Naylor v. Shelton

• Decision Date: 15 January 1912
• Citation: 143 S.W. 117,102 Ark. 30
• Parties: NAYLOR v. SHELTON
• Court: Arkansas Supreme Court

143 S.W. 117

102 Ark. 30

NAYLOR v. SHELTON

Supreme Court of Arkansas

January 15, 1912

Appeal from Perry Chancery Court; Jeremiah G. Wallace, Chancellor affirmed.

STATEMENT BY THE COURT.

Appellants brought this suit in the Perry Chancery Court on January 22 1908, for partition of certain lands, which are described in the complaint, alleging that the parties were the joint owners and entitled to partition.

Appellee answered, denying the joint ownership and joint possession of the lands, and alleging that she was the sole owner. She made her answer a cross complaint, and set up in the cross complaint that she was the owner by reason of a will from her father, H. L. Trundle. She set up that her father, in the year 1897, while he was living with appellee and her husband came to her and said: "I have been making my home with you and your husband for a number of years, and desire to continue to make your home my home until I die, and in consideration of what you have already done for me, and, in consideration that you and your husband let me live with you and you take care of me during the balance of my life, I will make you a deed to what is known as the Ed. Trundle place that I own." She alleges that she accepted the proposition to take care of him, and that about 1903 he came to her with what he called his will and said it was the same as a deed to what was known as the Ed. Trundle place, and delivered the same to her with other deeds that he said were the title papers to the land. She alleged that he stated that he wanted her to put this will or deed, together with the title papers, in her trunk and to lock them up, and to not let any one--not even himself--have possession of them; that the will or deed and the title papers belonged to her, and that he did not want her to put it on record until after his death; that he wanted the use and rents until his death, but after his death for her to have it put on record; that in accordance with his request she put the will, or deed, as he called it, in her trunk with the title papers and locked them up. She further alleged that some time after her father went to Little Rock in the spring of 1906 she missed the will or deed out of her trunk from the title papers. She didn't know whether she missed the will just before or just after her father died.

She alleged that the lands were not worth exceeding twelve or fifteen hundred dollars; that the board and waiting upon her father were worth $ 120 per year for at least twelve years of his life, and that she had fully paid for the lands in controversy by caring for her father during the time he lived with them. And she prayed for specific performance.

The appellants replied to the answer and cross complaint, denying the execution of the will set up therein, and alleged in the alternative that if such a will was ever executed it was revoked and destroyed by appellee's father long prior to his death. Appellants further denied the alleged contract set up by appellee as between herself and her father whereby he was to give her the property in consideration of her taking care of him in his declining years.

There was an agreed statement of facts to the effect that all the parties to the suit are heirs of H. L. Trundle and joint owners of the land in controversy, with interest therein as set out in the complaint unless the said H. L. Trundle made a valid devise of the land to appellee.

The court in its decree, made the following findings of fact "That H. L. Trundle died July 15, 1906; that prior to his death, about the year 1897, he executed an instrument of writing, attested by W. A. Isgrig and Robt. E. McCarty, who signed their names as attesting witnesses at the request of Trundle, who stated to them at the time that it was his last will, and by which he disposed of the lands involved to his daughter, Ruth L. Shelton; that at the time of the execution of the instrument aforesaid Trundle was of sound mind and disposing memory; that Trundle was then making his home at his said daughter's, and had done so for a long time before the execution of the instrument of writing mentioned and continued thereafter to make his home with her until his death."

The court further found "that a material consideration inducing Trundle to make said instrument of writing conveying the lands to his daughter was that he lived with her and her family, and that she should take care of him throughout his old age, in the future as in the past, until his death, which she agreed to do and did do, and that in consideration thereof he delivered the instrument of writing to her, together with all title papers to the lands in controversy, and stated to her at the time that the package contained his deed or will to her to the Ed. Trundle place, together with all the title papers to the lands, and requested her to safely keep them until his death; that they were hers, but he wanted the rents of the lands until his death, and after his death for her to have the same put on record."

The court further found "that some time during the month of March, 1906, prior to Trundle's death (which occurred in July of that year), he, by some means unknown to her and without her knowledge or consent, got possession of the will or deed and destroyed the same by burning it."

