63 S.W.2d 984 | Ark. | 1933
STATEMENT BY THE COURT.
This appeal challenges the correctness of a decree establishing and restoring a lost will, and also the validity of a parol gift of a house and lot, possession of which was delivered to the donee during the lifetime of the testator, under an express promise to convey the title to her by will. Some alleged heirs of the testator intervened in the suit and denied the validity of both the will and the gift.
It appears from the testimony that W. T. Askins, the testator, a man of good natural ability, though uneducated, had a talent for making money and handling men. He was in the employ of the Rock Island Railroad Company in the track and bridge building work operating *1010 boarding camps for the men engaged in such work under him. J. O. Lumpkin worked in the camps directed by Askins, and kept such records as were required to be kept by him, and a strong friendship developed between the two men. Later, Lumpkin got married, and he and his wife lived in the Askins' camps, he continuing to help Askins in the prosecution of the work. Askins had no children, and always insisted that he had no relatives. His wife died in the year 1917, and sometime during the year after Mr. and Mrs. Lumpkin were married, Askins met Mrs. Bertha Williams, appellee, who was working in the dining room at the Rock Island station. Their acquaintance ripened into great friendship. Mrs. Williams had two boys, aged 10 and 12 years, when she met Mr. Askins. He took a fatherly interest in the boys and induced Mrs. Williams to move from her then home on Fifteenth Street in Little Rock to a home which he rented and furnished for her at 1417 Marshall Street. He kept the two boys in school until they finished high school in Little Rock, and the younger boy was at the time of the trial in college at Georgia Tech.
The older boy testified that Mr. Askins was like a father to him, said, in fact, he had never known any father but Mr. Askins. Mrs. Williams left her employment at the Rock Island station, and for the remainder of Mr. Askins' life devoted her time and attention to him; drove his automobile for him, made purchases of groceries for the camp and commissary, bought fruit and other farm products for him and took them to the camp, waited upon him when he was sick at the camp, etc. Askins continued to keep the home for Mrs. Williams and the boys at 1417 Marshall until the year 1921, when he bought furniture for a house at 617 E. 13th Street, where they remained until November, 1928, when he moved them into the home he had bought for Mrs. Williams at 464 Midland Avenue, the property in controversy here, telling her it was to be her home. That place was rented to advantage at the time it was bought, and Mrs. Williams continued to live on 13th Street until the home was vacated in November, 1929, when she moved into the home, Mr. Askins buying new furniture for her costing about $900. At all *1011 times he referred to the place as the home of Mrs. Williams.
Others testified that in conversations with Mr. Askins he told them that the home belonged to Mrs. Williams, and upon his deathbed he told his nurse that Mrs. Williams was the dearest friend he had in the world and meant more to him than anything else in the world. Mrs. Williams also thought that he had given her all his other property, but his will could not be found by her or any one else who had any interest in her. After asking for her on the day of his death, he gave her his trunk key, the trunk was in the Lumpkin home, and told her he had fixed everything all right. She turned the key over to the physician, not being allowed to go to the Lumpkin home to look for the will, but the supposed will was not found.
Mr. Ed Dillon was Askins' attorney and prepared his will, giving all his property to Lumpkin and his wife. He wrote the will and the attestation clause; saw the two witnesses sign it, and at the time retained the will, and on the same day consulted with his partner, Mr. Isgrig, about the form of it, and they both concluded it was in proper form and conveyed the property, and so testified in this case. The witnesses, nurses at the hospital, testified that they were present when the will was executed and signed the same as witnesses, etc.
Mr. Dillon stated that he afterwards put the will in a special drawer in Mr. Isgrig's desk in the office, and sometime later was asked if he still had it in possession by the testator, Mr. Askins, and he told Mr. Askins that it was in the desk, and he could get it any time by calling for it. Mr. Askins told him that he was going to make another will. Mr. Dillon told him, upon being asked, that he had last seen the will in Mr. Isgrig's desk drawer, etc.
