Townson v. Townson

• Court: Arkansas Supreme Court
• Writing for the Court: GEORGE ROSE SMITH; The appellee's husband
• Citation: Townson v. Townson, 254 S.W.2d 952, 221 Ark. 610 (Ark. 1953)
• Decision Date: 16 February 1953
• Docket Number: No. 4-9974,4-9974
• Parties: TOWNSON v. TOWNSON.

Page 952

254 S.W.2d 952

221 Ark. 610

TOWNSON v. TOWNSON.

No. 4-9974.

Supreme Court of Arkansas.

Feb. 16, 1953.

Chas. F. Cole, Batesville, for appellant.

W. D. Murphy, Jr., Batesville, for appellee.

GEORGE ROSE SMITH, Justice.

In this case the principal question is whether a widow, after having filed a declaration of her decision to take under her husband's will, may later change her mind and elect to renounce the will. The trial court permitted the appellee to alter her position, and by this appeal the executor asks us to reverse that decision.

The appellee's husband, J. H. Townson, died on February 12, 1951, and his will was admitted to probate. On February 15 Mrs. Townson filed with the probate clerk an instrument by which she declared that, with full knowledge of her right to a larger share in the estate, she elected to take only that property left to her by her husband's will. On August 9, 1951, Mrs. Townson filed a second pleading by which she undertook to rescind her earlier action and to renounce the will. In this pleading she asserted that her election to abide by the will was not binding on her as a matter of law and that her signature to the first instrument had been obtained by fraud. A demurrer to this second pleading having been overruled, proof was taken on the issue of fraud. The court, without making an express finding upon the question of fraud, entered a judgment upholding the widow's right to renounce the will and claim dower.

We must, be begin with, sustain the appellee's motion to strike the bill of exceptions, for the reason that it has not been approved by the probate judge. The Probate Code provides that the procedure in the probate courts shall be the same as that in courts of equity, Ark.Stats.1947, § 62-2004, subd. e, and under this provision we have held that a chancery statute enacted after the adoption of the Code is applicable in probate cases. Werbe v. Holt, 217 Ark. 198, 229 S.W.2d 225. Hence it was essential that the bill of exceptions be approved within the time allowed by Act 139 of 1951, Ark.Stats. § 27-1758. Meadows v. Costoff, Ark., 252 S.W.2d 825.

In the absence of a bill of exceptions we are limited to the consideration of errors appearing on the face of the record, but the principal question in the case so appears. By demurrer to the widow's second pleading the executor challenged her right to rescind her election to take under the will, and all facts pertinent to this issue are admitted by the demur...