Mason v. Bowen

• Decision Date: 14 February 1916
• Docket Number: 179
• Citation: 183 S.W. 973,122 Ark. 407
• Parties: MASON v. BOWEN
• Court: Arkansas Supreme Court

183 S.W. 973

122 Ark. 407

MASON v. BOWEN

No. 179

Supreme Court of Arkansas

February 14, 1916

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge affirmed.

Judgment affirmed.

Bradshaw Rhoton & Helm, for appellants; Gardner K. Oliphant, of counsel.

1. The case should have been dismissed on appellants' motion upon the testimony of appellee. A will that is made in such form and manner as to require the statutory attesting witnesses, is not valid unless at the time the testator subscribed it or acknowledged it that he unconditionally unqualifiedly and without any express mental reservation declared to and in the presence of such witnesses and in the presence of each other that it was his last will and that he did so at a time when he possessed testamentary capacity. 13 Ark. 474; McDaniel v. Crosby, 19 Id. 553. A holographic will must be established by the unimpeachable evidence of at least three disinterested witnesses. Kirby's Dig., § 8012; 80 Ark. 204; 12 Mich. 495.

2. The court erred in refusing to permit the witness Ben Mason to testify as to undue influence. 29 Ark. 151; 14 Enc. of Ev., p. 281; 12 Mich. 490; 10 Ark. 446. The statements made by deceased were competent and relevant. 74 Ark. 212; 5 Id, 70; 29 Id. 151; 25 Id. 384; Greenl. Ev. , § 510; 42 Ark. 544; 87 Ark. 243.

3. It was error also to refuse to permit witness J. S. Hoffman to testify as to declarations made by deceased, prior to the execution of the will as to how he intended to dispose of his property. 29 Ark. 154; 74 Id. 216; 60 Id. 301; 180 U.S. 552, 571 and note; 1 Redfield on Wills, 557, 559; Schouler on Wills, §§ 242-3; Gardner on Wills, 137; 28 N.J.L. 282. It was certainly competent to show the mental capacity of the testator. 106 Ark. 213; 13 S.W. 1098; 35 L. R. A. 102, 21 So. 41; Hughes on Ev., § 10, p. 128; 14 Enc. of Ev. 281; 115 Tenn. 73, 5 A. & E. Ann. Cas. 601; 3 L. R. A. (N. S.) 749 and note; 74 Ark. 212; 119 Ala. 641, 6 So. 459; 14 Ga. 286; 62 Minn. 482; 35 Col. 578; 6 L. R. A. (N. S.) 575; 35 N.W. 726; 157 Mass. 180; Wigmore's Select Cases on Ev., p. 677.

3. There was error in the instructions. 57 Ark. 512; 62 Id. 286, 312; 29 Id. 152; 77 Id. 261; 87 Id. 275; 119 Ala. 641; 107 P. 598; 77 Ark. 129; Ib. 201, 437; 57 Id. 203. The nonproduction of evidence within the power of a party, is a strong presumption that, if produced it would be against him. 1 Greenl., Ev., § 37; 32 Ark. 346, 337. The verdict is contrary to the evidence.

Botts & O'Daniel and H. C. Locklar, for appellee.

1. The will was properly admitted to probate as a statutory will. Kirby's Dig., § 8012; 13 Ark. 474, 487; 19 Id. 553; 31 Id. 180; 80 Ark. 204; 93 Id. 76.

2. The testator was shown to be capacitated to make the will. 87 Ark. 243.

3. The undue influence required to avoid a will must be directly connected with its execution. 49 Ark. 371; 19 Id. 552; 15 Id. 602. There is no evidence of undue influence. The burden was on the contestants. 94 Ark. 476; 103 Id. 203; 93 Id. 66; 87 Id. 148. The questions of testamentary capacity and of undue influence were of fact and were correctly submitted to the jury on proper instructions and there was abundant evidence to support the verdict. 107 Ark. 158; 103 Id. 263; 97 Id. 91.

4. The testimony of Ben and Mrs. Mason and Hoffman were properly excluded. 89 Ark. 483; 100 Id. 76; 96 Id. 78; 87 Id. 243. It was all incompetent. 60 Am. Dec. 323; 112 Ark. 507; 112 Id. 507.

5. The instructions, taken as a whole are correct. 49 Ark. 372; 87 Id. 243, 275.

OPINION

HART, J.

