Turley v. Evins

• Citation: 158 S.W. 1080
• Parties: TURLEY et al. v. EVINS.
• Decision Date: 30 June 1913
• Court: Supreme Court of Arkansas

158 S.W. 1080

TURLEY et al. v. EVINS.

Supreme Court of Arkansas.

June 30, 1913.

Appeal from Circuit Court, St. Francis County; Hance N. Hutton, Judge.

Proceeding by Mrs. Lizzie M. Evins for the probate of a will, which was contested by Mrs. Eula Horn. From an order admitting the will to probate, and appointing Ellis Turley as administrator, both proponent and contestant appealed to the circuit court, where the judgment admitting the will to probate was affirmed, and the appointment of Turley as administrator was reversed, and both Turley and the contestant appeal. Reversed and remanded, with directions.

On March 5, 1912, Dr. J. E. Stone, late of St. Francis county, made a will which was signed and witnessed in the usual form, and seven days later he died, and a few days thereafter the will was filed for probate before the probate clerk of that county. On April 11, 1912, Mrs. Eula Horn filed her "protest and contest," which was shortly thereafter heard by the probate court in connection with a petition for the appointment of an administrator pending the contest. The probate court dismissed the contest, admitted the will to probate, and appointed Ellis Turley administrator. The contestant, Eula Horn, prayed an appeal to the circuit court from the order admitting the will to probate, and the contestee, Lizzie M. Evins, who was named as executrix in the will, appealed to the circuit court from so much of the order as appointed Turley administrator. These appeals were prosecuted separately, but were consolidated in the circuit court and disposed of as a single case. Before perfecting her appeal to the circuit court, Mrs. Evins filed a formal petition, setting up the fact that the will of Dr. Stone had been admitted to probate and that by its terms she was named as executrix, and she prayed that letters testamentary be granted her and that the appointment of Turley as administrator be revoked. The court refused to grant this petition upon the ground that Mrs. Evins had previously consented to the appointment of Turley.

In her remonstrance to the probating of the will, dated March 5, 1912, Mrs. Horn alleged: First. That on May 5, 1905, Dr. Stone had made a will in proper form, at a time when he was in good health and of sound mind, by which he devised to contestant the larger portion of his property; that this will was made in accordance with the desire of Mrs. Mansfield R. Stone, the wife of the testator, and contestant's sister, from whom testator had derived most of his property. Second. That the will, dated May 5, 1905, is in the possession of Mrs. Lizzie M. Evins, or that if it is not in her possession, it has been destroyed by her, or at her instance, and contestant asked that she be required to produce the will, and that upon her failure to do so contestant be permitted to prove the contents thereof. Contestant alleged that by the terms of said will she was made the residuary legatee, after devising to other relatives small sums of money. Third. Contestant says further that the paper writing, dated March 5, 1912, purporting to be the last will and testament of Dr. Stone, is not his will for the reason that it was made at a time when he was laboring under great nervousness, superinduced by a long illness and the use of opiates and medicine to such an extent that he was incapable of understanding the force and effect of any act he might perform, and other specific allegations were made, the effect of which was to allege a lack of testamentary capacity.

In the circuit court Mrs. Evins filed a demurrer to the remonstrance of Mrs. Horn which was sustained, and letters testamentary were ordered issued to Mrs. Evins, and this appeal was prosecuted from that judgment by both the administrator and the contestant.

S. H. Mann and J. W. Morrow, both of Forrest City, for appellants. Walter Gorman, of Forrest City, for appellee.

SMITH, J. (after stating the facts as above).

The first question is the right of administration pending the contest. Section 13 of Kirby's Digest provides that, if the validity of any will be contested, letters of administration shall be granted during the time of such contest to some person other than the executor who shall take charge of the property and administer the same under the direction of the court and account for, pay, and deliver all moneys and property of the estate to the executor or regular administrator when qualified to act. It appears from the record that Mrs. Evins consented to the appointment of Turley as administrator; but there is nothing to indicate that she was thereby waiving her claim to have letters testamentary issued to her upon the determination of the contest. In fact it affirmatively appears that such was not her intention. Prior to the probate of the will she could not act, and her consent to the appointment of Turley during...