Gray v. Fulton
| Decision Date | 12 April 1943 |
| Docket Number | 4-7008 |
| Citation | 170 S.W.2d 384,205 Ark. 675 |
| Parties | GRAY v. FULTON |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Probate Court; Frank H. Dodge, Judge; affirmed.
Affirmed.
Price Shofner and June P. Wooten, for appellant.
Carmichael & Hendricks, for appellee.
The appeal questions all order admitting to probate a will executed by Mrs. Ella Gray April 21, 1939.
Appellant married the testatrix (who, as a widow, was Ella Tribble) January 2, 1939. She died May 21, 1941. Shortly thereafter a will dated January 15, 1941, was admitted to probate. Appellant excepted on the ground that it was not legally executed, that the testatrix was mentally incompetent, and that mutilations rendered it unintelligible. Appellees, who are two sisters of the decedent, also a niece and two nephews, admitted in their answer that Mrs. Gray, on January 15, 1941, was not of disposing mind and memory. They joined in a prayer that the order of probation be annulled. The court accordingly made such order.
Three and one-half months after her marriage, Mrs. Gray executed a will in which her husband was favored. It was delivered to Gray and remained in his possession. He did not know other wills had been executed.
When appellant attacked the will of 1941 he alleged that his wife died intestate and that he was entitled to share in her estate under § 4422 of Pope's Digest, as amended by Act 313 of 1939.
After the court rendered its judgment invalidating the 1941 will appellees filed what is referred to in the briefs as Will No 2, dated April 21, 1939, and procured a judgment admitting it to probate. It will be observed that the will approved by the court was made four days after Mrs. Gray had delivered to her husband the will of April 17.
The certificate of attesting witnesses is: "We, the undersigned, in the presence of each other and in the presence of the testatrix, after having heard her declare this to be her last will and testament, sign our names as witnesses to the same at her request."
Appellant complains that the certificate does not contain language affirmatively showing that the testatrix signed in the presence of each witness; nor was there acknowledgment by the testatrix to each of the attestants. Other requirements of § 14512 of Pope's Digest, as construed in Hendry v. Wilson, Executor, 202 Ark. 580, 151 S.W.2d 683, are declared to exist. [1]
Mrs. Margaret Shackleford and Mrs. Josie Guenther were subscribing witnesses. Mrs. Shackleford, who was the scrivener, testified that she witnessed the signing of the will. Counsel for appellant insist that the answer given by Mrs. Shackleford was in response to the question, "Is that your signature?" She was then being shown the certificate which, of course, contained her own signature. The certificate was preceded by the presumptive signature of Mrs. Gray. Other testimony given by Mrs. Shackleford is shown in the footnote. [2]
Effect of Mrs. Shackleford's testimony is that the signature to the certificate was hers, and "that statement is correct." She witnessed "the signing of that will," and "those statements are correct." She was at Mrs. Guenther's home when she "witnessed this will: . . . both of us witnessed it--right there in Mrs. Guenther's dining room," . . . and this occurred . . . "after having heard her declare"--
The record suggests what may or may not have been a break in continuity of thought, due to the way a question would be asked before answer to the preceding one had been completed; but in substance Mrs. Shackleford's testimony shows substantial compliance with the statute.
Mrs. Guenther's testimony, however, is more explicit. She was asked: "You heard Mrs. Shackleford's testimony about the execution of that will, over at your house?" There was an affirmative answer. Question: And you and she witnessed the signature of Mrs. Gray, at her request and in her presence and in the presence of each other?" Answer: "Yes, sir."
Seemingly counsel for appellant thought the evidence sufficient, for the following appears: "Mr. Hendricks: Mr. Shoffner: "All right."
Appellant lays stress upon the fact that the will was not probated in common form, but was offered after the 1941 will had been admitted to probate and had been attacked and repudiated by those who offered it, and who admitted that the testatrix was mentally incompetent twenty-one months after the will was made. Mrs. Gray was about seventy years of age. She married appellant in January, 1939, and sustained a severe fall in September of the same year.
We agree with the probate court that evidence did not warrant a finding that Mrs. Gray was overreached, or that she lacked capacity to make the will. A somewhat anomalous situation is that while appellees conceded Mrs. Gray was incompetent when she made the will in 1941, appellant's attorney, in examining Mrs. E. L. Thompson as a witness, sought to bring into the record certain conversations between Mrs. Gray and Mrs. Thompson--conversations which, inferentially, occurred "within the last few months." The Court held (and we think correctly) that the testimony was inadmissible. An exception was taken. If appellant's contention that the evidence was competent had been correct, the presumption would attach, of course, that if facts were to be established by statements made by Mrs. Gray she must have been competent.
The question most earnestly argued by appellant relates to the burden of proof. We have had occasion, since Amendment No. 24 to the constitution was adopted in 1938, to determine what effect shall be given in this court to the judgment admitting a will to probate. Formerly an appeal reached the circuit court from the probate court's judgment admitting or refusing to admit the will. In other words, when circuit court acted, there had been a preceding judgment to which certain presumptions attached, notwithstanding the fact that in circuit court the trial was de novo. Under Amendment No. 24 appeals come here without interposition of circuit court. Juries are dispensed with. The Amendment was considered in Campbell, Administrator, v Hammond, 203 Ark. 130, 156 S.W.2d 75. It was there said that "the ends of justice will be best served by a trial de novo [in the Supreme Court], just as are chancery appeals." The intention was to say...
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