McCollum v. Price

• Decision Date: 07 June 1948
• Docket Number: 4-8564
• Citation: 211 S.W.2d 895,213 Ark. 609
• Parties: McCollum v. Price
• Court: Arkansas Supreme Court

211 S.W.2d 895

213 Ark. 609

McCollum v. Price

No. 4-8564

Supreme Court of Arkansas

June 7, 1948

Appeal from Miller Chancery Court; A. P. Steel, Chancellor.

Affirmed.

Quinn & Williams, for appellant.

T B. Vance, for appellee.

OPINION

Minor W. Millwee, Justice.

Pearl G. Price died testate in Miller county Arkansas, on August 31, 1945, survived by appellee, W. R. Price, her husband, and appellants, Marion Dale McCollum and Sam Gardner McCollum, her sons by a former marriage.

On May 28, 1947, appellee instituted this suit in chancery court against appellants, as heirs at law of Pearl G. Price, and against appellant, Sam Gardner McCollum, as administrator of the estate of Pearl G. Price, deceased, alleging that Mrs. Price owned cash on deposit in two Texarkana banks in the amount of $ 2,400.62 undisposed of by will at the time of her death; that notwithstanding the fact that appellants were both non-residents of the state appellant, Sam G. McCollum, had procured his appointment and assumed to act as administrator of the estate of Pearl G. Price and assumed dominion over the bank deposits; and that appellee was entitled to a curtesy right of one-third of the deposits for which judgment was prayed.

The answer of appellants denied that appellee was entitled to such curtesy right and alleged that Pearl G. Price had by her last will, which had been duly probated, bequeathed all her personal property to appellants. Appellant, Sam G. McCollum, denied that he was a non-resident and admitted that he had taken over all property of the estate of his mother as the duly qualified administrator with will annexed of said estate. Appellant, Sam Gardner McCollum, later filed a cross complaint in which he alleged that appellee was liable for payment of funeral expenses which had been paid by the administrator in the sum of $ 452. Also that certain personal property belonging to the estate of Pearl G. Price was in the possession of appellee and should be delivered over to the administrator.

In his answer to this cross complaint, appellee alleged that the administrator had caused the will of Pearl G. Price to be probated in Miller Probate Court and that under the terms of said will the administrator was charged with the payment of said funeral expenses; and that said administrator, being one of the chief beneficiaries under the will, and having accepted his interest charged with the payment of said expenses, should be estopped to claim reimbursement from appellee. Appellee also alleged that he was the owner of the personal property claimed by the administrator, with the exception of certain enumerated household items, which he had at all times been ready to deliver to appellants.

Appellee also filed an amendment to his complaint alleging that he and Pearl G. Price, as husband and wife, entered into a written contract with J. M. Bates to purchase their home place for a consideration for $ 250 cash and $ 1,400 payable in 72 equal monthly installments; that, to secure the payment of the purchase price, appellee and his wife as owners by the entirety executed and delivered their joint note and deed of trust to Bates; that appellee paid the balance of said purchase money out of his separate funds in the amount of $ 1,566; that appellee and Mrs. Price went into possession of the property at the time of their purchase and occupied it as a homestead until her death, and that, since his wife's death, appellee has continued to occupy the premises claiming to be the owner thereof in fee by right of survivorship. It was prayed that title to the property be quieted in appellee as against the claims of appellants either as heirs at law of Pearl G. Price or as devisees under her last will.

In their answer to the amendment to the complaint, appellants denied all material allegations therein and alleged that Pearl G. Price was the owner of the home place at the time of her death by virtue of a warranty deed from J. M. Bates and wife; that appellee had full knowledge of the deed and agreed to the taking of the deed in his wife's name and that the property should be her separate estate; that appellee had represented that the property belonged to his wife and should be estopped from now asserting any interest in the property; and that by the terms of the last will of Pearl G. Price, appellee was devised a conditional life estate in the home place, which is the only interest he has in the property.

