Bradway v. Thompson

• Decision Date: 30 June 1919
• Docket Number: 63
• Citation: 214 S.W. 27,139 Ark. 542
• Parties: BRADWAY v. THOMPSON
• Court: Arkansas Supreme Court

214 S.W. 27

139 Ark. 542

BRADWAY v. THOMPSON

No. 63

Supreme Court of Arkansas

June 30, 1919

[Copyrighted Material Omitted]

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

STATEMENT OF FACTS.

This is a suit in chancery to establish a lost will by parol testimony of its execution and contents to the end that it may be duly admitted to probate.

On the 16th day of May, 1918, Joseph Kendrick executed his will in the city of Little Rock, Arkansas, and retained it in his possession. He died on July 26, 1918, in the city of Little Rock where he had resided for many years and where all his property was situated. After his death his will could not be found, and this suit was brought by the appellees, who are the trustees named in the will, against the appellants, who are the administratrix and sole heirs at law of said Joseph Kendrick, deceased.

Miss Fannie Mitchell testified substantially as follows:

I have known Mr. Joseph Kendrick since I was a child and he was always fond of children. Mr. Kendrick came to my mother's home in Little Rock and consulted with me about making his will. He said that he wanted to leave his property to charity; that he was getting old and his health was failing. After studying about the matter a few days I suggested to him to leave his property to a children's hospital. Mr Kendrick approved of the plan and wanted me to write his will. He gave me a memorandum of the terms of his proposed will. He wanted Henry Condell, a nephew of his wife, to have a certain lot in the city of Little Rock. He wished to leave to Mrs. Anna Bradway, a niece, the interest on $ 2,000 so long as she should live and after her death the $ 2,000 was to be added to the hospital fund. The rest of the property was to be left for the erection of a hospital for children. After studying over the matter I told Mr. Kendrick that I could not write a will and persuaded him to go to my brother-in-law, Ashley Cockrill, to have him write the will. Mr. Kendrick was very secretive about the matter and only consented to do so after some persuasion on my part and the promise that Mr. Cockrill would keep the matter secret. Mr Kendrick always expressed great love and admiration for Henry Condell. I made an appointment with Mr. Cockrill for him and went with Mr. Kendrick to his office. The will was drawn and read over to him by Mr. Cockrill and Mr. Kendrick expressed great satisfaction about the matter. Mr. Cockrill handed the will to Mr. Kendrick and told him to put it in a safe place. Mr. Kendrick offered to pay Mr. Cockrill for writing the will, but I told him no, that Mr. Cockrill did not want any pay for it under the circumstances. After we left Mr. Cockrill's office Mr. Kendrick again expressed great satisfaction about the matter. I went to my place out in the country and did not hear anything more about Mr. Kendrick until a few days before his death when I learned that he was seriously ill at a local hospital. I went there to see him and Mr. Kendrick looked like he wanted to say something to me privately. The nurse was present in the room. Finally I leaned over him and said, "Mr. Kendrick, have you done anything that you wish me to undo?" I was referring to his execution of the will and think he so understood me. Mr. Kendrick replied, "No, Miss Fannie, not that; I am perfectly satisfied with that." Just at this time his physician came into the room and I did not get to talk with him further. He died in a few days thereafter.

Effie Jordan testified as follows: I am an expert stenographer and Mr. Ashley Cockrill dictated to me the will of Joseph Kendrick which I took down in shorthand and afterwards transcribed, making one carbon copy. I delivered both the original and the carbon copy to Mr. Cockrill. On the morning of May 16, 1918, Mr. Joseph Kendrick came to the office. In a short time Miss Fannie Mitchell came in and went into Mr. Cockrill's office where the three remained for a half hour or more. Then Mr. Cockrill came out of his private room looking for witnesses to the will. He first spoke of using me as one of the witnesses but got Mr. Sid Redding and Mr. Will Akers as witnesses to the will. I attach to my statement the carbon copy of the will executed by Mr. Kendrick on that morning. The interlineations and changes are in the handwriting of Mr. Cockrill. At his request some time afterwards I rewrote the will from my stenographic notes without using the carbon copy and attached this also to my statement. Mr. Cockrill gave Mr. Kendrick the original will inclosed in a long envelope with "Cockrill & Armistead" on the left hand corner. He put the carbon copy which I have exhibited with my statement in an iron safe in his office where it has since been kept.

