Bradway v. Thompson

HART, J., (after stating the fact's). (1) Chancery was the proper forum in which to bring the suit. Section 8062 of Kirby’s Digest provides that whenever any will shall be lost or destroyed by accident or design, a court of chancery shall have the same power to take proof of the execution of such will, and to establish the same, as in the case of lost deeds. The power of a court of chancery to establish lost instruments is one long recognized and the practice under it requires that all those interested in the deed or will should be made parties and have notice of the proceeding. Waggenet et al. v. Lyles et al., 29 Ark. 47, and Dudgeon v. Dudgeon, 119 Ark. 128. (2) Sections 48-51 of the Revised statutes, now section 8065 of Kirby’s Digest, reads as follows: “No will of any testator shall be allowed to be proved as a lóst or destroyed will, unless the same shall be proved to have been in existence at the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions be clearly and distinctly proved by at least two witnesses, a correct copy or draft being deemed equivalent to one witness.” (3) The first question for our consideration is whether or not the execution and contents of the will are established according to the provisions of this statute. We think the proof clearly shows that this question should be answered in the affirmative. Mr. Cockrill dictated the will to his stenographer. She took it down in shorthand and transcribed her notes on the typewriter, making the original draft of the will and a carbon copy of it at the same time. She exhibited the carbon copy with her deposition and testified that it was the copy she made when she transcribed her stenographic notes as dictated to her by Mr. Cockrill. Mr. Cockrill identified the copy as being an exact copy of the original with the exception of filling certain blank spaces with the name of the executrix and the names of the trustees. He stated that he filled in the blanks with these names in the original with a pen and in the copy with a pencil. Thus it appears from his testimony, that the copy exhibited with the deposition of the stenographer was an exact copy in all respects of the original will. It appears from the testimony of the stenographer that the copy was an exact one in all respects except that in transcribing the will she left a blank space for the name of the executrix to be inserted and also for the names of the trustees. It appears from the testimony of both these witnesses that as far as the devises and bequests are concerned the carbon copy exhibited is an exact copy of the will executed by Joseph Kendrick. In addition to this Miss Fannie Mitchell testified that Joseph Kendrick stated to her in detail how he wanted his property disposed of and that she at the time made a written memorandum from his dictation. She refreshed her memory from this memorandum and testified in detail about how Joseph Kendrick had directed his property to be disposed of in his will. Her testimony in this regard was in all essential respects similar to the disposition of his property as shown by the carbon copy of the will. She testified that the memorandum she had written down at the time from his dictation showed that he wanted to give a house and lot in the city of Little Rock to Henry Condell. She gave the number of the lot. She testified further that Mrs. Bradway was t<5 have the interest on $2,000 in money and that the principal at her death was to go to the establishment of an orphan’s hospital; that all the balance of his property which was estimated at about $40,000 was to be used in erecting a hospital for orphan children. She stated further that the will was prepared by Mr. Cockrill from the memo-random which she had furnished him. The witnesses to the will, also, remembered that he had devised a house and lot to Henry Condell and the interest on a certain sum of money to' Mrs. Bradway. They did not remember the amount. They stated that the residue of the estate was to be given to C. H. Rosseau, E. G. Thompson and W. W. Wilson in trust to erect a hospital for orphan children. All the above named witnesses except the stenographer, who was not present at the time, testified that the will was read over line by line to Joseph Kendrick and carefully explained to him before he signed it. He expressed himself as greatly pleased and left the office with the will in his hand. There is no testimony tending to show that he ever executed but one will. It is shown by the testimony of disinterested witnesses that he executed this will in the office of Ashiey Cockrill. These witnesses also clearly established the provisions of the will. Therefore we are of the opinion that the execution of the will and its contents have been clearly and distinctly proved with the formality and solemnity prescribed by the statute. (4) Ashley Cockrill, the attorney who prepared the will under the instructions given him by the testator, was one of the witnesses to prove the execution of the will and its provisions. It is true subdivision 5 of section 3095 of Kirby’s Digest provides that an attorney shall be incompetent to testify concerning any communication made to him by his client in that relation or his advice thereon, without the client’s consent. But the privilege in the statute is simply declaratory of that existing at common law. It is strictly personal and may be waived by the client. The waiver may be express or implied. The attorney was employed to draft the will in statutory form and the object of it was to enable the testator to dispose of his property according to his own wishes. While the testator lives, the attorney drawing his will would not be allowed, without the consent of the testator, to testify to communications made to him concerning it, or to the contents of the will itself, but after his death, and when the will is presented for probate the reason for the rule ceases and public policy requires that the attorney should be allowed to testify in order that the will of the testator may be carried out according to his intentions. A different result