Ellison v. Smith , 107 Ark. 614 ( 1913 )

Wood, J.

(after stating the facts). Without discussing the testimony in detail, which is set forth in the statement, it is sufficient to say that we are of the opinion that the findings of the chancellor are not clearly against the preponderance of the evidence. The testimony of the appellee, Mrs. Smith, to the effect that it was the intention of her father that his children should share equally in his estate at his death is corroborated by the testimony of appellant’s witness, Bates, in which he stated that on the next dáy following the execution of the deeds, or a short time thereafter, she came to his store, and in answer to a question by him if that was all the lands she .got in the division, she replied that she didn’t care for the lands as she was to get “her part of the estate out of other stuff.”

The testimony is ample to show that there was no reason for any discrimination upon the part of the father of these litigants in favor of the appellants. On the contrary, the evidence shows that appellee, Mrs. Smith, was held in the highest affection by her father, and she, by her loyal services and loving devotion to her father and mother during their old age and severe illness for several years prior to their death, proved that she was worthy of her father’s love and confidence. It is unreasonable to believe that her father, imbued with natural impulses, would, in a division of his estate, discriminate against a widowed daughter in favor of his sons. We are of the opinion that he did not do so, and that the finding of the chancellor that the execution of the deeds, under the circumstances in evidence, was such a„ fraud as no court of equity could declare binding upon her, was correct.

While family settlements, when fairly made, require strong reasons to prevent their enforcement, a settlement such as is indicated by the evidence in this record, could not be approved because it shows conclusively that it is very unfair and unequal, and was obtained from the appellee, Mrs. Smith, through the imposition of those whom she had the right to expect would treat her with the utmost fairness and impartiality.

The issue as to what were the intentions of the ancestor of these children in the division of his property and as to whether these intentions were honestly carried out in the settlement which they had among themselves are only of fact and no good purpose could be promoted by discussing further the evidence. The court was correct in its conclusions that there was no completed gift of the lands in controversy, and in the absence of the settlement which these brothers and sister attempted to make the law would give to them an equal share in his estate. The preponderance of the evidence shows that it was the purpose of John W. Ellison to divide his estate among his children equally, but that he desired that each of them should have certain portions of the property, which he designated, and that his daughter, the appellee, Mrs. Smith, should be made equal in the distribution of his estate by receiving personal property, in addition to her realty, that would make the portion coming to her equal to that received by her brothers.

The appellants have waived any objection they could have made as to the form of the decree, and the remedy declared by specifically requesting the court to make it in that form.

The judgment is in all things affirmed.