Williams v. Purdy

• Decision Date: 08 March 1954
• Docket Number: Nos. 5-322,5-323,s. 5-322
• Citation: 265 S.W.2d 534,223 Ark. 275
• Parties: WILLIAMS et al. v. PURDY et al. (two cases).
• Court: Arkansas Supreme Court

Page 534

265 S.W.2d 534

223 Ark. 275

WILLIAMS et al. v. PURDY et al. (two cases).

Nos. 5-322, 5-323.

Supreme Court of Arkansas.

March 8, 1954.

J. R. Wilson, El Dorado, Paul K. Roberts, Warren, for appellants.

Thomas E. Sparks, Fordyce, for appellees.

MILLWEE, Justice.

Sometime in 1918, Joseph A. Williams, while serving as a soldier in the U. S. army, bought a Service Life Insurance policy and named his half-sister, Amelia Williams, as beneficiary. Joseph died intestate on October 18, 1918, and Amelia received installment payments on the insurance until her death in 1924. The federal law at that time, 43 Stats. at Large, 1310, Chapter 553, § 14, 38 U.S.C.A. § 512, provided that if the beneficiary '* * * dies prior to receiving all the two hundred and forty installments or all such as are payable and applicable, there shall be paid to the estate of the insured the present value of the monthly installments thereafter payable * * *.'

After Amelia's death, her mother, Myra E. Williams, brought suit against L. E. Purdy as administrator of Joseph's estate, in which action she claimed to be the sole heir of Amelia Williams, who was the sole heir of Joseph Williams. The parties to that action stipulated that Myra was the wife of George J. Williams; that Joseph was the son of George Williams by a former wife; that Joseph died intestate leaving as his sole heir a half-sister, Amelia, born in lawful wedlock, the daughter of Myra and George Williams; and that Myra is the sole heir of Amelia.

At the November, 1929, term of the Dallas Circuit Court, a judgment was entered in favor of Myra, and in satisfaction thereof, the administrator paid her $8,069.66, Joseph's entire estate.

On July 3, 1948, appellants herein, the collateral heirs of George Williams, sought to vacate the judgment obtained in 1929 against L. E. Purdy, administrator, on the ground of fraud in obtaining the judgment under the fourth subdivision of Ark.Stats. § 29-506. They filed an intervention in the 1929 action alleging that Myra was never married to George Williams; that Amelia was therefore illegitimate; and that both Myra and L. E. Purdy knew these facts to be true at the time they entered into the stipulation to the contrary. Appellants also alleged they were nonresidents of Arkansas, that they had no notice of their right to said insurance, and that their cause of action was first revealed to them in the course of other litigation in July, 1945. It was further alleged that after the death of George J. Williams the nonresident families of the appellants tried to keep up correspondence with the family of George J. Williams in Arkansas but that such correspondence 'failed at all times to show the status of Joseph A. Williams or Amelia Williams on account of the character of the correspondence which was either due to the illiteracy of Myra E. Williams or her desire to conceal the status of the lands belonging to George J. Williams at the time of his death.' There are other allegations in the form of conclusions that appellants had been defrauded of the insurance money by the fraudulent concealment of Myra E. Williams or certain unnamed persons acting in her behalf.

Appellants filed with their petition in intervention a cross-complaint in which they asked for judgment against: the executrix of the estate of L. E. Purdy, deceased, and the sureties on his administrator's bond; the administrator of the estate of Myra Williams, deceased, and his sureties; the distributees of Myra Williams' estate, their administrators and their guardians; and the bondsmen on the refunding bonds required in the estate of Myra Williams.

On the same day the intervention was filed, an almost identical complaint was filed by the same parties, the only difference being that the parties were designated 'intervenors and cross-complainants' in one action and 'plaintiffs' in the other. With the filing of every amendment to the intervention there was also filed an almost identical amendment to the complaint. In both cases, the trial judge sustained a demurrer on the ground that the action was barred by the statute of limitations. The cases have been consolidated for purposes of this appeal.

In the absence of any circumstances tolling the running of the statute of limitations appellants' cause of action is clearly barred either by the 5 year limitation imposed in Ark. Stats. § 37-213 or the 8 year limitation applicable to actions on the bonds of administrators and executors under Ark.Stats. § 37-211. It has repeatedly been held by this court that the statute of limitations may be raised by demurrer. Herpin v. Webb, Ark., 256 S.W.2d 44. However, this rule has certain qualifications, for in State, to Use of Glover v. McIlroy, 196 Ark. 63, 116 S.W.2d 601, 603, it is said: 'It is urged, and we think correctly so, that the plea of the statute of limitations cannot be raised by demurrer, unless the complaint shows not only that the time had elapsed so as to bar the action, but in addition thereto, it must appear also, from the complaint, the nonexistence of any ground for the avoidance of the statute of limitations. St. Louis, I. M. & S. Ry. Co. v. Brown, 49 Ark. 253, 4 S.W. 781; Collins v. Mack, 31 Ark. 684; Rogers v. Ogburn, 116 Ark. 233, 172 S.W. 867; McCollum v. Neimeyer, 142 Ark. 471, 219 S.W. 746.'

Mere ignorance of one's rights does not prevent the operation of the statute of limitations, but where the ignorance is produced by affirmative and fraudulent acts of concealment, the statute of limitations does not begin to run until the fraud is discovered. Landman v. Fincher, 196 Ark. 609, 119 S.W.2d 521; Kurry v. Frost, 204 Ark. 386, 162 S.W.2d 48; State of Tennessee v. Barton, 210 Ark. 816, 198 S.W.2d 512. Some affirmative act of concealment must be done; mere failure to reveal is not enough, unless there is a duty to speak. Arkansas Power & Light Co. v. Decker, 181 Ark. 1079, 28 S.W.2d 701. As the court said in McKneely v. Terry, 61 Ark....