Flowers v. Flowers

• Decision Date: 11 February 1905
• Citation: 85 S.W. 242
• Parties: FLOWERS et al. v. FLOWERS.
• Court: Arkansas Supreme Court

85 S.W. 242

FLOWERS et al. v. FLOWERS.

Supreme Court of Arkansas.

February 11, 1905.

Appeal from Circuit Court, Garland County; Alexander M. Duffie, Judge.

Proceedings by Henry Flowers and others against Josephine Flowers and others to probate the will of King B. Flowers, deceased. From a judgment of the circuit court setting aside a judgment of the probate court admitting the will to probate, proponents appeal. Affirmed.

This is a contest over the probation of the last will and testament of King B. Flowers, who died in Garland county May 6, 1898. The proposed instrument was alleged to have been found on July 24, 1900, by appellant Henry Flowers, who had previously been appointed administrator of the estate of said decedent, and was at once filed for probate by said appellant. After notice to John Baldwin, Millie Payne, and Fannie Kirk, claimants to the property of decedent under the will of Susan Glass, an aunt and an alleged heir of decedent, the probate court of Garland county on November 14, 1900, rendered judgment admitting the instrument to record as the will of said decedent, and said Baldwin, Payne, and Kirk appealed to the circuit court; they having filed their petition contesting said alleged will on the ground that the same was forged, and that said testator lacked the mental capacity to execute the same, etc. Appellee Josephine Flowers, an infant, appearing by her mother and next friend, Linnie Flowers, the widow of said decedent, on June 6, 1901, filed in the probate court her petition, stating that she was the posthumous child of said King B. Flowers, born January 7, 1899, and his only child and heir; that the instrument so probated was not the will of said decedent, and was never executed by him. The court sustained a demurrer to this petition, and appellee prayed an appeal to the circuit court from the judgment sustaining the demurrer, and also from the original judgment admitting the will to probate. Appellant Henry Flowers, executor, and his children, King Flowers, Jr., and Albert Flowers, devisees, all of whom were proponents of the will, and said Baldwin, Payne, and Kirk, filed an answer to said petition of appellee, in which they denied that she was the child of said decedent, and alleged that she was the illegitimate child of said Linnie Flowers, born on January 19, 1899.

Upon trial in the circuit court, the proponents of the will asked that the following issue be submitted to the jury: "Which or how much of the will dated June 10, 1897, and probated by the Garland probate court as the will of King B. Flowers, is or is not the will of said King B. Flowers?" The court overruled the motion, and submitted to the jury the following issues: "(1) Is the plaintiff child, Josephine Flowers, the legitimate child of King B. Flowers?" To which the jury, in their verdict, answered in the affirmative. "(2) Is the instrument offered in evidence, and sought to be probated as the last will and testament of King B. Flowers, his last will and testament?" To which the jury answered in the negative. The court thereupon rendered judgment declaring appellee to be the legitimate child and only heir at law of King B. Flowers, that the proposed instrument was not the last will and testament of said King B. Flowers, and that the judgment of the probate court admitting the same to probate be set aside. The proponents, after filing their motion for new trial, which was overruled, appealed to this court.

G. G. Latta and Rose, Hemingway & Rose, for appellants. R. G. Davies, for appellee.

McCULLOCH, J. (after stating the facts).

1. All the parties demanded a struck jury, but waived a regular drawing, and the court, after completing a panel of 21 jurors qualified to try the case, allowed the parties to strike therefrom 9 names, thus leaving 12 jurors in the box. It is insisted that the court erred in this respect, but the record is silent as to which of the parties struck the names, and how many were struck by appellants. No prejudice is shown to appellants' rights, unless it appeared precisely how many names they were allowed to strike, and how many allowed to their opponents. But if we assume that the court, as contended by appellants, allowed them, as proponents of the will, to strike three names, and contestants Baldwin, Payne, and Kirk, to strike 3, and appellee to strike 3, still no prejudice to their rights is shown, for the reason that they joined with contestants Baldwin, Payne, and Kirk in an answer,...