Hiler v. Cude, 5--4970

• Decision Date: 15 June 1970
• Docket Number: No. 5--4970,5--4970
• Citation: 455 S.W.2d 891,248 Ark. 1065
• Parties: Ida HILER, Mrs. S. P. Black, Etta Searley, Barton Deck, Paul E. Sarver and Barbara Sarver, Appellants, v. Archie CUDE, as Executor of Estate of Rose N. Gordon, Deceased, and as Intervenor, Appellee.
• Court: Arkansas Supreme Court

Page 891

455 S.W.2d 891

248 Ark. 1065

Ida HILER, Mrs. S. P. Black, Etta Searley, Barton Deck, Paul

E. Sarver and Barbara Sarver, Appellants, v. Archie CUDE, as Executor of Estate of Rose N. Gordon, Deceased, and as Intervenor, Appellee.

No. 5--4970.

Supreme Court of Arkansas.

June 15, 1970.

Rehearing Denied Aug. 3, 1970.

Shaw & Shaw, Mena, for appellants.

Joe H. Hardegree, Mena, for appellee.

JAMES E. HYATT, Jr., Special Judge.

This is a Will contest and comes here on appeal from the Order of the Polk County Probate Court admitting to probate the Will of Rose N. Gordon, dated January 7, 1968, and the Codicil thereto dated January 23, 1968, (hereinafter called Will 2) offered for Probate by the Appellee, and dismissing the Appellants' objections to and contest of that Will and their offer to probate an earlier Will dated October 3, 1967 (hereinafter called Will 1).

The undisputed facts are: Rose N. Gordon, a 72 year old widow, who lived a more or less secluded life on her 80 acre farm in Polk County, Arkansas, following the death of her husband in 1965, died testate on March 17, 1968. She had no children, but was survived by three sisters, a brother and a niece, all of whom were non-residents and with whom she had had little or no association for the past twenty or thirty years. She was also survived by a 40 year old foster son, whom she never adopted, Paul E. Sarver, sometimes referred to as Earnest E. Sarver, who was in the Navy stationed in California, with his wife and four children. At the time of her death the decedent owned an 80 acre farm in Polk County on which she lived (which she and her husband had acquired in 1956), the household furnishings situated therein, certain cattle, farm machinery and motor vehicles, shares of stock in various corporations and cash on deposit in a bank.

Mrs. Gordon, in the approximately 5 months preceding her death, made two different Wills and a Codicil to the latter, each of which was prepared by a highly respected member of the Bar. The first Will, which we shall call Will 1, was dated October 3, 1967, and was prepared by Mr. Nabors Shaw, the family attorney since 1956, at his office at Mena, Arkansas, and was duly executed there by Mrs. Gordon and attested as required by law, and left in the attorney's vault for safekeeping. Under this Will, Mrs. Gordon devised and bequeathed her entire estate to the foster son Paul E. Sarver and his wife for their lives, and then on their death, to this couple's four children in fee simple, naming a local banker as Executor.

This Will remained in the attorney's office five or six weeks until the middle of November 1967, when Mrs. Gordon sent for it and had it brought to her home. Upon receiving it, she read it before the people present, then tore the Will proper from the attesting Affidavit and handed it to one of the persons present asking him to put it on the fire to burn in the fireplace in front of which she was sitting, which he did. The Will was burned at her direction and she retained only the Affidavit.

The second Will, which, together with the Codicil thereto hereinafter mentioned dated January 23, 1968, we shall call Will 2, was made approximately six weeks after Will 1 was burned and dated January 7, 1968. This Will was prepared by Mr. Max Witt, an attorney of Mount Ida, for whom she had sent, in the home of Mrs. Gordon on that date, a Sunday, and was duly executed there by Mrs. Gordon and attested as required by law. Later a Codicil to this Will was prepared by Mr. Witt at his office and sent to Mrs. Gordon on January 23, 1968, at the Mena Hospital, where she was then a patient, where it was executed by Mrs. Gordon and attested as required by law.

Under this Will, which contained a standard revocation clause, and the Codicil thereto, Mrs. Gordon bequeathed her household furnishings, cattle, farm machinery and motor vehicles, except one car, which she left her Executor, to Clark Cude and Wayne Cude, two neighboring teenage boys, to whom she had previously deeded her 80 acre farm (in which deed she had reserved unto herself a life estate), the sons of a friend and neighbor who had assisted or worked for her about her farm during the last several years of her and her husband's life, and who had assisted in caring for her during the last months of her life. She disposed of the remainder of her property by specific bequests of a baby grand piano to a niece, Margaret Stimsman; 100 shares of common stock in the Polk County Farmers Association to the Seventh Day Adventist Church in Hutchinson, Kansas; 318 shares of stock in the El Paso Electric Company to the Salvation Army in El Paso, Texas; 120 shares of stock in the El Paso Natural Gas Company to a sister, Anna Black of Teague, Texas; and the cash on deposit in the bank to her Executor to pay the taxes and farming expenses on the farm which she had previously deeded to Clark Cude and Wayne Cude.