Mr. Isgrig testified that he had no recollection about the will being put into this particular desk drawer, the desk being one in which he stored things personal to himself, or about its ever being called for by Mr. Askins, the testator, or Mr. Dillon, saying it would have been given *1012 to him, however, if he had asked for it. Said the will might have been lost in moving to other offices.
Askins died on Sunday, and on the previous Wednesday told Mrs. Williams that he had made another will which was in his trunk at the Lumpkin home, and that he wished her to take his trunk key, giving it to her, and go to his trunk and get the papers intended for her. He gave Mrs. Williams the key, but the Lumpkins would not allow her to go to their home, and tried to run her out of the hospital the night Mr. Askins died.
The chancellor found that the will relied upon by the appellants was in existence at the date of the death of the testator, expressing some doubt about whether the testimony justified such finding, restored the will and confirmed the title of Mrs. Williams to the home given her by the deceased in his lifetime and delivered into her possession then, and decreed accordingly. (after stating the facts). It is insisted that the chancellor erred in decreeing a restoration of the will and also in confirming the title of Mrs. Williams to the property given her by the testator during his lifetime. Appellant also contends that the chancellor erred in not granting a new trial because of newly-discovered evidence.
The statute provides the procedure for the restoration of lost or destroyed wills and vests the jurisdiction in the chancery court. Section 10,545, Crawford Moses' Digest; Bradway v. Thompson,
The chancellor, it is true, in making his findings expressed a doubt as to whether the proof justified the finding that the will relied upon by the plaintiff was in existence at the date of the death of Mr. Askins, but there is no presumption that the will was destroyed by the testator with the intention of revoking it, the proof not showing that he retained the custody of the will or had access thereto, notwithstanding it could not be found after his death. There was no proof to justify a finding *1013 that the testator had possession of the will after he executed it and left it with his attorney, although it was shown that he could have gotten it by asking for it. The testimony showed that the will had been duly executed, and, if not in existence at the death of the testator, that it had been fraudulently destroyed in his lifetime, and its provisions were clearly established and proved by two witnesses as well as that it was properly executed and attested by the witnesses as required by, law.
If such presumption could arise from the testimony of the intentional revocation of the will by the testator, it was overcome in this case by the proof that the will was placed in the desk of the partner of the member of the law firm who drew it, to which the testator had no access, and, by his testimony, that it was never called for by the testator or delivered to him.
A careful examination of the whole record discloses that the findings of the chancellor are not contrary to the weight of the evidence, but supported by it in his decision on both matters.
The testator could make a valid parol gift of the property to Mrs. Williams, and the evidence amply justifies the finding that he did so and delivered possession of the property to her at the time, which she has ever since retained, although it is true that he promised to and indicated later that he had conveyed the title thereto by will. Mrs. Williams stated, however, that on the last day of his life when he realized his condition that he handed her the key to his trunk, stating that all the papers in which she was interested would be found therein and directed her to get them. She failed to get access to the trunk and the papers because appellants, the Lumpkins, in whose house the trunk was, would not permit her to do so; and the fact that she thought that Askins had not only conveyed the property to her, the home where she lived, but his other property as well, which he had already indicated would be done, does not lessen the effect of the testimony showing the delivery of the property to her under the express intention to give it to her. Young v. Crawford,
No error was committed because of the refusal to grant a new trial on account of newly-discovered evidence. No proper diligence was shown in procuring the alleged newly-discovered evidence when the necessity therefor fully appeared from the denials in the response to the motion showing the appellants were fully informed, before the beginning of the trial as well as during the introduction of the testimony, of what the issues were and the necessity for such testimony. The testimony proposed by the new witnesses was altogether cumulative in its nature, and there was no abuse of discretion on the part of the chancellor in refusing to grant the new trial. On the whole case we find no error in the record, and the decree is affirmed.
