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...