Longer v. Beakley

• Decision Date: 13 January 1913
• Citation: 153 S.W. 811
• Parties: LONGER v. BEAKLEY.
• Court: Arkansas Supreme Court

153 S.W. 811

LONGER v. BEAKLEY.

Supreme Court of Arkansas.

January 13, 1913.

On Rehearing, February 10, 1913.

Appeal from Circuit Court, Lawrence County; R. E. Jeffery, Judge.

Action by J. N. Beakley, by next friend, against Mary Longer. From a judgment for plaintiff, defendant appeals. Affirmed.

W. A. Cunningham, of Walnut Ridge, for appellant. J. N. Beakley, of Walnut Ridge, and McCaleb & Reeder, of Batesville, for appellee.

SMITH, J.

This is the third appeal of this case to this court. The suit was originally brought by the beneficiaries under a policy of insurance upon the life of one Antone Frankring against the insurance company. The policy was originally payable to the children of the said Frankring; but there was an apparent change in the beneficiary, and at the death of the said Frankring the policy was payable to Mary Longer, the appellant herein.

In the second appeal the case was reversed and remanded, to be tried upon the issue as to whether Frankring authorized the change in the benefit certificate. Longer v. Carter, 143 S. W. 575. This certificate was originally issued by the Loyal Fraternal Home, an insurance corporation, having lodges at various points in the state and one at Walnut Ridge, the home of the said Frankring; but later the National Annuity Association, a fraternal beneficiary association of Kansas City, assumed the outstanding benefit certificates issued by the Loyal Fraternal Home Company. The request for change of beneficiary was indorsed upon the certificate, and was signed in the name of Frankring and attested by Mrs. Lola P. Baulch, the lodge president, and F. S. Pinchback, the lodge secretary, and the transfer had been approved by the president of the Annuity Association.

The policy contained this provision: "A benefit certificate may be made payable to one or more persons bearing the relationship to the member of wife, husband, child, sister, brother, grand parent, grand child, step parent, affianced wife, half sister, father, mother, adopted child, adopted parent, half brother, aunt, uncle, niece or nephew. No such certificate can be transferred to any other person than above. No benefits shall be paid to a person designated as a dependent, unless dependency shall be shown to exist at the time of the death of the member."

At the trial, from which this appeal is prosecuted, it was claimed by the appellant that the said Frankring had boarded with her for some time; that he had become estranged from his family, and that they were engaged to be married; and that in view of this engagement the benefit certificate was changed and made payable to her. The contention of appellees, who were the children of the said Frankring, was that the assignment was a forgery; and that there was no marriage engagement between their father and the said Mary Longer.

Appellant complains of a number of errors alleged to have been committed at the trial, which are substantially as follows: First. The action of the court in permitting Mrs. Baulch, the lodge president, to testify that she had not signed her name as a witness to the request for change of beneficiary, and had not authorized any one else to sign her name, and did not know that this had been done until after Frankring's death. Second. Because appellee, who was the plaintiff below, was allowed to ask a witness, named Pinchback, if he signed the name of Mrs. Baulch to the request for change of beneficiary. Third. Because plaintiff was permitted to prove that just before Frankring died he sent for his children, and plaintiff was allowed to show the affection there demonstrated. Fourth. Because witnesses were permitted to state that after the date of the alleged transfer of the certificate Frankring had stated to them that his insurance was payable to his children. Fifth. Because witnesses were permitted to state that Frankring had said to them, after the date of the alleged change of beneficiary, when speaking of appellant, "Old Mollie, the d____d old b____, has stolen my money and papers." Sixth. In permitting witness Beakley to state that appellant told him she was never engaged to Frankring, and would not have married him. Seventh. Because the court had permitted counsel for appellee to state, in his argument to the jury, that "Pinchback had admitted that he forged the name of Mrs. Baulch to the certificate, and that, if he would do that, he would forge the name of Antone Frankring, or words to that effect."

