| Ark. | Apr 9, 1923
Lead Opinion
(after stating the facts). We do not think that the chancellor erred in holding that the deed of the widow to the heirs at law of her deceased husband was procured by undue influence on their part. Undue influence has a broad field to work upon in the condition of the person influenced. All the surrounding circumstances which might make him susceptible and yielding are to be .considered. The doctrine of equity concerning undue influence reaches every case “where influence is acquired and abused or where confidence is reposed and betrayed. ’ ’
In the instant case the undisputed evidence shows that Hogan Caldcleugh died without issue, owning 406 acres of land. . His personal property was sufficient to pay his debts. Having died without children, his widow was entitled to one-half of his real estate. Crawford & Moses’ Digest, § 3536.
It is true that Harper Caldcleugh and Dr. Fletcher testified that no coercion or undue influence was exercised to cause her to execute the deed, but, when the surrounding circumstances are considered, we are persuaded that such was not the case. Dr. Fletcher admits that he told her that she could get a greater interest in her husband’s estate by going to law. The settlement was made and the deed was executed by the widow three days after her husband’s death. She was overcome with grief at the time, and naturally did not wish to enter into a lawsuit' with her husband’s brothers, sister and mother. She was staying at Harper Caldcleugh’s home at the time. She knew that he was a man of great business experience, and had implicit confidence in him. She was not informed that her husband’s mother would inherit a life interest in Ms real estate. She,was not informed what her dower rights were in the premises. She was only told that she could secure a greater interest by having a lawsuit. All these circumstances operated to cause her to execute a deed whereby she conveyed a large proportion of her interest in her husband’s land. In other words, he died owning 406 acres of land, and she was entitled to one-half of it as dower She conveyed away all her interest in his land to his heirs-at-law in consideration that his brothers and sister should convey to her their interest in 80 acres of his land. The mother of her deceased husband retained her life interest in this 80-acre tract.
The execution of the deed by her was procured by undue influence within the rule announced above, and the chancery court properly set it aside. 2 Pomeroy’s Eq. Juris., 3rd ed., sec. 951; and Parker v. Hill, 85 Ark. 363" date_filed="1908-01-06" court="Ark." case_name="Parker v. Hill">85 Ark. 363.
The settlement with regard to the personal property was had on the 16th day of March, 1920. She conveyed her interest in it in consideration of Harper Caldcleugh paying the debts due by her deceased husband’s estate and for certain personal property received by her. It is true that it turned out that the personal property was largely in excess of the debts owed by her husband, but at the time the settlement was made it was not known what the amount of his debts would be or what the value of the personal property'of her husband’s estate would be. We do not think that the settlement with regard to the personal property was improvident, and the decree of the chancellor, in so far as it sustains the settlement and division of the personal property between the widow and the heirs of her deceased husband, will be upheld.
We are of the opinion that the court erred in holding that the homestead had been abandoned. It is well settled that a removal from the homestead, where there is a fixed and abiding intention to return to it, will not constitute an abandonment' of it as a homestead. An abandonment of a homestead is almost, if not entirely, a question of intent, which must be determined from the facts and circumstances attending each case. A removal from the homestead may be caused by necessity or for business purposes, and if the owner has an unqualified intention to preserve it as a homestead and return to it, his removal will not result in an abandonment of the land as a homestead. Stewart v. Pritchard, 101 Ark. 101" date_filed="1911-11-20" court="Ark." case_name="Stewart v. Pritchard">101 Ark. 101; Melton v. Melton, 126 Ark. 541" date_filed="1917-01-01" court="Ark." case_name="Melton v. Melton">126 Ark. 541; and Dean v. Cole, 141 Ark. 177" date_filed="1919-12-08" court="Ark." case_name="Dean v. Cole">141 Ark. 177.
According to the testimony of the widow, there were 80 acres of land in what her husband called the home place. He had said that he was going to build a new house on it and move back to it. She expected to move back there with him. Her husband liad, before his death, placed lumber on his home place for the purpose of building a new home. There were already two small houses on it. There is nothing in the record to contradict her testimony, except the fact that her husband had moved from his homestead and was not living there at the time of his death. When we consider that he had always stated that he intended to return to his home place and had already bought the lumber for the purpose of building a new home, we do not think that the chancellor was right in holding that the facts and the attending circumstances constituted an abandonment of the homestead by Hogan Caldcleugh.
It follows that the chancellor erred in holding that the widow was not entitled to a homestead as well as dower in the land of her deceased husband. The widow is entitled to the homestead, not as dower in the estate of her deceased husband, but in addition thereto. Horton v. Hilliard, 58 Ark. 301; Ex parte Grooms, 102 Ark. 322" date_filed="1912-02-12" court="Ark." case_name="Ex parte Grooms">102 Ark. 322; and Jameson v. Jameson, 117 Ark. 142" date_filed="1915-02-15" court="Ark." case_name="Jameson v. Jameson">117 Ark. 142.
The result of our views is that the chancellor erred in refusing to allow the widow a homestead, and for that error the decree will be reversed, with directions to enter a decree in accordance with this opinion In all other respects it will be affirmed.
Rehearing
OPINION ON REHEARING.
Counsel for appellants complain that the court did not discuss the action of the court below in overruling their motion to withdraw the submission of the case for the purpose of taking further testimony.
This motion was not filed until the 26th day of January, 1922. The case was submitted on November 22, 1921. The testimony of Ben Jones was taken on December 6, 1920. Hence .appellants waited too long. They were apprised of the fact that Jones claimed that appellee had not been divorced from him when he testified to that fact. Hence they should have proceeded with diligence to take additional testimony on this point if they intended to rely upon it, and should not have waited until more than a year had elapsed before attempting to do so.
The motion for rehearing is denied.