ARK..] CATES V. ROGERS.: 1071 CATES V. ROGERS.-4-4626
Opinion delivered Apri1•26, 1937. EXECUTORS AND ADMINISTRATORS.—In an action by aPpellees againa . 'appellant, administratrix of the estate B who, at the time of his death, held funds whiciv had been placed in his hand's for them, evidence showing that, when pressed for payment of the claim, appellant wrote proposing that the . claim :be . filed sus a common. claim and that it prorate as such, and, if so, th t a she would personallY pay any' deficiency was iutficient to bind her upon a sPecW promise to answer for the debt of the deceased out of her own estate.' . . A ' ppeal from Mississippi Circuit Court, Chickasawba District ; Neill Killough, Judge ; affirmed. Harrison, Smith .Taylor, for appellant Sha/ne . '& Fendler, for appellees. J. The question' presented on this appeal is that of the sufficiency a . the testimony to support the verdict of the jury, upori which judgment was rendered against appellant, upon a special promise, by her aS ad-ministratrix of the estate of J. E. Bell, her deceased husband, to answer for a debt of the deceased out of her. own estate. The defenses of the statutes of frauds and of limitations were 'pleaded, but • are not insisted upon here for reasons which appear iii the statement of facts. Appellees, Ralph V. and Lawrence M: Rogers, are the sons of Mrs. E. L. Rogers, .Who was a widow at the time of her death-in 1920. She left a life insurance policy.. for $2,000, which; befere her death, she Made payAle to her brother, J. E: 'Bell, aatrustee for her Children, who were then . eight and seven year§ old, respectively. It was expressly agreed that Mr. Bell shorild use this money as he pleased, and should account therefor to his nephews, with interest at six Per Cent., when* they reached the age of twenty-One . yefirs. These facts are undisputed, indeed, they are admitted to be : true. : Mr. Bell died in 1929. Ile appears to have left valuable property,.which was heavily encumbered. He left a ten-thousand-dollar life insurance policy, which was payable to and has 'been wlleeted- by
1072 CATES V. ROGERS. [193 appellant, his widow. The boys were seventeen and sixteen years of age at the time . of their uncle's death. The elder boy decided to go to school, and wrote appellant for an advance of . Money for that purPose. John W. Howell was , at that time the guardian of the boys. He Was 87 or 88 years old, and died in 1931. The boys testified that since they were 17. and 16, respectively, they, as they expressed it, were on their own," and managed their own affairs. The boys were residents of MiSsouri, and consulted Fry & H , ollingsworth, a 'firm of attorneys practicing law in that state, in regard to the collection of this money. At their suggestion the .lawyers wrote Mrs. Bell, who has since . married a man named Cates. Aceerdiriglo their testimony, Mrs. Cates anSwered admitting the liability of Mr.'Bell's estate, in which reply she promised tO make pdyinefits* as the necessities of the boys required and her- ability permitted. 'They received other letters to the same effect, which were delivered to Mr. Howell, their guardian, which they had been unable to find*: sinee Mr. Howell's death. " Their attorneys, Fry & Hollingsworthi'Corresponded with Judge V. G. Holland; the attorney representing Mrs. Cates as administratrix of the estate of ler deceased' husband, Bell. Judge Holland testified . in the case -with the utmost candor. There appears to-have been nel tion about the.liability of:Mr. Bell's estate. The question considered. appeared . , to have been whether the . demand could be allowed as a preferred claim: in the probate.court or whether , suit should be brought . in the chancery court to establish a trust.. The boys testified that these negotia-: tions were consumniated by a letter received from Mrs. Cates,. in which she advised that she was haying. great trouble With the adMinistration of the estate on , account of the number and character . Of' the demands which had been' filed against it, one of these being for $8,000 . as -a stoCkholder 's liability in adinsolvent . bank Mrs. cates wrote proposing that the, claim be filed as a common claim and . that it be probated as such, and, if so, that she would personally pay any deficiency. This letter was satisfactory. to the boys, and they personally paid their attorneys_
ARK.] CATES V. ItOGERS.! I:073 a fee :of $50. which was charged to them, and they assumed that the matter had been settled. This letter was delivered to the guardian, and has been lost along with certain, other letters received from Mrs. Cates; The voluminous reCord`befOre us retates, largely 'to these letters, and this opinion-would be of undue length if the conflicting testimony regarding them was reviewed. Mrs. Cates denied writing any such letters: . That such letters were written is very clearly established .by the testimony of Mrs. Maude A. Shobe, if her teStimony is to be believed. Her credibility was, of course, a question for the ' jury. Mrs. Shobe was a sister of J. E. Bell. - It is . urgued that such contradictions appear in her testimony as to render it unworthy of . belief. But this, 06, was 'a question fOr the jUry: The princiPal contra-. dietion'appearing in the testinionY Of:MrS. Shobe relates to the tithe When the . beneficiarY" pained in the pdliCy on the life of MiS. ROgeis':was Changed and th'e policy riiakle payable to her' biother, Ur. Bell. She