Purinton v. Purinton

• Decision Date: 04 March 1935
• Docket Number: 4-3757
• Citation: 80 S.W.2d 651,190 Ark. 523
• Parties: PURINTON v. PURINTON
• Court: Arkansas Supreme Court

80 S.W.2d 651

190 Ark. 523

PURINTON v. PURINTON

4-3757

Supreme Court of Arkansas

March 4, 1935

Appeal from Pope Chancery Court; W. E. Atkinson, Chancellor reversed.

Decree reversed, and cause remanded.

C. C Wait, for appellant.

Robert Bailey, for appellee.

OPINION

BAKER, J.

This appeal comes from a decree of the chancery court of Pope County, in a suit wherein Hettie Mae Purinton sued George D Purinton, administrator of her deceased husband's estate. Thomas Ray Purinton, deceased, a soldier in the World War carried War Risk insurance in the sum of $ 10,000. This was payable to certain named beneficiaries and provided for the payment of $ 57.50 per month to the insured upon total and permanent disability. While the policy was in full force and effect, on the 30th day of July, 1931, the said Thomas Ray Purinton died, which was some time after he had made claim for amounts due him on account of the total and permanent disability suffered. At the time of his death he left surviving him his widow, Hettie Mae Purinton, the appellant herein, and his little daughter, Bessie Marie Purinton, who later died.

About four days after the death of Thomas Ray Purinton, his brother, the appellee herein, George D. Purinton, without advising Hettie Mae Purinton of her right to be appointed administratrix, procured himself to be so appointed, promising to collect the estate and turn it over to her. On August 3, 1931, he procured his letters of administration, and also procured the correspondence that his deceased brother had or received concerning the allowance of his claim filed with the Veterans' Bureau. He pressed the said claim, furnishing such proof as necessary and finally made a total collection of $ 8,498.49. This collection was made, however, after the death of Thomas Ray Purinton's child, Bessie Marie Purinton, who died on November 27, 1932.

On the 13th of March, 1933, the administrator procured a contract to be prepared, which contract was dictated in appellant's presence by the attorney for the administrator, and which contract purported to be a final settlement, by which it was agreed that claims amounting to $ 527.32 should be deducted from the total amount collected, though the claims had not been filed until more than a year after the appointment of the administrator, and that the remainder of the fund, $ 7,003.47, should be equally divided between the plaintiff and the administrator. It also provided that, should there be anything remaining or saved in the payment of claims, this should become the property of the appellee.

On the same day that this contract was signed, the money in the hands of the administrator was divided under the terms of the contract.

About four days thereafter the appellant here filed her suit in the chancery court of Pope County, alleging that her execution of the contract had been procured by fraud, deceit, undue influence, and that the contract should be set aside, and she should be given the full amount of the insurance collected.

The answer denied and put in issue all material facts of the complaint and pleaded the settlement as being effectual to preclude her from the right of recovery.

As to the legal rights of the appellant to the estate of her husband, herein set out, there is no dispute. She and her child were entitled to her husband's estate, less expense of administration and such debts as should properly be paid by said estate.

There is a great deal of testimony taken by the parties to defeat the alleged settlement and support it. It can be of no real service to the bench or bar, or even to the curious, to set forth this testimony with any minutiae of detail.

We think that the learned chancellor was in error in the decision and decree rendered. The determinative factors in this litigation are as follows: The appellee was the administrator of the estate. He had charge of the property belonging to the estate, and on account thereof there was a trust relation wherein he was bound to account faithfully for all of this property and to pay it over to those rightfully entitled to receive it.

When the administrator made his application for letters of administration, he named as parties interested in the estate only the appellant herein and her child, his niece. He had an attorney learned in the law and who advised him clearly that these two parties, the appellant and her child, were the only parties interested, and after the death of the child that the mother would take all of this personal property. It must go without argument, as a recognized principle, that the rights of these parties were fixed as of the date and time of death of Thomas Ray Purinton. Their rights were vested. The appellant did not know until the time of settlement, or perhaps a day or two prior thereto, that her brother-in-law, the administrator, was making any claim to the estate, and the administrator says that prior to that time he had not thought about or made any claim thereto, though he had been somewhat interested to know whether or not his mother, brothers and sisters were not entitled to a share therein. Quoting from his statement, we find the following: "I was not interested in the division of the estate until the day I was called down here for a settlement, and that settlement was made. I had not thought anything about a division of the estate. At that time I began to wonder and inquire, just in a friendly way, as to who would be entitled to receive the money."

The administrator, however, was, at the time of the signing of the contract, unwilling to pay the money over to the appellant. She was extremely anxious to get the money into her possession because at the particular time banks were operating upon a restricted basis, and she did not want the money left in the banks. At that time the appellee asserted his claim to the money, and said that he had been advised that the appellant was entitled to one-third of the money and he and his mother and brothers and sisters to two-thirds, though advised then, by the attorney for the estate, that the appellant was entitled to all of the money.

While the appellant was hesitating about signing the contract or agreement, though she had been advised about her rights, the appellee said to her that he did not think she was entitled to all of it, as stated by the attorney, and advised her to get a lawyer and contest the matter, and also told her in event she did that, by the time she paid her lawyer's fee and other expenses, she probably would not get as much as she was getting under the...