McCracken v. McBee

• Decision Date: 17 October 1910
• Citation: 131 S.W. 450,96 Ark. 251
• Parties: MCCRACKEN v. MCBEE
• Court: Arkansas Supreme Court

131 S.W. 450

96 Ark. 251

MCCRACKEN v. MCBEE

Supreme Court of Arkansas

October 17, 1910

Appeal from Marion Chancery Court; T. Haden Humphreys, Chancellor reversed.

STATEMENT BY THE COURT.

In 1897 W. C. McBee died testate. He left a widow, appellant, and one child by her named Lucy, and six children by a former wife. Appellee, Victor B. R. McBee, was one of the children, and at the time of his father's death was 12 years of age. By the will appellant was given what was designated as the "home place," containing about 476 acres, and she was enjoined by the testator to give his minor children including appellee, "a home," and to "see after them in sickness, to oversee their educational interests, to direct and guide them till they reach their majority, or as long as they will be governed by her and listen to her advice." He also gave to appellant certain articles of personal property, and then one half of all the residue of personal property to be selected by her before any of his debts were paid. Then, after the payment of his debts his children were to share equally the real and personal property remaining. He had a life insurance policy for $ 6,000. The beneficiaries in the policy were appellee and two of appellee's sisters. The beneficiaries were to share equally in the policy. The will contained the following provision with reference to the life insurance:

"I also will that my life insurance be paid to my wife in twenty annual installments of $ 300 each. She is to have one-third of same and the other two-thirds to be equally divided and used in educating Maud A., Myrtle M., Victor, B. R. and Lucy McBee, till they reach their majority, or so long as they each wish to go to school; but after they quit going to school their parts are to revert severally to my wife."

Appellant and one A. S. Layton were named as executors. The will was duly probated, and appellant and Layton entered upon the administration of the estate. Appellant as executrix made final settlement November 7, 1904, which was, at the August term, 1905, of the probate court, duly approved and confirmed. This settlement shows that appellee's share of the estate, apportioned according to the provisions of the will, not including the unsold lands, was $ 1,778.21. Appellant was appointed guardian of appellee in 1898, and her final settlement as executrix shows that she credited herself as executrix with the above sum, and she passed same to her account as guardian. After her appointment as guardian appellant surrendered the life insurance policy, and took in lieu thereof a bond with coupons attached, payable to appellee and his two minor sisters.

Appellee became of age February 20, 1905. On the 15th day of May 1905, appellee executed to appellant deeds to his interest in the unsold lands of the estate in Arkansas and Texas, and at the same time and place he executed the following bill of sale:

"Know all men by these presents, that I, Victor B. McBee, formerly a son of W. C. McBee, deceased, and a brother of Lucy McBee, deceased, for and in consideration of the sum of twenty-two hundred dollars to me in hand paid by Winnifred M. McBee, the receipt of which is hereby acknowledged, do hereby bargain, sell and deliver to the said Winnifred M. McBee all and singular the following described personal property, towit: All the right, title and claim and estate which I have or may have either at law or in equity in and to all of the personal property of every kind belonging to the estate of W. C. McBee, deceased, and Lucy McBee, deceased. Such estate being notes, accounts, judgments and equitable life insurance bond, to have and to hold the said property unto the said Winnifred M. McBee and unto her heirs and assigns forever."

In December, 1907, appellee filed a petition in the probate court to have appellant make settlement of her account as guardian. In response to the petition appellant, at the May term, 1908, set up that she had paid out the money in her hands as guardian as she was authorized and directed to do under the will, as shown by her last settlement as executrix. She also set up that she had made full payment to and settlement with appellant after he became of age. Appellant also filed with the probate court her account as guardian of appellee in which she showed that she had received the sum of $ 1,778.21, and that she had expended for appellee during his minority, for his education and maintenance, as directed by the will, the sum of $ 1,831.78, and that since his majority she had paid him in cash the sum of $ 500, making a total paid him of $ 2,331.78, which was $ 553.57 more than she had received and to which he was entitled, and she exhibited the vouchers showing the money she had paid him. Appellant further set up in response to the petition for settlement the following:

"On the 9th day of May, 1905, at his offer and solicitation after investigation, she agreed to pay him the further sum of $ 1,125 for his entire remaining interest in the estate of his said father, W. C. McBee, real and personal, including the said life insurance, and all the interest which he might have in the estate of his sister, Lucy McBee, for all of which he executed and delivered to her his deed and bill of sale and did pay him said sum."

