Sanger v. McDonald

• Decision Date: 22 April 1907
• Parties: SANGER et al. v. McDONALD et al.
• Court: Arkansas Supreme Court

102 S.W. 690

SANGER et al. v. McDONALD et al.

Supreme Court of Arkansas.

April 22, 1907.

Appeal from Circuit Court, Howard County; Jas. S. Steel, Judge.

Will contest by Mollie E. McDonald and another against Will Sanger and others, From a decree in favor of contestants, proponents appeal. Reversed and remanded.

Will Sanger, Laura Sanger, Blanche Withrow, Libbie Sanger, and Geo. Sanger were proponents of the will of Mrs. Mary J. Johnson. Mollie E. McDonald and Lula Wolff contested the will. They alleged that the testatrix died seised of a large estate of real and personal property situated in Arkansas and Texas, and of the value of $41,000. That the paper purporting to be the last will of the testatrix does not provide for the children of the deceased, according to the natural love and inclination of a mother, and, without any just cause shown or known, purports to give all her personal property and all but a very small portion of her real estate to the proponents, except Geo. Sanger, leaving Geo. Sanger and contestants unprovided for. Among other allegations are these: "That said paper is not the will of Mary J. Johnson deceased, but was procured by Will Sanger through fraud practiced upon Mollie E. McDonald and Lula Wolff." "That the will if subscribed by the testatrix, was procured by fraud and undue influence exercised over her before and at the time the same was subscribed, and that said influence was used for the sole purpose of the beneficiaries under said last will and testament, as shown therein, and against the interest of the other heirs at law of the said decedent, the contestants herein." The probate court admitted the will to probate, and contestants appealed. In the circuit court the cause was submitted to the jury upon the issue as to whether or not the paper admitted to probate by the judgment of the probate court was the will of Mary J. Johnson. Appellee contended that it was not her will, because of fraud upon and undue influence over her by her son Will Sanger, by which she was induced to execute the purported will. Mrs. Mary J. Johnson, at the time of her death, owned property which may be listed, and conservatively valued, under the evidence, as follows:

                The one-fifth interest
                 in Stifft corner, Little
                 Rock ................. $6,000 00
                Less mortgage..........  2,250 00
                                        _________  $ 3,750 00
                Six (6) lots, in block 281, Little
                 Rock ............................ $ 4,800 00
                Centennial lots, Little Rock .....   2,000 00
                Texas lands.......................   3,000 00
                Nashville homestead...............   1,500 00
                Faulkner county 80 acres..........     350 00
                Personalty........................   1,000 00
                                                    _________
                                                   $16,400 00
                

There were some other tracts in Pulaski county besides the lots above mentioned, but the number of acres was not ascertained from the proof.

The proponents and contestants were children of Mrs. Johnson. The will propounded gave to contestants, each, a lot and a half (75 feet) in block 281 in the city of Little Rock. Each tract given contestants was worth about $1,200. She gave her son Geo. Sanger $10; but he is not contesting. She gave her three then single daughters the home place in Nashville, valued at $1,500, and devised the residue of her estate real and personal to these three daughters and her son Will.

The circumstances of the execution of the "alleged will" which we will hereafter call the "will," are substantially as follows: Mrs. Johnson was afflicted with cancer, and was on her deathbed. She lived in Nashville, Ark. Her son Will and three unmarried daughters were living with her. Will had lived with his mother practically all his life, till her death. For 15 years he had assisted her, to some extent, in looking after her property. The contestants were married, and living away from their mother's home. They had been sent for, and were at her home when the will was executed. According to their testimony, they did not know that the will was to be executed until their brother called them into a room, apart from the room where their mother was, and said to them: "As mother is growing weaker, I thought best to make her will, and as everything she has, even to the home place, is heavily incumbered, I thought best to give you a thousand dollars apiece." Mrs. McDonald protested, and said she would go in and tell her mamma what her brother "was trying to do." Whereupon Will said: "No, before I would have you go in and approach mamma on the subject, I would take a razor and cut my right arm off." Mrs. McDonald asked her brother if their mother still owned the lots in Little Rock, and he then said: "Yes, that was the only property mother had that was not heavily incumbered." Mrs. McDonald said: "Instead of giving me a thousand dollars, give me a hundred feet off of block 281 in Little Rock." Will replied that before he could do this he would have to go and consult Dr. Corn, the attending physician. Will then "took his leave and came back into the room and said: "I have just had a conversation with Dr. Corn, and he advises me not to give more than 75 feet, as this is valuable property." Contestants then say that Will made a memorandum on some paper, and Mr. Rodgers, an attorney, was sent for. When Mr. Rodgers came, Will handed him the data he had prepared, and from this Mr. Rodgers wrote the will. Mrs. McDonald, who was present when the will was signed, said that: "Mother was lying down in bed when the will was executed. Willie handed her glasses, and she read two or three lines, and got so weak she could not speak, and she handed it back to Mr. Rodgers, who finished reading it. Mother did not sign any other paper that day. I heard the will read when it was executed. Mother did not ask me whether I was satisfied with the will after it was read. She did not make any remark of any kind while the will was being executed. She handed the will for Mr. Rodgers to finish reading it, because she got so weak she could not read any more. I did not at the time make any objections to it."

The contestants testify that their mother had promised them some time before that they should have their share of the estate. They thought, on account of the representations made by their brother as to the incumbrances on the estate, that they were getting their share. Their brother represented that the 75 feet given them in the will was more than their share. These lots were worth about $1,200 each.

Will Sanger gave the following testimony concerning the preparation and execution of the will: "I was at home the day mother's will was executed. I had a conversation with mother that morning before the will was prepared in reference to the execution of the will. Mother requested me to go see Mrs. McDonald and Mrs. Wolff and ascertain what part of the property they expected. She told me that she had told Dr. Corn to bring Mr. Rodgers down, that she was going to make her will, that she wasn't going to put it off any longer, and requested me to go and ask Mollie and Lula what they were expecting. I went out and told them that mamma was going to make her will; that she had sent Dr. Corn to bring Mr. Rodgers down, and she wanted to know what part of the property they were expecting." Witness then goes into detail as to the conversation that took place between himself and his sisters, the contestants, in which he says that he fully explained to them the situation, giving them correct and accurate information concerning the various tracts of land owned by his mother, and the value thereof, and the incumbrances thereon. He contradicts positively and sharply the testimony of his sisters, and, according to his testimony, said that his sister Mrs. McDonald said that she would be satisfied with a lot and a half off of block 281 in Little Rock, and that his sister Mrs. Wolff did not want anything, but that he insisted that she have something. His testimony then continues as follows: "I then went and told mother that they wanted a lot and a half off of block 281, and that they would be satisfied with this, and she said she would give it to them. I went and told them that mamma had agreed to give them a lot and a half each, and that they could choose between themselves which they would respectively have. They drew straws for the choice, and it fell to Lula. At Lula's request I selected the east lot and a half for her. I then went and told mamma the result. She said she wanted the girls at home to have the home place, and...