Alford v. Johnson

• Decision Date: 15 April 1912
• Citation: 146 S.W. 516,103 Ark. 236
• Parties: ALFORD v. JOHNSON
• Court: Arkansas Supreme Court

146 S.W. 516

103 Ark. 236

ALFORD v. JOHNSON

Supreme Court of Arkansas

April 15, 1912

Appeal from Pike Circuit Court; Jefferson T. Cowling, Judge affirmed.

Judgment affirmed.

George A. McConnell, for appellants.

1. It appears by the witness Warlick's testimony that he was a minister of the gospel, acting in that capacity in his visits to the testator, and instructing the testator in the rules and practices of the church, he being a penitent seeking instruction from the minister. The testator's statements to the minister were privileged communications, and the court erred in admitting them as testimony. Kirby's Dig § 3097; art. 2, § 25, Const.; 95 S.W. 402; Wharton's Law of Evidence, § 597; 80 Ind. 203.

2. Notwithstanding his age and physical infirmities, the proof shows that the testator furnished from memory all the data from which the will was drafted, including the names of all his legal heirs, without prompting or assistance from any one. He unquestionably had the mental capacity to make the will. 95 Ark. 158; 87 Ark. 273.

3. The undue influence which avoids a will is not such as springs from natural affection or the ordinary affairs of life, but from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property. It must be specifically directed toward procuring a will in favor of the legatee and must be directly connected with the execution of the will and the procuring cause therefor.

"It consists virtually in substituting the will of the person exercising it for that of the testator."

Measured by these tests, there is no such undue influence shown in this case as would avoid the will. 87 Ark. 148; 49 Ark. 367. The fact that the ability to exert undue influence existed is not sufficient to avoid a will, even though the distribution was unequal. 75 Ill. 260. It must not only be shown to have existed, but also proved affirmatively that it was exercised. Id.; 19 Ark. 533, 551; 49 Ark. 371; 28 Minn. 9, 11; 195 Pa.St. 282; 22 N.J.L. 117, 141; 48 N.J.Eq. 566; 95 Cal 33; 45 N.J.Eq. 726.

Callaway & Huie and Sain & Sain, for appellees.

1. The testimony of the witness Warlick was competent and properly admitted. The statute as well as general authority restricts the application of the privileged communication to a minister of the gospel to such confessions as are made "in the course of discipline enjoined by the rules of practice of the denomination. " Kirby's Dig., § 3097; 95 S.W. 402; Wharton's Law of Evidence, § 597. See also Greenleaf on Evidence, (16 ed.), § 247; 99 Mo. 160, 17 Am. St. Rep. 552, 561.

2. The evidence fully sustains the verdict. On the question of undue influence, see 114 Mo. 35, and cases cited. Schouler on Wills, § 242.

FRAUENTHAL, J. KIRBY, J., dissents.

OPINION

FRAUENTHAL, J.

This is an appeal from a judgment declaring invalid the alleged last will and testament of one W. S. Stroope. The contestants are the heirs at law of the testator, and the proponent of the will and chief beneficiary therein is Lorinda Alford, who claims to have been his housekeeper, but who, the contestants claim, was his mistress. The contestants sought to invalidate the will upon the grounds (1) that the testator did not possess sufficient mental capacity at the time of its execution, and (2) because it was obtained by the fraud and undue influence of said Lorinda Alford. The trial resulted in a verdict against the will. The proponent now seeks a reversal of the judgment upon the ground that the court erred in admitting certain testimony, and because the evidence adduced upon the trial of the case is insufficient to warrant the verdict which was returned.

During the progress of the trial, the contestants introduced as a witness one D. D. Warlick, who is a minister of the gospel of the Methodist Church. This witness testified that during 1907 he had conversations with the testator in which he spoke of his past life and of his adulterous relations with said Lorinda Alford, and of her great influence over him. He also testified that Stroope was not a member of his church or of any church; that on one of these occasions he spoke penitently of his conduct and of a desire to join his church. The witness told him, however, that he could not do this as long as he lived in these wrongful relations with a woman not his wife. He testified to other statements made by Stroope to him of his relations with and the influence exercised by Lorinda Alford over him. The appellant objected to the introduction of this testimony, upon the ground that these communications were privileged. Her objection was overruled, and exception was properly saved to the ruling of the court.

