Welch v. Welch

• Decision Date: 14 January 1918
• Docket Number: 99
• Citation: 200 S.W. 139,132 Ark. 227
• Parties: WELCH v. WELCH
• Court: Arkansas Supreme Court

200 S.W. 139

132 Ark. 227

WELCH v. WELCH

No. 99

Supreme Court of Arkansas

January 14, 1918

Appeal from Greene Chancery Court; C. D. Frierson, Chancellor affirmed.

Decree affirmed.

Huddleston Fuhr & Futrell and Jason L. Light, for appellants.

1. Disinheritance of children by a parent must be traced to one or more of three causes: (1) Estrangement of parent from child; (2) some form of insanity; (3) fraud. No estrangement nor insanity is shown. But fraud and overreaching are shown by many strong circumstances and declarations of parties. The declarations of the grantors were competent evidence. 123 Ark. 134; 99 Mass. 88; 61 N.E. 426; 2 Id. 925.

2. The burden of proof was on the donee in the deed, 24 A. 645. A voluntary gift is conclusively fraudulent as to creditors and this should be the rule where a gift to one child disinherits the brothers and sisters. 188 S.W. 321; 52 N.Y.S 471; 62 A. 736; 33 S.E. 517; 83 Am. Dec. 593; 127 Am. St 1107; 57 Barb. 458; 81 N.E. 1135.

The grantors were clearly imposed on. The declarations of both grantors and grantee and all the circumstances show a clear case of fraud and imposition and the decree should be reversed.

Block & Kirsch, for appellees.

1. No presumption of fraud or undue influence arises here. 17 Am. & Eng. Ann. Cas. 989; A. & E. Ann. Cas. 1915 D, 711; 81 N.E. 403; 91 S.W. 475; 24 Oh. Ct. Ct. 397; 117 S.W. 1177; 72 N.E. 1121; 47 So. 117; 106 N.W. 675; 53 S.E. 779. Confidential relations alone are not sufficient. 90 A. 936; 114 P. 33; 167 S.W. 1036; 135 P. 333; 62 So. 505. See also 2 Pom. Eq. Jur. (3 ed.), § 962.

2. No fraud nor undue influence was proven. The declarations of a vendor made after the conveyance, in the absence of the vendee, are not admissible to impeach the title. 40 Ark. 237; 43 Id. 320; 14 Id. 305; 79 Id. 418; 90 Id. 149; 48 Id. 169. In 123 Ark. 134 the declarations were made anterior to the deed. The burden was on the plaintiffs. Fraud is not proven and the chancellor so found. The decree should be affirmed.

STATEMENT OF FACTS.

Appellants instituted suit against appellees in the Greene Chancery Court to set aside a deed executed by W. M. Welch and Margaret Welch, his wife, on the 24th day of May, A. D. 1914, to C. W. Welch, describing the following lands in Greene County, Arkansas, towit: Southeast quarter of the northwest quarter and the northeast quarter of the southwest quarter of section 13, township 17 north, range 3 east; the northeast quarter, the west half of the southeast quarter, the east half of the southwest quarter and the east half of the northwest quarter, all in section 18, township 17 north, range 4 east, alleging in substance that C. W. Welch procured the deed to all of said lands, except the eighty-acre tract known as the home place, through fraud and deceit. John Welch, one of the plaintiffs, made an additional allegation that he was the owner by gift from his father, W. M. Welch, of the southeast quarter of the northwest quarter, the northeast quarter of the southwest quarter, section 13, township 17 north, range 3 east.

William Gray and Ruth Faulkner refused to join the petitioners in the prosecution of the suit and filed no answer to the bill. A separate response was filed by J. D. Block as guardian ad litem for Dixie Welch, Coleman Welch and Holland Welch, grandchildren of W. M. Welch, deceased, denying all the material allegations of the bill, claiming to be owners in fee of said real estate under the deed sought to be canceled. Mrs. Willie Welch, wife of C. W. Welch, grantee in said deed, filed separate response adopting the answer of the guardian ad litem for her children, and claiming a dower interest in all of said real estate.

Joe A. Thompson was administrator of the estate of Charley Welch, deceased, and he answered, denying all material allegations in the original bill with reference to his intestate procuring moneys from the estate of Margaret Welch, deceased. It is unnecessary to set out the allegations with reference to the personal estate of Margaret Welch, deceased, contained in the original bill, appellants having dismissed that part of their bill.

