Smith v. Boswell

• Decision Date: 22 November 1909
• Citation: 124 S.W. 264
• Parties: SMITH et al. v. BOSWELL.
• Court: Arkansas Supreme Court

124 S.W. 264

SMITH et al. v. BOSWELL.

Supreme Court of Arkansas.

November 22, 1909.

Appeal from Circuit Court, Pope County; Hugh L. Baoham, Judge.

Proceedings by Robert L. Smith and others against Mrs. Mattie Boswell to contest the probate of the will of Cyrena Smith, deceased. From a judgment admitting the will to probate, contestants appeal. Affirmed.

U. L. Meade and Jeff Davis, for appellants. Brooks, Hays & Martin, for appellee.

BATTLE, J.

On the 27th day of February, 1907, there was filed before the clerk of the probate court of Pope county the following paper writing:

                             "February the 18th, 1907
                

"My last will and testament.

"I will to my daughter Mattie Boswell all my household goods and kitchen furniture.

"I will to my son Bob one dollar.

"I will to my sister Lou Zachary two hundred dollars (200.00); I also will to Victory Roe one dollar.

"I will to Charlie Jones one dollar, Grace Jones one dollar, Florence Barton one dollar, Mack Jones one dollar, and Travis Jones one dollar. And all my real estate is deeded to Mattie Boswell, and I want a nice monument put to my grave when I am gone to rest. And I will all my money and notes, have I any left, to my daughter Mattie Boswell.

                                          "Cyrena Smith."
                

Annexed to it was the following affidavit and certificate:

"Proof of Will.

"State of Arkansas, County of Pope.

"Personally appeared before me, A. D. Shinn, clerk of the county and probate courts of Pope county, Arkansas, Edgar Shinn, Alva A. Tucker, and R. L. Harkey, three disinterested citizens of the state of Arkansas to me well known, who being duly sworn say: That they are acquainted with the handwriting and signature of Cyrena Smith, deceased, have examined this writing purporting to be the last will and testament of said Cyrena Smith, deceased, and that said instrument is in her genuine handwriting and her signature thereto is her genuine signature.

                    "[Signed]         Edgar Shinn
                                     "Alva A. Tucker
                                     "R. L. Harkey
                

"Subscribed and sworn to before me this 27th day of February, 1907.

                            "A. D. Shinn, Probate Clerk."
                

"State of Arkansas, County of Pope.

"I, A. D. Shinn, clerk of the county court and ex-officio clerk of the probate court within and for the aforesaid county and state do hereby certify that the above and foregoing last will and testament was admitted to probate before me in vacation as and for the last will and testament of Cyrena Smith, deceased.

"Witness my hand and official seal as such clerk, this 27th day of February, 1907.

                  "[Seal]          A. D. Shinn, Clerk."
                

On the 6th day of May, 1907, Robert L. Smith and others filed in the Pope probate court what they called a response as follows:

"In the Probate Court, Pope County, Ark. Robert L. Smith, Victoria Rowe, Charlie Jones, Florence Barton and Mack Jones, Jr., and Grace Jones, Travis Jones, minors, by their father and next friend, J. M. Jones, contestants, v. Mrs. Mattie Boswell and (R. N.) Boswell, contestees.

"Response of Contestants.

"Comes the above-named contestants and state that they have an interest in the estate of Cyrena Smith, deceased, and that Robert L. Smith is the son of said deceased, and that Victoria Rowe is the only heir and next of kin to Hazie Brown, now deceased, who was one of the children and heirs of the said Cyrena Smith, and that Charlie Jones, Florence Barton, Mack Jones, Jr., and Grace Jones, and Travis Jones are the only children of Maggie M. Jones, now deceased, and that Maggie M. Jones was one of the children and heirs of the said Cyrena Smith, deceased. And for the grounds of contest to the pretended will filed in this court on the ____ day ____, 1907, and probated by the clerk of this court in vacation, on the ____ day of ____, 1907, would respectfully state:

"(1) That said pretended will is not in the proper handwriting of Cyrena Smith, nor neither the body of the instrument nor the signature thereto, and is therefore not the last will and testament of the said Cyrena Smith.

"(2) That if said proposed will and signature thereto was written by the said Cyrena Smith, she was induced to do so by the undue and improper influence of Mrs. Mattie Boswell and her husband Van Boswell, and others, to that extent as to render said proposed will void.

"(3) That if said proposed will was written and executed by the said Cyrena Smith, it was done when she did not possess sufficient reason and mental capacity to dispose of her estate by will or otherwise, and, hence, said will is void.

"(4) That at the time said will was written, if written at all, by the said Cyrena Smith, she did not possess sufficient mind and reason and mental capacity to understand and comprehend the extent and magnitude of her estate, and the just and equitable distribution of said bounty between her children, and the children of her deceased daughters, to that extent as to render a testamentary document void.

"(5) Wherefore, premises seen, contestants pray this honorable court for an order revoking the action of the clerk of this court, in vacation, admitting said instrument of writing to probate, as of and for the last will and testament of said Cyrena Smith, deceased.

"And for the further order refusing to allow said instrument to be probated as the last will and testament of the said Cyrena Smith, and for all their cost.

                        "U. L. Meade and Jeff Davis
                               Attorneys for Contestants."
                

The contestees filed a reply, denying all the allegations in the so-called response.

The probate court sitting as a jury heard all the testimony adduced by the parties and found that the document purporting to be the last will and testament of Cyrena Smith, deceased, and probated in common form before the clerk of the probate court on the 27th day of February, 1907, is such last will and testament, in her handwriting, both body and signature; and that at the time of writing it she was of sound mind and disposing memory, capable of executing it, and did execute it without the undue influence of any one; and approved and confirmed the action of the clerk in admitting it to probate.

Contestants appealed to the Pope circuit court. Upon their motion the name of R. N. Boswell was stricken from their pleading as a contestee. A jury was impaneled to try the issues and the court decided that the burden of proof "in the whole case" rested upon the contestants. After hearing all the evidence adduced by all the parties the jury were required to answer the following interrogatories propounded to them:

"(1) Is the entire will in controversy and its signature in the proper handwriting of Cyrena Smith, deceased?

"Answer.

"(2) Did she possess sufficient mental and physical capacity to make a will?

"Answer.

"(3) Was the will executed under undue influence as defined by the court in the instructions given?

"Answer."

The jury answered the first two interrogatories in the affirmative and the last in the negative; and returned a verdict in favor of the contestee and the will. Judgment was rendered accordingly, and contestants appealed.

The first error complained of is the ruling of the court as to the burden of proof. As to the insanity of the testatrix and her incompetency to make a will the ruling of the court is correct; the burden of proof was upon the contestants. McCullough v. Campbell, 49 Ark. 367, 5 S. W. 590; McDaniel v. Crosby, 19 Ark. 533; Bims v. Collier, 69 Ark. 245, 62 S. W. 593; Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405. The ruling was also correct as to undue influence; the burden was upon the contestants to prove that the will was procured by undue influence. Guthrie v. Price, 23 Ark. 396; Jenkins v. Tobin, 31 Ark. 306, 309; Page on Wills, § 405; Gardner on Wills, p. 179, § 61; 3 Elliott on Evidence, § 2693. As to the execution of the will both parties adduced voluminous evidence, and appellants were not prejudiced by the ruling of the court, if it be assumed that it was incorrect, but on the contrary was benefited by...