Mayo v. Mayo

Decision Date02 July 1906
Citation96 S.W. 165,79 Ark. 570
PartiesMAYO v. MAYO
CourtArkansas Supreme Court

Appeal from Monroe Circuit Court; George M. Chapline, Judge affirmed.

Judgment affirmed.

Thomas & Lee, H. A. & J. R. Parker, and N.W. Norton, for appellants.

1. Heirs, having the legal title, are not required to act in order to protect it. They cannot be kept out of their inheritance unreasonably by the laches of creditors in subjecting the lands to the payment of probated claims. 73 Ark. 440; 37 Ark. 155; 47 Ark. 475; 48 Ark. 277; 54 Ark. 65; 56 Ark. 633; 63 Ark. 405; 70 Ark. 185. The alleged assignment of dower and homestead to Mrs. Mayo was no excuse for delay to enforce the debts. 64 Ark 1; Kirby's Digest, § § 2711 to 2715. See also 52 Ark. 193; 60 Ark. 461; 29 Ark. 418; 56 Ark. 532. If the executor and creditors had notice, they neglected their duty in failing to defend against the proceeding; if they had none, they were not bound, and by showing the irregularity in the proceeding they could have had the order quashed on certiorari. 52 Ark. 213. Such an untimely assignment of homestead was held void collaterally. 66 Ark. 23.

2. A contract cannot rest partly in parol and partly in writing. 29 Ark. 544, and cases cited. All the agreements, etc., made by the heirs at their meeting after the funeral which were not in writing signed by the parties were void; likewise all former conversations, agreements and suggestions. 24 Ark 210; 35 Ark. 156; 21 Ark. 69.

Manning Moore & Bayne and T. K. Riddick, for appellee.

1. The findings of fact by the court will not be disturbed if there is evidence to support them. 60 Ark. 250; 53 Ark. 161.

2. Under the terms of the will it is plain that the testator earnestly desired that his debts be paid in full, and to that end he conferred upon his executors a large discretion. In view of the. very large indebtedness, the heirs necessarily understood that the attempt to pay the debts by leasing out the property involved a long period of time. They cannot complain of delay to which they themselves agreed. Where the executor is one of the devisees, he cannot take advantage of the delay. 63 Ark. 405; 70 Ark. 185.

3. The decree of the probate court allotting dower and homestead cannot be collaterally attacked. 52 Ark. 340; 49 Ark. 397; 57 Ark. 423; 50 Ark. 188; 55 Ark. 37; 57 Ark. 49; 55 Ark. 398; Kirby's Digest, § § 4424, 4425, and notes. See also 63 Ark. 513; 80 S.W. 884; 25 Ark. 60. The existence of the dower and homestead right was, in itself, a sufficient reason for the executor and creditors not having sold the lands covered thereby. 54 Ark. 65; 64 Ark. 1.

4. The will creates an express trust in favor of creditors. 71 S.W. 669; 19 Am. & Eng. Enc. Law (2 Ed.), 1306 and authorities cited in note 3.

OPINION

C. F. GREENLEE, Special Judge.

This is an action commenced in December, 1902, by appellants against appellee, to recover lands which descended to them from their ancestor, W. M. Mayo, who died in October, 1890, leaving him surviving, his widow, Jane E. Mayo, and seven children--F. A. Mayo, R. D. Mayo, Laura M. Boyce (nee Mayo), Nannie J. Bond (nee Mayo), Wm. J. Mayo, Fannie M. Black (nee Mayo), and Lily M. Black, (nee Mayo).

W. M. Mayo left a will, in which he said: "It is my desire that all my debts be paid as my executors may think to be the best for the interest of my estate, either by selling of my property, either personal or real estate, in the way and manner and time they may think, or by running and leasing the same at their discretion for the same purpose. After my debts are paid, I desire one-third of my both real and personal estate property to be allotted by three commissioners to my beloved wife during her natural life; and at her death the same to go to my children, or, if any of them be dead, to their children in the same proportion they would be entitled to; and the balance of my property, both real and personal estate property, I desire to be equally divided between my children or their children, if any of them be dead previous to the division; the same to be allotted by commissioners appointed by the judge of the probate court of Monroe County. * * * And I hereby appoint my beloved sons, F. A. Mayo and R. D. Mayo, to be the executors of this, my last will and testament, and, having full and complete confidence in their integrity and capacity, I hereby declare that it is my will and desire that they shall not be required to give any security for the performance of the executorship, or [nor] shall they be required to make any reports to any court of their transactions in the executorship, or [nor] shall any order of any court be required for the selling or conveying of any property of mine, either real or personal property; that they, my executors, F. A. Mayo or R. D. Mayo, shall have full power to manage, control, bargain, sell or convey any of my property, both real and personal property, to pay my debts, support and educate my beloved children."

