Sullivant v. Sullivant, 5-2836

• Decision Date: 11 February 1963
• Docket Number: No. 5-2836,5-2836
• Citation: 364 S.W.2d 665,236 Ark. 95
• Parties: Austin SULLIVANT et al., Appellants, v. Birt SULLIVANT, Appellee.
• Court: Arkansas Supreme Court

Page 665

364 S.W.2d 665

236 Ark. 95

Austin SULLIVANT et al., Appellants, v. Birt SULLIVANT, Appellee.

No. 5-2836.

Supreme Court of Arkansas.

Feb. 11, 1963.

Levine & Williams, Pine Bluff, for appellants.

Joe W. McCoy and Cole & Scott, Malvern, for appellee.

HOLT, Justice.

This is an appeal from the order of the Grant County Probate Court admitting the will of F. D. Sullivant to probate and dismissing the appellants' contest of the will.

Francis D. [F. D. or Bud] Sullivant, age 78, was found dead on the side of a road in Grant County, the county of his residence, on September 14, 1961. He was divorced and had no children. He was survived by three brothers, Austin, Raybon and Birt Sullivant, a sister, Della Lybrand, and two nephews, Carl and Earl Appling, the sons of a deceased sister [Jennie Appling] of Sullivant.

On September 16, 1961, a petition for the appointment of an administrator was filed by Austin Sullivant. All of the above named heirs, except Birt Sullivant, joined in this petition. The petition was granted on September 18, 1961, in an order appointing the National Bank of Commerce of Pine Bluff, Arkansas, as administrator and issuing Letters of Administration to said bank as administrator of the estate.

On December 8, 1961, the Probate Court [after a two-day trial, December 5 and 6] rendered its Order and Judgment wherein the court admitted to probate the questioned will; denied and dismissed the appellants' petition challenging the validity of the will appointed Birt Sullivant executor; removed the aforesaid bank as administrator and cancelled the Letters of Administration previously issued to the bank as administrator of the estate. The appellants appeal from this Order.

On appeal, this cause comes here de novo and this court will affirm unless the order of the Probate Court is against the preponderance of the evidence. Parette v. Ivey, 209 Ark. 364, 190 S.W.2d 441.

Appellants' first point for reversal includes questions concerning the making and proof of the will: No will was introduced in evidence; there is no will in the record; and the proponent failed to prove by competent testimony the execution of the will of F. D. Sullivant.

A study of the record in this case reveals that the will in question and proof of will were properly filed, together with the petition for probate thereof, on September 22, 1961. On the same date the record recites that the court entered an other in which the said will is referred to in these words: '* * * on this date Birt Sullivant presented to the court a will, proof of will attached to a petition for admission thereof to probate * * *.' In this order the court granted the appellants sufficient time to file any pleadings desired to contest the will and set the case for trial.

At the trial the two attesting witnesses to the will testified in support of the validity of the will. James C. Cole, the attorney who drafted and witnessed the will testified in part:

'Q. In the file here it is filed what proposes to be the last will and testament of F. D. Sullivant. Is that your signature on that?

'A. Yes sir. That is my signature.'

Lois Green, legal secretary who typed and witnessed the will, testified in part:

'Q. I hand you what proposes to be the last will and testament of Mr. Sullivant. Is that your signature?

'A. Yes sir, it is.

'Q. This will was dated October 11, 1960. Were you a member of Cole and Scott at that time?

'A. Yes sir.

'Q. This is your signature?

'A. Yes sir.

* * *

* * *

'Q. I notice in this will that you and Mr. Cole initialed the first page of it. * * * Is that your initial?

'A. Yes sir, I did.'

Also, in the final Order from which comes this appeal, the court found, among other things, that:

'The decedent left as his last will and testament an instrument dated the 11th day of October, 1960, and due and proper proof of the execution and publication thereof in the manner required by law has been made. The decedent, at the time the will was made, was of sound and disposing mind and memory and executed same as his own free will and act and not as a result of coercion, fraud or undue influence. Said will is entitled to be admitted to Probate as the last will and testament of the decedent * * *. IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED that the instrument dated the 11th day of October, 1960, tendered to this court as the last will and testament of the decedent, should be and is hereby admitted to probate as such * * *.'

The record also reflects that a copy of said will is included in the record. The two attesting witnesses, James C. Cole and Lois Green, presented proper and sufficient proof of the will in compliance with Ark.Stats. §§ 60-403 and 62-2117. We find the questioned will was presented to and examined by the court; admitted to probate and made a part of the record in this case.