This was a contest over the will of L. W. Mason. The will was contested by the heirs of the testator on the ground of mental incapacity on the part of the testator and that the execution of the will was procured by undue influence on the part of the contestee. The probate court refused to admit the will to probate and the contestee appealed to the circuit court. There the issues were submitted to a jury and a verdict returned in favor of contestee. Thereupon the court rendered judgment establishing the will and ordering it admitted to probate. The contestants have duly prosecuted an appeal to this court.

L. W. Mason resided in Pulaski County, Arkansas, all his life and was nearly sixty years of age at the time of his death. He died of consumption and had been ill for many years suffering with that disease and with kidney trouble. He came to Little Rock in November, 1911, to reside with J. B. R. Bowen, the contestee, and lived with him until the time of his death on June 8, 1913.

The will in question was executed on October 30, 1912. At the time of the execution of the will Mason owned property to the amount of $ 6,000 or $ 7,000, most of which he had inherited from his father. By the terms of the will most of this property went to the contestee. After the will was executed the testator gave to his relatives certain specified amounts of money. For about three years prior to the time he came to Little Rock the testator resided with the widow of a deceased brother and she says she did not charge him any board. It was claimed by the contestee that the body of the will and the signature thereto were in the handwriting of the testator. The will was also attested by two witnesses as required by the statute. At the request of counsel for the contestants the court instructed the jury that to be valid as a holographic will both the entire body of the will and the signature thereto must be in the handwriting of the testator and that this must be established by unimpeachable evidence of at least three disinterested witnesses. See Arendt v. Arendt, 80 Ark. 204, 96 S.W. 982.

One of the attesting witnesses to the will testified that he had known L. W. Mason nearly all his life and was familiar with his handwriting and that the body of the will and the signature thereto were in the handwriting of L. W. Mason.

Two other witnesses testified that they had known L. W. Mason for a long time and were familiar with his handwriting. They said that they thought the body of the will and the signature thereto were in the handwriting of L. W. Mason.

Another witness testified that he was familiar with the handwriting of L. W. Mason and that the only reason he could not say that it was L. W. Mason's handwriting was because he did not see him write it.

All these witnesses were disinterested persons and there is nothing in their evidence or in the entire record reflecting on their character or in any way tending to impeach their testimony. Therefore the jury was warranted in finding in favor of contestee on the question of a holographic will.

The court at the request of counsel for the contestants also instructed the jury on the question of attesting a will in the manner required by the statute. As we have already stated, one of the witnesses who attested the will testified that the entire body of the will and the signature thereto were in the handwriting of L. W. Mason. He further stated that he came to the house where Mason lived on the day the will was executed at the request of Mason for the purpose of attesting his will; that the other attesting witness and a justice of the peace went with him; that Mason first acknowledged the will before the justice of the peace and had the justice sign the acknowledgment and that he and the other attesting witness signed their names at the end of the will at the request of the testator; that before they signed it the testator had signed the will in their presence and told them that this was his fourth will and hoped it would be his last one.

The other attesting witness said that he went there for the purpose of attesting the will of the testator and did attest it. He stated that the word "will" was never mentioned while he was there but that he was called there by the testator for the purpose of witnessing his signature to a will. He answered questions propounded to him in an evasive manner and said that the justice of the peace was there too and wrote out the acknowledgment of the testator to the will and signed that and that the justice of the peace then asked the testator if this was his last one and that the testator replied that he did not know whether or not it was; that it might be and that it might not. The witness said that he supposed it was the will of the testator but that the testator never in fact called it by that name.

We think the evidence clearly shows that the testator, the justice of the peace and the two attesting witnesses were all present at the time the will was signed by each of them; that the said testator sent for these persons to witness his will and that they attested it in the manner required by the statute; at least, we think the jury was warranted in finding these to be the facts. See Payne v. Payne, 54 Ark. 415, 16 S.W. 1.

Counsel for contestants offered to prove by Ben Mason, a brother of L. W. Mason, that L. W. Mason, before he went to board with J. B. R. Bowen, stated that Bowen was indebted to him and that the only reason he was going to board and live with Bowen was for the purpose of collecting his debt. The court refused the admission of this testimony before the jury and counsel for the contestants assigns this as error. They say the testimony should have been admitted upon the question of undue influence.

It seems to be well settled, both by text writers and the decisions of courts of the various states, that the statements and declarations of a testator, whether made before or after the execution of a will, are not competent as direct or substantive evidence of undue influence, but are admissible to show the mental condition of the testator at the time of making the will. When the condition of the testator's mind is the point of contention, statements or declarations...