Crocker's Heirs v. Crocker's Heirs

• Decision Date: 18 December 1922
• Docket Number: 59
• Citation: 246 S.W. 6,156 Ark. 309
• Parties: CROCKER'S HEIRS v. CROCKER'S HEIRS
• Court: Arkansas Supreme Court

246 S.W. 6

156 Ark. 309

CROCKER'S HEIRS v. CROCKER'S HEIRS

No. 59

Supreme Court of Arkansas

December 18, 1922

Appeal from Woodruff Circuit Court, Northern District; J. M Jackson, Judge; affirmed.

Judgment affirmed.

E M. Carl-Lee and Mehaffy, Donham & Mehaffy, for appellants.

There was sufficient evidence of undue influence to require submission of the case to the jury. 106 N. W, 610; 88 N.W 394; 28 S. 687; 29 Ark. 151; 40 Cyc. 1337-1338; 109 N.W. 776; 128 S.W. 1092; 45 S.W. 456; 28 A. 400; 95 S.W. 200; 94 S.W. 883; 32 A. 255; 36 A. 139; 62 A. 716; 17 S. 516; 28 R. C. L. 405-407; 88 N.W. 394; 90 N.W. 682; 103 N.W. 502; 59 N.Y.S. 421; 87 Ark. 148; 191 S.W. 963; 226 S.W. 35; 113 N.E. 958; 171 S.W. 156; 177 P. 451; 231 S.W. 630. The opinion of non- expert witnesses should have been excluded. 103 Ark. 196; 61 Ark. 245; 15 Ark. 555; 64 Ark. 523; 76 Ark. 286; 54 Ark. 588; 106 N.W. 610; 19 Ark. 533; 39 L. R. A. 715, note; 118 N.E. 906; 64 Ark. 523; 91 P. 542. The hypothetical questions assumed facts not in evidence, and this is a ground for reversal. 87 Ark. 243.

Harry M. Woods and Roy D. Campbell, for appellees.

Influence springing from natural affection is not undue influence. 93 Ark. 75; 49 Ark. 367; 87 Ark. 148. The opinions of non-experts are admissible as to mental capacity when all facts upon which the opinions are based are in evidence. 97 Ark. 457; 61 Ark. 245; 103 Ark. 220; 136 Ark. 156. The instructions given have been approved. 103 Ark. 187; 97 Ark. 457; 87 Ark. 243. The hypothetical questions were properly admitted. 64 Ark. 532; 94 Ark. 75; 23 Ark. 730; 21 Ark. 349.

OPINION

SMITH, J.

This case is a contest of the will of L. J. Crocker, made about ten days before his death. The testator was seventy-eight years old, and left no children. He devised his entire estate to his wife, Gabriella Crocker, who survived her husband only a short time, and the litigation is between the heirs of the husband and the heirs of the wife.

It was the theory of the contestants that the testator had senile dementia, and that the manifestations of that infirmity became more pronounced as the testator approached his end, and that he did not have the mentality essential to constitute testamentary capacity at the time the will was executed. There was also certain testimony which contestants say was sufficient to raise an issue for the jury as to whether the execution of the will was procured by undue influence, an issue which the court refused to submit, upon the ground that the testimony was insufficient to warrant the submission of that issue to the jury.

There was testimony tending to support the contention of contestants that the testator did not possess testamentary capacity, and, had the jury so found, we would not disturb the verdict as being without testimony legally sufficient to support that finding. Two physicians testified as experts on behalf of the contestants and expressed the opinion, upon the hypothetical question submitted to them, that the testator was insane. Those physicians never knew the testator personally.

Three other physicians who knew the testator testified as experts and expressed the contrary opinion in response to the hypothetical question submitted to them.

So far as the expert testimony is concerned, it may be said that the usual difference of opinion existed which is found in all cases where witnesses undertake to testify as experts.

Error is assigned in admitting the testimony of the three physicians who expressed the opinion that Crocker was sane, for the reason that they were not shown to be properly qualified, and because the hypothetical question was not itself a proper one. Exceptions were also saved to the giving and to the refusal to give certain instructions.

