Roller v. Roller

• Decision Date: 10 January 1949
• Docket Number: 4-8690
• Parties: Roller v. Roller
• Court: Arkansas Supreme Court

216 S.W.2d 399

214 Ark. 382

Roller v. Roller

No. 4-8690

Supreme Court of Arkansas

January 10, 1949

Appeal from Sebastian Chancery Court, Ft. Smith District; C. M Wofford, Chancellor.

Affirmed.

W B. Wall and Hugh M. Bland, for appellant.

J Clib Barton, G. C. Hardin and Bruce H. Shaw, for appellee.

OPINION

Minor W. Millwee, Justice.

Appellant, Walter E. Roller, was plaintiff in the chancery court in a suit against his wife, Grace Roller, for a divorce and an accounting of funds and property which he alleged the defendant obtained from him by fraud and undue influence while he was in a weakened mental condition. The divorce action was dismissed on motion of defendant on the ground of plaintiff's nonresidence, but an amended complaint was filed on the accounting feature.

Plaintiff alleged that the parties purchased a home in Monette, Missouri, with funds accumulated through their joint efforts; that in 1945 or 1946 plaintiff suffered a stroke which so affected his mental faculties as to make him subject to the dictates of defendant who fraudulently obtained a deed to the Monette property from plaintiff and later sold the property for $ 10,000 and converted the proceeds to her own use; that said proceeds, together with other funds and securities, were held by defendant as trustee for plaintiff. There was a prayer for an accounting and judgment against defendant for plaintiff's equitable share of the property.

The answer contained a general denial and further alleged that plaintiff and defendant entered into a separation agreement in August, 1945, dividing their property equitably between themselves and that they lived separate and apart for approximately a year thereafter; that in October, 1947, the parties had a further and final settlement of their financial difficulties; and that funds in possession of defendant were her separate property and plaintiff had no interest therein.

The chancellor found the issues in favor of defendant and dismissed plaintiff's amended complaint for want of equity.

For reversal of the decree it is insisted that the court erred in refusing to declare a resulting trust in favor of plaintiff in the proceeds of the sale of the Missouri property and other funds held by defendant. It is urged that the parties never entered into a property settlement or, if so, that same was cancelled by reconciliation and that plaintiff is entitled to an accounting of his share of said property.

At the time of their marriage in 1933, both parties had been married previously. Defendant resided in the city of Fort Smith, Arkansas, when her first husband died leaving her $ 8,000 in insurance and a home in Ft. Smith. Shortly thereafter she moved to Oklahoma City where she bought a grocery store which she was operating at the time of her marriage to plaintiff. Plaintiff was employed as a railway mail clerk and owned a grocery store in Monette, Missouri, which was being operated at a loss. Shortly after their marriage the parties moved to Monette, Missouri, and defendant took charge of the grocery business which was later sold and the proceeds used in part payment of the purchase price of a home. The balance of the purchase price was eventually paid through the joint efforts of the parties who at all times maintained a joint bank account. They also jointly acquired government savings bonds which were kept in their lock box at the bank.

In 1944, plaintiff retired from the railway mail service on a pension of $ 108 per month. Shortly prior to August, 1945, plaintiff executed a deed directly to defendant for the Monette property. The property was owned as an estate by the entirety and on the advice of counsel the parties, on August 25, 1945, executed a deed to a third person who deeded the property back to defendant. According to the testimony on behalf of defendant, this deed was executed as a part of a property settlement which was suggested and dictated by the plaintiff. At the same time the parties cancelled and revoked a joint will in which each was made the beneficiary of the other.

Defendant testified that in accordance with the suggestion of plaintiff, and as a part of the separation agreement, she delivered to plaintiff $ 1,000 in bonds and $ 1,000 in cash which she obtained from their lock box and retained $ 2,000 in bonds for herself; that plaintiff also retained four pension checks which were uncashed at the time of the agreement; that plaintiff informed her that he was soon leaving and that she would never hear from him again.

The testimony of defendant as to the...