At the time of the marriage of appellee and Pearl G. McCollum in 1931, she owned several parcels of real estate in Texarkana which came to her through her first husband. Mr. and Mrs. Price were divorced in 1934, but remarried about two months later. In January, 1939, they decided to purchase a home and entered into a written contract of purchase of a six-acre tract in the Alhambra Place Addition to the City of Texarkana through a local agent of the owner, J. M. Bates. The contract provided for a cash consideration of $ 250 and the balance of $ 1,250 payable in 72 monthly installments with interest. It was signed by both appellee and his wife and provided that the owner should convey the tract to them jointly. Mr. and Mrs. Price executed their joint note for the deferred payments and also a joint deed of trust to secure the payment of said note.

Appellee has been employed by a railway company for 22 years earning approximately $ 300 per month. He testified that a few days after he and his wife executed the contract of sale they went to the real estate agent's office to receive the deed, but it was not ready and that his wife returned to the office the next day and procured the deed to her as sole grantee in his absence and without his knowledge or consent. This deed was acknowledged on January 26, 1939, and the joint deed of trust was signed and acknowledged on February 1, 1939. Appellee learned of the deed to his wife upon her return from the real estate office, but took no action to correct it. The down payment of $ 250 was made by Mrs. Price, but the 72 monthly payments were made out of appellee's earnings and all receipts evidencing the monthly payments were issued to them jointly. These payments were completed shortly prior to her death in August, 1945. Appellee further testified that he and his wife entered the contract of purchase as man and wife and with the understanding that "whichever died first the property would belong to the other." A real estate agent who lived near Mr. and Mrs. Price testified that in 1941 or 1942 a party was interested in buying the Price place; that he approached Mrs. Price about the matter and she told him that the place belonged to appellee, or that he was paying it out, and that the agent would have to see him.

In June, 1941, Pearl G. Price executed her will in which she devised several tracts of land to her two sons. In item 2 of the will she stated that all property bequeathed and devised in the will came from her first husband except the home place and one other tract which she purchased in her own right. Item 6 of the will devises the home place to appellee for life provided he occupy it as a home and continue the monthly payments on the unpaid balance due thereon, if any, at her death. It was further provided that if appellee failed to carry out either of these provisions the property should immediately vest in her sons, but if same were complied with the property should go to the two sons, at appellee's death. Mrs. Price advised her two sons of the existence of the will shortly after it was executed, but appellee did not know his wife had made a will until after her death in 1945. Appellee and his wife resided in the home place from 1939 until her death. Appellee has since continued to occupy the property claiming title in fee. The younger son of Mrs. Price lived with his mother and appellee for several years and was shown to be a resident of Arkansas at the time he qualified as administrator with will annexed of his mother's estate. Appellee assisted the administrator in making an inventory of the personal property of the estate.

The chancellor decreed that at the time of the death of Pearl G. Price the bank deposits were her separate property and passed under her will to appellants, and that appellee took no curtesy right therein; that the deed of the home place to Pearl G. Price as sole grantee was taken in the absence of appellee and without his knowledge and consent; that the purchase of said home by appellee and his wife under the joint contract of purchase, note, deed of trust, the agreement between the parties and payment of the purchase money created an equitable estate by the entirety in appellee and his wife; that upon the death of Pearl G. Price, appellee became the owner of the home place by right of survivorship; and that the will of Pearl G. Price was ineffective to restrict such right. Title to the home place was quieted and confirmed in appellee. The cross complaint of the administrator seeking reimbursement of the payment for funeral expenses and recovery of certain items of personal property from appellee was dismissed for want of equity.

Appellants have appealed from that part of the decree finding appellee to be the owner of the home place under an estate by the entirety. Appellee has cross-appealed from that part of the decree holding that he took no curtesy right in the bank deposits of $ 2,400.62.

On the direct appeal appellants insist that the chancellor erred in holding that an estate by the entirety was created in appellee and his wife as to the home place under the rule followed in such cases as Harbour v Harbour, 103 Ark. 273, 146 S.W. 867; Fine v. Fine, 209 Ark. 754, 192 S.W.2d 212; and Green v. Green, 210 Ark. 675, 197 S.W.2d 294. In Harbour v. Harbour, supra, the...