It is contended that this testimony was inadmissible by reason of section 3097 of Kirby's Digest, which provides: "No minister of the gospel or priest of any denomination shall be compelled to testify in relation to any confession made to him in his professional character in the course of discipline enjoined by the rules or practice of such denomination." The communications that are made privileged by this statute are those which are made in the course of discipline by reason of the rules of the religious denomination. If the communications are made to one who happens to be a clergyman, but who does not sustain to the communicant that professional character or relation, then they are not privileged. Before the statements or confessions made to a minister of the gospel or priest of any denomination can be held to be inadmissible, it must appear from the evidence that they were made to such minister or priest in his professional character, and because enjoined by the rules or discipline or practice of such religious denomination. As is said in Wharton on the Law of Evidence, § 597: "Under these statutes, however, a communication to be privileged must be made by a penitent as an enjoined religious discipline, to a priest, and does not cover a confession made to a clergyman not in the course of such discipline." See also Wigmore on Evidence, § 2693; Knight v. Lee, 80 Ind. 201; State v. Morgan, (Mo.) 196 Mo. 177, 95 S.W. 402.

It does not appear from the testimony adduced in this case that the statements made by Stroope to Warlick were made to him in any professional relation to Stroope as a clergyman, nor was there any testimony that such statements were made in the course of discipline enjoined by any rules or practice of the religious denomination of which Warlick was a member. These communications were made to Warlick in like manner as to any individual; and while it is true that Stroope also spoke to him relative to his desire to become a member of his church, the communications were not made to Warlick in his professional character or by reason of any rule or practice of that church. It follows that the testimony given by this witness was not inadmissible by reason of the above statute; and appellant did not object to the admissibility of this testimony upon any other ground.

Counsel for appellant does not urge upon this appeal that the court committed any error in any ruling which it made upon the instructions which were given and refused by it. We have examined all of these instructions, and we find that those which were given fully and fairly presented every issue involved in the case. The sole question, therefore, which is presented for our determination is whether or not the evidence which was adduced upon the trial of this case was sufficient to sustain the verdict which was returned.

The will was executed by W. S. Stroope on February 26, 1908. At that time the testator was eighty-eight years old; and he died on July 8, 1909. By its terms he bequeathed and devised unto the said Lorinda Alford all his real and personal property for her use and benefit during her life. After her death, he directed that all his property which was not consumed by her during her life should go to his daughter and grandchildren, who were then his only heirs. W. S. Stroope was a married man, and in 1880 was living with his wife and five children in Clark County. At that time he seemed to be living happily with his wife who, according to the testimony made him a dutiful spouse, and gave him no cause to abandon her, as he subsequently did. About that time he became acquainted with Lorinda Alford, who was a young widow twenty-four years old. Soon thereafter he left his family and his home and went with this woman to Pike County, where they lived together from that time until his death. During all these years he never returned to his home except possibly upon one occasion, and never saw his wife at all, and only saw some of his children and grandchildren a very few times. He lived principally during that time in the town of Murfreesboro. The proponent of the will testified that she was employed during all these years as his housekeeper, and had no illicit relations with him. She, however, admitted, and the uncontroverted evidence shows, that for almost thirty years she lived alone in the same house with him; that, being enamoured of her, he left his wife, who had been dutiful to him, and his children, for whom he seemed to have some affection, and that she was well acquainted with all of them and the cause and circumstances of his abandonment of his family. But during all those years he and she were strangers to his family. The knowledge that he had left his wife and children, the great estrangement that was caused by his living with her, and the fact that they lived together during those long years in the same house, alone, was amply sufficient to justify the jury in finding that their relations were meretricious and adulterous. There was testimony tending to prove that some years before his death the testator...