Morris v. Cullipher, 89-24

• Decision Date: 19 June 1989
• Docket Number: No. 89-24,89-24
• Citation: 299 Ark. 204,772 S.W.2d 313
• Parties: Garland F. MORRIS, Jr., Appellant, v. Sophia Rose CULLIPHER, Individually as Trustee of Garland F. Morris, Jr., Trust, and Executrix of Estate of Garland F. Morris, Sr., Deceased, Appellee.
• Court: Arkansas Supreme Court

Page 313

772 S.W.2d 313

299 Ark. 204

Garland F. MORRIS, Jr., Appellant, v. Sophia Rose CULLIPHER, Individually as Trustee of Garland F Morris, Jr., Trust, and Executrix of Estate of Garland F. Morris, Sr., Deceased, Appellee.

No. 89-24.

Supreme Court of Arkansas.

June 19, 1989.

Young, Patton & Folsom by David Folsom, Texarkana, Ark., Tex., David J. Potter, Texarkana, Tex., for appellant.

Hubbard, Patton, Peek, Haltom & Roberts by George L. McWilliams and Randall Goodwin, Texarkana, Tex., Smilie Watkins, Dallas, Tex., for appellee.

HICKMAN, Justice.

The issue in this case is whether Garland Morris, Sr., and his wife, Sophia, made an agreement that their reciprocal wills could not be revoked. The chancellor held there was no agreement and we affirm the decree.

Garland Morris, Sr., and Sophia Cullipher were married in 1966. Mrs. Cullipher had no children, and Morris had one adult child, Garland Morris, Jr., the appellant, who is called Gene. When they married they each had separate real estate holdings. Sophia had about 350 acres of land in Miller County; Mr. Morris had 120 acres in Miller County. He had a one-half interest in 500 acres in Morris County, Texas, another 37 acre tract in Morris County and a lot in Longview, Texas. During their marriage they acquired 633 acres of land, which they held jointly, located in Miller County. When Garland Morris, Sr., died in January, 1985, there was $278,000 in certificates of deposit, which were held jointly.

Morris' 1969 will generally provided that one-half of his estate went to his wife. (His estate did not include the certificates of deposit, land held jointly, or Sophia's separate property.) The other half went to a trust with Sophia as trustee for the benefit of Morris' son, Gene. The will provided that if Sophia predeceased Morris, the entire estate would go to Gene.

Sophia executed a will in 1969 at the same time Morris did at the law office of Reagan McLemore in Longview, Texas. Her will provided that all her property would go to Mr. Morris; but, if he predeceased her, her property would go to Gene.

Sophia testified that this will was destroyed several days after its execution by Mr. Morris when they had an argument over her will. She executed a second will three months later, leaving nothing to Gene. It was stipulated that her third will, which was executed after Mr. Morris' death, made no provision for Gene.

Gene filed suit claiming that his father and Sophia had a contract not to revoke their 1969 wills. A contract not to revoke a will must be proved by clear, cogent and convincing evidence. Barksdale v. Carr, 235 Ark. 578, 361 S.W.2d 550 (1962). In this case, the chancellor found that burden had not been met. We will not reverse a chancellor's fact finding unless it is clearly erroneous, ARCP Rule 52(a), and on appeal, we review the evidence in the light most favorable to the appellee. Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987).

It is clear in this case that the wills contained no express reference to a contract not to revoke. Even so, such a contract may arise by implication from the circumstances of the case. Janes v. Rogers, 224 Ark. 116, 271 S.W.2d 930 (1954). ¹

The chancellor made the following findings of fact which pertain to the existence of a contract not to revoke:

1. The wills are not identical. Garland's will leaves half his property to Sophia. Sophia's will leaves all her property to Garland.

2. At the time Sophia executed her will, she did not know the contents of Garland's will.

3. At Sophia's direction, Garland destroyed her will shortly after its execution.

4. Garland made a slight change in his will, which gave Gene access to the corpus of the trust at age 45 rather than age 35, without Sophia's consent.

5. There was no agreement between Garland and Sophia that Gene would be the beneficiary of Sophia's estate.

All these findings are supported by Sophia's testimony, if her testimony is believed. She testified that she was unhappy with her first will because she did not want to leave her property to Gene. She and Garland got into an argument shortly after the wills were executed and, at her direction, Garland tore up her will and threw it in the trash. Three months later she drafted a new will, which did not leave her property to Gene.

She testified there was no agreement between her and Garland that she could not change her will. In fact, she did not know the full content of Garland's will until after he died. Her second will was kept in a safe deposit box or a safe at home to which both she and Garland had access. She also testified that Gene and his father did not get along well at times.

The appellant produced other witnesses. Rachel Williams was a secretary to the lawyer who drafted the will. She testified that Sophia looked at her will before entering the lawyer's office and exhibited no displeasure. Ms. Williams said she did not know of the reasoning behind the drafting of the wills and did not know if Garland and Sophia read each other's wills.

Two family friends testified that Sophia had said Gene would get her property if he "treated her right" or if he "kept being good." Garland's brother, Travis Morris, said Garland told him they had gotten the wills straightened out and that Sophia had left everything to Gene.

Gene testified that he never discussed the wills with Garland or Sophia. He said his father once told him that if he played his cards right, Sophia might leave her property to him. He said he and his father had a good relationship.

This testimony presented a credibility question, and...