The testator was the owner of 2510 acres of land in Monroe County, of which there were about 1100 acres cleared and in a state of cultivation. He was heavily in debt. Claims amounting to more than $ 20,000 were probated against the estate. At the time of the death of W. M. Mayo, all his children were of age, and the next day after his funeral said children met at the home of the testator, and entered into a written agreement, which is as follows:

"Be it known: That, whereas, W. M. Mayo departed this life, having made his last will and testament in which he named and appointed F. A. Mayo and R. D. Mayo his executors, without bond or security, and whereas the said F. A. Mayo is not eligible to the office of said executorship on account of being a non-resident, and whereas, we, being the heirs at law of the said Wm. M. Mayo, desire that the said R. D. Mayo shall qualify as sole executor of the will of Wm. M. Mayo, and that he shall as such executor prepare said estate for division among the heirs, we and each of us agree and direct the said R. D. Mayo, as executor aforesaid, to sell, exchange or dispose of the personal property belonging to the estate in any manner he may think best, and to purchase property in payment of debts due the estate, and at his discretion to compromise and settle, in any way he may deem best, all demands due the estate, and also to carry out, in any manner he may deem best, all agreements made by his testator with any and all his tenants and laborers, as to furnishing supplies or otherwise, and also to purchase and sell cotton or other produce from said tenants or laborers in payment of the claims due the estate and sell same in any manner or place he may deem best, and to the end of these directions and instructions we agree to only exact ordinary diligence from the said executor aforesaid, and we further agree to hold him liable for gross negligence in the management of the affairs of said estate.

"Witness our hands and seals this, the 28th day of October, 1890.

"F. A. MAYO,

"FANNIE M. BLACK,

"LILIE M. BLACK,

"NANNIE J. BOND,

"W. J. MAYO,

"LAURA M. BOYCE."

On the same day the heirs and most of the creditors discussed among themselves the amount of the indebtedness against the estate, the value of the lands and the best method to adopt for paying the debts. Not one of them thought that the lands would sell for enough to pay the debts, and appellee stated that he desired to manage the estate as they thought best, and that he would sell, lease or "run" the lands just as they wished. The undisputed evidence was that all the heirs, without a dissenting voice, at that time agreed that appellee should not sell the lands, but that he should lease or run them and undertake to pay the debts out of the rents and profits thereof. The creditors who were present agreed to this course of conduct, and those creditors who were not present were notified of the agreement, and they consented thereto.

Within a few days after this consultation among the heirs and agreement among them for the management of the lands, appellee qualified as sole executor, took charge of the lands, and undertook to pay the debts out of the rents and profits; but, by reason of a succession of disastrous overflows, appellee did not make much more than enough to keep up necessary repairs on the place and pay the taxes. It was shown by the proof that...

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6 cases
  • Brown v. Nelms
    • United States
    • Arkansas Supreme Court
    • March 23, 1908
    ... ... period of delay which will bar the right to sell lands of a ... decedent for the payment of debts. Mayo v ... Mayo, 79 Ark. 570, 96 S.W. 165, and cases cited ...           No ... distinction is made in any of those cases between the ... ...
  • Fordyce v. Woman's Christian National Library Association
    • United States
    • Arkansas Supreme Court
    • July 2, 1906
  • Brown v. Nelms
    • United States
    • Arkansas Supreme Court
    • March 23, 1908
    ... ... Mayo v. Mayo, 79 Ark. 570, 96 S. W. 165, and cases cited therein. No distinction is made in any of those cases between the power of the probate court to ... ...
  • Abramson v. Rogers
    • United States
    • Arkansas Supreme Court
    • January 2, 1911
  • Request a trial to view additional results

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