McCulloch v. Campbell

• Decision Date: 15 October 1887
• Citation: 5 S.W. 590
• Parties: McCULLOCH <I>v.</I> CAMPBELL.
• Court: Arkansas Supreme Court

Page 590

5 S.W. 590

McCULLOCHv.

CAMPBELL.

Supreme Court of Arkansas.

October 15, 1887.

Appeal from circuit court, Washington county; J. M. PITMAN, Judge.

U. M. & G. B. Rose, for appellant. B. R. Davidson and L. Gregg, for appellee.

SMITH, J.

This was a contest over the will of Mrs. Elizabeth McClure. The probate court admitted the instrument to probate, notwithstanding the opposition of Thomas J. Campbell, one of the heirs, who alleged that the testatrix was laboring under senile dementia, and that the will was procured by the undue influence of McCulloch, the executor, and some of the legatees. But upon appeal to the circuit court, the jury, to whom the issues were submitted, found against the validity of the will, and judgment was entered setting it aside. It is claimed in the motion for new trial that this verdict was against the evidence.

Mrs. McClure was 81 years of age at the date of the execution of the will, and was in feeble health. She had been a woman of strong will and great decision of character; but after her husband's death, which occurred two weeks before the will was made, she was depressed and melancholy. Her property was of the value of ten or twelve thousand dollars; and it had been derived altogether or mainly from her husband. Her nearest of kin were some 30 nephews or nieces, who resided in the same village with her, or in the immediate neighborhood. Her favorite nephew was S. G. McClellan. He had nursed her husband through his last illness, which extended over two or three years, and his devotion had been remembered by the sick man, and had been rewarded with an appropriate legacy. But Mrs. McClure always said that the legacy was not as large as it should have been, and at her instance and request her husband's executors had released a debt of $300, which this nephew of hers owed the estate. After the loss of her husband, the aged woman invited one of these disinherited nieces to come with her husband, and take charge of the homestead. But they hesitated, and finally insisted that a deed to the property should be made to them in advance. Their conduct in this matter seems to have been resented by Mrs. McClure, who broke up her establishment, and went to live for the remainder of her life with S. G. McClellan. And to him she gave by will $2,000 in cash, and her homestead. And she made his wife residuary legatee after the other bequests were satisfied. Her favorite niece was Miss Sallie McCory, who had been her constant companion and untiring nurse for many years. The bond of attachment between these two seems to have been a very strong one. Each doubtless saw in the other a reflection of her own characteristic traits—independence, high spirit, plain-spoken candor. Besides, Miss McCory's attentions had become indispensable to the comfort of her aunt. Those attentions had been so assiduous and so disinterested as to touch the heart of McClure, the husband. He had bequeathed to Miss McCory $2,000, although, as the proof shows, he was himself not at all partial to her. To this niece Mrs. McClure gave by her will $4,000. And to five other nieces and nephews she gave amounts ranging from $200 to $1,000. This is certainly not an inofficious testament. The testatrix does not go outside the circle of her nearest relatives to select the objects of her bounty. The chief beneficiaries were persons to whom she was tenderly attached, and for the best of reasons: they were useful, dutiful, and affectionate to her. From their characters and situation they had no doubt acquired considerable influence over Mrs. McClure. But there is no evidence that this influence was exerted for the procurement of a will in their own favor, or that they were even aware of its provisions until after its publication. One witness, indeed, stated that he had heard Mrs. McClure say that S. G. McClellan and Miss McCory had been teasing her about making a will. But it is not unlawful to make suggestions of this nature, nor even to procure a testamentary provision in one's favor by fair persuasion and kind offices. Rogers v. Diamond, 13 Ark. 475; McDaniel v. Crosby, 19 Ark. 551.

As we understand the rule, the fraud or undue influence, which is required to avoid a will, must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property. And the influence must be specially directed towards the object of procuring a will in favor of particular parties. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them, and in confidential relations with them at the time of its execution. Rutherford v. Morris, 77 Ill. 397; 1 Redf. Wills, (3d Ed.) c. 10, § 30, pp. 523, 524. The will was indeed made upon the suggestion of McCulloch. But he was the trusted agent and business manager of Mrs. McClure, and was therefore entitled to give advice on such a subject. The will, moreover, contains no provision in his favor, although he is named as executor; and there is no reason to believe that he sought to influence her for or against any of her relations.

Upon the subject of testamentary capacity, the testimony is in hopeless conflict. Even the attesting witnesses to the will, and the physicians who attended upon Mrs. McClure during the latter part of her life, are diametrically opposed to each other on this point. The witnesses for the proponent declare that Mrs. McClure read the newspapers, conversed intelligently, and made contracts; and they could discover no indications of mental derangement until a week or two before her death, which took place some two and a half months after the will was executed. On the other hand, the evidence adduced by the contestants tended to show progressive decay in her mental faculties for two or three years before her death; that some of her brothers had died imbeciles, and she had the same wooden expression, staring into space; that she was childish, forgetful, and incapable, from age and infirmities of transacting any serious business. In this conflict the verdict cannot be disturbed for want of evidence. No doubt, the vigor...