Sanger v. McDonald

CourtSupreme Court of Arkansas
Writing for the CourtHART, J.
Citation112 S.W. 365,87 Ark. 148
PartiesSANGER v. MCDONALD
Decision Date13 July 1908

112 S.W. 365

87 Ark. 148

SANGER
v.
MCDONALD

Supreme Court of Arkansas

July 13, 1908


[112 S.W. 366] [Copyrighted Material Omitted] [112 S.W. 367]

Appeal from Howard Circuit Court; James S. Steel, Judge; reversed.

STATEMENT BY THE COURT.

This is an issue of devisavit vel non from the circuit court of Howard County. The case has been here before, and is reported in 82 Ark. 432 (Sanger v. McDonald). In its opinion then, the court expressly declined to consider any of the numerous assignments of error except that upon which the reversal was based, viz., error in permitting one of the attorneys for contestants in his closing argument to allude to the fact that one of the attorneys for the contestees, who had prepared the will, had not testified, and to comment on this omission as a circumstance to be considered as against the contestees. The court having taken this view of the former appeal, the case may be said to be here now as if for the first time.

The will in controversy was executed by Mrs. Mary. J. Johnson on the 26th day of November, 1906, and is attacked on the ground of fraud and undue influence. The proponents of the will are Will Sanger, Laura Sanger, Blanche Withrow (born Sanger), Libbie Sanger and George P. Sanger, children and heirs at law of the said Mary J. Johnson. The contestants are Mollie E. McDonald and Lula Wolff, also the children and heirs at law of Mary J. Johnson.

The will is as follows: "I Mary J. Johnson, of Nashville, Arkansas, being of sound and disposing mind and memory, do make and publish this my last will and testament, hereby revoking all other wills and codicils.

"First. I direct that all my lawful and just debts be paid out of my estate.

"Second. I give, devise and bequeath to my son, George P. Sanger, ten dollars.

"Third. I give, devise and bequeath to my daughter, Lula Wolff, seventy-five feet off of the east end of the north half of block No. 281 in the city of Little Rock, Arkansas.

"Fourth. I give, devise and bequeath to my daughter, Mollie E. McDonald, seventy-five feet off of the west end of the north half of block No. 281, in the city of Little Rock, Arkansas.

"Fifth. I give, devise and bequeath to my daughters, Libbie, Laura and Blanche Sanger, the home place on which I now live in the town of Nashville, Arkansas, together with all the furniture and household goods in the said house in which I now live.

"Sixth. I give, devise and bequeath to my children, Will Sanger, Libbie Sanger, Blanche Sanger and Laura Sanger, all the residue and remainder of my property, real, personal and mixed, wheresoever situated.

"And, fully understanding and comprehending all the provisions and effect of this will and being fully satisfied therewith, I do now execute and publish the same, and in the presence of the witnesses W. C. Rodgers and J. S. Corn I do declare to them that this is my last will and testament by me freely made and fully understood.

"In testimony whereof I do now sign and execute the same, this 26th day of November, A. D., 1906.

"MARY J. JOHNSON.

"We, W. C. Rodgers and J. S. Corn, witnesses, do hereby certify that the above and foregoing will was executed by the testatrix in our presence, and that at the time of the execution thereof she declared to us that the above was and is her last will and testament, and requested that we attest the same as witnesses, which we now do this 26th day of November, A. D. 1906.

"W. C. RODGERS, Witness.

"J. S. CORN, Witness."

The following agreed statement of facts was read to the jury: "It is admitted by the contestants that the will was executed in proper form, and that at the time of the execution thereof the testatrix was competent to make the will; that the will was executed legally, and the testatrix was mentally able to make the will and was of sound and disposing mind."

The will in question was executed under the following circumstances: Mrs. Mary J. Johnson was a widow residing in Nashville, Arkansas. She was 66 years old, and was afflicted with uterine cancer. She was advised by her physicians that the only hope of prolonging her life was an operation, and that the operation would be an extremely dangerous one. Will Sanger, an unmarried son and her three unmarried daughters, Libbie, Laura and Blanche Sanger, all children by her first husband, resided with her, and had done so all their lives. Her two married daughters, the contestants, who had been advised of her critical condition. had left their homes in Little Rock and had come to her bedside. The will was executed on November the 26th. The operation was performed on the 2d day of December, and she died on the following day.

Mollie E. McDonald, a married daughter and one of the contestants, testified substantially as follows:

"I live in Little Rock, and have been married 21 years. My mother lived in Little Rock two or three years after my marriage. She then moved to Mineral Springs, and later to Nashville, Ark. I was with my mother about a week during her last sickness. I was not with her when she died. I had left about two days previously. Mother was very weak when she executed the will in controversy. I had been advised of her condition by my brother, Will Sanger, and had come to see her in response to a telegram sent me by her. There were only four of us present when mother signed the will, viz.: W. C. Rodgers, who drew the will, my brother Will, Dr. Corn, her attending physician, and myself. The first intimation I had that a will was to be executed was one morning before breakfast when my brother Will called to us. He told sister Lula and myself, as mother was growing weaker, he thought best to make her will. He said he thought $ 1000 each would be an equal share of mother's property, and said that everything she had was heavily incumbered, even to the home place. I began to ask him about the property. He didn't tell me all, only said that there was one piece of property not incumbered. I told him that I would rather have property than money. He said that he would give us 100 feet off of block 281 in Little Rock. He told me that this was the only property mother owned that was not heavily incumbered. He studied awhile, went out and had a conversation with Dr. Corn, and when he came back said he couldn't give us 100 feet, but would give us 75 feet. He said the property was valuable. I told him that I would not take 75 feet, and asked him by what right he was going to make mother's will anyway. He said that he was doing it to cut George Sanger out because he had already received his part. I then said I am going in and tell Mamma what you are trying to do. He said: 'Before I would have you go in and broach Mamma on this subject, I would have my right arm cut off.' I didn't go in to see Mamma. When Mr. Rodgers came, Willie handed him the data for the will. I don't know where he had gotten it. Mr. Rodgers handed Mamma the will, and she only read one or two lines, and she got so weak she couldn't read. She handed it back to Mr. Rodgers, and he read it to her, and then she signed it. The relations between mother and myself were always friendly. I was at mother's bedside about four days before the will was signed."

