Bromley v. Atwood , 79 Ark. 357 ( 1906 )

Hill, C. J.

The Reporter will state the issues, set out the will and give a summary of the evidence, and from this statement of facts it will be seen that three questions are in the case.

1. Does the will on the face of it forgive the legatee’s debt to the testator?

2. Does the evidence show that the testator intended to forgive the debt of the legatee to him ?

3. Was a debt in fact proved against the legatee?

1. After making various bequests to Mrs. Bromley, amounting to a substantial sum, the instrument proceeds: “But the said Mrs. M. A. Bromley is to make no charges against my estate for anything I owe her, or for waiting on me during my sickness at any time; said gifts above being given to satisfy all of said claims and her kindness to me during her lifetime and waiting on me during my sickness.” This shows the object of the devise to be twofold: (1) The satisfaction of charges which the testator felt Mrs. Bromley would be entitled to make against his estate for services for which he owed her, and, (2) in gratitude for her kindness the legacy and devise is evidently made much larger than a mere payment for services. While this language does not literally reach to a forgiveness of a debt due him from her, yet it does indicate that there is no such debt. He could not be indebted to her for services if they had been overpaid by the matters set forth in this account when he made this will, which was only two days before his death. The account exhibited against Mrs. Bromley is all in Mr. Atwood’s handwriting, and of course he was possessed of exact knowledge of it. While not free of doubt, it seems that the will on its face showed an intention to give these bequests in lieu of a business settlement of his affairs with Mrs. Bromley.

2. Whatever doubts there are on this subject, derived from an examination of the will alone, are dispelled when the testimony is considered. In the first place, it may be said that parol testimony on an issue whether or not a legacy or devise was intended to forgive a debt from the legatee or devisee is admissible, and does not offend against the rule forbidding the varying or altering of a written instrument by oral testimony. Rood on Wills, § 737; Zeigler v. Eckert, 47 Am. Dec. 428; Gilliam v. Brown, 43 Miss. 641.

After the will was written the testator had Mr. Sadler to cast up the value of the property given Mrs. Bromley, putting estimates upon each item, and then said, when the total was slated, that he had done a very good part by her; clearly having in mind that this total was what she was to have, not that sum less what she owed him.

3. It is doubtful whether under the evidence appellees have proved the debt. Mrs. Bromley was charged with the various items making up the account from time to time, but she was not credited since January, 1893, with her services at the agreed sum of $45 per annum. It was proved that these services continued until Mr. Atwood’s death in May, 1904. If she was credited with this salary, then Mr. Atwood would have been in her debt $130 instead of the account standing $394.93 against her. There is but one way to escape the conclusion that Mr. Atwood was in debt to her, and that is to infer that he paid her salary in cash, and hence it was not entered upon the account. It is much more probable that it was a fixed charge, and he did not think of entering it, and merely charged her with items as she got them. It is not necessary to pursue this question whether the debt was proved or not. The court is of the opinion that the will and the evidence shows that Mr. Atwood intended to give Mrs. Bromley the items named in the will, irrespective of the state of the account between them, and in lieu of all compensation for her services, and also as a token of his gratitude to her. It is not consistent with his conduct that he intended the accounts to be cast up and a balance recovered. This is not a case where the findings of the circuit court are binding. The evidence is undisputed, and it is a mere question of its effect and construction.

Judgment reversed, and cause remanded.