Appellant asked that this account and showing be taken as a final settlement, and that she be discharged as guardian, and that her bond as such be canceled.

Appellee filed exceptions, setting up substantially the same facts as in his complaint herein, at the November term, 1908, of the probate court. Appellee filed his application for continuance, setting up that he had pending in the chancery court a suit to set aside and cancel the bill of sale upon which appellant was relying as a settlement with appellee, and asking that the probate court continue the cause pending before it until the trial of the cause in chancery to set aside the bill of sale and deeds was had. The probate court denied the application for continuance, overruled the exceptions to the appellant's account as guardian, found that appellant had fully accounted for and paid to appellee all of his estate that "came into her hands as guardian," and entered judgment discharging her. Appellee appealed to the circuit court, where the appeal is still pending. The suit in chancery referred to in the application for continuance mentioned above is the present suit instituted by appellee on the 6th day of May, 1908, two days after appellant had filed her response setting up the bill of sale as a settlement by appellee with appellant of her account with him as guardian. The purpose of the present suit was to cancel the deed executed by appellee to appellant, and also the bill of sale above mentioned, and to have appellant make her settlement as guardian in the chancery court. The complaint in substance alleged that appellant, as the guardian of appellee, took control of the latter's interest in the estate of his father, deceased, which consisted of an undivided one-sixth interest in a large amount of real estate, and interest in the personal estate amounting to $ 1,500; that appellee was not advised as to whether he acquired his interest in the said estate by inheritance or by last will and testament; that appellant as guardian aforesaid collected from the estate of Lucy McBee, deceased, appellee's sister, his share in her estate, amounting to $ 200. The complaint contains these further allegations and prayer:

"That at the death of W. C. McBee appellee was one of the beneficiaries in a life insurance policy for $ 6,000 on the life of said W. C. McBee; that said guardian has collected on said policy $ 2,700, one-third of which, under the terms of said policy, would be the property of appellee; that there remains due on said policy $ 3,300, one-third of which would be the property of appellee, making the total value of his estate, in addition to his interest in the lands, the sum of about $ 3,700; that from the appointment of said guardian until appellant reached his majority, on the 20th day of February, 1905, said guardian never filed with the probate court a settlement or statement of her guardianship; that the sum of about $ 1,600 has been paid to or for this appellee for which said guardian should have credit; that on the 15th day of May, 1905, the appellant falsely and fraudulently represented to appellee that the only interest he had in his father's estate aforesaid was his interest in the lands above described, falsely and fraudulently representing to the appellee that he had no interest in the life insurance money so collected, and that he had no interest in the remainder of the said life insurance money to be collected, and falsely and fraudulently representing to the appellee that the said property owned by him was not of the value of more than $ 1,000; that on the 15th day of May, 1905, the appellee believing and relying on such false and fraudulent representations aforesaid, for the said inadequate consideration aforesaid executed and delivered to the appellant a deed to his interest in said lands; that at the same time, relying on said false and fraudulent representations aforesaid, he executed and delivered to the appellant an instrument purporting to be an assignment and settlement of all his interest in all his personal estate in her hands; the appellant well knew at the time of the execution of said deed, assignment and settlement that said representations were false and fraudulent and made for the purpose of cheating this appellee; that, had he known the condition of his estate, he would not have executed said deed and assignment, and that said settlement is unfair, unjust and inequitable and should be canceled; that, on an accounting, the defendant will be...