The opinion of the court was delivered by: John E. Miller, District Judge.
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 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,
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
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 his board and
room, but the record does not show definitely how long he
remained there but he was a member of the household for sometime.
Also, during the time the defendant worked for a few weeks in two
other places and, during that time, the defendant's mother was in
the Werbe home and she apparently did most of the required work.
Several witnesses testified that Frederick C. Werbe stated to
them at various times and places that he intended for Mrs. Holt
to receive his property. On the other hand, there were witnesses
who testified that Frederick C. Werbe stated to them that he
intended for the plaintiff, Earl Werbe, to have his property.
The plaintiff, Earl Werbe, was taken into the home of Frederick
C. Werbe and Mrs. Werbe when he was between seven and eight years
of age. He was reared by them as their son and took their name
and remained with them until he was seventeen years old, when the
Werbes moved from Madison, Indiana, to Fayetteville, Arkansas,
where Mr. Werbe began work at the University of Arkansas. The
plaintiff was regarded by Frederick C. Werbe as a son and in 1947
Frederick C. Werbe commenced a proceeding in Madison, Indiana,
which resulted in the legal adoption of the plaintiff, Earl
Werbe, as his son. After the removal of the Werbes to
Fayetteville the plaintiff visited them at various times,
particularly during the first few years of their residence in
Fayetteville. He would remain three or four days during each
visit. After the death of Mrs. Werbe, he did not visit his father
at Fayetteville although his father visited him, the last such
visit being in 1947. The last trip of plaintiff, Earl Werbe, to
Fayetteville on a visit was prior to the death of his mother.
After that time, because of the curtailment of travel and because
of his work, he did not visit them. On his last visit he was not
invited to stay at the home and he and his family stayed at a
tourist court. Apparently, the defendant did not want the
plaintiff or his wife or any of his children to visit Mr. Werbe,
especially after the death of Mrs. Werbe in 1944, and she had
made their casual and rare visits very unpleasant. During the
years there was a great deal of correspondence between Frederick
C. Werbe and the plaintiffs. The letters were introduced in
evidence and disclose the relationship that existed between
Frederick C. Werbe and the plaintiffs. Many of the letters
contain no relevant statements of facts bearing upon the issues
in this case while many of them do and will be referred to
Over the period of several years, Mr. Werbe made several wills
in which he left all of his estate except small items of personal
effects to the defendant, Mrs. Holt. During this time, Frederick
C. Werbe became acquainted with Mr. J.R. Crocker, an attorney at
law who lived in Fayetteville. Mr. Crocker and Mr. Werbe both
belonged to the same fraternal organization or organizations and,
while apparently Mr. Crocker was not retained as an attorney by
Mr. Werbe, yet Mr. Werbe did discuss various matters with him.
They became friends and Mr. Crocker often parked his automobile
in the Werbe driveway and on one occasion he took Mr. Werbe
riding in the automobile. About that time Mr. Werbe handed him an
instrument purporting to be a will and stated that he would like
to have it witnessed. The will was redrafted by Mr. Crocker and
he and Mr. A.P. Eason, who is engaged in the insurance business
in Fayetteville, went to Mr. Werbe's home at his request in order
that the redraft of the will might be signed and witnessed. At
about that time, Mr. Werbe advised Mr. Crocker that he wanted to
convey the property in Fayetteville to his adopted son. He
advised Mr. Crocker of the name of the adopted son
who lived in Madison, Indiana. Mr. Crocker prepared a deed and he
had the deed with him at the time he and Mr. Eason went to the
Werbe home in order that Werbe might execute the will. The will
and deed were executed on that date and the deed was acknowledged
before Mr. A.P. Eason, who was a Notary Public. Mr. Werbe gave
him (Crocker) instructions as to the disposition of the deed and
will. This was on June 4, 1948. At about that time, Mr. Werbe
requested Mr. Crocker to obtain a lock box in the McIlroy Bank
and Trust Company and handed him a small chamois skin bag with
certain items therein. He said he had some gold coins in it and a
watch. He wanted the bag and its contents placed in the lock box.
The deed that was executed by Frederic C. Werbe and
acknowledged before Mr. A.P. Eason conveyed the property to the
plaintiff, Earl Werbe, and contained the usual covenants of
warranty. The will that was executed on that date devised and
bequeathed all the residue of his estate, real, personal and
mixed, wherever situated, to Earl Werbe, after the payment of
debts and certain specific bequests including a $200 bequest to
the defendant, Mrs. Jessie Holt.
A few days after the will in favor of Earl Werbe and the deed
to him had been executed, Mr. Werbe, on June 12, 1948, wrote the
plaintiffs as follows:
"I wrote you a letter on yellow paper so she could see it don't
pay any attention to it at all. I made a new deed & will they are
in the McEllory Bank Box Now this is the attorney I had & I
want you to rite him. should I die here the will will have to
be gone through this court. & I have to get this deed to you
while living Mr. J.R. Crocker rite him soon Eason
Bilding — here as you get this.
"I am sure sick can't walk or set up very long at time. Do all
your special letters to him he is a Mason. & I'll get. otherwise
she will get hold of them.
"Send me some papers. & rite as I can't."
Later written instructions were given by Mr. Werbe to Mr.
Crocker as follows:
"To Earl Werbe
935 W. Main St.