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WERBE v. HOLT

October 6, 1951

WERBE ET AL.
v.
HOLT.



The opinion of the court was delivered by: John E. Miller, District Judge.

Statement

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, 1948.

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.

Findings of Fact

No. 1

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 costs.

No. 2

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.

No. 3

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.

No. 4

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 hereinafter.

No. 5

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.

No. 6

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:

"Hello Kids

"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.

"Did the boys pass.

"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.
        Madison,
     ...

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