would be inconsistent with the objects of the will and in direct conflict with the reasons upon which the privilege is founded. Glover v. Patten, 165 U. S. 394; In re Young’s Estate (Utah), 14 Ann. Cas. 596 and case note; Doherty v. O’Callaghan, 157 Mass. 90, 31 N. E. 726, and In re Layman’s Will (Minn.), 42 N. W. 286. In discussing the question of privileges as applicable to an attorney in case of will contests, Professor Wig-more said: “But for wills a special consideration comes into play. Here it can hardly be doubted that the execution and especially the contents are impliedly desired by the client to be kept secret during his lifetime, and are accordingly a part of his confidential communication. It must be assumed that during a, part of that period the attorney ought not to be called upon to disclose even the fact of a will’s execution, much less the tenor. But, on the other hand, this confidence is intended to be temporary only. That there may be such a qualification to the privilege is plain.” 4 Wigmore on Evidence, section 2314. At the conclusion of the section the learned author said: “As to the tenor and execution of the.will, it seems hardly open to dispute that they are the very facts which, the testator expected and intended to be disclosed after his death; and, with this general intention covering the whole transaction, it is impossible to select a circumstance here or there (such as the absence of one witness in another room) and argue that the testator would have wanted it kept secret if he had known that it would tend to defeat his intended act. The confidence is not apportionable by a reference to what the testator might have intended had he known or reflected on certain facts which now bear against the will.” (5) Joseph Kendrick kept the. will in his possession and after his death a diligent search was made for it and it could not be found. The presumption- is that he destroyed it with the intention to revoke it, but the presumption may be rebutted. 40 Cyc., p. 1281; Schouler on Wills, Executors and Administrators (5 ed.)-, vol. 1, sec. 402; and Underhill on Wills, vol. 1, sec. 272. (6) According to the uniform current of decisions the fact that a will which is proved to- have been properly executed by the testator, and which was last seen in his custody cannot be found at his death, raises a presumption that it was destroyed by him with the intention of revoking it. It is equally well settled that the presumption may be rebutted by evidence that the testator has not revoked his will. This brings us to the question of whether or not the declarations of the testator may be received for that purpose. Although there is some conflict among the authorities upon this question, the great weight of authority is that, if the execution of a will is properly shown, and its provisions established, and the will appears to have been last seen in the possession of the testator, his declarations tending to show that he has or has not destroyed it, or which'show that it was not in existence at his death, are received to strengthen or to rebut the presumption of revocation which arises from its disappearance. Underhill on Wills, vol. 1, see. 277; Schouler on Wills, Executors and Administrators (5 ed.), vol. 1, sec. 403; 40 Cyc., p. 1317; Jones Commentaries op Evidence, vol. 3, par. 484; Weeks v. McBeth, 14 Ala. 474; Spencer’s Appeal, 77 Conn. 638, 60 Atl. 289; Patterson v. Hickey, 32 Ga. 156; McDonald v. McDonald, 142 Ind. 55, 41 N. E. 336; Steel v. Price (Ky.), 5 B. Mon. 58; Collaghan v. Burns, 57 Me. 447; Boyle v. Boyle, 158 Ill. 228; Pickens v. Davis, 134 Mass. 252, 45 Am. Rep. 322; Ewing v. McIntyre, 141 Mich. 506; Tucker v. Whitehead, 59 Miss. 594; Williams v. Miles, 68 Neb. 463; Hildreth v. Schillenzer, 10 N. J. Eq. 196; Behrens v. Behrens, 47 Ohio St. 323, 21 Am. St. Rep. 820; Gardner v. Gardner, 177 Pa. St. 218, 35 Atl. 558; Banskett v. Keitt, 22 S. C. 187; Allen v. Jeter (Tenn.), 6 Lea, 682; Tynan v. Paschal, 27 Tex. 286, 84 Am. Dec. 619; Yerby v. Yerby (Va.), 3 Call. 334, and In re Valentine, 93 Wis. 45. In Reel v. Reel, 8 N. C. 248, at p. 268, Judge Henderson sums up the conclusion of the court in the following strong language: “To our minds, to reject the declarations of the only persons having a vested interest and who was interested to declare the truth, whose fiat gave existence to the will, and whose fiat could destroy, and in doing the one or the other could interfere with the rights of no one, involves almost an absurdity; and (with due deference to the opinions of those who have decided to the contrary, we say it) they are received, not upon the ground of their being a part of the res gestae, for whether they accompany an act or not, whether made long before or long after making the will, is entirely immaterial as to their competency; those circumstances only go to their weight or credit with the tribunal which is to try the fact, and the same tribunal is also to decide whether the declarations contain the truth or are deceptive, in order to delude expectants and procure peace.” Joseph Kendrick executed the will on the 16th day of May, 1918, and died July 26, 1918, in the city of Little Rock where he had lived for many years. He carried the will home with him and placed it in a drawer for safe keeping. He expressed great satisfaction that he had executed the will both at the office where it was executed and just after he left there. In a short time thereafter he told C. H. Rosseau, a friend of 35 years standing, about the execution of the will and the likelihood of its displeasing his relatives. He stated to his friend that he thought he had a right to dispose of his property as he wished, notwithstanding his action would be disapproved by his relatives. He told Mr. Rosseau in the presence of his wife where he kept his will and that the first time Rosseau was at his house he would show him the place where he kept it, so if anything happened to him, Rosseau would know where to find the will. Kendrick was old and was fast losing his health at this time. Mrs. Rosseau corroborated the