Morris v. Collins

• Citation: 191 S.W. 963,127 Ark. 68
• Decision Date: 22 January 1917
• Docket Number: 109
• Parties: MORRIS v. COLLINS
• Court: Supreme Court of Arkansas

191 S.W. 963

127 Ark. 68

MORRIS v. COLLINS

No. 109

Supreme Court of Arkansas

January 22, 1917

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

STATEMENT BY THE COURT.

Elmyra Gatlin, an aged negress, on March 12, 1910, executed her will, in which she gave to her two nieces, Myrohn Morris and Sarah Pyburn, and a nephew, Frank Collins, the sum of $ 50.00 each, and her household goods to be divided equally between them. She provided for the payment of her debts and funeral expenses.

The third clause of the will is as follows: "I give bequeath and devise all the residue of my estate to W. N Morris, of Keo, Ark." The fourth clause reads: "I appoint W. N. Morris executor of this my last will."

At the time the will was executed she owned forty acres of land and two head of horses. Some months later she borrowed of the Colonial Mortgage Company the sum of $ 500.00 and executed a mortgage on the land to secure the same. She turned the horses and a part of the money over to appellant. About three years after executing the will Elmyra Gatlin died. The appellant filed the will for probate, and appellees contested the will, charging that the testatrix did not have sufficient mental capacity to make the same, and that appellant exercised undue influence over her.

The will was admitted to probate, and on appeal to the circuit court the issues as to whether or not the testatrix had mental capacity to make the will, and as to whether appellant exercised undue influence over her in causing the will to be executed, were submitted to the jury, and the jury found against the will.

Judgment was rendered declaring the will void, and appellant seeks by this appeal to reverse that judgment.

Judgment affirmed.

Miles & Wade, for appellant.

1. There is no evidence to support the verdict. (1) The will is not an unnatural one; (2) it was not procured by undue influence; (3) the testatrix was sane; (4) the relations existing make the will a natural one. The verdict should have been set aside. 49 Ark. 367; 87 Id. 148; 93 Id. 66; 94 Id. 176. The burden was on appellees to prove lack of testamentary capacity. They failed. 40 Cyc. 1011-12. Evidence of sanity is abundant.

2. It was error to admit statements of testatrix that she wanted Frank Collins to have part of her estate. 60 Ark. 301; 40 Cyc. 1312, note 12.

3. The court erred in its instructions. 40 Cyc. 1007; 38 Mich. 238; 230 Ill. 572; 227 Id. 183; 132 Id. 385; 75 F. 480; 153 Mo. 223; 157 Cal. 301; 81 Col. 167; 99 Ark. 45; 99 Id. 45; 110 Id. 354; 100 Id 316; 100 Id. 316; 88 Id. 7; 93 Id. 548; 49 Id. 448. There was no sufficient evidence of insanity, undue influence, fraud, etc.

Cases supra. They do not declare the law as to testamentary capacity, influence, dominion, mental faculties, discretion, mental ability, undue persuasion or advice or entreaty, fraud, artifice, etc. Supra. The appellees' instructions are fatally defective; they invade the province of the jury; submit foreign issues and authorize the jury to find against the will, if any under influence "by any means" is shown, etc.

W. C. Adamson, for appellees.

1. The evidence is sufficient. The will is an unnatural one. There was undue influence. The testatrix was not of sound mind. She lacked mental capacity. 29 Ark. 156.

2. No incompetent testimony was admitted. Her declarations were admissible. 74 Ark. 212.

3. There is no error in the instructions. 19 Ark. 556; 40 Cyc. 1153; 29 Ark. 156; 40 Cyc. 1164; 28 Col. 167; 72 Wisc. 22; 72 Md. 300; 153 Mo. 223. Undue influence is a species of fraud. Reading all the instructions together there is no error. 93 Ark. 590; Ib. 564. The case on the whole was properly submitted to the jury and the verdict should not be disturbed.

OPINION

WOOD, J., (after stating the facts).

Appellant contends that the evidence was not sufficient to sustain the verdict.

