Stark v. Stark
| Decision Date | 21 October 1940 |
| Docket Number | 4-6056 |
| Parties | STARK v. STARK |
| Court | Arkansas Supreme Court |
Appeal from Lee Probate Court; A. L. Hutchins, Chancellor; affirmed.
Decree affirmed.
Kenneth Rayner, for appellant.
Canale Glankler, Loch & Little and Norton & Butler, for appellee.
This appeal is from the judgment and decree of the Lee chancery court, sitting in probate, which denied probate to a certain paper writing propounded as the last will and testament of William A. Stark, who had been twice married. To his first marriage, one child only, a son, William P. Stark, was born. On June 20, 1922, prior to his second marriage, W. A. Stark executed a will, which was duly attested, under which he gave his entire estate to his son, William P.
Stark was married the second time in 1925, and was living with this wife at the time of his death, but no child had been born to that union. On the day of his death, Stark took his wife to a community gathering, but having, as he supposed, an attack of indigestion, he returned home without his wife. Upon her return home she found Mr. Stark dead. A servant at the house was unaware of Mr. Stark's death until his dead body had been found. The son was notified of his father's death and attended the funeral. After the funeral the widow and son went through a safe deposit box which Mr. Stark had in a Memphis bank. Valuable papers were found, but no will. A small iron safe was kept in a room in the Stark home, in which there was also a roll-top desk. No will was found in the iron safe, but a paper writing was found in the desk, which is the paper writing filed for probate. This writing consisted of a single sheet. One side of this sheet was captioned: "Will of William A. Stark," and there followed this caption a will duly attested by witnesses, which was evidently written by a scrivener experienced in such matters. After the attestation clause there was written in the admitted handwriting of Mr. Stark the following sentence: Across the body of the will there was written in Stark's handwriting the words: and through the attestation clause there was written in Stark's handwriting the word "Canceled." The signature to this will had been cut away. A segment of this page, something more than an inch in width and about five inches long, had been cut away. The cut was smooth, indicating that it had been made with a sharp instrument, possibly a knife or scissors. On the reverse side of this page there appears in Stark's handwriting the following writing:
This writing was evidently done after the will had been mutilated, as is evidenced by the fact that the writing quoted is above, below and opposite the segment which had been removed.
The widow and son, the parties to this litigation, took the paper writing to an attorney who had attended to Mr. Stark's legal business, and the attorney expressed the opinion that the writing was not a will, and could not be probated as such. After further conference between the parties and the attorney, it was agreed that Stark's estate should be divided as in case of intestacy. An agreement to that effect was prepared under date of September 15, 1933, which recited that "William A. Stark, the father of William P. Stark, and the late husband of Hazel A. Stark, departed this life intestate in Lee county, Arkansas, on the 22nd day of June, 1933."
We have the impression, from reading the contract of settlement of the estate, that the widow was given something more than the law would have allowed her; but she makes no complaint that she was not given her full share if she is required to take under the statute, and not under the will. This contract of settlement provided that out of cash on hand the widow should pay all debts of the intestate, which were not large. The son and his wife executed and acknowledged the agreement at their home in Kansas City on September 15, 1933, and the widow signed and acknowledged it at her home in Lee county on September 23, 1933.
Division of the estate was made in accordance with the agreement, and no question was raised about it until 1939, at which time the son's wife filed a foreclosure suit against the widow growing out of another entirely different transaction. The widow employed an attorney to represent her in the foreclosure proceeding, to whom she exhibited the alleged will, and was advised by the attorney to file the will for probate. This was attempted, but the court found that "Said purported writing does not constitute a last will and testament," and from that judgment and decree is this appeal.
The writing begins with the statement that "At this time I have no Will." Had Mr. Stark intended to make one, he had, on the reverse side of the page, a concise, well written will, which he need only to have copied. He had never told his wife that he had made a will, although the paper had been in existence for more than three years, and the wife knew nothing of its existence until it was found in the roll-top desk. This was not the place where Mr. Stark kept his other valuable papers.
Mr Stark's shoes were found on top of the roll-top desk, and it is argued that this was a significant circumstance, and that the shoes were probably placed there to suggest to his wife that she search the desk. We think, however, that this circumstance cannot supply proof of an intention not expressed in writing. There is nothing to indicate that Mr. Stark thought, on the day of his death, that he was about to die. He left the community gathering, to which he had escorted his wife. Mr. Stark thought ...
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