OPINION
MCHANEY, J.
In his
lifetime, and on the 6th day of June, 1924, Carl Rogers
executed the following typewritten instrument as and for his
last will and testament:
"Missouri
Pacific Railroad Company.
"I
Carl Rogers, of the city of Arkadelphia, county of Clark,
State of Arkansas, being of sound mind, memory, and
understanding, do make and declare the following as my last
will and testament, that is to say:
"(1) I hereby revoke all wills, codicils, or
testamentary instruments by me at any time heretofore made.
(2) I direct that my funeral expenses and just debts be paid
as soon after my death as may be practicable. (3) I give and
bequeath to my brother, Tracy Rogers, all my earthly
possessions at my death, he being made administrator. (4) My
last will is there be no division or deviation from this
testament.
"In
witness whereof I have hereunto set my hand and seal at the
Merchants' & Planters' Bank of Arkadelphia, Arkansas,
this sixth day of June, in the year one thousand nine hundred
and twenty-four.
(Signed)
Carl Rogers.
"Witness
R. J. Dougan."
Thereafter,
on September 15, 1926, he executed the following instrument
as a supplement or codicil to the foregoing typewritten will,
same being entirely in his own handwriting:
"Arkadelphia,
Ark., 9-15-26.
"This
document will serve as a supplement to my last will and
testament.
"It
is my will that Sam Rogers (brother) shall occupy building on
Seventh Street, which he now occupies, as long as he lives,
with the following provisions, if Tracy Rogers (brother), the
lawful owner of the building, continues to make his home with
Sam Rogers. (2) If any difference arises between my brothers
above mentioned, said Sam Rogers shall pay Tracy Rogers $ 15
per month rent, after Tracy Rogers has removed from the home
of Sam Rogers.
"It
is further willed that Sam Rogers have my shotgun, and my
sister, Mrs. Agricola, my diamond pin.
"I
herewith will one dollar ($ 1) to each of my brothers,
namely, W. V. Rogers, S. B. Rogers, J. D. Rogers, Ben Rogers,
also one dollar ($ 1) to each of my sisters, Mrs. L. E.
Agricola and Mrs. Ruth Yarbrough.
"All
my debts and funeral expenses shall be paid before any final
settlement made with benefactor.
(Signed)
"Carl Rogers."
"9-15-26."
Carl Rogers, on the 27th day of November, 1926,
died, and thereafter, on the 10th day of December, 1926, said
two instruments above copied were filed in the probate court
of Clark County for probate, and on the 19th of January,
1927, the probate court made an order admitting them to
probate and declaring them to constitute the last will and
testament of the said Carl Rogers. An appeal was prayed and
prosecuted by the appellees, as contestants, to the circuit
court, where the case was submitted to the court on the
following agreed statement of facts:
"The
two instruments filed for probate and the statement of facts
below and in the four following sheets constituted the agreed
statement of facts, on which the cause is submitted. Carl
Rogers (deceased) was born and reared and lived all of his
life at Arkadelphia, and died on the 27th day of November
1926, at the age of thirty-eight years. Seven brothers and
sisters and one niece (daughter of brother) survived him.
They are W. V. Rogers, 54 years old; Sam B. Rogers, 47 years
old; Mrs. Ruth Yarborough, 30 years old, and Tracy Rogers,
his beneficiary, 35 years old; and the contestants, Mrs.
Elmer Agricola, 42 years old; Jess Rogers, 45 years old; Ben
Rogers, 33 years old, and Mrs. Jodie Cobb, 26 years old. All
of these brothers and sisters are able-bodied, capable men
and women, and all are in reasonably prosperous
circumstances, except Tracy Rogers, the beneficiary. Tracy
Rogers, at the age of three years, by accident, broke one of
his legs; infection set up, and it became necessary to and it
was amputated by physicians. Due to the injury and amputation
of the one, the other leg became paralyzed, and from that
time to the present he has been unable to walk. For a long
number of years, after his affliction, he could only get
about by crawling on his hands, and using the lower part of
his body. After he reached the age of about fifteen years he
was able to get about some by the use of crutches, and his
condition in that respect has remained and is now the same.
He owned no property, had no income, and has no employment.
"Carl Rogers (deceased) was from infancy
strong, able-bodied and energetic. Until about a year before
his death he was an unusually strong, healthy, robust man,
over six feet in height, and of good personal appearance. He
was three years older than his beneficiary, Tracy Rogers, and
in the infancy of both he began caring for, helping, guarding
and protecting his crippled brother, Tracy, and this care for
Tracy continued until Carl died.
"His
father died when Carl was about 17 years of age, and left his
mother and Tracy and two younger children than he was. The
other children, older, had married. Carl continued to live
with his mother, and, at the age of seventeen, began and
became the principal means of support for the mother and
younger children. This continued until his mother died. On
her deathbed she asked and Carl promised that he would always
take care of and protect Tracy. The other children married
and found homes elsewhere, and Carl continued unmarried in
the care, support and protection of Tracy.
"For
some time before his death Carl owned the brick building
which Sam B. Rogers, his brother, occupies and in which he
runs a barber shop. The agreed amount for rent on this shop
between Carl and Sam was $ 15 per month, and in lieu of
Sam's paying the rent to Carl, there was an agreement
between Carl and Sam that Sam Rogers would furnish board and
room to Tracy Rogers and would accept as pay therefor the $
15 rental for the barber shop. This arrangement had been in
force and had been followed for some time before Carl's
death. This was the only business building that Carl owned.
"Carl
Rogers was a good business man, a good
trader, and saved money. For some years before his death he
had been in the employ of the Missouri Pacific Railroad
Company in various capacities, as clerk, assistant station
agent, and, at the time of his death and for some three or
four years prior thereto, he was cashier for the Missouri
Pacific Railroad Company at its Arkadelphia station, and had
an office in the freight depot, and, in
writing letters and statements, used a typewriter. He had
continued all along through the years to support and care for
and look after the welfare of his brother Tracy, and, for
some time prior to the 6th day of June, 1924, repeatedly
stated to Tracy and to his brothers, W. V. Rogers and Sam B.
Rogers, and to close friends and others, that he intended to
continue to take care of Tracy and that he intended to make a
will so that, in the event of his death, Tracy would have his
property.
"On
the 6th day of June, 1924, Carl Rogers had in his possession
the typewritten instrument which is in evidence here and
offered for probate. Just after the typewritten instrument
had been written he stated to friends and co-employees in the
office with him, that he had made his will, and was giving
all his property to his brother Tracy. He then went with the
instrument to the office of his brother, W. V. Rogers, in
Arkadelphia, showed it to him, and told this brother that he
was going to execute it and place it in a safety box at the
Merchants' & Planters' Bank, so that, in the event of
his death, the will would be there, and Tracy would be taken
care of.
"He
went to the Merchants' & Planters' Bank with the
instrument, and there signed his name to it, with a pen, and
the then cashier of the Merchants' & Planters' Bank & Trust Company, R. J. Dougan, signed it with a pen as a
witness. The signature to this typewritten instrument is in
the handwriting of Carl Rogers (deceased), and the name R. J.
Dougan is signed in the handwriting of R. J. Dougan.
"At
that time and since that time, up to and after the time of
his death, Carl Rogers and his brother Sam B. Rogers
together, used one of the safety lock-boxes in the vault of
the Merchants' & Planters' Bank & Trust Company. Both
kept their valuable papers in...
