Morton v. Yell

• Decision Date: 22 March 1965
• Docket Number: No. 5-3522,5-3522
• Citation: Morton v. Yell, 388 S.W.2d 88, 239 Ark. 195 (Ark. 1965)
• Parties: Ken MORTON et ux., Appellants, v. E. N. YELL, Trustee, et al., Appellees.
• Court: Arkansas Supreme Court

Page 88

388 S.W.2d 88

239 Ark. 195

Ken MORTON et ux., Appellants, v. E. N. YELL, Trustee, et al., Appellees.

No. 5-3522.

Supreme Court of Arkansas.

March 22, 1965.

Rex W. Perkins and Walter R. Niblock, Fayetteville, for appellants.

Thomas Pearson and James R. Hale, Fayetteville, for appellees.

GEORGE ROSE SMITH, Justice.

J. L. Jones died testate in April, 1963, leaving his homestead in Prairie Grove to the trustees of two cemeteries. Ten months after Jones's will was probated the appellants, Ken Morton and his wife, filed this suit in equity against the cemetery trustees and the executor of Jones's will, asking for specific performance of an oral contract, made in 1960, by which Jones had agreed to leave the property in question to the Mortons in return for their taking care of him for the rest of his life. This appeal is from a decree finding that the Mortons failed to prove their case by clear and convincing evidence.

The cemetery trustees first contend that the Mortons are barred by the statute of nonclaim, having failed to assert any cause of action against the executor until more than six months after the publication of the notice to creditors. Ark.Stat.Ann. § 62-2601 (Supp.1963). This contention was rejected in Fred v. Asbury, 105 Ark. 494, 152 S.W. 155, where we said: 'The statute of nonclaim is urged as a bar to the relief sought. This statute provides that all claims against estates of deceased persons shall be barred unless they are properly authenticated and presented to the executor or administrator within one year after the grant of letters; but this is not a proceeding to enforce a claim or demand against the estate of Jacob Fred, deceased, but is one to determine the rights of the parties to this suit to the property in question. The statute of nonclaim does not refer to claims of title, or for the recovery of property, for the reason that claims of such a character can not in any just sense be said to be claims against the estate of the deceased.'

In this respect the law has not been changed by the Probate Code, which provides: 'A valid agreement made by a testator to convey property devised in a will previously made shall not revoke the previous devise, but such property shall pass by the will subject to the same remedies on the agreement against the devisee as might have been enforced against the decedent if he had survived.' Ark.Stat.Ann. § 60-412 (Supp.1963). Under this statute the appellants' remedy is not against the estate but against the devisees. A court of equity is the proper forum for their suit for specific performance. Merrell v. Smith, 226 Ark. 1016, 295 S.W.2d 624.

On the merits the Mortons insist that the chancellor erred in...