#### Trantham v. Trantham, Executrix.

4-9880

252 S. W. 2d 401

Opinion delivered November 10, 1952.

*178 Ed B. Coolc, for appellant.

Marctis Evrard, for appellee.

Holt, J.

N. W. Trantbam died testate December 21, 1951. He left surviving bis widow, Mrs. Beulab Trantbam, and two sons by. a former marriage, Clem Owen and Kirn Roy Trantbam. Beulab Trantbam was named executrix of bis estate.

Tbe present suit grew out of a claim of $500 filed against the estate by Clem, which was disallowed by tbe executrix, and on appeal to the Probate Court, tbe action of tbe executrix was affirmed. This appeal followed.

Tbe facts are not in dispute. Appellant’s claim, supra, contained this language: ‘ ‘ Tbe undersigned has a claim or demand against tbe estate of N. W. Trantbam, deceased, for tbe sum of Five Hundred ($500) Dollars, founded on contract and evidenced by two promissory notes, copies of which are attached hereto.”

On September 15,1945, N. W. Trantbam and bis two sons signed an instrument called an “Agreement” which provided in part: “This agreement is entered into between N. W. Trantbam . . . and bis sons, Clem Owen Trantbam and Kim Roy Trantbam, . . . and is intended to reflect an agreement between tbe parties with reference to tbe disposition of N. W. Trantbam’s estate. . . . It is the desire of the parties that each of tbe sons who are parties hereto shall receive from their father, either before or after bis death, at bis convenience and option the sum of One Thousand ($1,000) Dollars. At tbe time of tbe execution of this agreement tbe father has already advanced to Clem Owen Trantbam tbe sum of $250 but has made no similar advancement to Kim Roy Trantbam. . . .

“For tbe purpose of putting into tbe bands of bis sons some concrete evidence of what amount will still be unpaid after tbe father’s death, N. W. Trantbam is executing and delivering to Clem Owen Trantbam three *179notes for the sum of $250 each, to bear no interest, and providing that they are payable after his death, bnt reserving to him the right to pay any or all of said notes before his death. For the same purpose, the father is delivering to Kim Eoy Trantham four notes for $250 each. ...

“N. W. Trantham is executing a will carrying substantially these provisions, and, as hereinbefore stated, the purpose of this agreement is to give evidence of the fact that those provisions of the will have been included in there with the consent and agreement of the parties affected and with their approval.”

The alleged notes referred to and executed by N. W. Trantham on the same date are all identical and each provides: “NOTE — Blytheville, Arkansas, September 15, 1945 — On demand after my death, I direct and command the executor of my will or the administrator of my estate to pay to my son, Clem Owen Trantham, the sum of Two Hundred Fifty and No/100 Dollars, without interest.

“This note is given to be retained by my son as evidence of the fact that the amount here mentioned is payable to him from my estate under the provisions of my last will and testament, executed on the date hereof, if this note is still outstanding at the time of my death. I reserve the right, at my own sole option, to pay to my son the amount hereof during my lifetime upon surrender and cancellation of this note. ’ ’

The will, supra, also bearing date of September 15, 1945, contains (among others) this provision: “Prior to the execution of this will I have agreed with my sons, Kim Eoy Trantham and Clem Owen Trantham, that each of them shall receive from me during my lifetime, or from my estate after my death, the sum of One Thousand Dollars ($1,000), and before the execution of this will I have actually given Clem Owen Trantham the sum of $250 upon the amount agreed to be given to him.

“In order that there may be tangible evidence available to my sons after my death, from which they may *180show what' amount is due them under our agreement, from my estate, I have, after the payment of the above amount to Clem Owen Trantham, delivered to him three notes signed by me for the sum of $250 each; and, since I have actually paid no money to my son, Kim Roy Trantham, I have delivered to him four notes for the sum of $250 each. All notes provide that they are payable on demand after my death, without interest, and that I have the right at my own option to pay any of the notes prior to my death. If I advance any further sums to either of my sons during my lifetime, each such advance will be made in the sum of $250 and upon making such advance I will take up one of the notes here referred to.

“I, therefore, will and bequeath to each of my sons, out of the property of my estate, a sum of money equal to the aggregate principal amount of all of the notes, such as are here described, that such son shall still hold at the time of my death, which sum shall be paid upon the surrender of the notes so held by him.”

This will was later, on June 13, 1951, revoked by another will which, in addition to the revoking clause, contained this provision: “I will and bequeath to my son, Kim Roy Trantham, the sum of two hundred fifty dollars ($250), upon the condition, however, that this bequest shall be accepted by him in full settlement and satisfaction of any claim which he may have or claim to have against my estate únder any agreement, contract or other thing made or said to have been made between us during my lifetime; and if my said son shall file, present or assert any such claim against my estate, then in that event, it is my will and command that this section of my will shall be rendered null and void upon the presentation of such claim by him, and he shall take nothing under the provisions of my will in such event. This bequest to my said son, when added to other sums which 1 have advanced to him during my lifetime, will equalize him with advances which I have made during my lifetime to my other son, Clem Owen Trantham.”

The alleged notes, agreement and the first will, above, all executed on the same date (September 15, *1811945), were so interlocked with reference to the same facts, that they must be read together to get at their meaning and effect. When this is done, it will be observed that the alleged notes provided for payment after the father’s death and were given to the sons “as evidence of the fact that the amount here mentioned is payable to him from my estate under the provisions of my last will and testament, executed on the date hereof” (9-15-45) unless paid by the father during his lifetime. No consideration is set out or mentioned.

The agreement was executed, on the same date, (9-15-45) in which, in effect, — without mentioning any consideration, — the same facts were recited, and which also provided that he, Mr. Trantham, was executing a will simultaneously which embodied, in effect, the provisions of the alleged notes and agreement “in order that there may be tangible evidence available to my sons after my death,” to show what amount may be due them “under our agreement.” On the same date, (9-15-45) Mr. Trantham did execute the first will, above, embodying, in effect, the provisions of the alleged notes and agreement.

The undisputed evidence shows that Mr. Trantham was under no obligation to leave any part of his estate to his two sons. He owed them nothing at his death according to the undisputed testimony of the stepmother, Mrs. Beulah Trantham, executrix. He, of course, had the right to dispose of or will his property as he pleased. As indicated, there was no evidence, whatever, of any consideration to support the alleged notes, and the agreement, to will his two sons $1,000, and no consideration was recited in any of these instruments. It is fundamental law that “a consideration is essential to the validity of every contract,” Catlin v. Horne, 34 Ark. 169.

Mr. Trantham had the right to revoke the first will made in 1945, and he did revoke it as indicated by a second will on June 13, 1951. The parties are therefore bound by this latter will.

The judgment is correct and is affirmed.