testimony of her husband as to the satisfaction Mr. Kendrick expressed at having made a will. At first she also corroborated her husband to the effect that she told Mrs. Bradway where Mr. Kendrick said he kept the will. After Mrs. Brad-way had denied that she had any knowledge where Mr. Kendrick kept the will and denied that Mrs. Rosseau had told her where he said he kept it, Mrs. Rosseau testified that she could not remember whether or not she had told Mrs. Bradway where Mr. Kendrick said he kept the will, but she did tell Mrs. Bradway that he had executed a will. Mr. Rosseau said that his wife did tell Mrs. Brad-way over the telephone where the will was kept and that he told her after the death of Mr. Kendrick where he had kept it. So it may be taken as established by disinterested witnesses that Mrs. Bradway knew before Mr. Kendrick died that he had made a will and by one of them that he told her where it was kept after Mr. Kendrick’s death. Mrs. Bradway was in and out of the house every day and had the opportunity to have searched for and found it before Mr. Kendrick’s death even if Mrs. Rosseau did not tell her where it was kept. (7) Of course opportunity to destroy the will is not sufficient testimony to establish that fact, but it is a circumstance to be considered in determining whether the will was in existence at the time of the death of the testator or had been destroyed during his lifetime. Mr. Kendrick only lived four days after he was carried to the hospital. Mr. Rosseau and another old friend named Robinson visited him while there. Mr. Bosseau asked Mr. Kendrick if he had left anything undone which a friend could do for him and he remarked that he had left everything all right. Miss Fannie Mitchell, who was consulted by Mr. Kendrick about making the will, visited him while he was in the hospital. Mr. Kendrick realized that he was a very sick man and seemed as if he wanted to talk to her about something but refrained because his nurse was present-. Miss Fannie finally leaned over him and said: “Mr. Kendrick have you done something that you wish me to undo?” She was referring to the part she had taken in the preparation and execution of his will. Mr. Kendrick replied: “No, Miss Fannie, not that; I am perfectly satisfied with that. ’ ’ About that time his physician came in and no further conversation was had between the parties. It is contended by counsel for appellants that he was referring to the fact that he had destroyed the will with the intention of revoking it. We think this is a strained construction to put on his language, because Miss Mitchell had not seen him since the execution of the will and he must have known that she referred to the part she had taken in that. This was the only transaction she had ever had with Mr. Kendrick. She was not interested in the provisions of the will in any way and evidently intended to help him undo what she had helped him to do if he had so wished it. He told her that he was perfectly satisfied with his action, evidently referring to the only transaction they had ever had—her assistance in the preparation of his will. Henry Condell also testified that Mr. Kendrick, after he became sick and within five days of his death, told him, about the execution of the will and expressed himself as satisfied at having executed it. There was no contradiction of any of these witnesses. None of them except Henry Condell had any interest whatever in the result of the suit. There is no circumstance tending to affect the veracity of any of them. There is no evidence tending to show dissatisfaction on the part of'Mr. Kendrick that he had executed the will or any wish or attempt to change it. On the contrary he made declarations of satisfaction at having executed it in the hospital when he knew he was facing death. The will was made within two months of the testator’s death and after deliberation on his part. It was.proved by several disinterested witnesses, who had known Joseph Kendrick well for many years, that he was a man of great force of character ; that he was slow to make up his mind; but that, once having determined upon a course of action, he never changed his mind. After its execution he made repeated declarations of his satisfaction at its execution and the provisions of- it up to within a few days of his death. Thus he recognized its continued existence. There was no excuse whatever for him to have spoken falsely in this respect. The witness who could have benefited directly by him making a will was his wife’s nephew who was absent in the army. None of'the other persons who assisted him in the preparation and execution of the will had any interest in the matter except to carry out his wishes. (8) The chancellor after weighing the evidence was of the opinion that the facts justified him in establishing the instrument as a lost will to the end that it might be admitted to probate as provided by the statute. It was not indispensable that he should determine what became of the will. It was enough that he should- find that it was not revoked or canceled by the. testator. (9) It is our duty to uphold the findings made by the chancellor unless the court is of the opinion that they are not sustained by a preponderance of the evidence. This we cannot do. It is not a question of whether the testator should have recognized that his blood relatives were objects of his bounty and should have given his property to them. It is not claimed, that he was not competent to make a will and he had- the right to dispose of his property as he wished. It does not make any difference that we might think that the testator should have disposed of Ms property to Ms relatives as being in accord with the principles of natural justice and affection. No court bas a right to dispose of a man’s property contrary to his intentions or to change or revoke a will which he has deliberately made. After reading and considering all of the evidence, we are of the opinion that it cannot be said that the findings of the chancellor are against the preponderance of the evidence, and the decree must be affirmed.