{ "id": 1488266, "name": "Oldman v. Melton, Administrator", "name_abbreviation": "Oldman v. Melton", "decision_date": "1943-02-08", "docket_number": "4-6956", "first_page": "240", "last_page": "245", "citations": [ { "type": "official", "cite": "205 Ark. 240" }, { "type": "parallel", "cite": "168 S.W.2d 387" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "115 S. W. 2d 1092", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "195 Ark. 1123", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726350 ], "opinion_index": 0, "case_paths": [ "/ark/195/1123-01" ] }, { "cite": "31 Ark. 723", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879286 ], "opinion_index": 0, "case_paths": [ "/ark/31/0723-01" ] }, { "cite": "16 Ark. 671", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726243 ], "opinion_index": 0, "case_paths": [ "/ark/16/0671-01" ] }, { "cite": "11 Ark. 249", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727635 ], "opinion_index": 0, "case_paths": [ "/ark/11/0249-01" ] }, { "cite": "15 Ark. 436", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728406 ], "opinion_index": 0, "case_paths": [ "/ark/15/0436-01" ] }, { "cite": "46 Ark. 524", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1890484 ], "opinion_index": 0, "case_paths": [ "/ark/46/0524-01" ] }, { "cite": "119 A. L. R. 1359", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "197 Ark. 209", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719166 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/197/0209-01" ] } ], "analysis": { "cardinality": 543, "char_count": 8317, "ocr_confidence": 0.483, "pagerank": { "raw": 6.679910523637992e-08, "percentile": 0.4065167505904784 }, "sha256": "39d0a83a1ce8fa07d89b1fe9877f9e386b25f465df1dbfa352ac5dda65297104", "simhash": "1:f7c6b0bf531ed3b3", "word_count": 1389 }, "last_updated": "2023-07-14T20:00:03.571044+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Oldman v. Melton, Administrator." ], "opinions": [ { "text": "Grieein Smith, C. J.\nIn Holloway v. Parker, 197 Ark. 209, 122 S. W. 2d 563, 119 A. L. R. 1359, it was held that Lonoke circuit court did not err in rendering judgment on a jury\u2019s finding that a document purporting to be the last will of Mrs. Emma M. Thompson was invalid.\nHolloway was appointed administrator of the estate. He was succeeded by John M. Bransford, and Bransford, in turn, was succeeded by Melton, to whom letters were issued October 5, 1940.\nA diamond ring is the subject of controversy resulting in this appeal. Holloway was Mrs. Thompson\u2019s foster son, and Mrs. Oldham was Mrs. Thompson\u2019s sister. Following Mrs. Thompson\u2019s death, Holloway exhibited to Mrs. Oldham what he said was Mrs. Thompson\u2019s will. Believing it to be genuine, Mrs. Oldham asked Holloway if the meaning was that he \u201cgot everything.\u201d To this question there was ah affirmative reply. Mrs. Oldham, according to her testimony, then remarked that if Holloway succeeded to the property, \u201cI, wish you would give me that ring.\u201d He answered: \u201cI think the sisters ought to have the personal property, and I will give you that ring. \u2019 \u2019 This conversation occurred the day following burial of Mrs. Thompson.\nMrs. Oldham further testified that at the time Holloway gave her the ring she believed Mrs. Thompson had made the will, \u201c. . . but later on [I] became suspicious about it. \u2019 \u2019 Two trials were required to determine validity of the will, the first resulting in a hung jury. At the second trial Mrs. Oldham testified in behalf of the contestants.\nIn January, 1937, Mrs. Oldham gave the ring to her daughter, Lillian, who is appellant here.\nIn December, 1941, Melton sought to replevy the ring. When the defendant\u2019s demurrer was overruled an answer was filed in which the administrator\u2019s right to recover in' the form of action instituted was challenged. It was also alleged on information that there were no debts against the estate; that it should have been closed, and that the cause sued on had not accrued within three years. The statute of limitation was pleaded. It was also alleged that a valid will executed by Mrs. Thompson in 1916 directed that \u201cThe rest of my property and belongings [shall] be divided equally between my [six] sisters, after all expenses have been paid.\u201d The ring, it was said, had been claimed by Lillian \u201copenly, adversely, notoriously, and continuously since January, 1937.\u201d In an amendment to the answer it was averred that \u201c. . . the proportionate part of the estate that would have gone to [Mrs. Lillian M. Oldham, appellant\u2019s mother] was more valuable than the ring, and the property received by other sisters in the distribution under said will [of 1916] is still held by them as their individual property.\u201d\nIn the motion for a new trial eighteen errors are assigned, four of which are argued in appellant\u2019s brief. First, it is contended evidence did not support the verdict; second, title to the ring was a prerequisite to the action; third, the administrator, who had personally purchased individual interests of beneficiaries, acted illegally; and, fourth, jewelry cannot be replevied from .one who has it on his or her person.