Sanger v. McDonald

Hart, J., (after stating the facts). The testamentary capacity of the testatrix is admitted, and the sole ground upon which the probate of the will was contested is that of fraud and undue influence alleged to have been exercised by the appellant, Will-Sanger, upon the testatrix, his mother, in the execution of the will. . The proponents of the will insist that there was not stifficient evidence upon which to submit to the jury the question of fraud and undue influence. This issue, together with numerous other assignments of errors, was presented to the court for its consideration on the former appeal of this case, but the court expressly declined to consider any of them except the one upon which was based the reversal of the case. Therefore the issue of the sufficiency of the testimony to support the verdict confronts us at the threshold of the case. ' In the case of McCulloch v. Campbell, 49 Ark. 367, in discussing the question of fraud and undue influence in procuring the execution of a will, the court said: “As we understand the rule, the fraud or undue influence, which is required to avoid a will, must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural afféction, but the malign influence which springs from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property. And the influence must be specially directed toward the object of procuring a will in favor of particular parties. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them.and in confidential relations with them at the time of its execution.” “Fraud in the inducement consists of wilfully false statements of fact which are intended to and do induce the testator to execute the instrument, which he does execute with full, knowledge of its nature and contents. Where fraud is in the inducement, as distinct from the execution, the same considerations apply to the validity of a will obtained .thereby as to a will executed under a mistake of fact.” Page on Wills, § 124. “The question whether the will was procured by undue influence is, in the last analysis, a question of fact to be determined by the jury. It must be shown to their satisfaction on all the facts in evidence that, first, fraud or undue influence was practiced; second, that either, or both, in conjunction, resulted in. producing the will. Plence the question of undue influence may be viewed from the double aspect suggested by those two classes of facts which are to be proved.” 1 Underhill, Wills, p. 126. “Undue influence upon a testator "'consists in substituting virtually the will of the person exercising it for that of the testator. Fraud upon the testator consists in making that which is false appear to him to be true, and so affecting his will.” 1 Big. on Fraud, p. 571. “In all cases where the procurement of a will by undue influence or fraud is alleged, the evidence, whether direct of circumstantial, should be permitted to take a very wide range. The nature of the relations and dealings between the testator and the beneficiaries, the extent of the property of the testator, his social and commercial standing, his family connections, the claims of particular persons upon his bounty, the situation of the beneficiaries, social and pecuniary, the situation and mental condition of the testator, the nature and the contents of the will itself, and all the circumstances under which it was executed, may be considered as facts from which fraud and undue influence may be inferred, or by which they may be disproved.” 1 Underhill on Wills, § 132, pp. 188-189 . This rule of evidence was recognized and approved in the case' of Tobin v. Jenkins, 29 Ark. 151. It has been followed by this court ever since. Tested by these general principles as applied to the facts of this case, the court is of the opinion that the evidence does not establish fraud or undue influence. Counsel for appellees contend that the evidence shows that the testatrix had determined to make her will in accordance with the wishes of her children, and ihat, pursuant to this desire on her part, her son, Will Sanger, undertook to agree with his sisters on the terms of the will and 'to report that agreement to her. We do not think the evidence establishes this. The undisputed testimony is that early in the morning of the day on which the will was executed, Mrs. Johnson told Dr. Corn, her attending physician, that she wanted to make her will. That she wanted him to bring down Mr. Rodgers to prepare the will. That she had tried to get her son Will to attend to it, but that he had put her off, thinking it might worry her. This shows that the idea of making a will of some sort originated in her own 'brain, and the testimony shows that the idea culminated in action in anticipation of the probable fatal results of the surgical operation to be performed upon her. Mrs. Ben. Smith was in the room with her all the morning, and heard her conversation with Dr. Corn. She heard the conversation with Will Sanger.later in the morning in regard to what she intended to give her two married daughters. She said that Will told his mother that Mollie wanted two lots, and that his mother replied: “Willie, I can’t do thatand that Willie then went out. Mrs. Smith was a disinterested witness, unimpeached and uncontradicted, and her testimony was not weakened by cross-examination. Will Sanger’s testimony was to the same effect on this, the turning point of the case, and there is no contradiction, direct or indirect of this testimony. Without contradiction of this testimony, there is no evidence that any fraudulent representations of Will Sanger to his sisters was a factor in the making of the will. The undisputed evidence shows that the statements made by Will Sanger to Mrs. McDonald as testified to by her, in regard to the condition of his mother’s property, were never communicated to his mother, and did not influence her in making her will The facts and circumstances adduced in evidence do not disclose that Mrs. Johnson signed the will because she believed that its provisions were approved by Mrs. McDonald, but they do establish the fact that the wishes of Mrs. McDonald did not control her; for without any suggestions from any source she refused to accede to the terms proposed by her daughter. The will was written by a reputable attorney of the testatrix’s own selection, and was witnessed by him and her attending physician. The provisions of the will were reasonable and natural, considering the fact that the most of her property was incumbered ; that her married daughters were already comfortably provided for; and that her son had always lived with her, and for a great number of years had assisted her in the management of her business and in the support of his three unmarried sisters. Her partiality in giving them the larger share. of her estate might well be expected under the circumstances. The court considers the provisions of the will only as showing the reasonableness of the uncontradicted testimony of the testatrix’s intentions towards her minor daughters. While she was weak from her physical ailment, the mind of the testatrix was unimpaired. This is admitted to be true, and is evidenced by the fact that learned physicians consulted with her about performing a dangerous surgical operation upon her. She evidently knew the condition of her 'property; for she had always been actively engaged in the managment of it, even to the extent of supervision after she became too ill to leave her room. The facts are not only consistent with an uninfluenced exertion of the free will of the testatrix, but afford no inference that the will was procured by false statements to her that the will had been agreed upon by or was satisfactory to the children. Wills are rarely ever satisfactory to the family or friends of the testator. But a careful examination of the testimony leads us to the conclusion that there was not sufficient evidence upon which to submit the issue of fraud and undue influence to the jury. The case has been twice’tried before a jury, and'we may assume that all the testimony has. been procured that would shed any light upon the question. The cause is therefore reversed and remanded with directions to dismiss.