Stull v. Graham
| Decision Date | 27 April 1895 |
| Citation | 31 S.W. 46 |
| Parties | STULL et al. v. GRAHAM et al. |
| Court | Arkansas Supreme Court |
Suit by W. S. Graham, as executor, and Parmelia G. Graham, against Addie B. Stull and others, to determine their respective rights in the estate of G. T. Stull, deceased, and to assign dower to said Addie B. Stull as decedent's widow. From a judgment determining their rights, both parties appeal. Reversed.
W. M. Randolph & Sons, for plaintiffs. W. G. Weatherford and N. W. Norton, for defendants.
Dr. G. T. Stull, a citizen of Crittenden county, died on the 29th day of February, 1892, leaving the appellant, his widow, and Mrs. Parmelia G. Graham, his only heir at law. W. S. Graham, his son-in-law, on the 14th day of March following, filed with the clerk of the probate court a paper, purporting to be the last will and testament of the decedent, who admitted it to probate, and issued letters testamentary to Graham. At the May term, 1892, the probate court approved the action of the clerk in admitting the will to probate, and issued letters testamentary to Graham. On the same day the probate court made the order just referred to. The 2d day of May, 1892, the widow filed with the clerk and recorder in his office a quitclaim deed, renouncing the provisions made for her by the will, announcing her election to take dower under the statute, and conveying to the heir "all the lands and interest which was conveyed to her" by the will. Shortly afterwards, on the 25th day of May, 1892, the widow filed in the office of the clerk of the probate court of Crittenden county a written instrument, formally acknowledged, reciting the execution and probate of the will, her election to be endowed, and release of interest under the will, and, for the purpose of receiving a child's part in the estate absolutely and in her own right, concluding as follows: "I, Mrs. Addie B. Stull, do hereby relinquish, convey, and release all my right of dower in and out of the estate of my deceased husband, and do claim and elect to receive a portion equal to that of a child out of said estate, in lieu of all such dower, all as is provided in the statute in that behalf; and I do file this instrument in the office of the clerk of the probate court with a view of having the benefit of said relinquishment and claim." The executor filed an inventory, and proceeded with his duties. The plantation (except the residence) on which the testator resided at the time of his death had been rented for the year 1892 by him to one W. W. Swepston for the sum of $3,274, less 10 per cent. for looking after the place, and his note taken therefor, which was listed as part of the personal property by the executor in the inventory. The widow occupied the residence during the remainder of the year after the death of her husband, and was still occupying it when the proof in the case was taken. From the time she filed in the clerk's office the paper dated the 25th day of May, the widow claimed and insisted upon having a portion in the estate equal to a child's in fee, and that, for the purpose of ascertaining her interest, an account be taken, not only of all that the husband died seised, but of all that the daughter had received from her father during his life; that the same be treated as advancement; that the widow be equalized with the daughter as if she was a child, and the balance, if any, divided between them.
Dr. Stull, at the time of his death, owned in fee the following described lands: "The N. E. ¼ of section 3; the S. ½ of N. E. ¼ of section 4; the W. ½ of S. W. ¼ of section 11; and the W. ½ of E. ½ of S. W. ¼ of section 11, — all in township 7 N., range 7 E." He was at the time of his death also in the possession of the following lands: "The S. E. ¼ of section 3; the E. ½ of section 10; and the N. E. ¼ of section 15," — in the same township and range. His home was on the N. E. ¼ of section 15, and had been for a number of years before his death. The facts as to his claim and title to the last three tracts are as follows: They were owned in fee by William S. Goode, Sallie L. Goode, and Mary A. Goode. Dr. Stull married Sallie L. Goode, and purchased from William S. Goode his undivided one-third interest, which he conveyed to Stull. Sallie L. was the mother of the appellee Parmelia G. Graham. Mary A. Goode married John W. Harris, and, while he and she were husband and wife, they, on the 2d day of February, 1867, for $900, conveyed to Dr. Stull an undivided one-third interest in the three tracts. On the 20th October, 1868, Dr. Stull and his wife, Sallie L., conveyed these three tracts to L. W. Harper, for the consideration of $3,200. The purchase money was not paid by Harper, but he executed his three promissory notes therefor, due October 20, 1871, 1872, and 1873, respectively. The deed shows that these notes were made payable to the order of G. T. Stull, and a lien was retained on the land to secure their payment. Harper