Simpson v. Thayer

• Citation: 217 S.W.2d 354,214 Ark. 566
• Decision Date: 07 February 1949
• Docket Number: 4-8720
• Parties: Simpson v. Thayer
• Court: Supreme Court of Arkansas

217 S.W.2d 354

214 Ark. 566

Simpson v. Thayer

No. 4-8720

Supreme Court of Arkansas

February 7, 1949

Appeal from Howard Chancery Court; A. P. Steel, Chancellor.

Affirmed.

Boyd Tackett and Shaver, Stewart & Jones, for appellant.

George E. Steel and E. K. Edwards, for appellee.

OPINION

Holt J.

Appellant's wife, Carrie Isadore Simpson, died testate June 26, 1947. Appellees are Mrs. Simpson's brothers. Dr. and Mrs. Simpson had been married about forty-seven years and had lived all of this time, with the exception of about sixteen months, in Nashville, Arkansas. No children were born to this union. During their married life, they had acquired title to a number of pieces of real estate in Howard county, all in the name of Mrs. Simpson, and at her death, the title to all of this property was still in her name.

The present suit was instituted by Dr. Simpson to have appellees, "as sole heirs of his deceased wife, declared trustees of the lands in suit, which stood in Mrs. Simpson's name at the time of her death; to divest the legal title out of them and to vest same in plainitff," (appellant).

Appellee's answer was a general denial and pleaded the Statute of Frauds. The trial court found the issues against appellant and from the decree is this appeal.

Appellant says: "One line of testimony indicates that Mrs. Simpson held the legal title to the properties in suit in trust for appellant. According to another line of testimony, she held the legal title as community owner of an equitable entirety estate, under an understanding and agreement with her husband that, upon the death of the one, all properties jointly owned would pass to the survivor. (Or it might be said that Mrs. Simpson held as trustee for the equitable entirety estate.)"

Appellant contends that an implied, or a resulting trust, was created in his favor, which may be shown by oral testimony, or in any event, that he owned "an equitable entirety estate in the property" involved.

There are certain well established guiding rules in determining the questions presented. This court in Harbour v. Harbour, 103 Ark. 273, 146 S.W. 867, said: "It has been frequently held that where the husband purchased and paid for lands, taking the deeds therefor in the name of his wife, the presumption is that his money, thus used, was intended as a gift to her, and the law does not imply a promise or obligation on her part to refund the money or to divide the property purchased or to hold the same in trust for him. His conduct is referable to his affection for her and his duty to protect her against want, and it will be presumed to be a gift and, so far as he is concerned, becomes absolutely her property. Wood v. Wood, 100 Ark. 370, 140 S.W. 275; Womack v. Womack, 73 Ark. 281, 83 S.W. 937, 1136; O'Hair v. O'Hair, 76 Ark. 389, 88 S.W. 945," and in Parks v. Parks, 207 Ark. 720, 182 S.W.2d 470, we said: "And the rule is also well settled that the proof to overcome this presumption of gift should be clear and convincing. . . . 'Moreover, his (the husband's) subsequent improvements, payment of taxes and insurance are all 'referable to his natural desire to manage and care for his wife's property.'"

In the recent case of McKindley v. Humphrey, 204 Ark. 333, 161 S.W.2d 962, we said: "In Marrable v. Hamilton, 169 Ark. 1079, 277 S.W. 876, this court said: 'It has become the settled doctrine of this court that, in order to constitute a resulting trust by reason of the payment of purchase money, the payment must be made at the same time or previous to the purchase and must be a part of the transaction. In other words, the payment must be prior to, or contemporaneous with, the purchase so as to make it a part of the same transaction, and a trust will not result from payments subsequent to the consummation of the purchase.' . . . 'It is a well settled principle that, while trusts resulting by operation of law may be proved by parol evidence, yet the courts uniformly require that such evidence be received with great caution, and that it be full, free and convincing. Colegrove v. Colegrove, 89 Ark. 182, 116 S.W. 190, 131 Am. St. Rep. 82; Hunter v. Field, 114 Ark. 128, 169 S.W. 813. See, also, Nevill v. Union Trust Co., 111 Ark. 45, 163 S.W. 162.'"

There is no evidence of fraud in this case.

Mrs. Simpson died without having conveyed by deed or will any of the property here involved to her husband. She was an experienced business woman, frugal and industrious. She had inherited a small amount of property and made money from a grocery and market and from raising and selling white rats for scientific purposes and had money at the time the conveyances to her, here in question, were made.

The testimony presented by appellant from witnesses who talked to Mrs. Simpson prior to her death, tended to show that she made statements that she wanted Dr. Simpson to have all of her property at her death and wanted to make a will or deed, placing title in him. Although it appears that she was physically and mentally able, up to within a few months of her death, of so conveying the property involved to her husband, she did not do so, and there is no evidence that she was prevented from so doing. Dr. Simpson testified that he paid the taxes on the property.

In 1927, Mrs. Simpson sent a letter to her brother, Charles Thayer, appellee, in which she said that "you may save this letter if you want to -- it will be same as my will -- Every Thing I own at my death goes to you -- Every Thing and I want you to come out here and claim same."

The Chancellor briefly summarized in the decree...