Martin v. Martin

• Citation: 135 S.W. 348,98 Ark. 93
• Parties: MARTIN v. MARTIN
• Decision Date: 20 February 1911
• Court: Supreme Court of Arkansas

135 S.W. 348

98 Ark. 93

MARTIN v. MARTIN

Supreme Court of Arkansas

February 20, 1911

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.

Decree reversed and cause remanded.

Ratcliffe Fletcher & Ratcliffe, for appellants.

1. The land in controversy came chiefly, if not entirely, by gift from the mother to Mrs. Thompson, and, on the death of the latter and her child, went back to the former as a maternal ancestral estate. 15 Ark. 588; 19 Ark. 401; 52 A. 172.

2. Plaintiff is estopped to claim an interest in the property in controversy. The division of the property of both the estates and the execution of the will was in pursuance of a plan of family settlement, which the parties have acquiesced in and acted upon. 15 Ark. 275; 64 Ark. 19; 91 Am. Dec. 761; 42 Id. 447; 84 Ark. 610; 8 Cyc. 504-5.

J. W House and J. W. House, Jr., for appellee.

From the testimony, there can be no question that the property came to Mrs. Thompson as a new acquisition, that is, by purchase, or was received by her in consideration of her interest in the Jared C. Martin estate, and upon the death of Mrs. Mary Martin it descended to the brothers and sisters of Mrs. Thompson. 15 Ark. 555; 31 Ark. 103; 70 Ark. 371. Even if the conveyance from the mother to Mrs. Thompson be considered as an advancement, it is still a new acquisition. 52 Ark. 55. In order to constitute a family settlement, the parties interested must all agree to it. If appellants thought the land in question would revert to Mrs. Mary Martin at the death of Thompson, this was a mistake of law that could add nothing to appellant's case. 1 Wend. (N.Y. ) 355; 19 Am Dec. 508; 12 Wis. 125.

OPINION

FRAUENTHAL, J.

This was an ejectment suit instituted by Mary D. Martin, the plaintiff below, for the recovery of her interest as a tenant in common of a tract of land situated in Pulaski County. The plaintiff is a sister of the defendants, and she alleged that she and they were the owners in common of the land, and that they totally denied her right as a cotenant therein. She asserted title to the land as follows: She alleged that her maternal grandfather, John Douglass, died intestate in January, 1861, seized and possessed of the land, and left surviving him Mrs. Mary Martin, the mother of plaintiff, who inherited the property as his sole heir. Thereafter in 1861 Mrs. Mary Martin, the mother of plaintiff, conveyed said land for a valuable consideration to her daughter, Elizabeth A Thompson, who died intestate in 1868, leaving surviving her a husband and one child as her sole heir, who died a few weeks later without issue. Her husband, Lee L. Thompson, remained in possession of said land as tenant by the curtesy until his death in 1905; and Mrs. Mary Martin, the mother, died in 1877. It was alleged that the plaintiff and the defendants were the sister and brothers of said Elizabeth A. Thompson, and that the land descended to them as her only heirs.

The defendants, J. C. Martin and H. G. Martin, filed an answer in which they alleged that the conveyance executed by Mrs. Mary Martin to said Elizabeth A. Thompson for the land in controversy was not made for a valuable consideration, but was a gift by the mother to the daughter, and thereby it became an ancestral estate which, upon the death of the daughter Elizabeth A. Thompson, intestate, and of her child without issue, ascended to the mother, Mrs. Mary Martin, who had, by will duly probated, devised said land to them. They also alleged that there had been a family settlement made by the plaintiff and defendants and their other brothers and sisters whereby the property which had been owned by their deceased father and the property which had been owned by their mother was by mutual consent divided between said brothers and sisters, and that by virtue of said family settlement the defendants became the owners of and entitled to the land in controversy. The answer was also made a cross complaint, asking the affirmative relief of quieting the title to the land in controversy in defendants. Upon the motion of the defendants the case was transferred to the chancery court, and upon the trial thereof the chancellor made a finding in favor of the plaintiff, and rendered a decree in her favor for the recovery of an undivided portion of the land and the rents thereof.

