Griffin v. Union Trust Company
| Decision Date | 08 December 1924 |
| Docket Number | 30 |
| Citation | 266 S.W. 289,166 Ark. 347 |
| Parties | GRIFFIN v. UNION TRUST COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, Third Division; Marvin Harris Judge; affirmed.
Judgment affirmed.
Mehaffy Donham & Mehaffy, for appellant.
The court erred in excluding testimony offered by the contestant as to undue influence. 29 Ark. 156; 103 Ark. 236; Alexander on Wills, vol. 1, p. 361. The court erred in admitting testimony of nonexpert witnesses as to the sanity or insanity of Mrs. Wells. Alexander on Wills, vol. 1, p. 386; 36 S.E 634. The court erred in refusing to give instructions requested by the contestees on the question of undue influence and mental capacity, as set out in the opinion. 29 Ark. 151; 87 Ark. 243; 37 Ark. 164; 90 Ark. 426; 36 P. 925; 104 N.W. 1087; 83 N.E. 766; 57 S.E. 898.
W. H. Martin and T. E. Helm, for appellees.
The court did not err in permitting the testimony as to the sanity of Mrs. Wells to go to the jury. 72 So. 395; 156 Cal. 230; 104 P. 443; 15 Ark. 601; 114 Ark. 69; 122 Ark. 417.
This is a contest of the last will and testament of Mrs. E. G. Wells. The judgment of the circuit court of Pulaski County, rendered upon the verdict of the trial jury, sustained the validity of the will, and the contestants have appealed.
The testatrix, Mrs. Wells, resided in the city of Little Rock, and died here on August 29, 1922, the testamentary paper in controversy having been executed by her in due form of law on July 24, 1922. Mrs. Wells was unmarried at the time of her death, and childless, and she left as her heirs at law three sisters, a brother, a niece-- the daughter of a deceased brother--and five others, the children of another deceased brother. She bequeathed the sum of one dollar to each of her said heirs, and the remainder of her estate to Mrs. Minnie Jean Waller, who was not related to the testatrix by blood or marriage, but was merely a friend of long standing and whom, according to the testimony, the testatrix held in affectionate regard. Mrs. Wells was sixty-six years of age at the time of her death, and had resided in Little Rock more than forty years. She was a stenographer by profession, and followed that work in different lines for many years. She did stenographic work in several business institutions, covering a period of many years, and for a number of years before her death, in addition to working as a stenographer, she operated a school for the purpose of instructing others in the art. She accumulated by her own work and thrift property of considerable value, the property consisting of both real estate and personalty.
At the time of the execution of the will Mrs. Waller, the chief beneficiary, was out of the State, and did not return until after the death of the testatrix.
Mrs. Wells became seriously ill a short time before the execution of the will, and was confined to her room in her own home. She was nursed by Mrs. Scroggins, the mother of Mrs. Waller, and was also attended by Mrs. Brooks, a sister of Mrs. Waller. Physicians also attended her regularly, and they testified in the case with reference to her mental condition at or about the time of the execution of the will and from then on up to the time of her death.
The contest is based on the charge of undue influence and mental incapacity of the testatrix. The testimony in the case is voluminous, but it may be said, speaking generally, that it was conflicting upon both of the issues involved. A number of witnesses, including two of the contestants, a sister and a brother of the testatrix, testified that they were long and intimately acquainted with the testatrix, and that she was of low mentality at the time of the execution of the will and, in their opinion, not of sufficient mental capacity to execute a will. On the other hand, the witnesses were very numerous on the part of the contestee, who testified to a long acquaintance with the testatrix, of her successful business career, her strength of mind and her admirable business qualifications, and that she was fully capable of transacting business and of executing any kind of conveyance up to the time of her death. Physicians who attended the testatrix also testified that her mental condition was sound.
We are of the opinion that the evidence was abundantly sufficient to sustain the finding of the jury, both as to the charge of undue influence and lack of mental capacity.
There are numerous assignments of error with respect to the rulings of the court upon the admissibility of testimony.
It appears from the testimony that Mrs. Wells underwent a serious surgical operation in the year 1885, that she jumped from a train in the year 1900 and sustained a fracture of her hip, and that, some time thereafter, she sustained a fracture of one of the bones of her arm. There is also testimony that she was afflicted with cancer and was operated on during the year 1918, or about that time. There is testimony to the effect that all of these various troubles affected her health, and that she suffered a great deal.
The first witness introduced was Mrs. Shelton, who was a sister of Mrs. Wells, and is one of the contestants. She testified that Mrs. Wells was operated on about the year 1885, and that she had never fully recovered from that operation. She mentioned the fact of Mrs. Wells jumping from the train and breaking her hip in the year 1900, and that she nursed her through that period, but the court excluded those statements. She also offered to testify that the testatrix had told her about breaking her arm, and that was excluded on the ground that it was hearsay. Those rulings are both assigned as errors. The theory of the court in excluding the testimony about the broken hip was that it was too remote and was not connected up by showing that its effect upon the health and mental condition of the testatrix continued up to the time of the execution of the will. The other statement was excluded for the reason that it was merely the statement of the testatrix and constituted hearsay, and fell within the rules of evidence excluding that kind of testimony. The court subsequently permitted appellant to prove by two other witnesses the fact that Mrs. Wells jumped from the train and broke her hip in the year 1900, and suffered for a long time thereafter from the effects of this accident. This testimony was undisputed, and no prejudice could possibly have resulted in the court's ruling in refusing to permit Mrs. Shelton to testify to that fact. When it was connected up by other testimony tending to show repeated injuries and illness on the part of the testatrix which might have affected her mental capacity, the court permitted everything that had happened to her for a long time past, including the operation in 188.5 and the fractured hip in 1900, to be proved by the witnesses, and their opinions were given as to the probable effect upon her mental capacity. To say the least of it, the court's ruling on this subject constituted no more than a change in the rulings of the court in permitting testimony to be introduced, and, if appellants desired to take advantage of that change after the court had ruled the testimony to be competent, another offer should have been made to introduce it. The failure to do this precludes appellants from insisting now that the court erred in excluding the testimony originally.
The other excluded statement as to what the testatrix told the witness concerning the various injuries was mere hearsay, and properly excluded. In Mason v. Bowen, 122 Ark. 407, 183 S.W. 973, after full consideration of the questions involved, we made the following statement of the law which is applicable to this as well as other rulings of the court:
Now, the fact that Mrs. Wells received these various injuries may have had some influence upon her mental state, and proof of those facts was competent as bearing on that question, but the facts could not be established by hearsay testimony, and the statement of the testatrix herself concerning those facts fell within the rule against hearsay testimony.
The contestee introduced as a witness Mrs. Auten, who was a friend of Mrs. Wells, and on cross- examination she was asked about certain statements that she had made to another witness, Mrs. Bracy. She stated that she had talked with Mrs Bracy about Mrs. Wells and stated that the latter was eccentric; said she did not remember telling Mrs. Bracy about the conduct of Mrs. Wells concerning the preparation of a chicken for food. Her statement was somewhat indefinite as to her recollection of the conversation with Mrs. Bracy, but she admitted that she had talked to Mrs. Bracy and expressed the opinion that Mrs. Wells was somewhat eccentric in her conduct. Appellants introduced Mrs. Bracy for the purpose of contradicting Mrs. Auten, and she testified, without objection, as to what Mrs. Auten said about her opinion of Mrs....
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