Jensen v. Housley

• Decision Date: 16 October 1944
• Docket Number: 4-7428
• Citation: Jensen v. Housley, 182 S.W.2d 758, 207 Ark. 742 (Ark. 1944)
• Parties: Jensen v. Housley, Administrator
• Court: Arkansas Supreme Court

182 S.W.2d 758

207 Ark. 742

Jensen v. Housley, Administrator

No. 4-7428

Supreme Court of Arkansas

October 16, 1944

Appeal from Garland Chancery Court; Sam W. Garratt, Chancellor.

Modified and Affirmed.

Jay M. Rowland, Leo P.McLaughlin and Owens Ehrman & McHaney, for appellant.

Samuel Shamberg and Curtis L. Ridgway, for appellee.

OPINION

Robins, Justice.

Appellant, Mrs. Borghild Jensen, brought suit in the lower court against appellees, J. Earl Housley, administrator of the estate of Charles M. Schoen, deceased, and Roy Schoen, son of Charles M. Schoen, deceased, praying for specific performance of an oral contract alleged to have been entered into between appellant and Charles M. Schoen, deceased, in 1928, by which Schoen agreed that, if appellant would accompany him from Chicago to Hot Springs, keep house for him, look after his property and take care of him, appellant would receive all of Schoen's property upon his death.Appellant alleged that she had performed the undertakings of said contract on her part and was entitled to all of Schoen's real estate and personal property.Schoen was the owner of a dwelling house in Hot Springs, household goods located therein, and certain real estate in Chicago.

Appellees in their answer denied the existence of the contract relied upon by appellant and pleaded in bar of any right of appellant a judgment of the Garland probate court disallowing a claim for $ 3,900 filed by appellant against the estate of Schoen for her alleged services to Schoen before his death.Appellees further alleged that it was necessary to sell the Garland county real estate to pay Schoen's debts and that after payment of the debts appellee, Roy Schoen, was entitled to the remainder of his father's property.By way of crosscomplaint appellees alleged that at the time of his death the said Charles M. Schoen, deceased, had approximately $ 9,000 in currency and a diamond ring of the value of $ 750 which appellant had concealed and converted to her own use, and that appellant was indebted to the estate in the sum of $ 1,015 for rent on the dwelling house occupied by her after Schoen's death, and judgment against appellant for the amount of these items was prayed by appellees.

The court found that the administrator was entitled to the proceeds of all of the real and personal property described in the complaint for the purpose of paying the debts of the estate and the costs of the administration; that there was no valid contract between Schoen and appellant by which his property was to become the property of appellant upon his death; that the money sought to be recovered by the administrator upon his crosscomplaint had been given to appellant before the death of Schoen and was her property, but that there was no valid gift of the diamond ring which appellant claimed Schoen had given to a relative prior to his death and which appellant had turned over to this relative after Schoen's death; and that the administrator was entitled to recover from appellant the said ring or its value, which was found to be $ 750; and that the administrator was entitled to judgment against appellant for rent on the home and furniture at the rate of $ 25 per month from June 22, 1940.From decree entered in accordance with these findings both sides have appealed.

The validity of an oral contract to make a will has long been recognized and such contracts have often been enforced by the courts.Hinkle v. Hinkle,55 Ark. 583, 18 S.W. 1049;Naylor v. Shelton,102 Ark. 30, 143 S.W. 117, Ann. Cas. 1914A, 394;Fred v. Asbury,105 Ark. 494, 152 S.W. 155;Williams v. Williams,128 Ark. 1, 193 S.W. 82;Speck v. Dodson,178 Ark. 549, 11 S.W.2d 456;Schwegman v. Richards,184 Ark. 968, 43 S.W.2d 1088.But it is equally well settled that the testimony to establish such a contract must be clear, satisfactory and convincing.Kranz v. Kranz,203 Ark. 1147, 158 S.W.2d 926;Sheffield v. Baker,201 Ark. 527, 145 S.W.2d 347;Williams v. Williams,128 Ark. 1, 193 S.W. 82;Walk v. Barrett,177 Ark. 265, 6 S.W.2d 310;Tucker v. Wycough,194 Ark. 840, 109 S.W.2d 939.As was said by the court in the case of Kranz v. Kranz, supra, wherein it was sought to establish such a contract, "it is not sufficient that he establish it by a preponderance of the testimony, but that he must go further and establish the contract by evidence so clear, satisfactory and convincing as to be substantially beyond a reasonable doubt."

Appellant sought to establish the contract relied on by the testimony of herself and Sterling C. Couch.Mr. Couch testified as to conversations with the deceased which might be said to indicate a belief or wish on the part of Schoen that appellant would receive his property, but did not testify as to any statement by the deceased that would establish that such a contract had been made.Mr. Couch identified as being in Schoen's handwriting an instrument written, dated and signed by Schoen, but not witnessed, in which he willed all of his property to appellant.This instrument has never been offered for probate as a holographic will, doubtless for the reason that Roy Schoen, the son of the deceased, was not mentioned therein and therefore, in this state, it was ineffective to prevent Roy Schoen from inheriting as a pretermitted child.A letter written by Schoen to his lawyer, in which he stated that he had transferred the Chicago property to appellant, was also identified by Mr. Couch.

Appellant testified that Mr. Schoen had been married, but was divorced.(Appellant apparently had been married, but whether her marriage had been terminated by death of her husband or divorce does not appear in the record.)She testified that she had been working for Mr. Schoen in Chicago for some time when, in 1928, he proposed to her that, if she would accompany him to Hot Springs, keep house for him there, look after him and attend to his property for him, she would receive all of his property, and that in pursuance of this agreement she became his housekeeper and companion, doing his cooking, marketing and household work, as well as assisting him in looking after his business, up until his death, which occurred on June 13, 1940.She introduced in evidence a number of letters written to her by the deceased while she was on a visit to Chicago.These letters reflect the existence of a close relation between the parties and a strong affection on the part of Schoen toward appellant, and also indicated that he did not look upon appellee, Roy Schoen, as a son.There was no proof, however, to the effect that Roy Schoen was not a son of Charles M. Schoen, and this relationship was impliedly recognized by appellant in a pleading filed by her in which she asked that Roy Schoen be required to execute a deed conveying all the real estate involved herein to her.

Section 5154 of Pope's Digest of the laws of Arkansas provides: "In civil actions, no witness shall be excluded because he is a party to the suit or interested in the issue to be tried.Provided, in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party.Provided further, this section may be amended or repealed by the General Assembly."Constitution, Sched.§ 2.

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