Phillips v. Jones

• Decision Date: 24 June 1929
• Docket Number: (No. 55.)
• Citation: 18 S.W.2d 352
• Parties: PHILLIPS et al. v. JONES et al.
• Court: Arkansas Supreme Court

18 S.W.2d 352

PHILLIPS et al. v. JONES et al.

(No. 55.)

Supreme Court of Arkansas.

June 24, 1929.

Appeal from Circuit Court, Johnson County; J. T. Bullock, Judge.

Suit by Robert Jones and others contesting the last will and testament of Henry W. Jones, deceased, opposed by Nancy A. Phillips and others. From a judgment for the contestants, proponents appeal. Affirmed.

J. J. Montgomery and Jesse Reynolds, both of Clarksville, for appellants.

G. O. Patterson and Hugh Basham, both of Clarksville, A. S. Hays, of Russellville, and W. L. Cunningham, of Arkansas City, Kan., for appellees.

BUTLER, J.

This suit involves the contest of the last will and testament of Henry W. Jones, deceased, who left surviving him three children by a former marriage and a widow who had been married before her marriage to Jones, and who, at that time, was the mother of a number of children. Jones executed his will in 1916, by which he gave to his wife all of his property for her life and at her death to her children, the stepchildren of Jones, and his own children were bequeathed the sum of $5 each. The will was contested by the deceased's children, Robert Jones, Charlie Jones, and Rhoda Burkett, on the ground of lack of testamentary capacity and undue influence. There were no children born to the testator by his second marriage.

In the circuit court the case was submitted to the judge sitting as a jury, who, after having heard the testimony, found against the will, and it is to review his decision that this appeal has been prosecuted.

The judge, in trying the case, necessarily considered the questions of testamentary capacity and undue influence together, and this court is concluded by his finding, if there was any substantial evidence adduced which would tend to establish and sustain his finding and judgment. In determining the sufficiency of the evidence, this court must give to the evidence heard by the court tending to establish the correctness of his finding its strongest probative force and value. This rule is so well settled that we deem it unnecessary to quote at any length from the authorities sustaining this view. See Stotts v. State, 170 Ark. 193, 279 S. W. 364; Missouri Pac. R. Co. v. Barry, 172 Ark. 729, 290 S. W. 942; Chaney v. Mo. Pac. R. Co., 167 Ark. 172, 267 S. W. 564.

As we have said, the questions of testamentary capacity and undue influence are so interwoven in any case where these questions are raised that the court necessarily considers them together (St. Joseph's Convent v. Garner, 66 Ark. 623, 53 S. W. 298), for in one case where the mind of the testator is strong and alert the facts constituting the undue influence would be required to be far stronger in their tendency to influence the mind unduly than in another where the mind of the testator was impaired either by some inherent defect or by the consequences of disease or advancing age. It is clear that feeble intellect will not be of itself sufficient to establish lack of testamentary capacity, for that condition must be so great as to render the testator incapable of appreciating the nature and consequences of his act; but this feebleness may be inferred when from the facts in proof it is apparent that he was incapable of appreciating the deserts and relations of those whom he excludes from participating in his estate, although he might have had the ability to retain in memory, without prompting, the extent and condition of his property, and to comprehend to whom he was giving it. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Mason v. Bowen, 122 Ark. 407, 183 S. W. 973, Ann. Cas. 1917D, 713.

The facts constituting undue influence largely depend upon the condition of the mind of the person alleged to have been influenced. It has been said in the case of Kelly's Heirs v. McGuire, 15 Ark. 555, that, if one is of such great weakness of mind as to be unable to resist importunity, and his act is not that of a judgment deliberately exercised, but the result of the control of a stronger mind by any means or artifice, cunning, or fraud, that act is void.

The court, in discussing what would amount to undue influence, associates the state of mind with the causes operating upon it to induce the commission of an act. In the case of Tobin v. Jenkins, 29 Ark. 157, where the question before the court was whether or not the testator was of disposing mind and memory to make the will, and, if he was, was he also at the same time free to act, this language was used: "Free agency and capacity to contract, are each indispensably necessary to make a valid contract, or execute a valid will. The lack of mind comprehends both, because without mind there can be no free agency; but if there is mind it must be free to act, and if restrained unduly to the extent that free agency is destroyed, the act is void. This incapacity, or undue restraint, must exist at the time the act is done; if capacity and free agency exist then, the act is valid, irrespective of the state of mind or degree of restraint, whether before or after that time. But in order to determine the capacity and its free action at the time the will is made, a wider 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 the mind, and the extent and force of the restraint at the time the will was executed. And as regards undue restraints, it may be proper to remark that it is not necessary that the mind should act under influences at the time brought to bear, or then employed, but they may be such as have at a previous time been so fixed and impressed as to retain their controlling influence at the time the act is done. Nor is such restraint necessary to be effected by force or intimidation; for it has been held, upon authority, that if the mind acts by force of long training to submission, so that the will of another is adopted for its own, and without reflection, the party thus influenced is incompetent to contract. * * * `There is another ground which, though not so distinct as actual force, nor so easy to be proved, yet if it should be made out, would certainly destroy the will, and this is, if a dominion was acquired over a mind of sufficient sanity for general purposes, and of sufficient soundness and discretion to regulate his affairs in general; yet if such a dominion or influence were acquired over him as to prevent the exercise of such discretion, it would be equally inconsistent with the idea of a disposing...