The court further found "that at the time Trundle obtained possession of the aforesaid instrument of writing and destroyed it he was in his 89th year, was extremely frail in both body and mind, and was laboring under senile dementia; that Ruth Shelton, in good faith, complied with all the terms and conditions upon which the instrument of writing was executed and delivered to her by giving him, the said Trundle, a home at her house with herself and family and by supporting and caring for him until his death; that, by reason of the destruction of the instrument of writing aforesaid in the manner aforesaid, it could not then be definitely determined as to what the character of the writing was."

The court declared that the instrument of writing in any event amounted to a contract upon the part of Trundle, for a valuable consideration, to convey to Ruth L. Shelton the lands involved in this suit, and entered a decree dismissing the suit for want of equity and awarding appellee specific performance by divesting title to the lands in controversy out of the appellants and vesting title to same in the appellee, and awarding her possession, rents since this suit began, etc. The appellants duly prosecute this appeal.

Other facts stated in the opinion.

Judgment affirmed.

Sellers & Sellers, for appellants.

1. It is conceded that the evidence is sufficient to establish the fact of the execution of a will--also that it was revoked and destroyed. But proof of the bald fact of the execution of a will is not sufficient to establish its contents. Declarations of the testator are admissible to prove the execution of a will, but are never sufficient in themselves to prove the contents. 73 Ark. 20; 50 Neb. 290; 7 B. Mon. 408; 5 Rawle (Pa.) 235; 14 Bush 434. The proof of the will must be of the whole contents. 8 Met. (Mass.) 487; Id. 490; 6 Gill 169; 5 Harr. (Del.) 178; 13 Col. 546; 5 Redf. (N. Y.) 372; 6 Dem. (N. Y.) 31. As to lost wills, the manner of establishing the same in this State is regulated by statute, and this statutory remedy is exclusive. Kirby's Digest, § 8065; 72 Ark. 381. It places the burden on the party seeking to establish the will to show that it was "in existence at the time of the death of the testator" or was "fraudulently destroyed during his lifetime." No proof to this effect was made or offered. On the other hand, there is affirmative proof that the testator destroyed the will, animo revocandi, several months prior to his death, and his statements, oral and written, to that effect were admissible to show its revocation. 76 S.W. 754.

The testimony does not sustain the finding in the decree that the testator was, at the time he destroyed the will, mentally unsound--suffering from senile dementia. 66 Ark. 629; 49 Ark. 367; 87 Ark. 279.

2. Under the proof no consideration was paid by Mrs. Shelton, but, on the contrary, the evidence shows that Trundle many times overpaid the Sheltons for all they ever did for him.

3. There is no proof of a valid contract to make a will. Under the statute of frauds, a contract to devise specific lands in consideration of services to be rendered, to be valid, must be in writing. 8 Am. & Eng. Enc. of L. (2 ed.), 1018; 20 Cyc. 235. In this case there was no part performance to take contract out of the statute. Payment of a consideration is not sufficient. 70 Ark. 351.; 4 Pom. Eq. § 1409; 58 A. 337; 11 Am. St. Rep. 46; 62 Ala. 579; 81 Ala. 563; 17 Am. St. Rep. 125, 127; 53 Wis. 317; 21 Ark. 537; 44 Ark. 343.

4. The instrument in question can not be treated as a written contract to make a will, because the testimony is undisputed that it was testamentary in character, and therefore revocable, and that it was revoked. 26 Am. & Eng. Enc. of L. (2 ed.), 92; 54 Am. St. Rep. 471.

5. The testimony is not sufficient to establish even a verbal contract to make a will. Contracts of this kind are closely scrutinized, and the evidence to establish them must be of the clearest and strongest. 54 Am. St. Rep. 472. And likewise the courts always subject to the closest scrutiny testimony as to oral statements of persons who are dead. 17 Cyc. 808; 21 How. 493; 16 L.Ed. 207; 45 Am. St. Rep. 94; 53 Mo. 395; 12 La.Ann. 401; 14 La.Ann. 275; 37 La.Ann. 873; 35 La.Ann. 1907; 46 Mo. 423; 17 Cyc. 808, cases cited in notes.

P. H. Prince, for appellee.

Trundle had the right to contract with Mrs. Shelton to convey the land to her in consideration of what she had done for him and that she would...