Boone v. Boone

• Decision Date: 22 June 1914
• Docket Number: 62
• Citation: 169 S.W. 779,114 Ark. 69
• Parties: BOONE v. BOONE
• Court: Arkansas Supreme Court

169 S.W. 779

114 Ark. 69

BOONE v. BOONE

No. 62

Supreme Court of Arkansas

June 22, 1914

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge affirmed.

Judgment affirmed.

Mehaffy Reid & Mehaffy, and Carmichael, Brooks & Powers, for appellants.

1. Supporting the proposition that the evidence does not sustain the verdict and that the court should have directed a verdict for the contestants, counsel say:

(a) The will indicates that the deceased did not appreciate the relationship of those dependent upon him. He was suffering from senile dementia, lacked mental capacity and disposing memory, and was not capable of executing a valid will. 64 Ark. 351.

(b) He could not retain in his memory, without prompting, the extent and condition of his property, nor comprehend to whom he was giving it.

(c) There is such indefiniteness and uncertainty about the will as to stamp it as the product of a disordered mind, as, for example, his inability to spell his name correctly; in bequeathing the land for park purposes, although it almost borders the corporate line of the city of Argenta, that city is not named, and his mania for the use of the letter E as an initial, naming his son, Joseph H. Boone, as Joseph E. Boone and referring to Sarah E. Abeles and Sarah E. Boone, both names referring to the same person, and the initial E not being a part of her name at all.

(d) The other evidence conclusively establishes the mental incapacity of the testator. 87 Ark. 243.

2. The court erred in holding that the city of Argenta had the legal capacity to take and hold, for park purposes, property situated without its limits. Kirby's Dig., §§ 5442, 5449, 5530. Section 5436, which authorizes municipalities to possess and hold real and personal property, has reference to property within the city limits, except where express authority is given to go beyond the limits.

See also 3 Dillon, Mun. Corp. (5 ed.), § 980; 99 Ark. 704; 58 Ark. 270; 52 Ark. 541; 83 Ark. 275; 113 Am. Rep. 1056; 40 L. R. A. 829; 118 Ga. 590; 118 Wis. 298; 48 L. R. A. 331; 36 Mich. 474.

3. The court erred in refusing to instruct the jury that deceased died intestate as to his granddaughter, Lucy Russel, who was not mentioned in the will, and as to the property attempted to be conveyed to the city of Argenta.

J. W. Blackwood and Fred McDonald, for the city of Argenta; Bradshaw, Rhoton & Helm, for the executrix.

1. The questions involved in this case were questions of fact, and, the jury having passed upon them against the contentions of the contestants and in favor of the validity of the will, their verdict is final and conclusive.

The small mistakes in the wording of the will, and isolated acts or conduct on the part of the testator, enlarged upon by counsel in subdivisions A, B and C of their brief, are entirely reconcilable with a sound and disposing mind and memory.

On the question of testamentary capacity as applicable to the deceased under the evidence, see 47 Am. St. 354; 28 Am. & Eng. Enc. of L. 74; 3 Wash. (U.S.) 585. Old age and feebleness are not sufficient to destroy testamentary capacity where the testator's mind meets the test of competency. 40 Am. & Eng. Enc. of L. (2 ed.) 87; 13 S.W. 1098; 47 Ala. 221.

"The test is integrity of the mind, not the body." 22 Tex.App. 22; 49 Ark. 369.

An imperfect or illegible signature may be valid as the testator's mark, where there is no doubt of testamentary intent. The omission of the letter "n" from the name of Emanuel, does not tend to invalidate the will, since there is no contention that deceased did not intend to sign his proper name to the will. 40 Cyc. 1107; 148 Pa.St. 55; 35 L. R. A. 103; 28 S.W. 151.

Courts will reconcile apparent inconsistencies and repugnant provisions of a will in order to carry out the testator's intent as to the disposition of his estate. 30 Am. & Eng. Enc. of L. (2 ed.) 685; See also Id. 682; 1 Paige (N. Y.) 291; 3 Redf. (N. Y.) 31; 31 Wash. 643.

2. A city may properly accept a devise of land for park purposes. 3 Dillon, Mun. Corp. (5 ed.), § 980; 29 Mo. 574; 170 Mass. 160; 161 Mo. 34; 205 Mo. 656; 118 Wis. 298; 69 Miss. 887; 76 N.Y. 487; 69 N.Y. 569. See also 70 Ark. 455; 100 Ark. 588; 47 Ark. 269; 67 Ark. 36; Acts 1913, p. 323.

