Jeffett v. Cook

• Decision Date: 14 November 1927
• Docket Number: 313
• Parties: JEFFETT v. COOK
• Court: Arkansas Supreme Court

299 S.W. 389

175 Ark. 369

JEFFETT v. COOK

No. 313

Supreme Court of Arkansas

November 14, 1927

Appeal from Woodruff Circuit Court, Southern District; E. D Robertson, Judge; reversed.

STATEMENT OF FACTS.

This suit involves a conflict between the devisees and legatees of two wills executed by Nannie L. Jeffett, but the appeal only involves the validity of the judgment of the circuit court declaring the first will to have been revoked by cancellation. Both wills were executed by the testatrix and attested in the manner provided by statute. Both of them were offered for probate in the county where the testatrix resided at the time of her death. In the circuit court the proceedings were consolidated for the purpose of trial.

The facts out of which the question raised by this appeal arises are briefly as follows: On July 17, 1917, Mrs. Nannie L Jeffett executed a will, the body of which reads as follows:

"Last will and testament of Nannie L. Jeffett: I, Nannie L Jeffett, being of sound and disposing mind and memory, but of an advanced age, hereby make, publish and declare this to be my last will and testament, specially revoking all former wills made, if any such there be.

"Item 1. I desire that all my just debts be paid.

"Item 2. I give, bequeath and advise to my two nieces, Mary Cook and Margaret Crebs, my homestead in the town of Cotton Plant Woodruff County, Arkansas, west 15 feet of lot 3, and all of lot 4, block 9 (65).

"Item 3. I give, bequeath and advise to my stepchildren, Fannie McKelvey and Sidney L. Jeffett, the property in Cotton Plant Arkansas, that stood in the name of their father at his death, and which said property has been quitclaimed to me by said two stepchildren and Dr. W. F. Jeffett, they to take said property subject to the incumbrances thereon, and to pay off and discharge the incumbrances, holding my estate harmless against any liability by reason of same.

"Item 4. It is not my intention by this, my last will and testament, to devise my personal property, consisting of jewels, wearing apparel, and household and kitchen furniture. As to this property I will dispose of hereafter by such verbal directions as to me may seem proper. I have some money in the Planters' National Bank of Cotton Plant; after the payment of my debts out of this fund I desire that my brother, R. B. Cook, be paid the sum of $ 200, and the remainder, if any, to be paid to my nieces, Margaret Crebs, Fannie McKelvey, Sidney Jeffett and Janie Vinyard.

"Signed, published and declared as and for my last will and testament, in the presence of the persons whose names appear below as witnesses hereto, and signed by them in my presence and in the presence of each other as such witnesses, this the day and year first above written."

After this will was executed, Mrs. Jeffett frequently expressed a wish to change the will, and finally marked out certain words in the will with a pencil. The whole of item 2, as copied above, was canceled by running pencil marks across all the words in the clause. The pencil marks were made through each and every word of the clause, but they did not render the typewriting of the will illegible. In item 4 of the will the words "to my nieces, Margaret Crebs, Fannie McKelvey, Sidney Jeffett and Janie Vinyard," were marked out with a pencil, and the remainder of the item was left intact. The body of the will was typewritten, and it was found with the personal effects of the testatrix after her death.

On the 2d day of November, 1920, the testatrix executed another will. In it she provided for the payment of her just debts and funeral expenses, and then gave certain legacies to be divided equally between her four nieces. She gave other small legacies to various relatives, and, in item 7, left the residue of her property to her brother, R. B. Cook.

S. J. Jeffett, devisee under the first will, contested the second will, and introduced witnesses who testified that the testatrix was not of sound and disposing mind and memory at the time she executed the will of the date of November 2, 1920. On the other hand, R. B. Cook, the proponent of the will, introduced witnesses who testified that Nannie L. Jeffett was of sound and disposing mind at the time she executed said will. Sidney J. Jeffett was a stepson of Nannie L. Jeffett, and lived with her for twenty-two years, until he married.

The jury returned the following verdict:

"We, the jury, find both wills void, and ask the court to dispose of the property. The first will being void on account of mutilations and erasures; the second will void on account of our inability to decide from the evidence in the case of the sanity of Mrs. Jeffett."

The circuit court considered this verdict to mean that Mrs....