Smith v. Boswell

• Decision Date: 22 November 1909
• Citation: 124 S.W. 264,93 Ark. 66
• Parties: SMITH v. BOSWELL
• Court: Arkansas Supreme Court

124 S.W. 264

93 Ark. 66

SMITH v. BOSWELL

Supreme Court of Arkansas

November 22, 1909

Appeal from Pope Circuit Court; Hugh Basham, Judge; affirmed.

Judgment affirmed.

U. L Meade, for appellants.

1. The burden of proof was on appellee to establish the will by showing that it was in the proper handwriting of the testatrix. Kirby's Dig. §§ 3107, 8012; 38 Ark 482; 63 Ark. 145; 64 Ark. 349; 70 Ark. 88. While, as a rule the burden is upon contestants, in a contest over an attested will, even in such cases there are exceptions to the rule. 19 Ark. 550; 25 Am. Dec. 282; 6 Lawson's Rights, Remedies & Practice, §§ 3196, 3209; 1 Jarman on Wills, 69, 71; 46 Mo. 147.

2. The language used by appellee's attorney in his argument to the jury was prejudicial, and not to be justified on the ground that it was "in answer to Mr. Meade's remarks," for the latter was within the record in his remarks, and had said nothing relative to the matters referred to except that which had been testified to by witnesses. 82 Ark. 432.

3. It was error to permit the affidavit or proof of the will taken before the clerk in vacation to be read to the jury. The same witnesses whose affidavit was taken by the clerk were present and testified at the trial in circuit court. Being improperly admitted, its effect was prejudicial. 77 Ark. 431.

4. The court erred in excluding testimony offered by appellants to show the capacity or want of it of the testatrix to resist a request or overtures of appellee to convey to her, appellee, property by deed, will or otherwise. The witnesses offered severally qualified themselves to testify and to give their opinions by showing their opportunities for becoming acquainted with the mental and physical powers of both the testatrix and appellee and with the influence of the latter over the former. 22 Ark. 95; 15 Ark. 556; 76 Ark. 286; 64 Ark. 523.

5. The testimony of Robert L. Smith was improperly excluded. It was competent as tending to prove overtures, arguments and persuasions of appellee to her mother relative to the disposition of her property, and to bias her mind against her son. 87 Ark. 243; Id. 148; 29 Ark. 151. The court should have instructed the jury, as requested in appellant's 13th prayer, to the effect that if Mrs. Smith had sufficient mental capacity to make the will, but on account of her age, infirmities and bodily and mental weakness appellee had obtained an undue influence over her, and, prompted and controlled by such undue influence, she had executed the will, they should find against the will. 87 Ark. 243; 85 Ark. 363; 84 Ark. 490; 15 Ark. 556; 29 Ark. 151; 60 Ark. 301; 1 Jarman on Wills, 143.

6. If Mrs. Smith could, without inconvenience to herself, have called witnesses to attest her will, and did not do so, this was a circumstance which ought to have been submitted under proper instruction of the court to the jury for their consideration in determining whether or not she intended the instrument propounded as her last will and testament. Likewise, in determining the authenticity of the will, the jury should have been instructed to consider not only any circumstances tending to prove it, but also any circumstances, if shown, against its authenticity, and they should have been instructed further that nothing could dispense with the necessity of proof of her handwriting by the unimpeachable evidence of at least three unimpeachable witnesses. The court therefore erred in denying appellant's 17th and 18th prayers for instructions. 19 Ark. 546; 29 Ark. 151; 11 N.Y. 165.

7. A holographic will can be established only by the evidence of at least three disinterested and unimpeachable witnesses that the body of the instrument, date and signature of the alleged testator thereto are in the genuine handwriting of the deceased; and in such case the law is not satisfied by a mere preponderance of evidence, but the jury must be satisfied by the unimpeachable evidence of at least three disinterested witnesses that the entire body of the instrument propounded, including the signature, is in the handwriting of the alleged testator. 85 Ark. 363; 80 Ark. 204; 86 Ark. 570; Kirby's Dig. § 8012, subdiv. 5; 50 Ark. 511.

Dan B. Granger and Brooks, Hays & Martin, for appellee.

1. Sec. 3107, Kirby's Dig., relied on by appellants as casting the burden upon appellee, applies only to controverted questions, not to ex parte proceedings. That section places the burden, in a controverted question, on the one who would fail if no evidence was adduced on either side. Unless supported by evidence, the charges of appellants would necessarily fall to the ground. Section 8012, relied on by appellants, casts no burden of proof anywhere. It merely permits a holographic will to be established by the unimpeachable evidence of three disinterested witnesses, etc. "Unimpeachable" does not mean "incontrovertible," as used in this section, but that the evidence must be that of persons who are not subject to impeachment for the reasons pointed out by our statutes. The burden was upon the contestants who tendered the issues. 13 Ark. 479; 19 Ark. 533; 29 Ark. 151; 96 Am. Dec. 697; 31 Am. St. Rep. 681, footnote. See also 1 Rice, Civ. Ev. 106, § 62; Id. 110, § 67; 88 N.Y. 357; 1 Rice, Civ. Ev. 139; 47 Ohio St. 423; 17 L. R. A. 494; 49 Ark. 367; 15 Ohio St. 1; 31 Mo. 40; 31 Ark. 175; Kirby's Dig. § 8042.

On the question of undue influence the burden of proof was on appellants. 13 Ark. 479; Garner on Wills, § 61; 72 S.W. 1065; 63 S.W. 617; 70 S.W. 136; 52 S.W. 98. So also as to the issue of mental incapacity. 69 Ark. 245; 87 Ark. 243.

2. Opinions of non-expert witnesses are competent where the object is to prove capacity or incapacity to make a contract, provided the facts and circumstances are first disclosed on which such opinions are founded. Opinions of witnesses offered by appellants were properly excluded because they were based, not on disclosures of facts, but upon an assumed knowledge of the mental and physical condition of Mrs. Smith, and of the mental capacity of appellee and her influence over her mother.

3. Argument of appellee's attorney, objected to by appellants, if it was improper, was invited by the argument of appellant's attorney, in which he went out of the record in the patent effort to create the impression with the jury that he was a silent witness to Mrs. Smith's mental incapacity to make this will. Being invited, it is not reversible if erroneous. 77 Ark. 1; 75 Ark. 350; 74 Ark. 489.

4. There is no proof of any sort of undue influence exercised by appellee toward her mother. Nothing is shown but that natural love and affection between daughter and mother which the law recognizes as legitimate and approves. 49 Ark. 367; 87 Ark. 243. Neither does the proof sustain the charge of mental incapacity. "Old age, physical infirmities, and even partial eclipse of the mind would not prevent her from making a valid testament if she knew and understood what she was doing." 49 Ark. 367.

5. There was no error in permitting the proof of the will to be read by the jury. Will and proof of it thereto attached were submitted to the jury for their examination. Even if improperly admitted, it was not prejudicial, since the fact it tended to prove was otherwise amply established by the evidence. 74 Ark. 417; 58 Ark. 125; Id. 374; Id. 446; 7 Ark. 542; 9 Ark. 545.

OPINION

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.

"Edgar Shinn,

"Alva A. Tucker,

"R. L. Harkey.

(Signed)

"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.

"A. D. Shinn, Clerk."

(Seal)

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, ...