Kennedy v. Quinn

• Decision Date: 15 December 1924
• Docket Number: 58
• Parties: KENNEDY v. QUINN
• Court: Arkansas Supreme Court

266 S.W. 462

166 Ark. 509

KENNEDY v. QUINN

No. 58

Supreme Court of Arkansas

December 15, 1924

Appeal from White Circuit Court; E. D. Robertson, Judge; affirmed.

STATEMENT OF FACTS.

This is an action by J. W. Quinn, Mrs. S. H. Mulkey and Mrs. Mary J Paschal, to contest the will of their sister, Mrs. Sue E Kennedy, who died at a hospital in the city of Little Rock following an operation to remove a cystic tumor, on August 27, 1922.

Mrs Kennedy was from nine to eleven years older than her husband H. B. Kennedy, and she was about fifty years old when she was married, and she was about 67 years old at the time of her death. Mrs. Kennedy had suffered from this tumor for several years before her death, and the tumor had grown to be large enough to contain about two gallons of a fluid, and had attached itself to certain of her organs, thus showing that her condition was very serious at the time of the operation. She rallied from the operation, and there was hope of her recovery, but she took a turn for the worse, and, after failing rapidly, died on the fifth day after the operation.

The bulk of Mrs. Kennedy's estate is in Mississippi County, but her residence at the time of her death was in White County, and she had been advised by her local physician that her condition required an operation, and she came to Little Rock to have it done, and, while at the hospital, she executed the will involved in this proceeding. Her husband testified that, while his wife was sanguine of her recovery, she decided to execute a will, and gave him directions in regard to its provisions, and that, pursuant to these directions, he employed an attorney to prepare it, and he took with him to the hospital two of the employees of the bank where he and his wife carried their bank account, to attest the will as witnesses. These witnesses testified that they went to the hospital, and found Mrs. Kennedy sitting in a chair on the veranda of the hospital. She knew one of them, who had cashed checks for her, spoke to them both, and they told her they had come, at Mr. Kennedy's request, to witness the will. She expressed satisfaction that they had done so, and stated that she would go to her room and get her glasses. The young men who were present to witness the will offered to perform this service for her, but she declined the service, stating that they would not know where to find the glasses. Upon her return to the veranda, Mrs. Kennedy looked over the will, and one of the witnesses read it to her, and she stated that it conformed to her wishes and directions, and the will was then signed and witnessed.

A large number of witnesses, including the surgeon, testified that, in their opinion, Mrs. Kennedy was rational and in full possession of her faculties on the day she signed the will, and it is very earnestly insisted, that there was no legal evidence to the contrary. There was testimony to the effect that, as Mrs. Kennedy's physical ailment developed, she became forgetful and indifferent to her oldest and best friends and nearest relatives, with none of whom had there been estrangement or other apparent cause for her changed attitude, except her ailment, and one witness testified that "her mind had gradually been getting worse for two years or more prior to her death."

A hypothetical question, predicated upon testimony adduced by contestants, was submitted to a physician, who answered the question by expressing the opinion that Mrs. Kennedy did not have testamentary capacity at the time she executed the will. The will was executed at the hospital, and, in anticipation of the operation, Mrs. Kennedy's sisters were present, and there is testimony to the effect that, on the day the will was executed, Mr. Kennedy went down town with his wife's sisters, and, while they were engaged in doing some shopping for Mrs. Kennedy, Mr. Kennedy caused the will to be executed. It is the theory of the contestants that this was done designedly for the purpose of having the sisters absent when the will was executed. There was certain other testimony tending to show that Mr. Kennedy was mercenary in his dealings with his wife, and that there was no deep affection between him and his wife. The principal testimony tending to show that fact was the admission by Mr. Kennedy that he had caused a will to be prepared about a year previous to the will in issue, the provisions of which were substantially similar to the one in litigation, but she declined to sign that will, and there was other testimony to the effect that Mrs. Kennedy had said she would never execute such a will as long as she was in her "right mind." This last testimony was objected to.

On his cross- examination Mr. Kennedy admitted that he had been arrested for reckless driving, and did not deny his guilt. He admitted he had shot a man in Kentucky and had been arrested for so doing, but testified that he had never been indicted for the shooting. He also admitted that he had been arrested in Oklahoma for carnally abusing a girl under the statutory age of consent, but he also testified that this was a frame-up. These questions were asked without objection, and Kennedy was re-examined by his attorney to some extent in regard to these charges. There was testimony that Kennedy had admitted that he had been arrested for participating in a train robbery, but this testimony was excluded on objection being made to it.