One of the witnesses, a brother-in-law to the testatrix, and who lived in the same neighborhood, and who had known her for many years, testified in part as follows: "I have noticed her very frequently about four or five years before she died. Why, she would have peculiar ways. She would be talking to herself, and sometimes would be sitting while she was in your company talking, and she would be sitting with her head off from her like she had done forgotten there was anybody in the house but herself, and be wringing her hands and going on like that, and sometimes she would turn around and say: 'Where is my baby?' She would have her pipe in her mouth and ask for her pipe." The witness further detailed, at some length, the peculiarities of Elmyra Gatlin. He stated that at one time she went to the cow pump to milk, and went to open the gate and put her hand up on the post and a pain struck her in the hand and she lost the use of her hand. She said that something that they put on the post told her that she had a hoodoo, and sometime after that she said that there was something put in the back of her chimney, and that consequently she suffered a great deal from that. She stated that she had gone to Little Rock and found a lady who understood such things and had carried her down to her home and that the lady cut it right out of the back of her chimney. She stated that she suffered awful misery in her head continuously, and her back was apparently broken in two; that she suffered awful with it on account of the hoodoo. She was very nervous and excitable. She would be talking and all of a sudden break off and go to crying.

Witness further stated that she would be sitting down and someone would speak and she would jump up and say to them, "What are you doing making all that fuss?" She seemed to be frightened over the least little noise.

Another witness, a sister of the testatrix, stated that during the last few years of her sister's life she seemed like she was losing her mind. She would just get down on her knees and groan about her head. She would put her hands on her head and groan, and witness would sit in the room all night with her. She stated that the doctor said that she was going into Bright's disease; had caught it from Sylvia, her sister, who died of Bright's disease. She would complain about suffering a great deal with her back and head. She stated that she suffered so bad with her mind that she had no mind. At one time witness had a conversation with her when she was going on so, saying that she was crazy. Witness told her that she had land and stock and was doing better than witness, whereupon the testatrix replied, "Sister, you don't know what I have gone through with at home. Of course my husband, he's gone, and Mr. Morris, he cuts down all my fruit trees and takes them up." Witness asked her if she was afraid to tell it, and she replied: "Yes, he come down here, and I am all alone by myself, and they killed a man and his wife at my place and that makes me scared all the time." And witness asked her why, and she said, "You don't know what I go through with. Mr. Morris bothers me so." She told witness that Mr. Morris scared her.

Another witness stated that he had "seen her act sort of frenzy mind--waiver in her talking," and heard her say the "niggers were trying to work her out of her property." Had seen her cry, and said she didn't have a child to cry for bread, and heard her halloo and tell people to get away from her pecan trees where there was no one about the trees.

Another witness stated that at one time the testatrix had complained of the hoodoo and marked the place where they took the hoodoo out of the fireplace. She paid the negro woman, who lived in Little Rock, $ 10.00 for taking it out. She said it affected her stomach. She said she thought some negroes living in one of her houses had done it. That was about six years before her death. This witness stated that testatrix had lost a sister in 1907 and that she "liked to have died" when she lost her sister. She stated that she did not have any more hope. She took her sister's death very hard.

The testimony of appellant and several witnesses, among them the physician who attended the testatrix in her last illness, tended to show that the testatrix had mental capacity to make the will; that she was a negress of unusual intelligence and industry, and managed her own property and made money and saved it.

It is unnecessary to set out in detail all this testimony relating to the mental capacity of the testatrix at the time of the execution of the will. Testimony was introduced on behalf of the appellees tending to show her idiosyncrasies and the condition of her mind and body several years prior to and at the time of the making of the will and until she died.

In Taylor v. McClintock, 87 Ark. 243, 275, 112 S.W. 405, it is said: "Hence, it is that, in order to determine the capacity of the testator's mind and its true action at the time the will is made, a wide range of inquiry is permissible into facts and circumstances, whether before or after the time of making the will, the better to enable the jury to determine the probable state of his mind, and the extent and force of the restraint at the time the will was executed."

In that case we quoted from Tobin v. Jenkins, 29 Ark. 151, as follows: "The contents of the will, the manner in which it was written and executed, the nature and extent of the testator's estate, his family and connections, their condition and relative situation to him, the terms upon which he stood with them, the claims of particular individuals, the situation of the testator himself and the circumstances under which the will was made, are all proper to be shown to the jury, and often afford important evidence in the decision of the question of the testator's capacity to make the will."

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