Gray v. Parks

125 S.W. 1023, 94 Ark. 39, 1910 Ark. LEXIS 363

• Court: Supreme Court of Arkansas
• Decided: February 21, 1910
• Status: Published

Opinion

Wood, J.,

(after stating the facts.) 1. The chancery court had no jurisdiction in this proceeding to determine the question of the validity of the will. The remedy at law for setting aside •the will on account of any fraud or undue influence in procuring it was complete. Kirby’s Digest, § § 8028-29-30-38-39-41. Janes v. Williams, 31 Ark. 175; Mitchell v. Rogers, 40 Ark. 91; Ouachita Baptist College v. Scott, 64 Ark. 349: See also St. Joseph’s Convent v. Garner, 66 Ark. 623; Caraway v. Moore, 75 Ark. 146; Ludlow v. Flournoy, 34 Ark. 451; Petty v. Decker, 51 Ark. 281; Hogane v. Hogane; 57 Ark. 508; Tobin v. Jenkins, 29 Ark. 151; Taylor v. McClintock, 87 Ark. 243. The remedy of appellants to set aside the will was by appeal to the circuit court. See cases supra. The fraud that would give a court of chancery jurisdiction to set aside the judgment of the probate court admitting the will to probate would be fraud that was practiced upon the court in obtaining the judgment. The allegation that “the said Rufus B. Gray, by falsely and fraudulently representing to the probate court that the said will was duly executed by and was the will of Jesse D. Gray, deceived the probate court,” etc., was not sufficient to show that a fraud was practiced on the court in obtaining the probate of the will, for other allegations of the complaint show that the will was executed by Jesse D. Gray.

The allegations of the complaint, taken together, show that fraud was practiced on the testator in procuring the will, but not on the court in admitting it to probate.

2. The complaint, however, does state a cause of action.for contribution to the children of Harrison T. Gray. As to these, Jesse D. Gray must be held to have died intestate, under section 8020 of Kirby’s Digest. That section provides: “When any person shall make his last will and testament and omit to mention the name of a child, if living, or the legal representatives of such child born and living at the time of the execution of such will, every such person, so far as regards such child, shall be deemed to have died intestate, and such child shall be entitled to such proportion, share and,dividend of the estate, real and personal of the testator as if he had died intestate,” etc.

The will names Harrison T. Gray, but the facts stated show that Harrison T. Gray was dead at the time the will was executed, and the testator omitted to mention the names of the children of Harrison T. Gray who were living at the time of the execution of the will. Therefore, under the above statute, Jesse D. Gray died intestate as to them, and they are entitled to contribution of their proportion of the estate, from the legatees and distributees whose names are mentioned in the will. King v. Byrne, 92 Ark. 88. See also Brown v. Nelms, 86 Ark. 383; Rowe v. Allison, 87 Ark. 206-212; Bloom v. Strauss, 70 Ark. 483; Trotter v. Trotter, 31 Ark. 145; Branton v. Branton, 23 Ark. 569.

The court erred therefore in' sustaining the demurrer. The decree is reversed, and the cause is remanded with directions to overrule. the' demurrer, and for further proceedings not inconsistent with this opinion. '