Moseley v. Beard

Decision Date09 February 1942
Docket Number4-6625
Citation158 S.W.2d 917,203 Ark. 731
PartiesMOSELEY v. BEARD
CourtArkansas Supreme Court

Appeal from Clark Chancery Court; A. P. Steel, Chancellor; affirmed.

Decree affirmed.

J H. Lookadoo, for appellant.

Joseph Callaway, for appellee.

OPINION

GREENHAW J.

O. C Moseley, who had been employed by Missouri Pacific Railroad Company for about 28 years, was killed in the course of his employment in May, 1937. He was survived by his widow, Mary Ann Moseley, the appellant herein, and by three children Willie Clint Moseley, Juanita Moseley and the appellee herein, Dora Lee Beard (Mrs. Roy Beard).

Mary Ann Moseley was appointed administratrix of the estate of her deceased husband, and, as a result of negotiations with Missouri Pacific Railroad Company, a friendly suit was filed by her against the railroad company in the Pulaski circuit court seeking to recover damages in the sum of $ 17,500 for the benefit of the widow and next of kin of the deceased, and $ 500 for the benefit of deceased's estate. Judgment was accordingly entered in June, 1938, for the amounts sued for, and $ 18,000 was paid to Mrs. Moseley at that time. Appellant retained the entire $ 17,500. The evidence shows that at the time of the death of O. C. Moseley appellee and Willie Clint were of legal age and married. Neither lived with their mother. Juanita, a minor of 15 years at the time of her father's death, lived with her mother.

After collecting this money, appellant used part of it to purchase a bakery, and invested in government bonds.

After waiting more than two years, appellee requested that her mother pay the proportion due her from money received as a result of the judgment; and this appellant declined to do. Thereupon appellee filed this suit against her mother.

Appellee alleged that appellant as trustee for the widow and next of kin of the deceased had received the item of $ 17,500; that she, as widow, was entitled to a third and that plaintiff, being one of the three children, was entitled to $ 3,888.89, less $ 215 which appellee admitted she owed her mother. Appellee further alleged that appellant had used a large part of the trust fund in purchasing a bakery, and that appellee was entitled to have a lien declared as security for the judgment sought therein.

Appellant's answer denied that she as widow was only entitled to a third of $ 17,500, and denied that plaintiff was entitled to a third of the remainder. Further answering, appellant alleged that plaintiff told her she did not want any of this money and was giving appellant all of her interest, to be used as sustenance and for rearing and educating the other children. Appellant further alleged that she had given appellee $ 2,000 in cash-- $ 1,000 on each of two occasions--and had given her other money; that she had paid bills for her and had otherwise looked after plaintiff's financial needs, the aggregate amount of these expenditures and payments exceeding the amount plaintiff would have been entitled to receive.

A number of witnesses gave evidence. Appellee testified that her mother had not paid her anything from the item of $ 17,500. She stated that the only money received was $ 300 borrowed from her mother, and $ 85 of this had been repaid. Appellee had no agreement with her mother to give the latter her interest, and there was no family conference in which it was agreed that she and her brother and sister would give their interests in the money obtained from the railroad company to their mother.

Appellant testified that appellee agreed to give appellant her part of this money, and that her other two children did likewise. This testimony was corroborated by Juanita and Willie Clint. Appellant further testified that in July, 1938, on a trip with appellee and Juanita to visit Willie Clint in Port Arthur, Texas, she (appellant) carried considerable money on her person, and while at the home of her son in Texas she gave appellee $ 1,000 in 10- and 20-dollar bills. This testimony was substantiated by her son and other daughter, but vigorously denied by appellee.

Appellant further testified that in September, 1938, while at Gurdon, she gave appellee the additional $ 1,000 heretofore mentioned, payment being in 10- and 20-dollar bills. This testimony was substantiated by her daughter, Juanita, but was emphatically denied by appellee. The appellant did not take receipts and offered no writing in support of her testimony that she gave appellee $ 1,000 on two different occasions.

She testified to having given appellee other small sums; that she bought her numerous articles of personal apparel; that she spent large sums in paying her daughter's bills, and that the aggregate of such payments exceeded the amount claimed by appellee in her suit; hence, appellee was not entitled to recover even if no agreement had been entered into whereby the appellee gave to the appellant her interest in the money. This was denied by appellee.

Appellant's father, M. G. Morton, grandfather of appellee, testified that he spoke to appellant about giving the children $ 1,000 each when she got the money, "to get them started off and help them," and that appellant said she was not going to give them anything. He further testified that his wife, the mother of appellant, discussed this with appellant,...

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3 cases
  • Smith's Estate, In re
    • United States
    • Tennessee Supreme Court
    • June 9, 1950
    ...Yocom's Estate, 193 Misc. 340, 80 N.Y.S.2d 853; In re Bertrand's Estate, 192 Misc. 930, 82 N.Y.S.2d 458. In the case of Moseley v. Beard, 203 Ark. 731, 158 S.W.2d 917, the widow, as personal representative, received a lump sum settlement for the wrongful death of her husband who was killed ......
  • Lueck v. Superior Court In and For Cochise County
    • United States
    • Arizona Supreme Court
    • May 12, 1970
    ...which have considered this problem include: Northern Indiana Power Co. v. West, 218 Ind. 321, 32 N.E.2d 713 (1941); Moseley v. Beard, 203 Ark. 731, 158 S.W.2d 917 (1942); and Murphy v. Duluth-Superior Bus Co. 200 Minn. 345, 274 N.W. 515 (1937). See also cases and annotations in 14 A.L.R. 50......
  • Dukes v. Dukes
    • United States
    • Arkansas Supreme Court
    • September 18, 1961
    ...the purposes of this case, is identical with the 1949 Act and the cases of Law v. Wynn, 190 Ark. 1010, 83 S.W.2d 61, and Moseley v. Beard, 203 Ark. 731, 158 S.W.2d 917, follow the line of the Davis case supra. And as Justice Hart said in the case of Adams v. Shell, 182 Ark. 959, at page 961......

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