Allison v. Stroh

George Pose Smith, J. This is a will contest. The testator, Perry O. Bellville, a resident of Eureka Springs, died February 24, 1958, at the age of 87. His will had been executed four years earlier, on March 27,1954. Bell-ville was survived by two daughters, the appellant Vera Allison and the appellee Wanda Stroh. Mrs. Stroh contested her father’s will on the.ground of undue influence. The probate judge set the will aside, and the only question is whether his decision is against the preponderance of the evidence. Evans v. Sawyer, 228 Ark. 551, 309 S. W. 2d 25. Many years ago Bellville came to Arkansas from Illinois and settled near Stuttgart, purchasing a 220-acre farm in Prairie county. Sometime in the 1930’s Bellville and his wife moved to Eureka Springs, but the two daughters, who were both grown and married, continued to .live in Arkansás county, at Stuttgart and DeWitt. Mrs. Allison, the younger sister, owned and operated a women’s clothing store at Stuttgart for twelve years or more. . In the early 1950’s she and Mrs. Stroh ran a similar store together in DeWitt for about twp years, but the venture was hot profitable. After that Mrs. Stroh either bought or'was given a half interest in her sister’s store at Stuttgart, but again their joint enterprise was unsuccessful. The partnership was dissolved, apparently without hard feelings on either side, by a written agreement dated January 1, 1954. Mrs. Stroh received about $4,000 in the liquidation of the enterprise, but Mrs. Allison testified that the business was really insolvent and that she was compelled to pay a substantial outstanding indebtedness. The partnership between the sisters ended on January 1, 1954. Word that the venture had resulted in a loss undoubtedly reached Bellville at his home in Eureka Springs. He executed a new will, the one now in question, on March 27, 1954. This will is decidedly favorable to Mrs. Allison. She receives her father’s personal property, inventoried at about $10,000, and a life estate in certain Illinois and Eureka Springs real estate, with remainder to her children. The other parcel of land, the Prairie county rice farm, is left equally to the testator’s two daughters for life, with remainder to their children. The contestant, Mrs. Stroh, had the burden of proving undue influence. Miller v. Carr, 94 Ark. 176, 126 S. W. 1068. We are of the opinion that the weight of the evidence fails to establish the essential elements of undue influence, as defined in this often-quoted language from McCulloch v. Campbell, 49 Ark. 367 5 S. W. 590: “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 affection, but the malign influence which results 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 specifically directed toward the object of procuring a will in favor of particular parties.” (Emphasis added.) To the same effect is Davault v. Parks, 190 Ark. 370, 79 S. W. 2d 68, where we said: “Before a will can be invalidated upon the ground of undue influence, there must be testimony proving or tending to prove that the influence was of such character as to destroy the testator’s free agency, in effect substituting another’s will in the place of his own, and the influence must be directed toward the object of procuring a will in favor of particular parties.” Here the charge of undue influence rests upon only two circumstances: first, the testator’s unequal division of his estate, and, secondly, the assertion that Mrs. Allison had falsely represented to her father that her sister Wanda had defrauded her of about $30,000 in their mercantile ventures. Lumping these two circumstances together, we think it fair to say that the weight of the evidence indicates that Bellville executed a will favoring his daughter Vera because he believed that she had suffered a substantial loss in her dealings with her sister, and we think it probable that Bellville also was convinced that Wanda had acted dishonestly or at least unfairly. Even so, the proof of undue influence does not meet the test laid down in the McCulloch case, supra. The appellee had the burden of proving that "Vera’s wrongful domination of her father destroyed hit, free will and that her false statements, if any were.made, were specifically directed toward the procurement of a will in her favor. Neither point is sufficiently established. Bellville, despite his age, was- mentally alert. He was living at Eureka Springs, 200 miles or more from Vera’s home at Stuttgart. The partnership was liquidated as of January 1, the will was executed on March 27, but there is no contradiction of Vera’s testimony that she did not visit her father until Easter, which fell on April 18 that year. The will was witnessed by F. O. Butt, an attorney, and we assume that it was prepared by him. It is impossible to believe that Vera was able to dominate her father from more than halfway across the state, and at a time when he was being guided by his own attorney. Moreover, the testator lived for almost four more years without changing the will, thus having ample opportunity to satisfy himself about the supposed charges against his older daughter. Nor is there any direct proof whatever that Vera Allison maligned her sister for the particular purpose of inducing her father to execute a will in her favor. Whether she made the asserted misrepresentations at all is a sharply disputed issue of fact'; but if we as'shme that she was guilty of slandering her sister there is simply no positive proof to show that her wrongdoing 'was designed to bring about a favorable testamentary disposition of her father’s estate. That the will was actually ’favorable to her does not supply this gap in the proof; for in that event any will favoring one of the testator’s children would be subject to being set aside upon a showing that false statements had been made by the principal beneficiary about other members of the family. Reversed. Ward and Johnson, JJ., dissent.