Sneed v. Reynolds

• Decision Date: 15 December 1924
• Docket Number: 49
• Citation: 266 S.W. 686,166 Ark. 581
• Parties: SNEED v. REYNOLDS
• Court: Arkansas Supreme Court

266 S.W. 686

166 Ark. 581

SNEED v. REYNOLDS

No. 49

Supreme Court of Arkansas

December 15, 1924

Appeal from Garland Circuit Court; Earl Witt, Judge; affirmed.

Judgment affirmed.

Murphy & Wood and James E. Hogue, for appellant.

A date is essential to the validity of a holographic will. 111 Ark 54; Schouler on Wills, vol. 1, § 429. Id. § 427, p. 501; Id. § 399; Alexander on Wills, vol. 1, § 40, p. 44. Id. § 464; 7 N.C. 134. Our statute does not require the dating of a holographic will, yet, where this is attempted and part of the date is printed and part in the handwriting of the testator, such a will should be held void. 40 Mont. 1017; 49 La. 868. Page on Wills, § 230, 27 S.E. 905. The instruction on the question of undue influence should have been given. Physical force is not necessary to establish undue influence. Gardner on Wills, p. 176, note 21; 88 N.Y 357; 106 Ala. 314. It is anything which tends to destroy free agency and constrains the testator to do what he otherwise would not do. 361 F. 333; 172 Ala. 295. Instruction No. 7 to the effect that the evidence of witnesses to the handwriting in both the body of the will and signature, should be sufficient to convince that the decedent actually wrote the will, independent of the evidence of any witnesses to the effect that they saw the decedent write the will, is the law, and should have been given. 80 Ark. 204; 130 Ark. 394; 83 Ark. 495; 45 Ark. 524; 1 Ark. 201; 20 Ark. 410. The evidence of Mrs. Cohen was incompetent. 60 Ark. 301.

Martin, Wootton & Martin, for appellee.

Appellant's contention that the will is void because part of the date is printed is not tenable. Our statute does not require a holographic will to be dated (C. & M. Dig. § 10, 494, par. 5.), and the cases cited by appellant from other States are decisions based on special statutes covering the subject. The date of the will is not part of the will itself. 5 Ind. 389; 79 Ky. 607; see also 125 Mich. 647. The question of undue influence was properly withdrawn from the jury, as there was no evidence to substantiate it, as laid down in the following cases: 154 Ark. 516; 87 Ark. 148; 49 Ark. 367; 120 Ark. 407; 93 Ark. 66; 127 Ark. 68; 29 Ark. 151; 103 Ark. 236.

OPINION

MCCULLOCH, C. J.

This appeal involves a contest of the last will and testament of Mrs. Maeda C. Reynolds, who was a resident of the city of Hot Springs, and died on April 10, 1923. The instrument in controversy was executed on February 24, 1923, and, being without attesting witnesses, it was offered for probate as a holographic will. Evidence was introduced tending to show that the entire body of the will and the signature thereto were written in the proper handwriting of the testatrix, as required by statute (Crawford & Moses' Digest, § 10494, par. 5), and the verdict of the jury was in favor of upholding the will.

The instrument was written on the printed stationery of a certain hotel in Hot Springs, of which the contestee, Al A. Reynolds, was the manager, and where he and the testatrix resided at the time of the execution of the will and at the time of her death. The instrument is in the form of a letter addressed by the testatrix to the contestee, her husband, and the printed heading on the stationery contained the name of the city, and following a blank space the figures 192. In the space between the name of the city and the figures mentioned above there was written "Feb. 24," and the figure "3" was added in writing to the printed figures. The whole instrument is as follows:

"Hot Springs, Ark., Feb. 24, 1923.

"Mr. Al. A. Reynolds.

"Dear Husband: I realize that my condition is serious, and I want this letter to be my last will and testament.

"I give and devise to my mother the following articles:

"My diamond and platinum bar pin.

"My diamond twin ring and one thousand dollars cash.

"To Dr. A. L. Sneed one thousand dollars in cash.

"To my aunt, Mrs. Ada K. Morrin, I give one thousand dollars in cash and mole and Kolinsky furs.

"I want you, my husband, to have everything else that I own at my death.

"I want you to be the executor of this, my will.