In Will 2, which not only revoked all prior Wills, Mrs. Gordon specifically excluded the foster son, to whom she had devised and bequeathed her entire estate in Will 1, by the following provision, and we quote:

'Eight: I have helped raise a boy, EARNEST E. SARVER, and he has already been provided for, and IT IS MY WILL, AND I EXPRESSLY STATE THAT EARNEST E. SARVER RECEIVED ABSOLUTELY NOTHING, FROM MY ESTATE OR PROPERTY.'

She named Archie Cude, a neighbor and the father of Clark and Wayne Cude, the principal beneficiaries under Will 2 and the persons to whom she had deeded her farm, as Executor of her estate without bond, and provided that in the event that he was unable to serve as such Executor, that her attorney, Max Witt, was to serve as Executor without bond.

Upon Mrs. Gordon's death on March 17, 1968 Archie Cude, as the person nominated as Executor in Will 2, filed and offered for Probate Will 2 (the Will dated January 7, 1968, and the Codicil thereto dated January 23, 1968) together with the required proofs of attesting witnesses, with the request that he be appointed Executor of Mrs. Gordon's estate as directed by said Will. Mr. Cude also filed a separate intervention requesting the Probate of Will 2 and the denial of the Petition for the Appointment of a Successor Guardian to administer Mrs. Gordon's estate filed by John W. Gordon and Earnest E. Sarver (which said Petition does not appear in the record).

The three sisters and brother of Mrs. Gordon, the foster son and his wife and four children, contestants below and Appellants herein, filed objections to the Probate of the proffered Will dated January 7, 1968, and Codicil thereto dated January 23, 1968, contesting mainly on three grounds: that Mrs. Gordon was mentally and physically incapable and unduly influenced by Archie Cude to make a new Will and in attempting to revoke the Will which she had made on October 3, 1967; that Mrs. Gordon was mentally and physically incapable of making either the October 3, 1967, Will, or the January 7, 1968, Will and the Codicil thereto, and that the Court should make a determination that she died intestate; and that the proponents of Will 2 exercised undue influence over the Testatrix and fraudulently and deceitfully obtained the execution of Will 2 and deprived Testatrix of the assets of her estate.

The contestants (Appellants) urged the Probate Court to refuse to Probate the January 7, 1968, Will and Codicil thereto dated January 23, 1968, by reason thereof and make a finding that the decedent was mentally and physically incapable and unduly influenced in attempting to revoke the Will which she had made on October 3, 1967, and, in the event the Court determined that the deceased was mentally and physically incapable of making either the October 3, 1967, or January 7, 1968, Will and the Codicil thereto, make a finding that the deceased died intestate; and for attorney fees, etc.

After an extensive hearing thereon consisting of the oral testimony of 25 witnesses, with exhibits, the deposition of 1 witness numerous exhibits and the excellent Trial Briefs by counsel for both sides, the Probate Court rendered its Order and Judgment admitting to Probate Will 2, the Will dated January 7, 1968, and the Codicil thereto dated January 23, 1968; found that the objections raised and relief asked for by the contestants to the Probate of that Will and Codicil should be and were denied and dismissed; appointed Archie Cude, the party nominated in the January 7, 1968, Will, Executor and directed the Clerk to issue Letters Testamentary to him.

From that Order comes this appeal.

For reversal, Appellants contend that the lower Court's finding (1) that decedent did not lack testamentary capacity at the time she executed the Will and Codicil thereto is not supported by a preponderance of the evidence; (2) that the decedent executed the Will and Codicil thereto of her own free will and act and not as a result of coercion, fraud or undue influence is not supported by a preponderance of the evidence; and (3) the Court erred in failing to recognize that the burden of proof shifts from will contestants to the will proponents where the proponent procures the making of the Will, and that then the proponent must show beyond a reasonable doubt that testatrix had both such mental capacity and such freedom of will and action as are requisite to render a valid will.

We cannot agree with counsel for Appellants in these contentions. Simply stated, the issues raised are (1) the rule of this Court on de novo hearings on appeal, (2) mental or testamentary capacity to revoke or make a will, (3) undue influence, and (4) burden of proof in will contest cases.

General Testimony: Mrs. Gordon lived alone on her farm after her husband's death with her cattle, numerous birds and cats, and operated it herself with the help of friends and neighbors. She was a strong willed person, with certain peculiarities. From 1962, after an operation, to November 1967, she had a friend and companion named Alice...