Orr v. Love

• Citation: 283 S.W.2d 667,225 Ark. 505
• Decision Date: 07 November 1955
• Docket Number: No. 5-718,5-718
• Parties: Nellie ORR, et al., Appellants, v. Elaine LOVE, et al., Appellees.
• Court: Supreme Court of Arkansas

Page 667

283 S.W.2d 667

225 Ark. 505

Nellie ORR, et al., Appellants, v. Elaine LOVE, et al., Appellees.

No. 5-718.

Supreme Court of Arkansas.

Nov. 7, 1955.

Rehearing Denied Dec. 5, 1955.

Claude M. Williams and Duty & Duty, Rogers, Bernal Seamster, Little Rock, for appellants.

Fairchild, Foley & Sammond, Milwaukee, Wis., Rose, Meek, House, Barron & Nash, Little Rock, Vernon W. Thompson, Atty. Gen., of Wisconsin, Roy G. Tulane, Asst. Atty. Gen., of Wisconsin, for appellees.

ROBINSON, Justice.

This is a contest of a will of Alice A. Love executed on June 27, 1953, and a proceeding to establish the validity of a will executed by her on May 30, 1953. Appellants, Nellie Orr and other collateral heirs of Dr. George M. Love and Alice Love, are the contestants of the June 27 will and the proponents of the May 30 will; Elaine Love and the Board of Regents of the University of Wisconsin are the proponents of the June 27 will. Alice Love wrote five purported wills. The first was written in 1949, the second on May 30, 1953, the third on June 1, 1953, the fourth on June 24, 1953, and the fifth and last was executed on June 27, 1953. The last alleged will of June 27 was sustained by the Probate Court. In contesting this will, appellants claim that it was the result of undue influence and fraud, and ask that the May 30 will be probated instead.

George M. Love was a doctor and lived with his wife Alice in Rogers, Arkansas for many years. They had one child, George R. Love, who was also a doctor. In 1923, soon after the son's graduation from medical school, he married and located in Oconomowoc, Wisconsin, a small city near Milwaukee. George M. Love had made a will years before his death leaving all of his estate, with the exception of $500 for his son, to his wife Alice. In 1949, acting on the advice of her son, George R. Love, Alice Love made a will leaving all of her property to her son, or to his estate in the event he predeceased her.

On May 26, 1953, the son, George R. Love, died leaving an estate valued at more than half a million dollars. Four days later, the father, George M. Love who lived in Rogers, died leaving an estate valued at about $125,000. The son, George R. Love, left a will setting up two trusts, one known as the Elaine Love Trust and the other known as the George R. Love Trust. His widow Elaine Love, the appellee herein, is the principal beneficiary. In addition to her rights under the Elaine Love Trust, she is to receive the income from the George R. Love Trust for life. After Elaine Love's death, the income from the George R. Love Trust goes to her parents for their lifetime; the corpus of the George R. Love Trust then goes to the Board of Regents of the University of Wisconsin to be used to assist athletically minded students in obtaining an education. Elaine Love and Mr. Lynford Lardner, attorney for George R. Love who is now representing his widow, were named as trustees. Under the terms of the will, the trustees have almost unlimited powers; they may move the situs of the trust to any State or foreign country, and are not required to account to anyone for their actions. The George R. Love will setting up these two trusts is very long and involved and consists of over fourteen typewritten pages. For a thorough understanding of its terms considerable study is required.

Mr. Claude Williams, an attorney in Rogers, Arkansas, had represented Mrs. Alice Love for many years. His secretary, Mrs. Jeffa Scott, had looked after business matters for Alice Love and prepared her income tax statements for several years. Elaine Love knew of the close professional relationship between Mr. Williams and Mrs. Alice Love. When George R. Love died on May 26, 1953, Elaine thought it better to let Mr. Williams notify Alice of her son's death; Elaine therefore had her attorney, Mr. Lardner, telephone Mr. Williams. Four days later on May 30, at about 3 o'clock in the morning, Alice Love's husband, Dr. George M. Love, died; Elaine was promptly informed of his death. About 10 o'clock that same morning, Alice Love went with Jeffa Scott to Claude Williams' office where she made a new will leaving the bulk of her estate to her two sisters and to the brother and sister of her late husband. She also left $500 to the Rogers Public Library, $500 to Cecil Miller, $100 to Elaine Love, as well as other bequests of $100 each to several nieces and nephews. After Mrs. Love signed this will, she left it in Mr. Williams' office.

