Peevy v. Ritcheson
| Decision Date | 20 June 1977 |
| Docket Number | No. 76-415,76-415 |
| Citation | 552 S.W.2d 218,261 Ark. 841 |
| Parties | Paul D. PEEVY, Administrator, et al., Appellants, v. Frances RITCHESON and Gary Kennan, Administrator, Appellees. |
| Court | Arkansas Supreme Court |
Estes, Estes & Estes by Peter G. Estes, Jr. and Robert R. Estes, Fayetteville, for appellants.
W. Gary Kennan, Bentonville, for appellees.
C. R. Ritcheson died on or about July 19, 1971, in Benton County, Arkansas. This is an appeal from an order the probate court refusing to admit to probate a handwritten instrument 1 as the holographic will of the decedent.
It was agreed by the parties inter alia that Ritcheson possessed the necessary testamentary capacity to make a will and that he had intended for some time to make a will; that the instrument in question disposed of Ritcheson's entire property; that the purported will is not tainted with fraud, constraint or undue influence; and that the deceased is survived by his widow.
In January, 1971, Ritcheson asked his close friend, Paul D. Peevy, to help him prepare his will, but Peevy declined and suggested that Ritcheson see a lawyer. Ritcheson attempted to do so, but was unsuccessful. At one time the decedent stated he would make his own will, but evidently did not since several times thereafter he remarked he needed to see about getting his will drawn. In March, 1971, Ritcheson was involved in an automobile accident and remained in poor health thereafter.
Approximately one week before his death Ritcheson came by Peevy's office complaining of considerable pain and asked Peevy to call his attorney for him so that he could have his will made. Ritcheson then made some notes pertaining to his proposed will on a yellow legal tablet, preparatory to going to the attorney's office. Peevy telephoned Ritcheson's attorney and was told the attorney was not in his office. Ritcheson then placed the legal tablet paper in his pocket and departed.
On July 19, 1971, Peevy, together with others, went to Ritcheson's home and found him dead. Lying on Ritcheson's dining room table was a brief case in which was found the handwritten instrument offered for probate. The yellow legal tablet sheet was never found.
On the trial court's refusal to admit the instrument to probate this appeal was brought.
For reversal appellants first contend the court erred as a matter of law in making findings of fact contrary to and in conflict with the agreed statement of fact, which stated that the instrument in question disposed of all of decedent's property.
In addition to the agreed statement of fact, at trial the parties stipulated:
It is stipulated between the parties that at the time of death of Mr. C. R. Ritcheson he owned three separate parcels of real estate in Benton County, Arkansas. A home in Rogers, Arkansas; approximately 19 acres in the vicinity of Pea Ridge, Arkansas; and approximately 39 acres in the vicinity of Avoca, Arkansas, all being in Benton County, Arkansas. That he had some interest in some real estate correction, he had a mineral lease on some property situated in Illinois, Hamilton County, Illinois.
No objection was made to the stipulation, and no request made that the court consider the matter only on the aforesaid agreed statement of fact.
In addition to the stipulation the inventory of the estate of Ritcheson reflects the appraisement, sale and confirmation of sale of the above parcels of realty. The probate judge could not close his eyes to these facts; consequently, no error occurred when the court stated: "In this case there is not a full and complete disposal of all of the estate."
Appellants' other contention is that the court erred in refusing to admit the questioned document to probate.
It is imperative that a holographic document asserted as a will should clearly show intention to make a will before such . . . (T)he intention to make a will, and the existence of this intention is not a matter of inference, but must be expressed so that no mistake be made as to the existence of that intention. Stark v. Stark, 201 Ark. 133, 143 S.W.2d 875 (1940).
instrument is declared by the courts to be a will. Smith v. Nelson, 227 Ark. 512, 299 S.W.2d 645 (1957).
Appellants rely on the case of Smith et al v. MacDonald, Spec. Admr. et al, 252 Ark. 931, 481 S.W.2d 741 (1972). However, we find the facts therein clearly distinguishable from the case at bar. In Smith v. MacDonald the testator executed a holographic will completely disposing of all his property, and his signature appeared in his own handwriting in two places on the face of the instrument in the following format:
Page 1 Will of Julian Leland Rutherford
I Julian Leland Rutherford of Monroe County, Arkansas, being over the age of twenty one years and of sound and disposing mind and memory, do hereby make, publish and declare this to be my last will and testament, hereby revoking all wills here-to-fore made by me at any time.
(Thereafter specific directions follow.)
His signature also was on the envelope in which the instrument was sealed. The testator delivered the envelope to his attorney and told him it contained his will. Thus the probate judge correctly admitted the will to probate as testator's last will and testament even though testator's signature did not appear at the end of the instrument.
These facts are not present in this case. The decedent never stated it was his will and he did not mention his wife nor dispose of all of his property.
The facts in the instant case are similar to those in Nelson v. Texarkana Hist. Soc. & Museum, 257 Ark. 394, 516 S.W.2d 882 (1974). In Nelson we held that if the testator's name is written in or upon some part of the will other than at the end thereof, to be a valid signature it must be shown that the testator wrote his name where he did with the intention of authenticating or executing the instrument as his will.
In Nelson the document was styled "Will December 18th 1973," and decedent's name appeared in the second paragraph of the holographic instrument leaving certain property in memory of decedent's mother, father and decedent. Two individuals were told the document was a will and, at the request of the writer, signed as witnesses to the instrument. Thus Nelson presents a much stronger case for probate than the case at bar. Nevertheless we held that decedent's name was not written with the intent it constitute a signature, but of creating a memorial and did not meet the requirements of Ark.Stat.Ann. § 60-404 (Repl.1971). The statute reads as follows:
Where the entire body of the will and the signature thereto shall be written in the proper handwriting of the testator, such will may be established by the evidence of at least three (3) credible disinterested witnesses to the handwriting and signature of the testator, notwithstanding there may be no attesting witnesses to such will.
Ritcheson's name appears only once in the document, that being where the deceased makes the following request:
. . . I...
To continue reading
Request your trial
-
Marcum v. Gibson (In re Estate of Bond)
...intent when creating it because it was undated and contained blanks in the attestation clause. They cite Peevy v. Ritcheson , 261 Ark. 841, 552 S.W.2d 218 (1977), for the proposition that a missing date demonstrates missing testamentary intent,1 and they argue that several other states that......
- Booth v. Smith