3. It was conceded that as to Lucy Russell, the testator died intestate. The court correctly refused to place her claims before the jury. Her rights, as a matter of law, were preserved in the judgment.

OPINION

KIRBY, J.

This is a contest of the will of Emanuel Boone. The testator gave to his children and grandchildren, named in the will, $ 5 each, and to Emanuel Boone, the son of William H. Boone, designated in the will as his nephew, $ 100, and left the bulk of his estate to his widow, Sarah Boone, who was named executrix of the will. He disposed of his home place, containing thirty acres, by paragraph 4 of the will as follows: "I hereby devise and bequeath my home place, containing thirty (30) acres, more or less, to my wife, Sarah Boone, to be held by her for her sole use and benefit during her natural life, and at her death I desire that said land be turned over to the proper authorities of the city nearest to said land for the purpose of a public park (and that the same be maintained as a public park) under the name of "Boone Park," for the use and benefit of the public, forever, by said city; but I desire that they do not disturb the natural outlines of the land more than is necessary to make driveways through and over said land." In the seventh paragraph, he devised thirty-five (35) acres of land to his wife so long as she should remain single, authorizing her to sell it, or any part thereof, during her widowhood after it was first appraised by three persons, naming them, and directing that out of the proceeds, after paying the expenses, she should retain one-third and divide the other two-thirds equally among his heirs, named in section 2 of the will.

W. H. Boone et al. filed a contest, alleging as grounds therefor:

First. That the testator was without testamentary capacity, and not of sound and disposing mind and memory.

Second. That he was unduly influenced by his wife and Charles Vestal and others unknown.

Third. Denied the capacity of the city to take and hold the land proposed to be granted for a park under the laws of the State, and alleged other inconsistent provisions of the will.

The will was admitted to probate by the probate court, and upon appeal to the circuit court a trial by jury resulted in favor of its validity, and from the judgment this appeal is prosecuted.

The testimony is voluminous, and, upon the question of testamentary capacity, conflicting and contradictory.

Upon the part of the contestants, children, relatives and heirs, it tends strongly to show that the testator was weakened in mind and body with the weight of years; that he had suffered two strokes of paralysis along about 1903 and 1904, which further impaired his mind, and that the effect of the last was decidedly noticeable by the drawn condition of his face and the twitching of the muscles. That his memory was impaired to the extent that in June, 1904, he failed to recognize one of his children, Mrs. McClellan, on Main Street until after she had shaken hands with him and called him "father," and "He recognized me then and cried and wiped the tears from his eyes" and said that he failed to recognize another on another occasion, and that he had forgotten and did not recognize a grandchild until she called his attention to her identity.

Some of these witnesses stated that the Faucettes, who had been mayors of Argenta, were frequent visitors at the house of the testator before the making of the will, and often dined with him, and that their pictures were found in the rooms of his home.

Mrs. Ray Williams, a granddaughter, said that after her grandfather had a stroke of paralysis in 1903, "I noticed a twitching of his lips after the stroke, and he was quick to cry about things. I have seen him sob all alone in the room, and would be twirling his hands and would be chuckling to himself, and would cry when no one was around him or doing anything to hurt him, and no one was talking to him. I think it was in 1904 he had the second stroke. He seemed to be worse then than before, and I noticed that grandma cared for him very, very closely." This witness overheard a conversation, in 1904, between W. H. Boone, who was at the testator's home with his wife, in which the testator was praising his home property and asking his son how he thought it would do for a park. It was shown that he had also mentioned to many others that parks were good things for the people and ought to be provided by cities.

Most of the children testified that he was not competent to transact business after the second stroke of paralysis, and that, although he could do the little chores about the house, they did not regard him competent to attend to matters of any importance.

Two experts testified upon hypothetical questions submitted to them that the testator was not of sound and disposing mind and memory.

On the other hand, his banker, his groceryman, and the merchants with whom the testator did business, testified that he was a gardener and truck farmer, and others of his friends and neighbors testified that there was no drawn condition of his face nor twitching of the muscles noticeable, and that while he had grown old and was getting feeble, that his mind and memory were not materially impaired, if at all. His widow stated that she did not know of his ever having had a stroke of paralysis, and also a woman who had been his nurse in a time of sickness.

A. J Mercer, one of the witnesses to the will, and cashier of the Peoples Savings Bank since 190...