Elaine Love arrived at Joplin, Missouri by plane on May 31 and was met there by Cecil Miller, longtime friend of Dr. Love and his wife Alice. During the trip from Joplin to Rogers by automobile, Miller told Elaine about Alice Love having made a new will. Elaine was extremely displeased upon learning this. She did not go directly to the Love home in Rogers but stopped at a hotel, obtained a room and while there put in a long distance call to Mr. Lardner, her attorney in Milwaukee, to discuss with him the fact that Mrs. Love had made another will. She apparently discussed with Lardner the advisability of having Mrs. Alice Love execute still another will and also talked about obtaining a power of attorney from Alice. Following this conversation Elaine went to the Love home, and the next morning took Alice Love to the office of Mr. Williams where Alice obtained the will she had executed two days before. Although there is some confusion in the testimony as to just exactly what happened next, it appears that Alice Love took the will and put it in her lock box at the bank. Elaine then took Alice to Bentonville to the office of Mr. Vol Lindsey, an attorney of that city. There Alice made a new will leaving her entire estate to Elaine. This will was executed on June 1, only two days after Alice had executed the will drawn by Mr. Williams at her request. Mr. Lindsey was not told about the May 30 will.

In the meantime, Elaine had again called Mr. Lardner and had instructed him to prepare a power of attorney. Mr. Lardner drafted a general power of attorney and sent it to Elaine in Rogers. This document gave Elaine authority to do anything she might wish with any and all property belonging to Alice, and it was signed by Alice on June 3. On the same day, Alice also changed her bank account, consisting of about $12,000, from a personal account to a joint one with Elaine. On June 4, Elaine returned to Milwaukee. On the 10th day of June she again came to Rogers and returned to Milwaukee on the 13th. A few days later, Alice wrote to Elaine requesting that she return the power of attorney. In the meantime, Alice destroyed the June 1 will which she had executed in Bentonville leaving everything to Elaine, and changed her bank account back into her own name only. On June 24, Alice wrote what purports to be her fourth will, in which she made $1,000 bequests to each of her sisters and to the brother and sister of her late husband, and left Elaine corporate stock apparently valued at about $47,000. This June 24 will then provides: 'If any of estate is left then it shall be used to promote my sons education proposition.' As a matter of fact, there would have been under the terms of this document a residuary estate valued at more than $50,000 after the special bequests. Elaine says that on June 25 Alice called her and asked her to have Mr. Lardner prepare another will. Elaine did this and left Milwaukee on the 27th day of June, taking the new will with her to Rogers. On that same day, while Elaine was present, Alice signed the will. This was the fifth purported will of Alice Love. On June 29, while Elaine was still in Rogers, Alice's personal bank account of about $12,000 was again made into a joint one with Elaine.

This will of June 27 left the entire estate of Alice Love to the George R. Love Trust. Since Elaine receives the income from this trust for life, she will benefit by approximately $48,000 under the terms of Alice Love's June 27 will. Elaine was also named executrix to serve without bond.

After Alice signed the June 27 will, Elaine stayed in Rogers for about a week and then returned to Milwaukee. On September 12, Mrs. Alice Love's health had become such that it was necessary to move her to a hospital. Elaine returned to Rogers on September 22 and stayed at the Love home until October 10. Mrs. Alice Love died on October 16. The June 27 will was offered for probate and this action contesting it was filed.

We now mention some of the rules of law by which we must be guided in reaching a conclusion as to the validity of the will. In a leading case this court said: '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.' McCulloch v. Campbell, 49 Ark. 367, 5 S.W. 590, 591. The burden of proving undue influence is on the contestants. Werbe v. Holt, 218 Ark. 476, 237 S.W.2d 478; Shippen v. Shippen, 213 Ark. 517, 211 S.W.2d 433; McWilliams v. Neill, 202 Ark. 1087, 155 S.W.2d 344; Smith v. Boswell, 93 Ark. 66, 124 S.W. 264. But, when it is shown that the will is drawn or procured by a beneficiary, there is a presumption of undue influence. Page on Wills, Vol. 2, p. 636. Where the beneficiary plans the will and causes it to be executed, the same rule applies as where he drew the will. Ibid., p. 638. This court has said: 'When a will is written, or proved to be written by a...