Hendry v. Wilson, 4-6355.

• Decision Date: 26 May 1941
• Docket Number: No. 4-6355.,4-6355.
• Citation: 151 S.W.2d 683
• Parties: HENDRY v. WILSON et al.
• Court: Arkansas Supreme Court

Page 683

151 S.W.2d 683

HENDRY v. WILSON et al.

No. 4-6355.

Supreme Court of Arkansas.

May 26, 1941.

Rehearing Denied June 23, 1941.

Appeal from Probate Court, Independence County; A. S. Irby, Judge.

Proceedings by A. F. Hendry and J. B. Wilson, executor of the estate of Nora Hendry, deceased, and others for probate of two wills of deceased. From a judgment admitting to probate the will presented by the executor and rejecting the other will, proponent Hendry appeals.

Affirmed.

T. A. Gray, of Batesville, for appellant.

S. M. Casey, of Batesville, and Shields M. Goodwin, of Little Rock, for appellee.

McHANEY, Justice.

Miss Nora Hendry died testate in Independence County on March 29, 1940. Two wills purporting to have been executed by her were presented for probate, one dated and properly attested by two witnesses on December 29, 1939, and the other on February 15, 1940, but the two witnesses to the latter did not sign as such at the same time or in the presence of each other. The trial court found that the will, dated December 29, 1939, hereinafter referred to as will No. 1, was her last will and testament and admitted same to probate. As to the will of February 15, 1940, hereinafter referred to as will No. 2, the court found that it was not properly executed and attested and refused to admit it to probate. Hence, this appeal.

The testatrix left an estate of about $9,000. In will No. 1 she gave $500 to each of her brothers and sisters, appellant being a brother, $500 to appellee, J. B. Wilson who was named executor, and all the remainder of her estate she gave to her nephew, F. T. Hendry, son of appellant, A. F. Hendry. The father and son are sometimes referred to as "old" Frank and "little" Frank respectively. In will No. 2, she gave $500 to each of her brothers and sisters, other than appellant, $500 to F. T. or "little" Frank Hendry and all the remainder of her estate she gave appellant or "old" Frank Hendry.

Appellant concedes that will No. 1 was properly executed and attested, but insists that it was annulled and revoked by will No. 2. If the latter were properly executed and attested, he would be right about it, and the case would have to be reversed. Briefly stated, the facts with reference to the making, executing and attesting of will No. 1 are that F. T. or "little" Frank Hendry was visiting his aunt in Cushman, Arkansas, in December, 1939, when she asked him about making her will and wanted him to find out how many witnesses were required to attest a will. He saw Mr. Casey in Batesville, who told him two were required, which fact he reported to his aunt. In her own handwriting she wrote down the data as to how she wished her will to be prepared and asked him to take it to Mr. Casey to draw her will, which he did. The will was prepared by Mr. Casey in duplicate, according to her written instructions and was taken by her nephew and delivered to her. After waiting two or three days she wrote and sent by "little" Frank two sealed notes, one to Remmel Baxter and another to N. K. Sims, requesting them to come to her home on the night of December 29, 1939. And by her further direction she caused "little" Frank to keep "old" Frank up town that night while she and her witnesses executed the will. These parties complied with her request and both copies of the will were properly signed and attested by them as required by law. One copy she gave to "little" Frank and one copy she kept among her papers.

Regarding will No. 2, appellant testified that his sister became dissatisfied about her former will and wanted to make another; that she wrote a letter and asked him to have some new papers fixed up, which he did; that he brought Mr. Gray his sister's instructions as to her new will and he prepared the will which witness took back to her and she signed it the same day, February 15, 1940. This will was written in duplicate and both copies signed by the testatrix. It was witnessed by J. W. Page who went to the house at the request of appellant on the same day and appellant says she destroyed her copy of will No. 1 at that time. One copy of this will bore the signature of E. D. Chavers as a witness, and it is conceded that Chavers was a total stranger to appellant, the testatrix and to Page, the other witness, and that it was not signed by him, Chavers, in Page's presence. Appellant and Chavers explain the presence of his signature on the will as follows: Several days after February 15, Chavers went to the home of the testatrix to see her about buying some timber on her land. She told him she couldn't sell it as she had willed it to appellant and he (appellant) showed him (Chavers) the will. He told her she had only one witness and she asked him to sign as a...