The issue of the testamentary capacity was submitted on instructions asked by the respective parties, which declared the law of that subject elaborately and correctly, and no objection is urged to the declarations of the law on that subject. It is insisted, however, that the court erred in refusing to submit the issue of undue influence to the jury.

The testimony which it is said required the submission of that issue was substantially to the following effect: The will gave the entire estate to the widow, thereby excluding all persons of the testator's blood from participation in the estate. The testimony of a man named Matkins that he had known Crocker for seven or eight years before his death, and that Dr. McGuire, the attending physician, came to witness' store about a week or ten days or two weeks before the execution of the will here in question, and dictated a will, which witness wrote, and, after writing, returned to Dr. McGuire, and a few days thereafter witness was at Crocker's house, and went into the sick-room with Mrs. Crocker, who aroused her husband and asked him about making the will, and told him he ought to make a will, and he repeated the word "will" two or three times and went on talking about something else, and it was decided no will would be executed that day, and witness left the Crocker home. It may be said that much of the testimony of Matkins was categorically denied by persons in position to know its truth; but we must, of course, assume that it was true and would have been believed by the jury. The remaining testimony tending to sustain the allegation of undue influence was that on one occasion Dr. McGuire had said to the testator that he (McGuire) had made a will and under it had given everything to his wife.

The testimony shows that the testator and his wife had grown old together, and that, although in their early married life there had been a separation, there had been a complete reconciliation, and for thirty years or more they had lived happily together. Two children were born to the union, but both of them died in infancy. Later a child was adopted, but it too died in infancy. The testator's next of kin were some nephews and nieces, and the one living nearest resided in Missouri, and for many years there had been practically no communication between Crocker and his relatives. Of all the nephews and nieces only three had ever visited in Crocker's home, and these three had only made one visit each. Several disinterested witnesses testified that they had heard Crocker say that his relatives meant nothing to him; that he and his wife had together accumulated what they had, and that the survivor would take it all. Crocker and his wife had in fact taken the title to some lands as tenants by the entirety.

In his testimony Dr. McGuire admitted that he and Crocker had more than once discussed the subject of making wills. They were neighbors and friends, and witness was the family physician, and testified that he entered the army and went to France, and before going he told Crocker that he (witness) had made a will devising to his wife all the property he owned. Nothing further was said on the subject of making a will until after witness had returned from France, when Crocker told him that he was going to make a will and give his wife his property, and he requested that he be advised and reminded of this purpose if, in the opinion of the witness, he became seriously ill.

It is undisputed that the will which Matkins said he wrote is not the will which Crocker executed. The circumstances under which the will offered for probate was written and executed are these. Crocker sent for Judge Summers, of Augusta, who for many years had been his friend and attorney. Summers testified that Crocker had spoken to him about writing the will several months before the will was executed, and had told him then that he wanted his wife to have all of his property, as he was under no obligation to any of his relatives. This witness detailed the conversation he had with Crocker at the time, and stated that Crocker sat up in bed, unassisted, and signed the will. Witness asked how the will should be written, and Crocker answered: "Everything goes to Gaby, my lands, merchandise and bank stock, and everything goes to her, just make it that way." Crocker told witness where to find pen and paper, and after the execution of the will Crocker called his wife into the room and told her he wanted her, after his death, to give Mr. Stacy's son one of the fillies in his lot. Stacy was one of the attesting witnesses to the will, but he died before the trial in the court below. Summers further testified that he discussed with Crocker the details of other matters of business, and after a visit of about an hour and a half he was told by the physician that Crocker was talking too much, and was overtaxing his strength, and witness left and returned home.

There was testimony by a negro house-man that, after the execution of the will, Crocker left his bed and went into his lot to see about some of his stock. There is a conflict, however, about this statement, as the testimony on the part of the contestants is that Crocker was too weak for some time before his death to leave his room.

We think, under the testimony stated, that the court did not err in refusing to submit the question of undue influence. The statement of Dr. McGuire as to what he intended to do about his own will was made two years before, and at a time when there appears to have been no question about Crocker's testamentary capacity, and this...