Walsh v. Fairhead

• Decision Date: 02 May 1949
• Docket Number: 4-8804
• Citation: 219 S.W.2d 941,215 Ark. 218
• Parties: Walsh v. Fairhead, Executrix
• Court: Arkansas Supreme Court

219 S.W.2d 941

215 Ark. 218

Walsh v. Fairhead, Executrix

No. 4-8804

Supreme Court of Arkansas

May 2, 1949

Appeal from Craighead Probate Court, Jonesboro District; Francis Cherry, Judge.

Affirmed.

Frank C. Douglas, Clair McTurnan and Alembert W. Brayton III, for appellant.

Sloan & Sloan, for appellee.

OPINION

Minor W. Millwee, Justice.

This is a contest of the last will of Maurice P Welsh who was a resident of Jonesboro, Arkansas, for 45 years prior to his death October 4, 1946. Decedent was survived by a daughter, Elizabeth Welsh Knollton of Phoenix, Arizona, and the following nieces and nephews: Margaret Welsh Fairhead of Jonesboro and William Welsh of Indianapolis, Indiana, children of decedent's brother, Michael Welsh; Ann Walsh, Lillian Walsh and Julia Walsh McNutt of Kokomo, Indiana, daughters of decedent's brother, Patrick Walsh; Thomas Kane of San Francisco, California, son of decedent's sister, Nellie Welsh Kane. Margaret Walsh Fairhead has a son, Maurice J. Fairhead who is a grandnephew of decedent and also a resident of Jonesboro. All of decedent's brothers and sisters predeceased him.

The will in question was executed on August 22, 1946, and admitted to probate in common form on October 9, 1946. Appellants, Ann Walsh and William Welsh, filed this action in the probate court against appellee, Margaret Welsh Fairhead as executrix and trustee under the will. The contest is based on allegations of mental incapacity of the testator and undue influence exercised by "persons who would benefit directly or indirectly" by the alleged will. Appellants also alleged that in 1937 decedent contracted with Patrick Walsh to make testamentary bequests aggregating $ 10,000 to the latter's three daughters.

Appellee moved to dismiss the petition of appellants asserting that if the 1946 will was held invalid, the estate would go to decedent's daughter and appellants were, therefore, without interest. In response to this motion appellants filed an amendment to their petition alleging that a will, executed by decedent on January 4, 1944, under which appellants would inherit, was the true will and should be produced by said executrix. The response of the executrix denied the allegations of the petition and exhibited an attorney's office copy of the 1944 will.

After an extensive hearing, the probate court found: "That the testator, Maurice P. Welsh, had sufficient mental capacity on August 22, 1946, to make a valid will; that the will being contested was executed on said date; that the evidence does not indicate that there was any fraud or undue influence on the part of anyone in connection with the execution of said will, and petition of petitioners should be dismissed with costs."

Maurice P. Welsh was a native of Indiana. He came to Jonesboro about 1900 and engaged in the operation of a handle factory. He and his wife were separated and their daughter Elizabeth made her home with her mother in Kentucky and Arizona, but frequently spent her vacations with her father at Jonesboro. Decedent lived at a hotel at Jonesboro until 1925 when he built a home. At his request appellee, Margaret Welsh Fairhead, who was divorced, moved with her fifteen year old son from Indiana to Jonesboro to take care of the new home. Mrs. Fairhead was housekeeper for her uncle until his death. Maurice J. Fairhead, her son, also resided in the home and decedent provided liberally for his support and education.

Decedent was a man of superior business ability and had acquired an estate valued at approximately $ 180,000 at the time of his death at the age of 76. In 1937, he conveyed the home to Mrs. Fairhead. He also gave her savings bonds of several thousand dollars over a period of years and conveyed certain real estate to her shortly before the execution of the 1946 will. After he moved to Jonesboro, decedent made annual visits to Indiana and his Indiana relatives occasionally visited him at Jonesboro. The expenses of these visits were paid by decedent who also assisted his relatives in medical and other expenses.

