. Atkinson and Chas. W. Atkinson, Fayetteville, for appellees.

ROBINSON, Justice.

This action arises out of an effort to probate the will of Betty A. Kessel who died in the year 1935, leaving, as surviving heirs, two daughters and three sons, Ida Wages, Ada Wages, Ed Hudson, Loyd Hudson, and Ona Hudson; also, four children of a deceased son, Arthur Hudson. Mrs. Kessel left a will, the provisions of which made her son Ona, the principal devisee.

It appears that Ona and his brother Loyd had always lived at home with their mother. Mrs. Kessel had no income but owned her home. Ona, who was disabled to some extent, and Loyd took care of their mother, providing the necessaries of life, including the employment of a woman who did the housework, cooking, etc. The other sons and daughters of Mrs. Kessel had homes of their own. Immediately following his mother's death, Ona left the State and did not return for about 14 years.

Loyd Hudson placed the will, along with other papers, in a lockbox at the home, where it remained until after Ona's return to the State. No administration was had on the estate of Mrs. Kessel nor was the will filed for probate until the 26th day of May, 1950. The judgment of the Probate Court was that the will should not be admitted to probate. Ona, who is seeking to probate the will, appealed to this Court.

Loyd testified that it was understood by the brothers and sisters present the night of their mother's death that Ona should have the property as Ona and Loyd had stayed at home and taken care of their mother. Loyd paid the funeral expenses by monthly payments over a period of several months without any help from his brothers and sisters. Loyd, who is not contesting the will, testified that it was his desire that Ona get the property. Ed Hudson, one of the contestants, testified:

Q. 'You didn't expect anything? A. No--we had an understanding way back there that Ona and Loyd would get all of it for taking care of Mother, and Mother said she never did want any lawsuit over the property so that is the end of that.'

In September, 1949, Loyd sold a portion of the property for the consideration of $1,100. Ada, Edward, Loyd, Ida, Ona, and, also, Josie Hudson and Jewel Hudson signed the deed. Loyd turned the money over to Ona. On the 7th day of March, 1950, the contestants in the case at bar filed suit in the Chancery Court asking, among other things, that Loyd and Ona be required to account for the proceeds of the sale. On the 26th day of May, 1950, Ona filed his mother's will for probate. The genuineness of the will is not questioned. The Probate Court held that the will 'is not entitled to probate and the petition of the said Ona Hudson should be dismissed.'

To sustain the judgment of the Probate Court the appellees argue, first, that the transcript of the record filed in this Court by the appellant is not complete; second, the will is barred by the Statute of Limitations; third, estoppel or laches. Appellees filed as an Exhibit to the motion to dismiss for failure to comply with Rule 9 six pages of what is contended should be a part of the transcript. The transcript filed in this Court by appellant is certified by the court reporter as a true, correct and verbatim transcription of all the evidence introduced by either party. The transcript also contains the judgment of the Probate Court, signed by the Probate Judge. The exhibit filed by appellees contains a certificate of the court reporter to the effect that the matter contained therein was inadvertently left out of the transcript. The matter contained in the exhibit is not such as would change the outcome of the case even if it appeared in the transcript as a part of the record. Before the exhibit could be considered in determining whether appellant has complied with Rule 9, the record itself would have to be corrected. Applications for correction of a record, with exceptions not pertinent here, must first be addressed to the trial court. In the case of Gill v. Burks, 207 Ark. 329, 180 S.W.2d 578, 579, this Court said: 'Because affidavits and certificates which are outside of the record, even though made by trial judges, cannot be considered on appeal (Hardie v. Bissell, 80 Ark. 74, 94 S.W. 611) and because under our practice, in the absence of an agreement by the parties, applications for correction of a record must be first addressed to the trial court from which such record proceeded [citing cases] we overruled appellee's motion to correct the record, without prejudice to his right to make application to the trial court. Nothing has been subsequently filed here disclosing that the trial court has taken any action in the matter, and we must, therefore, accept as conclusive matters which are, and wholly disregard matters which are not, properly incorporated in the original transcript filed in this appeal.'

Likewise, in the case at bar, nothing has been filed here showing that the trial court has taken and action in the matter or that it has been presented to the trial...