Randall v. Kimball

• Decision Date: 07 June 1943
• Docket Number: 4-7085
• Citation: 172 S.W.2d 22,205 Ark. 970
• Parties: RANDALL v. KIMBALL
• Court: Arkansas Supreme Court

172 S.W.2d 22

205 Ark. 970

RANDALL v. KIMBALL

4-7085

Supreme Court of Arkansas

June 7, 1943

Appeal from Columbia Chancery Court, Second Division; W. A. Speer Chancellor; affirmed.

Decree affirmed.

J. B Milham, Walter L. Pope and Madrid B. Loftin, for appellant.

McKay & McKay, for appellee.

OPINION

MCFADDIN, J.

Appellants as the heirs at law of Jerry Randall, deceased, filed this suit to recover an undivided half interest in 220 acres of land in Columbia county, and from an adverse decision have prosecuted this appeal.

The common source of title of appellants and appellees was Berry Randall (the grandfather of appellants), who died in Columbia county in 1903) owning over 500 acres of land and also personal property. He left a will bequeathing: (1) To his wife, Hannah Randall, the home place of 220 acres (which is the land here involved), and also enough of the other lands and personal property to give her one-half of the entire estate. (2) To an illegitimate son, Gus Randall, 60 acres of the land. (3) To Andrew J. Randall (whose relation to the deceased is not shown) $ 500. (4) To residuary legatees, (a) Gus Randall (his illegitimate son), (b) Dora Cooper (a legitimate daughter), (c) Pinky Love (a grandson), and (d) Gussie Roach (a niece). Andrew J. Randall, named as executor, qualified and took charge of the properties, and in 1904 sold 241 acres of the land (not here involved) "so that the proceeds might be divided between the beneficiaries."

In June, 1905, Jerry Randall filed a petition in the probate court seeking his interest in the estate and claiming to be a pretermitted legitimate son of the deceased, Berry Randall. The probate court found and adjudged that Jerry Randall and Dora Cooper were the only two legitimate children of Berry Randall, and that Jerry Randall was a pretermitted child, and was entitled to his interest in the estate; and the order declared: "It is therefore adjudged, ordered and decreed that said plaintiff recover of the executor, the devisees and legatees of the said Berry Randall one-half of said estate, subject to dower of Hannah Randall, in proportion to the amount of their respective shares under said will, and that this judgment be an amendment and portion of said last will and testament and that said executor make distribution of said estate in accordance with this judgment." In this probate proceeding, the parties defendant were the executor, and the widow, Hannah Randall, and all the beneficiaries under the will. A. J. Randall, as executor, was the only defendant who prosecuted an appeal to the circuit court, where the order of the probate court was in all things affirmed in 1906.

In December, 1907, the executor applied to the probate court for authority to make the deed to Hannah Randall for the 220 acres of land constituting the home place specifically bequeathed to her under the will, and also for authority to convey to Gus Randall the 60 acres of land specifically bequeathed to him under the will. This authority was granted and the deeds were duly executed; and the deed to Hannah Randall, after containing the recitals as to the death of Berry Randall, his will, and the order of the probate court to make the deed, further stated: "Now, therefore, the said Andrew J. Randall, as executor of the estate of Berry Randall, deceased, for and in consideration of the premises aforesaid, does hereby grant, bequeath, sell and convey unto the said Hannah Randall and unto her heirs and assigns forever all the right, title and interest that the said Berry Randall had in and to the following described lands lying in Columbia county, Arkansas, to-wit: (describing the 220 acres of land here involved). The deed was duly executed, acknowledged and delivered.

In February, 1908, Andrew J. Randall filed his final settlement in the probate court, in which the following appears: "He asks credits as follows: By amount paid to Jerry Randall in settlement of his portion of the estate, $ 1,000; by amount paid Dora Cooper in settlement of her portion of the estate, $ 175."

Like amounts were given to each of the other residuary legatees, and then after listing taxes and court costs, the settlement showed: "Balance paid to Hannah Randall in settlement of her portion of the estate, $ 382.50. He attaches vouchers for the credits he asks and respectfully asks the court to confirm this settlement and that he be discharged."

The estate was closed. In 1911, Jerry Randall departed this life intestate, and the appellants herein are his sole and only heirs. Hannah Randall continued to occupy and possess the 220 acres of land here involved until her death in 1937, and she left a will devising this land to certain parties, who are the defendants herein.

After the death of Hannah Randall, the appellants filed this suit claiming that Jerry Randall, as a pretermitted child, was entitled to half of the 220 acres of land, and that Hannah Randall only held this land for her life and that this suit was filed in apt time after her death in 1938. The plaintiffs also sought $ 300 as rent. The defendants resisted plaintiffs' claim, contending: (1) That Hannah Randall owned the land in fee; (2) that Jerry Randall had compromised and settled...