Among other instructions requested by contestee was one that "you will disregard the evidence showing that Mr. Kennedy has been arrested on three occasions," and an exception was saved to the court's refusal to give it.

During the argument before the jury, Mr. Brundidge, of counsel for contestants, said that Kennedy had been in jail in Oklahoma on a charge of train robbery and, objection being made to this argument, the court sustained the objection and stated to the jury that this testimony had been excluded, and for the jury to disregard it. Thereupon Mr. Brundidge said that the testimony in regard to the carnal abuse charge had not been withdrawn, and that he would prefer being in jail on a charge of train robbery, and concluded this statement by saying, "Now, take that, if you like it any better." No objection appears to have been made to this last argument.

Contestee also excepted to certain instructions relating to the issues of testamentary capacity and undue influence which were given over his objection, and also excepted to the court's refusal to give certain instructions which he requested relating to the same subjects, which will be set out and reviewed in the opinion.

Judgment affirmed.

Frauenthal & Johnson, John E. Miller and J. T. Coston, for appellant.

The evidence was insufficient to sustain the verdict. The law only requires that a testator's memory be sufficient to recollect what property she owns, without prompting, and comprehend to whom she is giving it. 66 Ark. 628. A verdict so palpably against the weight of the evidence as to shock the sense of justice and right will be set aside. 70 Ark. 385. Appellant's request for instruction No. 17 should have been granted. It sought to limit the declaration by the testatrix before signing the will to the issue of mental capacity, as they were wholly incompetent on the question of undue influence. 122 Ark. 407; 180 U.S. 572; Wigmore on Ev., vol. 1, p. 42; 75 Ark. 232; 99 Mich. 250; 84 Me. 436; 117 N.C. 558; 79 N.C. 467; 33 Ala. 190; 42 Ala. 106; 38 Mont. 451; 158 Cal. 650. There was no evidence of undue influence, and the court erred in submitting that issue to the jury. 154 Ark. 523. Instruction No. 7 was erroneous, as it authorized a finding against the will if the testator, on account of her weakened physical condition, yielded to his request and executed the same, which is not the test of undue influence. 1 Underhill on Wills, § 138; 114 Mo. 35; 136 N.Y. 515. It is not unlawful to procure a will in one's favor by fair persuasion and kind offices. 13 Ark. 475; 19 Ark. 551; 49 Ark. 371. A failure to act "intelligently," wisely, judiciously or justly is not sufficient to vitiate a will. 87 Ark. 243; Underhill on the Law of Wills, pp. 145-147; 28 R. C. L. § 103. Kennedy could not get a fair trial after the improper remarks of counsel for appellees. A new trial should be granted. 70 Ark. 305; 74 Ark. 210; 11 Texas Ct. of Appeals, 378. Instruction No. 16, which went to the character of appellant, should have been given. 20 Tex. Ct. of Appeals, 271. Improper evidence cannot always be removed by admonition of the court not to consider it, in which case a reversal should be had. 100 Ark. 107; 19 N.Y. 302.

Sam Costen, Wils Davis, and Brundidge & Neelly, for appellee.

A verdict will be sustained if there is any substantial evidence to support it. 122 Ark. 407; 127 Ark. 68. Where both undue influence and mental capacity are in issue, a verdict will be sustained if either is proved, although the evidence might not be sufficient on the other proposition. 147 Iowa 725; Pritchard on Wills, 136; 96 Am. Dec. 697. A wide latitude is permitted as to admissible evidence on the issues of unsound mind and undue influence, and indirect evidence as to facts from which the jury might infer either is sufficient. 197 Mo. 68; Pac. 634; Pritchard on Wills, 155; 28 R. C. L. 93; 195 Mich. 432; 87 Ark. 243; 29 Ark. 151; 154 Ark. 516; 49 Ore. 367; 227 Ill. 183; 28 R. C. L. 143. The question of undue influence is submitted to the jury more readily when the testator is mentally weak. 115 Penn. St. 32; 3 Strobhart (S. C.), 44, 87 Ark. 148. On the question of unsound mind it is competent to prove a previously expressed purpose contrary to the terms of the will. 74 Ark. 212. Participation of beneficiary in making of will is a circumstance to be considered. 28 R. C. L. p. 145;...