Bims v. Collier

• Decision Date: 20 April 1901
• Citation: 62 S.W. 593
• Parties: BIMS et al. v. COLLIER et al.
• Court: Arkansas Supreme Court

62 S.W. 593

BIMS et al. v. COLLIER et al.

Supreme Court of Arkansas.

April 20, 1901.

Appeal from circuit court, Jefferson county.

The will of Dawson Nance, deceased, proposed for probate by Alvah Collier and others, was contested by Fannie Bims and others on the ground that the testator was not of sound and disposing mind. From a decree admitting the will to probate, contestants appeal. Reversed.

Austin & Taylor, for appellants. White & Altheimer, for appellees.

BATTLE, J.

In February, 1891, Dawson Nance died at his late residence in Jefferson county, in this state, leaving Fannie Bims and Bertha Trulock, his children and only heirs, and a widow, who was the stepmother of his children, him surviving; his widow having since died. After his death an instrument of writing purporting to be his last will and testament was presented to the Jefferson probate court for probate. Fannie Bims and Bertha Trulock objected on the ground that the deceased was not of sound and disposing mind, memory, and understanding at the time of its execution. The will was admitted to probate, and the contestants appealed to the Jefferson circuit court; and upon a trial there as to the validity of the will the issue was decided against the contestants, and the writing was adjudged to be the will of Dawson Nance, and from this judgment an appeal has been taken.

In the trial in the circuit court, which was before a jury, F. B. Anthony testified, substantially, as follows: He was a real-estate agent, notary public, and lawyer. In 1890 or 1891, about eight or nine years before the time he was testifying, — the 11th day of May, 1899, — he wrote the will of Dawson Nance, at his request. At this time Nance was confined to his bed and was very sick. Witness talked to him about an hour, and ascertained what disposition he desired to make of his property, and wrote the will accordingly. Nance seemed to be in his right mind. He signed the will by making his mark, and J. Flagg, James C. Havis, and witness attested it as subscribing witnesses. Witness in the course of his examination was asked if he was not suspended from the practice of law on account of unprofessional conduct, and the court would not permit him to answer the question, and contestants excepted.

The will and the affidavits of Anthony and Havis as subscribing witnesses were read as evidence. In the affidavits the affiants stated that Nance at the time he executed the will was "of sound and disposing mind and memory."

Havis testified as follows: He was requested to attest the will. Before signing, some one asked Nance, "Is this your sentiments?" or something to that effect, and he said, "Yes; and I want this plan carried out." "He bowed and nodded his head, and I understood that to mean yes, — that was the substance by the nod of the head." In the course of his examination, contestants asked him if at a certain time and place, before certain persons, he did not say that he would not have signed the affidavit annexed to the will if he had known that the words "and of sound and disposing mind and memory" were in it, and the court refused to permit him to answer, and the contestants excepted.

Flagg testified: He was requested to go to the residence of Dawson Nance and witness his will. He went, and when he arrived there he found Nance's room crowded. He pushed his way to Nance's bedside and asked him how he felt, "and he asked me what I was doing there," and said, "I want you all to go home and not bother me." Anthony read the will to witness and asked him to sign it, which he did. When witness spoke to Nance he was quiet, but as soon as witness spoke he became restless and noisy, and used obscene language in the presence of women, and was noisy the whole time Anthony was reading the will. Witness was the first to attest the will. When he was well, Nance did not act as he did when his will was attested, and was a very good old man, — very civil and gentlemanly. Witness does not think he was of sound mind when he executed the will.

J. W. Davis testified: "I was at the residence of Dawson Nance when S. B. Anthony wrote his will, and when it was executed and attested. While Anthony was there writing out that will, he spoke some vulgar words in his rage, and was trying to get out of bed; and we had to wait on him every now and then, until his right mind came to him, so he could tell us what he wanted to say." "He would throw the cover and want to get out of the bed, and we would hold him and keep him quiet until he could speak what he wanted us to do for him about his home." "He was flighty." "He was not of a sound mind. None of us that was in the room — We all agreed that he was not of his sound mind. Even Anthony himself said he was not in his sound mind." Anthony got the facts stated in the will from Nance. "When he [Nance] was having his will made out, he would take them spells that way; and we would have to wait and let him rest, and go to him and rouse him up, and ask him what he wanted to say, and what must Anthony do. Anthony would ask him, `Do you want me to put in the will' so and so? and, of course, he would say, `Yes.' And he would go off and write a while, and say, `Do you want me to put it in this way?' Anthony asked him to make me executor, and he said, `Yes.'"

Fannie Bims testified: "Dawson Nance was my father. When Anthony was writing his will, and father executed it, he (father) was talking a great deal of random talk, and it was a very hard matter to keep him still; and he was always trying to show you something around and about the house, and in the window, and by the door. He was always trying to show Mrs. Johnson and Mrs. Havis. He would say, `Look at' such and such a thing; would not call any particular name, and would get kind o' quiet; and Mr. Davis asked him what was the matter with him, and he would worry and want to get up, and we would not let him get up." "He did not act like a man of sound mind."

Florence Collier testified: "I was at Dawson Nance's house when Anthony wrote his will. He told Anthony how he wanted the will written, and seemed to have a good mind, and knew what he was talking about. I thought he was acting like he was in his good mind. He would act — We asked him, did he know what he was doing. I remember asking him once, and he says, `Yes; I know what I am doing.' I asked him this question because he would act funny to me."

Upon this evidence, over the objections of the contestants, the court instructed the jury, in part, as follows:

"First. The jury are instructed that the burden of proof upon the issue of the soundness of mind or sanity of Dawson Nance at the time of the making of the will is upon the contestants of the same, and they must establish by a preponderance of the evidence, with reasonable certainty,...