| Ark. | Apr 27, 1908
(after stating the facts.) Appellees claim that the deed of Benjamin Ruddick to his wife was never delivered. The burden of proof to show this fact was upon appellees. Smith v. Stephens, 82 Ark. 50.
They adduced testimony in the court below to the effect that after his return from Texas Benjamin Ruddick told several persons that the deed (referring to the one executed to his wife) was of no effect because it had not been delivered'. That soon after his death his brother, two of his intimate friends and some of his children met to arrange a family settlement, and that the defendant Nancy A. Ruddick was present and did.not claim the land. That, when asked where the deed was, she replied that she did not know. That the deed was produced by the husband of defendant Julia Carter. That it was then agreed that the widow should have the homestead for life, and plans were made to have it set apart for her use by proper orders of court. Nothing further in this behalf was ever done.
Opposed to this is the positive testimony of the defendant Nancy A. Ruddiclc, unobjected to, that her husband sometime during the fall before his death delivered the deed to her. She detailed the circumstances under which he delivered it. She said that he was looking over some papers one day; that he picked up the deed, and handed it to her, saying, “This is yours;” that she unfolded it, looked at it, and put it back in a bureau drawer where he kept their papers; that it was there when her husband died; that after this time she talked with her husband about making a deed to their daughter, Julia Carter, and that he advised her to do it.
We think the chancellor erred in finding that there was no delivery of the deed. The testimony adduced by appellees was not sufficient to overcome her positive testimony. The fact that her husband continued to manage the land which was their homestead was natural. The testimony does not show that she took any part in the family meeting which was held soon after her husband’s death except to answer such questions as were asked her, and her seeming acquiescence in the expressions of opinion by her deceased husband’s brother and by her children that she had only a life estate in the lands may be attributed to ignorance on her part of the legal effect of the deed, or it may have been occasioned by her grief at the recent loss of her husband.
A deed of land by a husband directly to his wife, in the absence of fraud, conveys to her 'the equitable estate. Ogden v. Ogden, 60 Ark. 70" date_filed="1894-12-15" court="Ark." case_name="Ogden v. Ogden">60 Ark. 70; George Taylor Com. Co. v. Bell, 62 Ark. 26" date_filed="1896-02-08" court="Ark." case_name="George Taylor Commission Co. v. Bell">62 Ark. 26.
When the deed was first executed by Ruddiclc, it was done for the declared purpose of preventing his lands being sold in satisfaction of an anticipated judgment against him; but this cause had ceased to exist at the time it was delivered to his wife. Hence we infer that it 'was done to make provision for her in case she outlived him.
We think the testimony fails to show that the deed from Nancy A. Ruddiclc to Julia Carter was obtained by undue influence. Nor do we think a want of mental capacity on the part of the grantor to make the deed was shown. Besides, she testified in this case, and said she was satisfied, and that she was happy, living with her daughter, Julia Carter; that the consideration expressed in the deed was that the grantee should support her during her natural life. Moreover, an examination of the record shows that she was subjected to a rigid cross-examination, the result of which shows that her mind was clear, and that she fully comprehended what she was doing when she executed the deed to her daughter.
This was a ratification of her former execution of the deed, if any was necessary. Besides, she was living at the date of the trial, and her heirs could not bring suit to set aside her deed to her daughter. Their right to do this was predicated upon the theory that the deed from Benjamin Ruddick to his wife was invalid.
Reversed and remanded with directions to enter a decree not inconsistent with this opinion.