failed to pay the notes, and G. T. Stull, the payee and holder of them, instituted a suit in the chancery court of Crittenden county to enforce their collection and his lien on the lands. Harper was served with process, but failed to defend, and a decree was pronounced by the court in favor of Stull for the sum of $4,640, the amount of the principal and interest of the notes, and declared the same to be a lien upon the lands, directing that they be sold if the amount was not paid by a day therein named. The judgment was not paid, and the land was sold by the court's commissioner, and purchased by Dr. Stull. The sale was confirmed, and the land conveyed to Stull on the 23d day of April, 1877. After he had thus become the purchaser of these three tracts of land, and while he was in possession, claiming them as his own, Mrs. Mary A. Harris and her husband, John W. Harris, brought a suit in the Crittenden circuit court in chancery, in which she disaffirmed her action in making the deed to Stull on the 2d day of February, 1867, alleging that she was a minor at the time, and seeking to annul her conveyance of her one-third interest in these tracts. This case proceeded to hearing in the circuit court, and that court decreed cancellation of the deed, but upon appeal to this court the decree was reversed, and the case remanded; the court holding that as to John W. Harris the deed to Stull was good, and conveyed all his interest, but that as to Mrs. Harris it should be annulled, requiring, as a condition precedent, that Mrs. Harris pay to Dr. Stull the amount of an indebtedness he had released to her at the time the deed was executed. The case is reported under the style of Stull v. Harris, 51 Ark. 294, 11 S. W. 104, and a copy of the decree is in the record. After this suit of Harris v. Stull had been so decided, the parties entered into a compromise, by which Dr. Stull agreed to pay Mrs. Harris $4,000 for her interest in the three tracts of land, of which the indebtedness she owed him as fixed by the supreme court should form a part. Pursuant to this agreement, he paid her $2,000, and executed his two promissory notes for the sum of $1,000 each, and which he afterwards paid, and caused her to convey the one-third interest in the land to his daughter, the appellee Parmelia G. Graham. The deed was executed on the 6th day of November, 1889. Dr. Stull remained in possession of the lands up to his death. At the time of Dr. Stull's death, John W. Harris was living, and was still alive at the time the evidence was taken in this case. Mrs. Graham claims an undivided one-third interest in these three tracts, and that the most of the cleared land on the Stull place is on them, and that she is entitled to one-third of the rents. The personal property, other than the note of Swepston for the rent of 1892, consisted of a book account against W. N. Brown & Co., of Memphis, Tenn., amounting to $3,383.50 (the complaint alleges that, to collect this claim, the executor had to qualify in the state of Tennessee, and that he is chargeable in that jurisdiction with it for a term), and notes and book accounts amounting to $439.19, and cattle, mules, and farm implements of the value of $210. The widow claimed, after the execution of the instrument dated May 25, 1892, that she was entitled to a child's part in the estate instead of dower. On the 13th day of October, 1892, W. S. Graham and Parmelia G. Graham brought this action in the Crittenden circuit court in chancery to settle rights of the parties, and to assign dower to the widow. The widow appeals from the decree of that court deciding that the widow is not entitled to take a child's part in the estate, but that she is entitled to a homestead, including the dwelling house, and one-third for life in the remainder of his real estate, and one-third absolutely of all the personal property of which he was the owner at the time of his death, including choses in action; that she is also entitled to the specific articles as mentioned in section 2, Acts 1887, and section 63, Mansf. Dig.; that the homestead and dower be assigned by commissioners out of all the lands of which Dr. Stull died seised, including the three tracts in which he held the interest for the life of Harris; and, for the purpose of assigning dower in the personalty, that the account of the executor be stated by a master named by the court. Mrs. Graham also appeals from so much of the decree as directed that dower be allotted the widow in the one-third interest in the three tracts claimed by her under the deed from Harris and wife.
The complaint, answer, and cross complaint, and reply present quite a number of questions for determination by this court. The first, by the appellant, is whether the paper probated and filed as the last will of Dr. Stull is a will, and whether the letters issued to Graham empower him to act as executor or not. As the widow renounced all...
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