Ashley Cockrill testified: I dictated the will of Mr. Joseph Kendrick to Miss Effie Jordan, my stenographer, and she wrote it on the typewriter making an original and a carbon copy. She brought them both into my private room and put them on my desk the day the will was executed. Mr. Joseph Kendrick signed the will by mark. His signature was written by W. G. Akers who attested it as a witness. The will was signed by W. G. Akers and Sid B. Redding as witnesses. The will as signed is exactly as shown by the carbon copy attached to the statement of Miss Jordan with these exceptions. On the first page of the will I filled in blanks with a pen the word "executrix" in two places. On the second page, in the three blanks intended for the names of the trustees I wrote with a pen E. G. Thompson, W. W. Wilson and C. H. Rosseau. On the third page near the middle, the word "whether" was stricken out with a pen and the word "and" was stricken out and the word "or" written above it. On this page I also wrote in a blank intended for the name of the executor or executrix, Fannie Mitchell and "rix" on the end of the typewritten "execut." I made an effort to keep an exact copy by filling in with a pencil in the copy the same words that were put in the original with the pen, but I neglected to write the name of Fannie Mitchell executrix as was done in the original. I know the carbon copy with the exception of leaving out the name of Fannie Mitchell is an exact copy of the will as executed. I explained the will fully to Mr. Kendrick and he read it line by line before he executed it. Mr. Kendrick fully understood the terms of the will before he executed it. After the will had been executed I folded it up and put it in an envelope with the name "Cockrill & Armistead, Little Rock, Arkansas," on the left hand corner. Mr. Kendrick left the office with the will in his possession and I never saw him again.

Sid B. Redding and W. G. Akers both testified that they signed the will as witnesses thereto at the request of Joseph Kendrick. Mr. Akers said he wrote the name of Joseph Kendrick and at the time Mr. Kendrick stood right behind him and placed his hand on the pen when the cross to his signature was made. They said that Mr. Cockrill took up the will and stated the various provisions in it before it was signed. They recollected that there was a devise of a house and lot in the city of Little Rock to a nephew of Mr. Kendrick's deceased wife and the interest on a certain sum of money was to be paid Mrs. Anna Bradway; that Joseph Kendrick said that he had done for his relatives all that he felt that he should do and that he left the balance of his estate to be used in erecting a charity hospital for needy children. Miss Fannie Mitchell was appointed executrix of the will and E. G. Thompson, C. H. Rosseau and W. W. Wilson were to act as trustees in administering the trust.

Henry Condell testified: I was a nephew of Joseph Kendrick's wife and at the time of the trial a sergeant in the United States army. Prior to his death I knew Joseph Kendrick as long as I could remember any one. I am past twenty-eight years old. I saw Mr. Kendrick about five days before his death at his home in the city of Little Rock. At that time I was on a week-end pass from Camp Beauregard and could only stay with Mr. Kendrick one day and one night. At that time Mr. Kendrick was not confined to his bed but was confined to the house. He told me that he had done what he had wanted to do for a long time--that he had made his will, but he did not tell me the provisions of his will. Before this time Mr. Kendrick had told me that he wished he had made his will. He had, also, offered to deed me a house and I said, "Uncle Joe, I do not think that is the right thing for you to do in your old age. When you are done with your property, it is your privilege to do what you please with it."

C. H Rosseau testified: I have lived in Little Rock about thirty-seven years and knew Mr. Kendrick about thirty-five years before he died. I always thought that Mr. Kendrick regarded me as one of his best friends. Mr. Kendrick was sick from the first day of June until the 26th day of July, 1918, and I saw him every day but one during that time. He was not confined to his bed or even to his house during all of this time. Mr. Kendrick first told me in the presence of my wife that he had made a will and would show me where he kept it when I came over to his house. He told me that Mr. Cockrill had made his will for him, and he wanted me to know where he kept it in order that if anything happened to him I might take care of the will for him. In a few days after the first of June I went over to Mr. Kendrick's house and he showed me where he kept his will in a drawer to a spool case in a little room next to his bath room. The drawer containing the will was locked and he showed me where he kept the key hanging behind a little frame near the spool case. He showed me the envelope and the envelope had Mr. Cockrill's name on the corner of it. Mr. Kendrick...