Oldham v. Melton, 4-6956.

• Decision Date: 08 February 1943
• Docket Number: No. 4-6956.,4-6956.
• Citation: 168 S.W.2d 387
• Parties: OLDHAM v. MELTON.
• Court: Arkansas Supreme Court

168 S.W.2d 387

OLDHAM v. MELTON.

No. 4-6956.

Supreme Court of Arkansas.

February 8, 1943.

Appeal from Circuit Court, Pulaski County, Third Division; J. S. Utley, Judge.

Action by Joe P. Melton, administrator of the estate of Mrs. Emma M. Thompson, deceased, against Lillian Oldham to replevy a diamond ring or in the alternative for payment of its equivalent. From an adverse judgment, the defendant appeals.

Judgment affirmed.

Carmichael & Hendricks, of Little Rock, for appellant.

Rose, Loughborough, Dobyns & House, of Little Rock, for appellee.

GRIFFIN SMITH, Chief Justice.

In Holloway v. Parker, 197 Ark. 209, 122 S.W.2d 563, 119 A.L.R. 1359, it was held that Lonoke circuit court did not err in rendering judgment on a jury's finding that a document purporting to be the last will of Mrs. Emma M. Thompson was invalid.

Holloway was appointed administrator of the estate. He was succeeded by John M. Bransford, and Bransford, in turn, was succeeded by Melton, to whom letters were issued October 5, 1940.

A diamond ring is the subject of controversy resulting in this appeal. Holloway was Mrs. Thompson's foster son, and Mrs. Oldham was Mrs. Thompson's sister. Following Mrs. Thompson's death, Holloway exhibited to Mrs. Oldham what he said was Mrs. Thompson's will. Believing it to be genuine, Mrs. Oldham asked Holloway if the meaning was that he "got everything". To this question there was an affirmative reply. Mrs. Oldham, according to her testimony, then remarked that if Holloway succeeded to the property, "I wish you would give me that ring." He answered: "I think the sisters ought to have the personal property, and I will give you that ring". This conversation occurred the day following burial of Mrs. Thompson.

Mrs. Oldham further testified that at the time Holloway gave her the ring she believed Mrs. Thompson had made the will, "* * * but later on [I] became suspicious about it". Two trials were required to determine validity of the will, the first resulting in a hung jury. At the second trial Mrs. Oldham testified in behalf of the contestants.

In January, 1937, Mrs. Oldham gave the ring to her daughter, Lillian, who is appellant here.

In December, 1941, Melton sought to replevy the ring. When the defendant's demurrer was overruled an answer was filed in which the administrator's right to recover in the form of action instituted was challenged. It was also alleged on information that there were no debts against the estate; that it should have been closed, and that the cause sued on had not accrued within three years. The statute of limitation was pleaded. It was also alleged that a valid will executed by Mrs. Thompson in 1916 directed that "The rest of my property and belongings [shall] be divided equally between by [six] sisters, after all expenses have been paid". The ring, it was said, had been claimed by Lillian "openly, adversely, notoriously, and continuously since January, 1937". In an amendment to the answer it was averred that "* * * the proportionate part of the estate that would have gone to [Mrs. Lillian M. Oldham, appellant's mother] was more valuable than the ring, and the property received by other sisters in the distribution under said will [of 1916] is still held by them as their individual property".

In the motion for a new trial eighteen errors are assigned, four of which are argued in appellant's brief. First, it is contended evidence did not support the verdict; second, title to the ring was a prerequisite to the action; third, the administrator, who had personally purchased individual interests of beneficiaries, acted illegally; and, fourth, jewelry cannot be replevied from one who has it on his or her person.

We are referred to § 11373 of Pope's Digest where it is provided that a plaintiff's cause of action, to be sustained over a plea of limitation, must have occurred within three years. Argument is that suit might have been brought at any time subsequent to January 29, 1937, when Mrs. Oldham gave the ring to her daughter, but not after three years.

When asked why he delayed taking legal action, the administrator replied that appellant's brother had told him Miss Oldham would return the property. Appellant's counsel commented that he thought the testimony was objectionable, but the court did not rule on its competency; neither was there an exception, nor an express objection. Cogswell v. McKeogh, 46 Ark. 524. It was conceded by the administrator that the brother did not have control over his sister's actions, and that he was merely expressing an opinion.

Through testimony of Mrs. B. E. Dunaway it was developed that Mrs. Oldham had said the family wanted Lem Boone to be appointed administrator. Mrs. Oldham told Mrs. Dunaway she intended to turn the ring over to Boone. This conversation occurred during or immediately following second trial of the will controversy.¹

It is insisted that because at the time Mrs. Dunaway had her conversation with Mrs. Oldham the latter had parted...