Milton v. Jeffers

• Decision Date: 10 July 1922
• Docket Number: 118
• Citation: 243 S.W. 60,154 Ark. 516
• Parties: MILTON v. JEFFERS
• Court: Arkansas Supreme Court

243 S.W. 60

154 Ark. 516

MILTON v. JEFFERS

No. 118

Supreme Court of Arkansas

July 10, 1922

Appeal from Franklin Circuit Court, Ozark District; James Cochran Judge; reversed.

Judgment reversed and cause remanded.

Hill & Fitzhugh, for appellants.

The court erred in not directing a verdict for appellant and in failing to set aside the verdict of the jury as being against the weight of the evidence. 126 Ark. 427. The evidence does not sustain the contention of mental incapacity when measured by the rule laid down in 49 Ark. 367 and repeated in 114 Ark 69. Old age and physical infirmities alone are not sufficient to establish a "partial eclipse of the mind." The circumstances detailed in 66 Ark. 623 made a stronger case of mental incapacity than the present one, yet the will there was not set aside.

There was no testimony whatever of undue influence on the part of appellants over their father, and it was error to submit that issue to the jury. 122 Ark. 407. The undue influence which is required to avoid a will must be directly connected with its execution. There was none shown. 49 Ark. 367; 87 Ark. 148; 94 Ark. 176. Neither courts nor juries can arbitrarily disregard undisputed, unimpeached, disinterested witnesses, but when done it is the duty of this court to set aside the verdict. 101 Ark. 532; 53 Ark. 96; 67 Ark. 511; 80 Ark. 396.

Willard Pendergrass, June P. Clayton and Evans & Evans, for appellees.

Instruction No. 9 given by the court correctly defined senile dementia according to the text-books and cases. Gardner on Wills, sec 43, p. 125; 2 Clevenger's Med. Juris. of Insanity 910. Beaver v. Sprangler, 93 Iowa 576; 61 N.W. 1072; Davis v. Denny, 94 Md. 390; 50 A. 137. See also 145 Ark. 247.

The declarations of the father, both before, at the time of the execution of the will and after, were admissible for the purpose of enabling the jury to pass upon his mental capacity and his susceptibility to undue influence. 122 Ark. 407; 115 Tenn. 73; 5 A. & E. Ann. Cas. 601, 3. L. 8 A. (N. S.) 749 and note, citing a number of cases.

The court did not err in submitting to the jury the question of undue influence. Gardner on Wills, sec. 63, p. 192; 13 S.W. 1098.

Hill & Fitzhugh, for appellant in reply.

Instruction No. 9 was clearly erroneous in that it was an expression of an OPINION on the weight of the evidence. The instruction is practically a copy of a statement in Gardner on Wills, sec. 43, p. 125, but the statement is not sustained by either of the court decisions cited by him. There is no presumption against a will because made by a person of advanced age, and incapacity cannot be inferred merely from an enfeebled condition of mind and body. 3. Witthaus & Becker on Med. Juris, p. 406 and cases cited. 1 Wharton & Stille's Med. Jur. sec . 975.

OPINION

MCCULLOCH, C. J.

Appellants were the proponents of the last will and testament of W. C. Milton, and they have prosecuted an appeal from the judgment of the circuit court of Franklin County sustaining a contest of the will by appellees.

The instrument in controversy was executed by W. C. Milton on January 26, 1918, and he died on June 11, 1920. Appellants are the three sons of the testator, and appellees are his two daughters.

By the terms of the will, the testator gave the whole of his estate to his wife Eliza, and gave the remainder of his real estate at the wife's death to his three sons to the exclusion of the daughters, and gave to all of the children an equal part of the remainder of the personal property after the death of testator's wife.

The testator was the owner, at the time of his death, of a farm, on which he resided, of the value of about $ 12,000, and he left personal property of the aggregate value of about $ 1,200.

The testator's wife died after the execution of the will, and prior to the death of the testator.

Appellees allege that at the time of the date of the will the testator was not of sufficient mental capacity to make a will, by reason of the fact that his mind, on account of age, had been reduced to a state of senile dementia, and also allege that the execution of the will by the testator was induced by coercion and undue influence of the three sons, who were the chief beneficiaries under the will. The issues were joined upon these two allegations, and, as before stated, the verdict and judgment resulted in favor of the contestants.

It is undisputed that the testator was a farmer and was about ninety-two years old at the time of the execution of the will. He had been a strong man, both physically and mentally, all of his life, and it is conceded that much of his physical and mental vigor were preserved up to the time of his death. But the contention of appellees was, at the trial below, that on account of old age his mental vigor had been reduced to the extent that he was incapable of disposing of his property. There was much testimony introduced by appellants to the contrary, tending to show that the testator remained in full and complete possession of his mental faculties up to the time of his death, and that he was capable of executing the testament. The court submitted both of the issues to the jury as to his mental capacity and undue influence. Appellants requested the court to give a peremptory instruction, contending that the evidence was insufficient to submit either of the issues, and they also contend, especially in regard to the issue of undue influence, that there was no evidence to sustain the finding and that the court should not have submitted that issue to the jury. Objections were made to the instruction submitting the issue of undue influence.

Several witnesses introduced by appellees testified that the testator was weak-minded and childish on account of his advanced age, and they gave instances of forgetfulness on his part and of childish acts and conduct. Witnesses also testified to conversations with the testator about the time of the execution of the will, in which he stated that he wanted his children to share equally in his estate. Many witnesses were introduced by appellants, nearly all of them being men of prominence in the community, who had been acquainted with the testator a great many years, and they all testified that he was a man of strong mentality and positive convictions, not easily led away--in other words, that up to the time of his death he was a quiet, determined man with strong convictions, and in complete possession of his mental faculties. We cannot say, however, that there is an entire absence of testimony of a substantial nature tending to show that at the time of the execution of the will the testator did not have sufficient mental capacity to execute the will. Considering his extreme old age and his physical condition, as described by some of the witnesses, together with his forgetfulness in regard to ordinary transactions, and the opinions of those witnesses, given in connection with these circumstances, we think there is enough to warrant the inference that the testament was not the act of one mentally capable of making it.

Our conclusion is, however, that there is absolutely no testimony in the record justifying the submission of undue influence on the part of appellants in procuring the execution of the will. The circumstances concerning the execution of the will are undisputed, and are detailed by L. R. A. Wallace, then a practicing lawyer at Ozark, the county seat of the county wherein the testator resided. Judge Wallace testified that he had been acquainted with the testator for many years, though he had had few business transactions or conversations with him. He testified that in January, 1918, the...