Mabry v. McAfee, 89-279
| Decision Date | 05 February 1990 |
| Docket Number | No. 89-279,89-279 |
| Citation | 301 Ark. 268,783 S.W.2d 356 |
| Parties | Betty MABRY, Appellant, v. Mary McAFEE, Executrix of the Estate of Stella Hunt, Deceased, Appellee. |
| Court | Arkansas Supreme Court |
Phil Stratton, Casey Jones, Conway, for appellant.
Terry Sullivan, Danville, for appellee.
Appellant Betty Mabry and appellee Mary McAfee are step-sisters. Betty Mabry's father, Darrell Hunt, and Mary McAfee's mother, Stella, married years ago when the girls were children.
In March 1977, Darrell and Stella Hunt executed complementary wills leaving the entire estate to the survivor with a provision that if the other spouse predeceased, "then to my children, Betty Mabry and Mary McAfee to be divided equally." Darrell's will, dated March 10, 1977, nominated Stella to execute his will. Stella's will, dated March 8, 1977, nominated Joe Hunt, Darrell's brother, to serve as executor.
Darrell Hunt died in August of 1978 and on March 19, 1979, Stella executed a codicil to her will nominating Mary McAfee to serve as executor, declaring that "my other child, Betty Mabry, shall be excluded from receiving any of my personal property" and bequeathing all personal property to Mary McAfee.
In May 1988, Stella Hunt died and after her will and codicil were admitted to probate Betty Mabry brought this suit in chancery for specific performance of an alleged agreement between Darrell and Stella Hunt culminating in the execution of reciprocal wills which Stella Hunt had altered by codicil.
Ms. Mabry testified that her parents divorced when she was about ten, that she was raised by her mother in Little Rock, but visited her father and stepmother in Briggsville at least twice a year. She said she was present at several discussions between her father and stepmother as to their plans for disposing of their properties, that everything was to be divided between the two girls. After her father died, Stella sold the home place at Briggsville.
Joe Hunt testified about conversations with Darrell and Stella Hunt regarding their plans, that it was Darrell's desire that the property be divided between Mary and Betty, that Stella told him they had made their wills and their desire was that the property be split evenly between the girls. He said the lands conveyed to Darrell and Stella as husband and wife were ancestral lands which Darrell had inherited from the Hunt estate. Joe's wife, Mary, testified that Darrell wanted his property to be shared equally between the two girls, that Stella had talked to her a number of times about their agreement that the property would be equally divided, that she wanted it that way at her death, and that they had made wills leaving everything equally to the girls.
The wife of another of Darrell Hunt's brothers testified to frequent conversations with Stella, that Stella told her she was going to spend whatever she wanted and when she was gone it would be divided equally between Betty and Mary, the last such conversation with Stella having been two weeks before Stella's death.
When the plaintiff rested the chancellor remarked that the proof failed to establish an agreement by clear and convincing evidence, and while there may have been an intention to divide the estate equally between the children, he had not heard sufficient evidence to establish an agreement between Darrell and Stella Hunt to honor the wishes of each other and to be bound by them. Intentions, he noted, are subject to change, contracts are not.
Ms. Mabry has appealed, urging that the chancellor erred in refusing to enforce a bilateral contract that resulted in the execution of reciprocal wills by Darrell and Stella Hunt. We are not persuaded the chancellor clearly erred and accordingly we affirm the decree.
While we review chancery cases de novo, we recognize the superior position of the chancellor to weigh issues of credibility and therefore we do not reverse unless such...
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