Keesee v. Bushart

• Decision Date: 26 January 1942
• Docket Number: 4-6588
• Citation: 158 S.W.2d 915,203 Ark. 668
• Parties: KEESEE v. BUSHART
• Court: Arkansas Supreme Court

158 S.W.2d 915

203 Ark. 668

KEESEE v. BUSHART

4-6588

Supreme Court of Arkansas

January 26, 1942

Appeal from Sebastian Circuit Court, Ft. Smith District; J. Sam Wood, Judge; reversed.

Judgment reversed and cause remanded.

Pryor & Pryor and G. Byron Dobbs, for appellant.

Joseph R. Brown, for appellee.

OPINION

HUMPHREYS, J.

This is an appeal from a judgment quashing executions issued out of the circuit court of Sebastian county, Fort Smith District, on separate judgments rendered in said court against appellees in favor of appellants on March 7, 1939 growing out of an automobile collision. The executions were levied on lots three (3) and four (4), block one (1) Westminster Addition to the city of Fort Smith, which lots were of less than $ 2,500 in value, and less than one acre in area, and had upon them a five room house. A will was executed on November 30, 1938, by Thomas E. Bushart to his son, Carroll Bushart, and was probated after the testator's death on September 22, 1939, presumably remaining in the possession of the testator until his death there being no evidence in the record to the contrary. Thomas E. Bushart was the owner of the property at the time of his death and had been the owner thereof and resided therein for many years up to the date of his death. Carroll Bushart lived in the home with his father practically all of his life and after his marriage in 1936, he and his wife continued to live with his father until June, 1939, when he and his wife rented a furnished place on Blair avenue and moved into it where they remained until three or four days after Carroll Bushart's father died, and then moved back to his father's home place. The property in question was situated on Grand avenue, in the city of Fort Smith. The property on Blair avenue, which Carroll Bushart rented and moved into about five months before his father died, was quite a distance from the Grand avenue property.

Carroll Bushart testified that he was engaged in the motorcycle and automobile repair and parts business while he was living with his father on Grand avenue and that the noise in operating same disturbed his father and out of consideration for his father's comfort, he and his wife rented the Blair avenue property and moved into it until he could liquidate his motorcycle business with the intention of moving back with his father when he had done so; that when they moved into the Blair avenue property they left their furniture in his father's home, including their washing machine; that his wife continued to do the family washing at his father's home and that he frequently visited his father, but said that they ate and slept most of the time at the Blair avenue property; that his father all along had promised to give him the Grand avenue property for a home, but after his mother died and he married in 1936, he stated that if they continued to live with him, he would will the property to Carroll Bushart. His exact testimony, with reference to the gift or the promise to make a will, is as follows:

"At my mother's death, Dad said stick together and it would always be my home as it had been always in the past. Q. Did he tell you then that he would give it to you, and it would be your home? A. Yes, sir." On cross-examination he testified: "Q. The understanding was that your father intended to leave it to you by will? A. Yes, sir."

Carroll Bushart and his wife were not actually residing in the Grand avenue property with his father, at the time of his death, and had not actually resided there with him since June, 1939. The judgments were rendered March 7, 1939, and were an outstanding lien on all property owned by Carroll Bushart and his wife from that date except such property as was exempt and not subject to a judgment lien or execution thereon.

Carroll Bushart testified that ...