Mrs. Lula Wolff testified that she was a daughter of Mrs. Johnson and resided at Bingen, Ark. That she was married 13 years ago. She and Charlie McDonald, a son of Mrs. Mollie McDonald, testified that they heard the conversation between Mollie McDonald and Will Sanger on the morning the will was executed. In the main they corroborated the testimony of Mrs. McDonald.

Will Sanger testified as follows: "I am 40 years old. I have lived with my mother all my life. I am not married. Those who constituted the family of my mother at the time of her death, and who lived at the home place, were her unmarried daughters, Libbie, Laura and Blanche, and myself. Mother and I supported the family. Her sources of income were limited. Her average net income was about $ 200 per year. I contributed the remainder of the money which was required to support the family. I had been at work for wages for about 15 years prior to her death. I did not save anything, but contributed my earnings to the support of the family. On the morning the will was executed, I went in and Mamma told me that she had requested Dr. Corn to bring Mr. Rodgers down to write her will, and that she had put it off as long as she was going to. She said: 'Willie, I want you to go and see what Mollie and Lula (meaning the contestants) are expecting.' I went to the room where they were and said: "Mollie, Mamma is sending me out to see what you and Lula are expecting. She is going to make her will, and has sent Dr. Corn after Mr. Rodgers.' Mollie spoke up, and said, 'I want two lots of the half of block 281 in Little Rock.' I went into Mamma's room and told her that Mollie wanted two lots. She said: 'I can't do that.' Mrs. Ben. Smith was in the room at the time. I went out, and told Mollie that Mamma said that she could not give her two lots; that that was too much. Mollie then asked me if Mamma had sold any of the property that was inherited from Aunt Julia, and I told her no. She then asked me about the Texas land. I told her about it, and said that the sheriff of the county where it was situated said it was worth $ 1500. She then asked about the black land farm, and I told her that Mamma had given it to me. She then asked about the Stifft property. I told her that it was mortgaged for $ 2250. I told her there was a mortgage on the home place, but that there was not much due on it. I told her that there was no mortgage on block 281. She then said she would be satisfied with a lot and one-half off the corner of block 281. I then went and told Mamma that Mollie had requested a lot and one-half, and that if she would give her that she would be satisfied. Mother then said "I intended to give her a lot," but said she would give her a lot and...

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3 practice notes
  • Smith v. Boswell
    • United States
    • Supreme Court of Arkansas
    • 22 Noviembre 1909
    ...of life or that he was surrounded by them in confidential relation with them at the time of its execution." See Sanger v. McDonald, 87 Ark. 148, 112 S.W. 365. The question was improper. The witness did not testify to any facts that tended to prove that Mrs. Boswell could control her mother ......
  • Crawford County Bank v. Bolton
    • United States
    • Supreme Court of Arkansas
    • 13 Julio 1908
    ...cognizable in chancery. See, also, Newman v. Mountain Park Land Co., 85 Ark. 208, 107 S.W. 391; Rowe v. Allison, post p. 206. The demurrer [87 Ark. 148] to the answer should not have been sustained; for the averments of the answer presented an equitable defense, and, under our statutes, it ......
  • Alford v. Johnson
    • United States
    • Supreme Court of Arkansas
    • 15 Abril 1912
    ...it for that of the testator." Measured by these tests, there is no such undue influence shown in this case as would avoid the will. 87 Ark. 148; 49 Ark. 367. The fact that the ability to exert undue influence existed is not sufficient to avoid a will, even though the distribution was unequa......
3 cases
  • Smith v. Boswell
    • United States
    • Supreme Court of Arkansas
    • 22 Noviembre 1909
    ...of life or that he was surrounded by them in confidential relation with them at the time of its execution." See Sanger v. McDonald, 87 Ark. 148, 112 S.W. 365. The question was improper. The witness did not testify to any facts that tended to prove that Mrs. Boswell could control her mother ......
  • Crawford County Bank v. Bolton
    • United States
    • Supreme Court of Arkansas
    • 13 Julio 1908
    ...cognizable in chancery. See, also, Newman v. Mountain Park Land Co., 85 Ark. 208, 107 S.W. 391; Rowe v. Allison, post p. 206. The demurrer [87 Ark. 148] to the answer should not have been sustained; for the averments of the answer presented an equitable defense, and, under our statutes, it ......
  • Alford v. Johnson
    • United States
    • Supreme Court of Arkansas
    • 15 Abril 1912
    ...it for that of the testator." Measured by these tests, there is no such undue influence shown in this case as would avoid the will. 87 Ark. 148; 49 Ark. 367. The fact that the ability to exert undue influence existed is not sufficient to avoid a will, even though the distribution was unequa......

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