Werbe v. Holt
| Decision Date | 06 October 1951 |
| Citation | 100 F. Supp. 392 |
| Parties | WERBE et al. v. HOLT. |
| Court | U.S. District Court — Western District of Arkansas |
Edgar E. Bethell, Fort Smith, Ark., O. E. Williams, Fayetteville, Ark., for plaintiffs.
Lee Seamster, Rex W. Perkins and Price Dickson, all of Fayetteville, Ark., for defendant.
On April 19, 1951, the plaintiffs filed their complaint against the defendant in which they alleged that prior to June 4, 1948, Frederick C. Werbe was the owner of certain real property situated in the City of Fayetteville, Arkansas, and on that date he executed and acknowledged before A. P. Eason, a Notary Public in and for Washington County, Arkansas, a warranty deed by which he conveyed the property to the plaintiff, Earl Werbe; that said deed was delivered to and accepted by the plaintiff, Earl Werbe, on or about June 23, 1948. A copy of the deed was attached to the complaint and, while the deed is dated May 4, 1948, it was not signed and acknowledged until June 4, 1948.
That the deed, although duly executed and delivered to the plaintiff, Earl Werbe, and accepted by him, was not placed of record and that on July 10, 1948, the plaintiff, Earl Werbe, returned the deed through J. R. Crocker to the said Frederick C. Werbe for the purpose of having the deed placed of record in Washington County, Arkansas, but that the deed was never recorded nor returned to the plaintiffs.
That Frederick C. Werbe died on October 21, 1948; that for several years prior to his death he had employed the defendant, Mrs. Jessie Holt, as his housekeeper and she resided with him on the property; that after the death of the said Frederick C. Werbe, defendant offered and had admitted to probate in the Probate Court of Washington County, Arkansas, an instrument purporting to be the last will and testament of the said Frederick C. Werbe in which the real property along with other property was devised and bequeathed to the defendant; that, since the death of the said Frederick C. Werbe, the defendant has remained in possession of the property claiming to be the owner thereof.
That the plaintiffs are the legal owners of the property and entitled to immediate possession of same and for a recovery of a reasonable rental for the property since the date of the death of the said Frederick C. Werbe.
The prayer of the complaint was that the deed by which the said Frederick C. Werbe conveyed the property to the plaintiff, Earl Werbe, be established; that the plaintiffs be decreed to be the legal owners of said property and entitled to possession thereof and that they recover of the defendant the reasonable rental value of said premises.
To this complaint, the defendant, on July 13, 1951, filed her answer in which she denied that Frederick C. Werbe, prior to June 4, 1948, was the owner of the property and further alleged that, prior to that date, the said Frederick C. Werbe had contracted to convey the property to the defendant in payment for her services in staying with and caring for him during his lifetime and for caring for the wife of said Frederick C. Werbe during her lifetime; that the defendant had performed all the services required of her by said contract and had lived in the house on the property for more than fourteen years and that, on June 4, 1948, she was in possession of the said house under said contract; that she continued to live in said house and care for the said Frederick C. Werbe after June 4, 1948, until his death on October 21, 1948, and that she had, therefore, paid the full purchase price for said property; that, in compliance with the contract, the said Frederick C. Werbe on July 13, 1948, executed, acknowledged and delivered to her a deed conveying the property and that said deed was recorded on July 16, 1948, in Recorder's Office of Washington County, Arkansas, and that she is now the owner of said property.
She denied that the deed alleged to have been executed by the said Frederick C. Werbe to the plaintiff, Earl Werbe, on June 4, 1948, had been delivered to the said grantee and accepted by the grantee; that the said plaintiff, Earl Werbe, gave no consideration for said deed and that the same was executed at a time when the defendant was in possession of the said premises under a contract of purchase from the deceased and that the said plaintiff, Earl Werbe, well knew of the defendant's rights in and to said property; that the said plaintiff, Earl Werbe, did not return the deed received by him to the said Frederick C. Werbe for the purpose of having the same placed on record and that said deed was never recorded and had no force or effect whatsoever.
Paragraph 5 of the answer is as follows: "Defendant admits that Frederick C. Werbe died on October 21st, 1948, but denies that she is claiming said real estate under the will of the said Frederick C. Werbe, but states the facts to be that she claims and owns said real estate by reason of a deed from said Frederick C. Werbe as herein above set out."