The will of August 22, 1946, provided for special bequests as follows: $ 10,000 to Convent Maria Stein and St. Bernard's Hospital of Jonesboro; $ 5,000 to Jonesboro Public Library; $ 100 each to Thomas Kane and the three daughters of Patrick Walsh, deceased; and all decedent's interest in the American Handle Company to his grandnephew, Maurice J. Fairhead. The residue of the estate was placed in trust with decedent's niece, Margaret Fairhead, as trustee at a salary of $ 150 a month; and the annual net income of said trust was divided three-fourths to appellee, Margaret Fairhead and one-fourth to decedent's daughter, Elizabeth, with certain limitations and exceptions as to the daughter's share. The corpus of the trust estate after the death of the two beneficiaries was given to Convent Maria Stein and St. Bernard's Hospital, unless decedent's daughter left bodily heirs, in which event one-fourth of said corpus passed to such heirs.

The will of January 7, 1944, contained special bequests as follows: "St. Bernard's Hospital, $ 1,000; William Welsh, $ 1,000; Thomas Kane, $ 500. The balance of the estate was given five-eights in fee to appellee, Margaret Fairhead; one-eighth to the three daughters of Patrick Walsh, deceased, and the remainder in trust for the benefit of decedent's daughter, Elizabeth. Both wills contained an in terrorem clause which nullified any gift to a beneficiary who contested the will.

Decedent became afflicted with prostatic cancer about 1938 and underwent several operations from 1938 [215 Ark. 222] to 1943. Although his condition grew slowly worse, he remained active in the operation of his various enterprises until a few weeks prior to his death in October, 1946. He was hospitalized at different times for the treatment of his affliction and was in the Jonesboro hospital on August 22, 1946, when he executed the will in question. He was discharged from the hospital the last time on August 24, 1946.

In attempting to meet the burden of showing mental incapacity and undue influence appellants offered the testimony of themselves, Lillian Walsh, Margaret Fairhead and Dr. Charles W. Miller, Jr., a psychiatrist. Appellee offered the testimony of decedent's family physician, minister, the attorney for the handle factory, and two of the three witnesses who attested both wills and also a will executed by decedent in 1935. Appellee also offered the evidence of several friends and business associates of decedent.

Appellant, William Welsh, visited his uncle for two weeks in the first part of July, 1946. He stated that he and decedent went on walks and had several conversations during the visit; that decedent would start a conversation while they were in the yard and become seized with pain, go into the house and upon his return, would talk about a different subject. He thought decedent's occasional inability to connect statements was attributable to pain and failing memory. Witness stated that he would sometimes get "half-crocked" when they drank together and forget what decedent told him. He also admitted that decedent's mind was clear when he arranged for the purchase of a set of false teeth and suit for witness and also gave him some cash on this visit.

Appellant, Ann Walsh, testified that she visited decedent from August 28 to September 10, 1946; that decedent was nervous and suffered much pain, but slept most of the time and did not talk much; that she brought a toy playing piano which played a familiar Irish tune which he failed to recognize. She also testified that Maurice J. Fairhead went into decedent's room on one occasion, lay across the bed and pleaded with decedent about some promise that he had made, and that a few days later the secretary of the handle company and Maurice Fairhead went into decedent's room when presumably decedent transferred a part of the stock of the handle company to Maurice. She also stated that her father used the name "Walsh" because it was more Irish than "Welsh."

Lillian Walsh testified about an alleged dispute between her father, Patrick Walsh, and decedent growing out of the settlement of the estate of their mother who died in Indiana in 1916. She only knew what her father had told her about the dispute. She stated that she visited decedent with her father in 1937 and heard a conversation between her father and decedent in which the latter persuaded the former to undergo an eye operation at Memphis, Tennessee, at decedent's expense; that her father refused to have the operation performed unless decedent also agreed to pay or make a testamentary bequest of $ 10,000 to Patrick's three daughters in satisfaction of the 1916 dispute; and that the operation was performed after decedent agreed to do so. Decedent had made two loans of $ 500 each to witness which had not been repaid.

Dr. Charles Miller, Jr., the psychiatrist, explained in detail the hospital records of the decedent. In answer to hypothetical questions based primarily on said records, it was his opinion that decedent was suffering from delirium and did not have the mental capacity to make a will on August 22, 1946. Witness had never seen decedent and did not usually diagnose cases from hospital records only. He admitted that such diagnosis is less satisfactory than actual acquaintance with and observation of the patient.

The evidence on behalf of appellee tended to show that decedent was mentally capable of making the 1946 will and that there was no undue influence exercised upon him. Dr. W. H. Willet decedent's family physician for 33 years testified that he saw decedent almost daily during the last six months of his life and that his mind did not become...