\n\"We are referred to \u00a7 11373 of Pope\u2019s Digest where it is provided that a plaintiff\u2019s cause of action, to be sust\u00e1ined over a plea of limitation, must have occurred within three years. Argument is that suit might have been brought at any time subsequent to January 29, 1937, when Mrs. Oldham gave the ring to her daughter, but not after three years.\nWhen asked why he delayed taking legal action, the administrator replied that appellant\u2019s brother had told him Miss Oldham would return the property. Appellant\u2019s counsel commented that he thought the testimony was objectionable, but the court did not rule on its competency; neither was there an exception, nor an express objection. Cogswell v. McKeogh, 46 Ark. 524. It was conceded by the administrator that the brother did not have control over his sister\u2019s actions, and that he was merely expressing an opinion.\nThrough testimony of Mrs. B. E. Dunaway it was developed that Mrs. Oldham had said the family wanted Lem Boone to be appointed administrator. Mrs. Oldliam told Mrs. Dunaway she intended to turn the ring over to Boone. This conversation occurred during or immediately following second trial of the will controversy.\nIt is insisted that because at the time Mrs. Dun-away had her conversation with Mrs. Oldham the latter had parted with the ring, such testimony has no direct bearing on the case, it being without probative value or significance.\nMelton testified that when he purchased the interest of Mrs. May N. Elcan (one of the six sisters), Mrs. Elcan, in discussing the ring, said \u201c. . . that is my sister\u2019s, and I don\u2019t want to put it in [the writing] that I am selling the diamond ring.\u201d\nA stipulation is that the ring \u201c. . . belonged to Mrs. Emma Thompson in her lifetime; and upon her death became part of the assets of her estate. \u2019 \u2019\nIn substance, appellant was asked whether, if convinced that a person who gave property to her was without title, she would surrender it. The answer was: \u201cYes, if [the party making demand proved to be the lawful owner], and I felt that he was entitled to if more than I was, I certainly would [surrender it\u201d].\nThere is other testimony touching upon the intentions of appellant, the purposes her mother had in mind-regarding the ring, and failure of the administrator to make demand in a timely manner.\nFrom evidence of this character there was support for the jury\u2019s apparent belief that while in form Mrs. Oldham gave the ring to her daughter, she did so with the mental reservation that title was subject to determination.\nThere was no intention to take from the estate assets which rightfully belonged to it. In the same spirit appellant took possession of the so-called gift.\nLegal status of the estate was uncertain when the will exhibited by Holloway was questioned. The record reflects a fact quite generally known: that is, appellant, her mother, and those directly affected, are highly respected, responsible people. Appellant\u2019s statement to the effect that she would not want property unless she felt her title was superior to that of another contending for it, is typical of the position the principals might be expected to take.\nThe jury no doubt concluded from the evidence before it that although Mrs. Oldham \u201cgave\u201d the ring to her daughter, the transaction was tentative. The estate had not been settled. Much was to be done before individual interests became vested.\nRegardless of benefits flowing from the will of 1916, Melton was entitled to receive assets of the estate for purposes of administration. Special ownership, with the right of possession, give the right to replevy. See Lemon\u2019s Heirs v. Rector et al., 15 Ark. 436.\nThe practice of an administrator in buying individual interests of beneficiaries is not to be commended; but that question is not properly before us.\nPinal argument is that jewelry, or other articles of personal adornment, cannot be replevied. Judgment in the instant case was in the alternative: for return of the ring, or payment of its equivalent, $750.\nWe think the verdict was based upon belief of jurors that there was no intention to withhold the ring from the true owner. There was testimony of a substantial nature upon which this finding could rest. This being true, criticism of Instruction No. 3, given at appellee\u2019s request, and the court\u2019s refusal to give appellant\u2019s requested Instruction No. 2, are eliminated as prejudicial factors.\nAffirmed.\nIt is Mr. Justice McPaddin\u2019s view that the three-year statute of limitation applies. Pie also thinks that appellee, before resorting to replevin, should have proceeded in probate court against the prior administrator under \u00a7 44 of Pope\u2019s Digest, and that appellee should' have sought probate court authority before invoking circuit court jurisdiction.\nThe judgment was rendered February 9, 1938.\nSee Prater, Adm\u2019r v. Frazier and Wife, 11 Ark. 249; Pryor, et al. v. Ryburn, 16 Ark. 671; Whelan v. Edwards, 31 Ark. 723; Garrett v. McAtee, 195 Ark. 1123, 115 S. W. 2d 1092.", "type": "majority", "author": "Grieein Smith, C. J." } ], "attorneys": [ "Carmichael <& Hendricks, for appellant.", "Rose, Loughborough, Dobyns <& Hou,se, for appellee." ], "corrections": "", "head_matter": "Oldman v. Melton, Administrator.\n4-6956\n168 S. W. 2d 387\nOpinion delivered February 8, 1943.\nCarmichael <& Hendricks, for appellant.\nRose, Loughborough, Dobyns <& Hou,se, for appellee." }, "file_name": "0240-01", "first_page_order": 260, "last_page_order": 265 }