The appellants are children and grandchildren of W. M. Welch, deceased.

The court heard the case upon the pleadings and written proofs and sustained the deed as to all the lands except the southeast quarter of the northwest quarter and the northeast quarter of the southwest quarter, section 13, township 17 north, range 3 east. As to the land just described, the court canceled the deed and divested the title out of both plaintiffs and defendants and vested same in John Welch.

The court incorporated in the decree a finding and holding to the effect that the burden of proof rested upon appellants, and overruled appellants' contention that the burden rested upon the appellees to sustain the deed.

The substance of the evidence is about as follows: On May 24, 1904, W. M. Welch, the grantor in the deed, called at the office of J. D. Block, an attorney, and had him draw the deed from himself and wife, Margaret, to C. W. Welch, his son, handing him a tax receipt from which to get the description of the land. Block dictated the deed and when W. M. Welch returned after a short absence he read the deed to him. The land was described by calls and the deed recited 480 acres, more or less. A life estate was reserved in himself and wife. The lands above described constituted all the lands owned by W. M. Welch. W. M. Welch took the deed downstairs, and, after same was executed and acknowledged, he returned to the office, handed Mr. Block $ 10 for his services and handed the deed to his son, C. W. Welch, who had appeared for the first time, telling him to go and record same. The deed was not recorded until the 28th day of April, 1905, about one year after its execution. C. W. Welch was the youngest son and had resided with his father from infancy, and for a number of years prior to the execution of the deed, and thereafter until his death, managed his father's business. C. W. Welch was the only member of the family who could read and write. His father depended on him in all transactions requiring writings. He paid the taxes for his father and attended to all business matters for him. He counseled with both his father and mother concerning the business. His mother usually kept the money and on his suggestion would pay the obligations incident to the business in which they were engaged. W. M. Welch placed John Welch, his son, in possession of the southwest quarter of the northwest quarter, the northeast quarter of the southwest quarter of section 13, township 17 north, range 3 east, on the 24th day of December, 1894, under promise that he would deed said tract of eighty acres to him. John Welch has continuously lived upon said tract and made valuable improvements thereon. This tract of land was included in the deed sought to be canceled. Prior to the execution of the deed, W. M. Welch deeded tracts of about equal value to some of his other children. He and his wife stated many times, both before and after the execution of the deed, that they intended to divide their lands equally between their children. The grandchildren were always included in the statements. All of their children lived near by and seemed to stand equally in the affection of both father and mother. The only preference ever expressed with reference to a division of the property was to the effect that C. W. Welch was to have the home eighty or home place. No member of the family knew of the execution of the deed until after the death of C. W. Welch. His wife, Mrs. Willie Welch, found it in his trunk after his death. She maintained silence with reference to the discovery until after the death of W. M. Welch. C. W. Welch went to Oklahoma for a time and W. M. Welch either went there with him or to him and remained there until his son's death. After the death of his son, C. W. Welch, he returned to his Arkansas home and remained there until his death on the 17th day of February, 1915. On two occasions there was some disturbance in the family. C. W. Welch got into trouble and there was a little complaint about the amount expended in his defense. In a statement to Alex Witcher, C. W. Welch stated that his mother "had no right to get mad and treat him like she was, that there was a time coming when there would be something to kick for, and also made the remark that John and some of them were sulking around him, mad at him, and said they have got no right to say anything, it don't cost them anything. * * * He (C. W. Welch) made it appear that probably she (Margaret Welch) would think that she was going to deed him eighty acres and perhaps it would be a whole lot more or all of it, or something of that kind." On the other occasion, some trouble had been brewing with reference to the Bug Gray estate. C. W. Welch stated to J. H. Cade, in the presence of Lawrence Smith in the year 1906, that "the heirs were sore at him the way the suit was settled and they would be sorer than that when the Doc Welch (referring to W. M. Welch) estate was settled, that the old folks thought that he only had a deed to eighty acres but that he had a cinch on it all; that he was paying the taxes and the whole estate belonged to him; that he had it fixed. * * *"

Before leaving for Oklahoma, C. W. Welch suggested selling the land and referred to it as Pa's land. In 1906, Lawrence Smith heard a conversation between C. W. Welch and his father, W. M. Welch, in which C. W. Welch said, "Pa, make me a will to everything you have got and you won't have to look after it," and the old man said, "I godlins, I have got other children besides you," and the old lady sort of shed a few tears and said "she could not think of leaving Bug Gray's children out;...