The defendant denied that the plaintiffs are the legal owners of the property or that they have any rights therein.
The case came on for trial to the court on August 20, 1951, and at that time the parties agreed in open court that the cause should be submitted upon the record of the testimony introduced by the respective parties in the trial of a case in the Probate Court in and for Washington County, Arkansas, on October 12, 1949, wherein the plaintiff, Earl Werbe, and certain interveners were contesting the probate of an instrument purporting to be the last will and testament of Frederick C. Werbe, dated July 13, 1948.
The testimony introduced in that case appears in the Transcript of the Proceedings which the court has designated as No. 1. At the conclusion of the trial before the Probate Court, a motion for judgment for the contestee, Mrs. Jessie Holt, was sustained and the contest of the alleged will was dismissed.
There was an appeal to the Supreme Court, and the judgment of the Probate Court was reversed on the ground that the testimony introduced by the contestants was sufficient to be considered by the court and that the demurrer filed by the contestee to the evidence should have been overruled. Werbe v. Holt, 217 Ark. 198, 229 S.W.2d 225.
Upon a remand by the Supreme Court, further proceedings were had in the Probate Court and a great deal of testimony was introduced in support of and in opposition to the petition of the contestants. The petition to contest alleged that the instrument had been executed by the said Frederick C. Werbe through undue influence exerted upon him by the present defendant, Mrs. Jessie Holt, and that the instrument was not executed freely and voluntarily by the said Frederick C. Werbe.
At the conclusion of the second trial, the court entered a decree dismissing the contest of the will. There was an appeal to the Supreme Court and, on February 26, 1951, the Supreme Court affirmed the decree of the trial court. Werbe v. Holt, Ark., 237 S.W.2d 478.
The testimony that was introduced in the second trial was presented to the court and designated as Transcript No. 2.
Thus the court by stipulation of the parties heard no oral testimony upon the issues before it and, after such stipulation was announced, the case was submitted and the attorneys for the respective parties were requested to file abstracts of the testimony and briefs and arguments in support of their contentions. This has been done and the issues have been fully presented to the court in that manner, and, in addition thereto, the court has examined and read the transcripts of the testimony, and now makes and files herein its Findings of Fact and Conclusions of Law, separately stated.
The plaintiffs, Earl Werbe and Lou Werbe, are citizens and residents of the State of Indiana. The defendant, Mrs. Jessie Holt, is a citizen and resident of the State of Arkansas. The property involved herein is located in the City of Fayetteville in Washington County within the Western District of Arkansas and its value is in excess of $3,000, exclusive of interest and costs.
The property was purchased by Frederick C. Werbe in 1931 and occupied by him and his wife as their home until the death of his wife in 1944. After the death of Mrs. Werbe, the said Frederick C. Werbe continued to occupy the property as his home until his death on October 21, 1948.
Mr. Werbe was employed by the University of Arkansas until about June, 1947, when he was compelled to retire because of ill health. His retirement from his employment by the University occurred approximately three years after the death of his wife.
On March 21, 1934, the defendant received a letter from Mrs. Werbe and as a result of that letter she began work for Mr. and Mrs. Werbe soon thereafter. Mrs. Werbe lived nine years and eleven months after the defendant began working for them and Mr. Werbe, as above stated, lived until October 21, 1948.
The defendant, Mrs. Holt, testified that when she went to the Werbe home Mr. and Mrs. Werbe agreed that everything that they had should belong to her; that at that time Mr. Werbe was receiving a salary of $150 a month and could not pay her very much. That for ten years they didn't pay her any salary. That she became dissatisfied and Werbe advised her that if she would stay he would pay her $40 a month and, in addition, leave all of his property to her; that she did practically all the work required of a housekeeper and, in addition thereto, nursed both Mr. and Mrs. Werbe during their illness. It does not appear from the testimony just when the contract was entered into between the Werbes and the defendant, if one was in fact entered into. No written agreement was entered into and, soon after the defendant went into the Werbe home, her son also moved to the home and acquired his education by attending the University of Arkansas. No charge was made for...
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Markow v. Alcock
...urged in a subsequent proceeding where the parties are different. See Lawrence v. Vail, 166 F.Supp. 777 (D.C.S.C.1958); Werbe v. Holt, 100 F.Supp. 392 (W.D. Ark.1951), rev'd on other grounds, 198 F.2d Here, it not only appears that the two proceedings were between different parties but also......