As a part of Point One the appellants also urge for reversal that the proponent of the will failed to prove by competent testimony the execution of the will by F. D. Sullivant. They assail the competency of the testimony of James C. Cole as being based upon privileged communication since Mr. Cole drafted and witnessed the will. Mr. Cole's testimony was proper and competent. Bradway v. Thompson, 139 Ark. 542, 214 S.W. 27; Peoples National Bank v. Cohn, 194 Ark. 1098, 110 S.W.2d 42. Also, Mr. Cole's testimony is challenged since he was employed by the proponent of the will to represent the estate. When the will contest developed, although Mr. Cole continued as an attorney of record, another attorney, Joe W. McCoy, was also employed who tried the case chiefly in the Probate Court and presented the case on oral argument before this court. In Rosenbaum v. Cahn, 234 Ark. 290, 351 S.W.2d 857, we held to be qualified, as an attesting witness, the attorney who also drafted the will and was named therein as attorney for the estate. In the case at bar, Mr. Cole drafted the will and was not named in the will in any manner. Since Mr. Cole was not named in the will as a beneficiary or otherwise, we hold Mr. Cole was qualified to testify as an attesting witness under Ark.Stat. § 60-402(c).

Appellants' second and remaining point for reversal includes the contention that F. D. Sullivant was not competent to make a will and that the will was procured by fraud and undue influence.

The burden of proving mental incompetency, undue influence or fraud which will defeat a will is on the party contesting it: Werbe v. Holt, 218 Ark. 476, 237 S.W.2d 478; Walsh v. Fairhead, 215 Ark. 218, 219 S.W.2d 941; McWilliams v. Neill, 202 Ark. 1087, 155 S.W.2d 344; Smith v. Boswell, 93 Ark. 66, 124 S.W. 264.

Appellants attempt to shift this burden of proof to the proponent of the will by relying on the rule in Orr v. Love, 225 Ark. 505, 283 S.W.2d 667. There this court said:

'[W]hen it is shown that the will is drawn or procured by a beneficiary, there is a presumption of undue influence. * * * 'It is incumbent on those, who, in such a case, seek to establish the will, to show beyond reasonable doubt, that the testator had both such mental capacity, and such freedom of will and action, as are requisite to render a will legally valid.''

In that case the testatrix made four wills in less than a month. The proponent of the last will, the daughter-in-law, was one of the principal beneficiaries who had her own lawyer prepare the will according to her individual instructions and contrary to the terms of the first will. In the case at bar it is true that Birt Sullivant is the sole beneficiary and that he, his wife, Minnie, and son, Sidney, accompanied F. D. Sullivant to Mr. Cole's office on October 11, 1960, when the will was drafted. However, Mr. Cole was already representing F. D. Sullivant on two matters ¹ and had never represented Birt Sullivant. The will was drafted according to the explicit directions of F. D. Sullivant without any prompting or instructions from Birt or his family. F. D. paid for the will himself. These facts are not sufficient to shift the burden of proof to the proponent in this case.

We proceed now to a discussion and decision on the question of whether appellants have shown circumstances which preponderate in favor of a finding of mental incompetency, fraud or undue influence. We find no evidence of fraud in this case.

The questions of mental competency and undue influence are so closely related and interwoven that we treat them together. Parette v. Ivey, supra; Brown v. Emerson 205 Ark. 735, 170 S.W.2d 1019; Phillips v. Jones, 179 Ark. 877, 18 S.W.2d 352.

Numerous witnesses appeared for appellants and appellee at the trial of this cause. Lay witnesses, such as neighbors and acquaintances of the decedent, appeared on behalf of appellants. The testimony of these witnesses most favorable to the appellants can be summarized thusly: One witness testified that at times F. D. was all right but at times he had 'spells' but she never witnessed these 'spells', also, that in her opinion he was not capable of managing his own affairs; another witness testified that she didn't think F. D. was crazy but his mind wasn't right at times; another witness testified that in her opinion 'he was very incompetent' and he needed Christian fellowship; another testified that when he saw F. D. in April, 1961, he was irrational in his actions and speech and that he was not as alert in September, 1961; another expressed the opinion that F. D.'s mind was bad; another, that he had bad eyesight but no other disabilities; another, he needed medical and spiritual attention and a better diet.

Mrs. B. L. Ross, a tax consultant, testified on behalf of appellants that F. D. Sullivant visited her office on several occasions with reference to tax matters and he seemed confused in his thinking; that he expressed intense dislike for most of his relatives, especially Birt and his family. Mrs. Ross testified about and exhibited a signed document she said she formulated and typed up at F....