Emerich v. Arendt

• Decision Date: 11 March 1929
• Docket Number: 205
• Citation: 14 S.W.2d 547,179 Ark. 186
• Parties: EMERICH v. ARENDT
• Court: Arkansas Supreme Court

14 S.W.2d 547

179 Ark. 186

EMERICH v. ARENDT

No. 205

Supreme Court of Arkansas

March 11, 1929

Appeal from Pulaski Circuit Court, Second Division; R. M. Mann Judge; affirmed.

Judgment affirmed.

A J. Newman and Geo. W. Emerson, for appellant.

Downie & Schoggen, for appellee.

OPINION

MCHANEY, J.

William Emerich, single, late of Little Rock, died testate, his will being admitted to probate in Pulaski County. Specific bequests of $ 50 each were made to his brother and two sisters, and $ 10 each to the children of two deceased brothers. All the residue of his estate was devised and bequeathed to the appellee, Mrs. John C. Arendt, widow of a nephew of the testator, who was also named executrix without bond. An appeal was prosecuted from the order of probate to the circuit court, where a petition was filed by appellants, who are some of the collateral heirs, attacking the validity of the will on the grounds of alleged mental incapacity to make a will, and undue influence of the appellee and her deceased husband. The case was tried to a jury on conflicting evidence, that of appellants tending very strongly to show mental incapacity.

The testator was born in Germany, and came to this country when quite young. At about the age of eleven, while living in the State of Illinois, he was stricken with typhoid, which left him almost, if not entirely, deaf and dumb. He was wholly uneducated, never attended school, and was unable to read or write, not being able to sign his name. He communicated with strangers with difficulty, but was able to make himself understood by his intimates. He was not insane, and appellants do not so insist, but they do contend that he did not possess sufficient mental capacity to remember, without prompting, the extent of his property, what he owned, nor to whom he was giving it, nor the deserts and relations to him of his other heirs who were practically excluded from participating in his estate. On the other hand, the testimony on behalf of appellee tended to show that the testator had sufficient mental capacity to meet the requirements of the law in order to make a valid will. It was shown that, although he possessed all the peculiarities above stated, he came to Little Rock some 45 years ago, and, in spite of his many handicaps, accumulated an estate of from $ 15,000 to $ 20,000 by hard labor and frugality. He owned three lots and six houses at 13th and Ringo Streets, Little Rock, rented his property himself, collected the rents, and made deposits in the bank. He was able to count money readily, and evidently knew its value. He could read the lips of some of those speaking to him, if they would speak slowly and distinctly, and could make those who were familiar with his manner of communication understand him.

There was much testimony on both sides, but we think the above statement of the effect thereof sufficient for this opinion. The jury found for the will.

We think this was a case for the jury. Evidently appellants so thought, as there was no request for a directed verdict in their favor. The only question was the mental capacity of the testator, no proof being offered of undue influence and no instructions asked or given thereon. The verdict of a jury is binding on this court if there is any substantial evidence to support it, and, as we have seen, the evidence as to capacity is in sharp conflict.

The burden of proving incapacity is always on the contestant, as the presumption is that the testator is sane until the contrary is established. McCulloch v. Campbell, 49 Ark. 367, 5 S.W. 590. It was there said:

"Old age, physical...