testified that this was done juSt before Mis: Rdgeis' death in 1020, Whereas' the benefieiary waS'changed in 1917: "She teStified that after the beneficiary waS*Changed in the policy, Mr. Belt,t her brother, stated to his Wife,' in the presence of herself and Of WitneSses, that he WouldUse the boys' MoneY until they were of age, and that shouldle die before that time he Wanted his 'wife to . be certain to'see that the boys got their money; and Mrs. Belt Promised this Would be done. " 'Mrs.' Shobe testified 'that she saw and read letters constituting an agreement on MrS. Cates' part to Pei-- Sonally riay the boys the trust money' dne theni by her luisband ; indeed, she testified as 'to the' reCeipt of such a letter herself from Mrs. CateS. Mrs. Cates wrote that letter tO Mrs. Shobe inClosing a Check for $200 payable to the boy§ jointlY, and : explained' that she had dOne so because the boys were off at'school . and'she did not know their address: Mrs. Cates was then residing in Blythe.; ville,,Arkansas. .- - Mrs. Cates resigned as adnainistratrix of 'the estate of her dedeased husband,. and : became the purchaser of certain of his lands at an administrator!s sale. . She
1074 CATES V. ROGERS. [193 bought certain other lands from the purchaser at that sale. - More significant and convincing than this testimony is the admission of Mrs. Cates that she actually paid the boys $1,300. They testified that they were paid $1,400 by her. The payments totaling this amount were extended over a period of several years. It is not clear from Mrs. Cates' testimony whether she regarded these remittances as mere gifts, or in a discharge of a moral—and not a legal—obligation. Letters accompanying these remittances were offered in evidence. The last remittance was made September 12, 1932. Suit was brought September . 11, 1935. '.. . This payment under the verdict of the jury eliminates the question of the stat4es of limitations. No payments were made after Mr. Cates married Mrs. Bell. The express promiSe in writing of Mrs. Cates to pay any deficiency remaining after . the claim had been prorated with other fourth class demands eliminates, under the verdict of the jury, the question of the statute of frauds. The testimony supports the finding of the jury that pursuant to this arrangement the claim was presented, allowed and classed as a fourth class claim in an amount not. disputed by the administratrix. Certain other letters, the authorship of which Mrs. Cates admitted, were offered in evidence, which confirm our conclusion that the testimony is legally sufficient to support the verdict. In these letters Mrs. Cates admits her obligation and expressed regret at her inability to discharge it more expeditiously. In a letter dated Novem-ber 18, 1930, addressed to the boys jointly, she stated: "I still owe you a thousand dollars. * * *" They construed this letter as meaning that she owed each of them a thousand dollars, and they replied that even that andount was not correct, as she was then. indebted to each of them, including interest, in the sum of twelve hundred dollars. The following November she remitted the boys jointly $500 in a letter which again stated : "I still owe you a thousand dollars."
K.] CATES V. ROGERS. 1075 The court told the jury there was no controversy as to the balance due if Mrs. Cates were liable at all, and no exception was saved to that instruction. There was no controversy, as to the amount of insurance that Mr. Bell had received or as . to the time it was paid him. Nor is there any, controversy , as to the payments made by Mrs. Cates, indeed, the boys credit her with a hundred dollars more than she claims to have paid. NO question is made as to the validity of the consideration supporting Mrs. Cates' promise to pay if the demand were not pressed except as a fourth class claim against the estate, the insistence being that no such promise -Was made. It . is unnecessary to determine what relief might otherwise have been Obtained, either in the probate court - or in the chancery court. The testimony of Judge Holland shows that the respective attorneys were in some doubt upon that question. Mrs: Cates appears to * have been the chief beneficiary of the administration of her husband's estate, and was anxious to close the adMinistration expeditiously and without unnecessary complications: Porbearance to institute legal proceedings on an asserted claim is sufficient consideration to support a new obligation and an agreement for the compromise of 'a disputed claim., even though it later appears to have been without Merit ; it, also, constitutes a sufficient consideration for a new promise. Hays v. MeGuirt, 186 Ark. 702, 55 S. W. (2d) 76; Louisiana Oil Refining Corporation v. Seroggins; 189 Ark. 707, 74 S. W. (2d) . 971. • • The case last cited is . to the. effect that such a promise need not even be ,in Writing, and it may even be for the payment of the debt' of another. It . appears, however, from the facts stated, that the jury was warranted in finding that there was such a promise, and that it was evidenced by several writings signed . by Mrs. Cates, the party sought to be charged. T• he right to enforce thi§ agreeraent could not be' defeated by showing that the rights. waived by apPellee g. would have been profitless had they been pursued.- The judgment appears to be correct, and it is, therefore, affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.