Parker v. Hill
| Decision Date | 06 January 1908 |
| Citation | 108 S.W. 208,85 Ark. 363 |
| Parties | PARKER v. HILL |
| Court | Arkansas Supreme Court |
Appeal from Woodruff Chancery Court; Edward D. Robertson Chancellor; reversed.
Reversed and remanded.
Campbell & Stevenson, for appellant.
The deed to Hill should be cancelled for fraud, duress and undue influence; also for undue influence and abuse of confidence by one occupying a confidential relation.
1. Mrs Locke was induced to sign by duress as defined in the modern and latest authorities, 14 Cyc. 1123-4; 47 L. R. A. 417; 11 Ala. 456; 29 Ark. 150, 158; 26 N.Y. 12; 95 Wis. 257; 64 S.W 329; 42 Neb. 23; 17 Id. 388; 49 Mich. 290; 19 S.W. 932; 73 N.Y. 498; 32 Mich. 146; 59 L. R. A. 296.
2. The deed was procured by undue influence, fraud and intimidation by both Hill and Kennedy as agent. 2 Pom. Eq. Jur. § 951; also cases cited supra and under 1; 49 Ark. 367.
3. Kennedy (the agent of Hill) occupied a confidential and advisory relation, and was bound to advise in the interest of good faith. 13 Cyc. 588-9; 38 Ark. 431.
4. It was not necessary for it to appear that Mrs Locke was of unsound or weak mind. 2 Pom. Eq. Jur. § 955.
5. Where a deed is procured by undue influence, it may be set aside, without regard to whether the influence was exercised by the grantee or a third person, where no valuable consideration is paid. 13 Cyc, 587; 14 Vesey, 273; 65 Mo. 378, 415; 72 Id. 669; 120 N.Y. 589; 44 Mich. 33; 64 S.W. 329; 3 Co.537.
6. The inadequacy of price, in connection with the manner in which the deed was procured, sweeps away all equity defendant could claim. 6 Cyc. 286; 2 Pom. Eq. Jur. § 927-8; 8 Ark. 510.
7. The burden was on defendant to show good faith and absence of fraud and undue influence, especially so where there is gross inadequacy of price. 73 N.Y. 498, 502; 6 N.Y. 268: 15 Beav. 278; 16 N.Y. 285; L. R. 8 Eq. 558-567; 3 Vesey, 266; 15 Ark. 555; 75 F. 480.
8. That the codicil is holographic is no bar to the first will duly attested. Kirby's Digest, § 8012, subd. 1 to 4 and 5; Id. § 8104. There never was any ratification by plaintiff, as the same original fraud, duress and undue influence operated on the codicil. 6 Cyc. 304; 2 Pom. Eq. Jur. §§ 964-5; 2 Story, Eq. Jur. § 694; 17 Ves. 20; 72 Mo. 323; 132 Ind. 288; 31 Ala. 292; 47 Ga. 25; 116 Mass. 227; 1 Gr. Ev. § 41-2; Lawson on Pres. Ev. 163 et seq.
P. R. Andrews and J. F. Summers, for appellee.
1. Plaintiff is in the attitude of a stranger in this case. The codicil has been duly probated, and the only remedy is by appeal. Kirby's Dig. § 8030. The will and codicil must be construed together.
2. No fraud, duress or abuse of confidence is shown on the part of defendant, and there can be no recovery.
3. Mrs. Locke secured an advantage by executing the deed to Hill, if she really desired to avoid litigation. She is barred by the statute after one year, Kirby's Dig. § 8029.
4. Mrs. Locke dealt at arms' length with Hill; there were no confidential relations between them, no abuse of confidence,no misrepresentations inducing the contract, etc. 11 Ark. 58; 74 Ark. 71; 78 Id. 429. The consideration was ample.
5. Mrs. Locke ratified and confirmed the deed. 52 Ark. 467.
6. No mere preponderance of the evidence is sufficient to impose a trust ex maleficio and change the beneficial title to real estate. The fraud must be clearly proved. 71 Ark. 614; 73 Id. 310; 75 Id. 446.
T. T. Locke died in October, 1992. He left Mary E. Locke, his widow. She was his second wife, and there were no children born of their marriage. They had lived together for 26 years, and evidently were an affectionate couple. Mrs. Hill, wife of the appellee, was the daughter of Mr. Locke by his first marriage, and his only child.