The objections, above stated, were preserved in various exceptions to the action of the court in admitting evidence and in charging the jury. The evidence showed that the policy represented almost the entire estate of the said Frankring, who was unable to sign his name, and who had not signed his name to the request for the change of beneficiary. The evidence of Mrs. Baulch that she had not signed her name, nor authorized it to be signed, was, of course, admissible under any theory; and it was proper to ask the witness Pinchback, who testified on behalf of the appellant, on his cross-examination, if he had signed Mrs. Baulch's name. This was necessarily proper, and especially so when the witness had testified, on his direct examination, that Frankring had told witness that he and Mollie (appellant) were going to marry, and that witness wrote the names signed to request for change of beneficiary at the direction of Frankring, and had written Mrs. Baulch's name because she was the president of the lodge, and that he wrote her name because she did not have to sign the paper.

The evidence of Beakley that appellant told him she was not engaged to Frankring was competent for the purpose of contradicting the statement of Pinchback that Frankring had told him of the existence of this engagement. This proof was relevant, because, under the by-laws of this society, appellant could not have been named as beneficiary, in the absence of this engagement.

The third and fifth grounds, above mentioned, showed the state of feeling of Frankring to the respective litigants; and the fourth ground relates to his statements, which tended to impeach the authenticity of the change of beneficiary.

There is no question here about Frankring's capacity to make the request for change of beneficiaries, which he is alleged to have made, and if the execution of this request was conceded either the third, fourth, or fifth grounds would call for the reversal of the case; but it is not admitted that he executed this request. It is not even claimed that he signed the request by his own hand; it is said merely that he authorized Pinchback to make this request for him. Necessarily, therefore, the argument of appellee's counsel that the signatures were a forgery was a proper one; for that is the issue in the case. There was considerable evidence on the question of the general reputation for truth and veracity of both Pinchback and appellant, and a sufficiency to have supported a finding either way on that question.

Counsel have not cited us to any case, nor have we found one, which discusses and decides the exact point here involved. By analogy, however, there are many cases which are in point, and which grew out of contests over the execution of wills, and discuss the principles of the law of evidence here involved. For all practical purposes, the execution of this request for change of beneficiary was Frankring's will, because it disposed of practically all he owned. Did he make such request, and has the court committed any error in the admission of evidence bearing upon that question?

In Shailer v. Bumstead and others, 99 Mass. 112, a will was contested upon the ground, among others, that the testatrix was of unsound mind and had been unduly influenced by two of the beneficiaries, and was ignorant of the contents of the will at the time of its execution. The contestants relied upon evidence of declarations of the testatrix, made at the time of executing the will, and also both before and after that time, to the effect that she intended a disposition of her property other than that made by the will; and there was evidence tending to show undue influence of the principal beneficiaries under the will.

As further evidence that the will was made contrary to the real intentions of the testatrix, or that she was ignorant of its contents, and that its execution was procured by fraud and undue influence, the contestants offered to prove declarations of the testatrix and of the beneficiaries subsequent to the date of the will. The evidence of such subsequent declarations and conduct was excluded, so far as they were offered to sustain the allegations of fraud and undue influence and ignorance of the contents of the will.

In discussing this action of the court below, it was there said: "That the instrument which contains the testamentary disposition of a competent person, executed freely and with all requisite legal formalities, must stand as the only evidence of such disposal is generally conceded. Such a will is not to be controlled in its plain meaning by evidence of verbal statements inconsistent with it, nor impaired in its validity and effect by afterthoughts, or changes in the wishes or purposes of the maker, however distinctly asserted. It is to be revoked only by some formal written instrument, some intentional act of destruction or cancellation, or such change of circumstances as amounts, in law, to a revocation. An invasion of this rule opens the way to fraud and forgery, promotes controversy, destroys to a greater or less degree that security which should be afforded to the exercise of the power to control the succession to one's property after death. But the rule assumes that the will sought to be affected has once had a valid existence. It is always liable to be impeached by any competent evidence that it was never executed with the required formality, was not the act of one possessed of testamentary capacity, or was obtained by such fraud and...