Campbell v. Carnahan

• Decision Date: 24 May 1890
• Citation: 13 S.W. 1098
• Parties: CAMPBELL <I>et al.</I> <I>v.</I> CARNAHAN <I>et al.</I>
• Court: Arkansas Supreme Court

13 S.W. 1098

CAMPBELL et al.v.

CARNAHAN et al.

Supreme Court of Arkansas.

May 24, 1890.

Appeal from circuit court, Washington county; J. M. PITTMAN, Judge.

L. Gregg and B. R. Davidson, for appellants. U. M. & G. B. Rose, for appellees.

HEMINGWAY, J.

The appellants, being of the next of kin of Mrs. Elizabeth McClure, resisted the probate of the instrument offered by the appellees in the probate court of Washington county as her last will. Their resistance was placed upon two grounds — First, that she did not possess the testamentary capacity at the time of the execution of said instrument; and, second, that she was induced to make it by undue influence. The appeal comes to us after a trial upon those issues and a judgment sustaining the instrument. Many causes are assigned for a reversal of the judgment, but we may conveniently consider them under three heads, as follows: First, that the court erred in the admission of evidence; second, that the court erred in rejecting the appellant's prayers for instructions; and, third, that the court erred in its declarations of law given in charge to the jury. A part of the evidence objected to fails to disclose any direct tendency to elucidate the matters involved; but, if it was irrelevant, it was equally without effect, and therefore without prejudice. That part which had any bearing upon the issues tended to establish the feeling of the testatrix towards those related to her, and thereby to determine whether the will represented her free and intelligent wish in the disposition of her property. In so far as it tended in such direction, it was proper matter for the jury to consider in determining the issues. In so far as it did not tend in that direction, it had no tendency to benefit or prejudice either party. Miss Sally McCarry was permitted to detail statements made to her by the husband of Mrs. McClure, not in her hearing, as to his unkind feeling towards appellant Campbell, and his unwillingness that Campbell should ever receive any of his property. This should not have been admitted. But other testimony, uncontradicted, showed that he had made similar statements to Mrs. McClure, and, as her estate come from him, it was competent as tending to explain her reason for ignoring Campbell in the benefits bestowed by her will. This being properly in evidence, the improper admission of Miss McCarry's testimony, to the same effect, could not have been prejudicial. Some of the rejected prayers of the...