The controlling questions involved in this case are: First, was the land when it was acquired by Elizabeth A. Thompson by deed from her mother, Mrs. Mary Martin, an ancestral estate or was it a new acquisition? If it was an ancestral estate, then upon the death of Elizabeth A. Thompson intestate and of her sole child without issue, the land, subject to the curtesy estate, ascended to her mother, and, she having by will devised it to the defendants, they became thereby the owners thereof. If, on the other hand, the land was acquired by Elizabeth A. Thompson as a new acquisition, then the land under our statute of descent and distribution went to her brothers and sisters, upon the death of the mother. Kirby's Digest, § 2645; McFarlane v. Grober, 70 Ark. 371, 69 S.W. 56.

Second. If the land was a new acquisition when acquired by Elizabeth A. Thompson, the question then to be determined is, was there a family settlement made whereby the defendants became the owners of and entitled to the land in controversy? In order to come to a conclusion as to these matters, it is necessary to consider the history of this family and the mutual relations of its members.

Jared C. Martin, the father of the plaintiff and defendants, died on November 7, 1853, and left surviving him his widow, Mrs Mary Martin, and seven children, in the order of their ages, as follows: James A. Martin, Elizabeth A. Thompson, William A. Martin, Emma Quindley, Mary D. Martin, who is the plaintiff, and the defendants, J. C. Martin and H. G. Martin. The father, Jared C. Martin, died intestate, leaving a large amount of personal property and two tracts of land: one known as the "Arkansas River" farm, containing 333 acres, and the other known as the "Fourche" place, containing 818 acres. He owed a considerable amount of debts. His widow and eldest son were appointed administrators of his estate, and in their settlement thereof accounted for the disposition of the personal property, leaving the lands unsold and the property of the estate. John Douglass, the father of Mrs. Mary Martin, who was the mother of plaintiff and defendants, died in January, 1861, intestate, leaving two farms which were inherited by Mrs. Mary Martin as his sole heir. One of these farms was known as the "home" place, and contained 315 acres, and the other is the land in controversy, containing now about 273 acres. It appears from the testimony that Mrs. Mary Martin, the mother, was a woman of fine ability and good judgment; and she evinced an equal interest in and affection for all her children. From the testimony of the parties to this suit and from the divisions of the properties that were from time to time made between her children it appears that Mrs. Mary Martin conceived the purpose of dividing the farms that were left by her husband and the farms that were left by her father equally between all her children, except James A. Martin, the eldest. It appears that provision and advancement had been made for this child by the father in his lifetime which was equal to the interest that would come to each of the other children by a division of these lands between them. This intention on the part of the mother to thus divide the lands of these two estates is proved, we think, by numerous acts done by her, by divisions of the lands made by her from time to time, and by the very dealings had between the children at her request, as well as by the testimony of the plaintiff and defendants to this effect. The defendants alleged this in their pleading, and in their evidence stated that this was her desire. The plaintiff testified that she "knew that it was her mother's purpose to divide her property as well as father's (Jared C. Martin) property among all the children and make it as equitable as possible." In pursuance of that object, she in April, 1861, conveyed to Elizabeth A. Thompson the land in controversy. In the deed it is stated that the consideration for the conveyance was $ 10,000, and that it was paid; and in a settlement made in the probate court by her and her son as administrators of Jared C. Martin's estate, three days after the execution of said deed, a credit is taken for $ 10,000, in which it is stated that it was for "amount paid L. L. and E. A. Thompson in full of their share in the estate." It is urged by counsel for plaintiff that Elizabeth A. Thompson thus purchased the land from her mother and paid $ 10,000 therefor. It is not claimed that this sum was paid in money, but it is claimed that it was paid by her surrender of her interest in her father's estate. On the other hand, it is claimed by counsel for defendants that the estate of Jared C. Martin was scarcely more than solvent, in event the widow had taken her dower therein, and that the credit of $ 10,000 was taken in the settlement for the purpose of closing up the administration of the estate. They contend that the land was the sole property of Mrs. Mary Martin, and that the amount named in the deed was only nominal. They urge that Elizabeth A. Thompson paid nothing for the land, but that it was a gift to her from her mother. We have carefully examined the testimony; and from the facts and circumstances adduced in evidence we do not think that the contention of either party is correct. Upon the one hand, we do not think that the interest of Elizabeth A. Thompson in the estate of her father was worth $ 10,000, or that this sum was named in the deed as the true...