"Your loving wife,

"MAEDA C. REYNOLDS."

Dr. Sneed, mentioned in the will, was the stepfather of the testatrix, and Mrs. Morrin was her aunt--her mother's sister. Appellant, the mother of the testatrix, is the sole contestant.

It appears from the testimony that the contestee and the testatrix had been married about sixteen years. They had no children, and lived together in apartments at the hotel, of which the contestee was manager. Mrs. Reynolds became afflicted with cancer in the right breast, and in July, 1922, there was a serious operation performed by the removal of the right breast and adjacent glands. Physicians testified that the cancerous condition was very extensive, and that, after the operation, there was left an ulcerous wound, which continued up to the time of her death. A specialist from St. Louis examined Mrs. Reynolds at her room in Hot Springs on February 22, 1923, which was two days before the execution of the will, for the purpose of determining whether or not she could be carried to St. Louis for another operation. The physician testified that he found Mrs. Reynolds much emaciated, and unable to walk; that the abdomen was tense, the liver enlarged, and lower extremities swollen below the knees, and that she was not in any condition to be removed to St. Louis for treatment, and that he considered her mental condition at that time such that she was not capable of executing a will.

It is disclosed in the testimony that, the day before the execution of the will, a lady friend of Mrs. Reynolds stated to her that she would only live a short time, and, on the morning on which the will was executed, Mrs. Reynolds spoke of this to her husband, and expressed a desire to make a will, and the will was then written in his presence. Appellee telephoned for another employee of the hotel, named Reynolds (not related to contestee), and he came up to the room, and the will was written in the presence of both of the men. According to the undisputed testimony, that of appellee himself and the other witness, Reynolds, the entire body of the will and signature were written by the testatrix, but she conferred with appellee during the preparation of the will, and called for suggestions from him. Both of these witnesses testified that, after witness Reynolds came into the room, Mrs. Reynolds asked contestee how to start the instrument, and he told her just to address it in the form of a letter to him and then write down the bequests she wished to make. They testified that Mrs. Reynolds stated first that she wanted her mother to have the ring and pin mentioned in the will and one thousand dollars in money, and that appellee replied "All right, just write that down." She called over the other bequests that she wanted to make in the same way and received the same reply from her husband, to write it down the way that she wanted it.

There is a conflict in the testimony as to the physical and mental condition of Mrs. Reynolds at the time of the execution of the will. Numerous witnesses, including physicians who attended Mrs. Reynolds, testified that her mental condition was good up to the time of her death. It is conceded that her physical condition was poor on account of the serious operation and the result thereof, but witnesses introduced by the contestee testified that Mrs. Reynolds was up most of the time during the day, and was able to sit at the table and write. The evidence adduced on the part of appellant tended to show that Mrs. Reynolds' physical condition was such that it was impossible for her to sit up or to do any writing at the time of the execution of the will. These conflicts in the testimony were, of course, settled by the verdict of the jury, and there are no express statutory requirements with reference to a will of this character, except that it is essential that such an instrument shall be "established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting of each testator or testatrix."

It is first insisted that the will is not valid for the reason that it is essential to the validity of such a will that it be dated, and that the date of this instrument is not entirely in the handwriting of the testatrix, being partly printed and partly written. It is provided by statute in some of the States that a holographic will must be written, dated and signed by the testator or testatrix, and in those States the decisions are that the dating of the will is essential; but our statute contains no such requirement with respect to the dating of a will, and the prevailing rule is that, in the absence of such a statutory requirement, a will, either one that is attested or one that is holographic in form, need not be dated. This subject is fully discussed in the note to the case of Dye v. Shutan, L. R. A. 1916E, 498. The rule there stated in the note is that, "while it is the custom to date wills, in the absence of a statute it is not necessary that the will should bear a date." The question has not heretofore been presented to this court, but we are clearly of the opinion that, under our statute, the prevailing rule should be applied, and that the absence of date is immaterial, even as to a holographic will. This being true, the entire date line may be discarded so as to leave the will without a date, and that does not affect the validity of the will. An imperfect dating is no dating at all, and, as it is not an essential part of the will, it may be disregarded, and the will be upheld, if the body of the will and the signature be proved, in the manner required by statute, to be in the handwriting of the testator or...