Mr. Locke left a will leaving all of his property to his wife, and $ 10 to his daughter. This will was made some three years before his death, and was duly attested; and after his death was duly probated, in November, 1902.
Mrs. Locke made a will in April, 1903, which was duly attested before subscribing witnesses. This will gave various legacies and remembrances to her brothers and sisters, and nieces and nephews, and devised to her nephew, Lynn Parker, all of the real estate which she had received of her husband, T. T. Locke; and she devised to her nephews, Fred Parker and Lynn Parker, and her niece, Mary Will Parker, jointly, all of the real and personal property except these small legacies heretofore mentioned and except that left her by Mr. Locke, which, as stated, she devised to Lynn Parker, individually. She seems to have had a considerable estate, aside from that derived from Mr. Locke. Subsequent to the execution of this will by Mrs. Locke, and within a year of the probation of the will of Mr. Locke, Mr. Hill wrote Mrs. Locke a letter in regard to making a contest of the will of Mr. Locke. Mr. Hill was a brother of Mrs. Locke, a man of affairs and considerable estate; and his wife, the daughter of Mr. Locke, was also possessed of considerable means.
Mrs. Locke was at this time about 64 years of age, and in feeble health, and went to Mountain View to visit a sister there in the hopes that the change would be beneficial to her health; and it was while there she received this letter from Mr. Hill. The letter has been lost, and there is a conflict as to its contents, more as to the way in which it was stated than the substance of it. She wrote to a nephew's wife that Hill had said in that letter if she would renounce the will, saying it was a mistake, or sell the land at a nominal price to his wife, all would be well; but that if not his wife would exhaust every resource to set it aside. She also told her relatives that he said in that letter that she had better settle that case out of court; that she would not live to see the end of it, and it would only shorten her last days to fight the case in court, and that his wife had thousands of dollars to back the case; that he had consulted a lawyer, and had found that Mr. Locke's will could be broken; that when the will was made Mr. Locke had been prompted by unfair and adverse influences. Mr. Hill does not admit that the letter contained all of these things, but says that he wrote her that she was old, and would probably not live to see the end of the litigation, and appealed to her sense of justice and reason, and suggested several ways of settlement, and awaited her reply. She replied that she would never say that the will of her husband, leaving to her this tract of land in consideration of 26 years of faithful service as his wife, was a mistake, and that she would not make him out a liar by telling one herself. She added that Hill might not live to see the end of the litigation either.
Shortly after this she was visited by her nephew, Kennedy. Whether he came to see her as the hired emissary of Hill, or whether he was an officious intermeddler, his testimony and Hill's differ. Be the truth as it may, Hill accepted the fruits of his negotiation, and obtained from Mrs. Locke a deed to himself to the land that Locke had devised to her, and which she had in turn devised to Lynn Parker, which is the subject-matter of this suit.
Kennedy says that his aunt, when he found her at Mountain View, was very much wrought up mentally and pretty nearly broken down physically. He suggested to her that it might be better to settle the matter without a lawsuit; that the suit would give her a great deal of trouble in her old age, and there was a bare chance that she might lose it all in the end. He called her attention to the fact that Hill was able to spend as much as the property was worth, and it would leave her in bad shape, and he thought any kind of a settlement was better than a lawsuit. She stated to him that she was getting four hundred dollars annual rent from the land, and he told her he would attempt to get that much for her annually during her life time if she would convey the property to Hill, and she finally agreed to do so. Kennedy went to Woodruff County, and reported to Hill what Mrs. Locke was willing to do, and he and Hill then fell out as to whether he was to have $ 500 for having induced her to consent to this arrangement; and Hill sent his son to Mrs. Locke to obtain the deed, and subsequently obtained a second deed to supply a defect in the first deed. By this deed Mrs. Locke conveyed to Hill all the land which she had derived through her husband's will for a consideration of $ 350, payable annually during her natural life, on the 20th of December each year. It seems that Kennedy objected to the deed being drawn for $ 350, annually instead of $ 400, and Hill then gave notes for $ 50 additional, so as to make the consideration $ 400 per year. This deed in final form was executed September 8, 1903.
Subsequent thereto, Mrs. Locke wrote a holographic will, which she considered a codicil, and which has been treated as a codicil to her attested will. This holographic will began as follows: Then she gives many bequests, legacies and remembrances to relatives and friends, many of whom she speaks of in terms of great affection. The will shows a minute knowledge of all her affairs and property, and her affection for those whom she had remembered in her former will was evidently undiminished. After making various bequests...
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