Dodson v. Walton

Darrell Hickman, Justice. This probate case comes to us purely on a question of law: the effect of an interlineation or obliteration of a devisee’s name by the testator. The Probate Court of Prairie County decided that the attempt in this case to obliterate the name of a devisee was abortive, and that according to our cases the devisee’s name had to be restored to the will as originally intended. The facts are not disputed. Lora E. Dodson died in October, 1977. Her attested typewritten will of October, 1975 was admitted to probate shortly after her death. It is attached as an exhibit to this opinion. She gave all of her property in equal shares to six people; K. W. Dodson, Ruby Van Houten, Geneva Voumard, Fred Walton, Carl Slaughter, and Pauline Lease. Fred Walton had farmed Mrs. Dodson’s land for twelve years but was not related to her. According to a stipulation by the parties, sometime after the will was made Mrs. Dodson struck through Walton’s name. The probate judge found as a matter of fact she intended to do this and it was her purpose to exclude Walton from her will. However, the judge found that since the change was not properly executed as required by the cases of Cook v. Jeffett, 169 Ark. 62, 272 S.W. 873 (1925) and Walpole v. Lewis, 254 Ark. 89, 492 S.W. 2d 410 (1973), the attempt was void and Walton was entitled to one-sixth of the estate. The judge was right. The appellant argues that the judge was wrong and cites Ark. Stat. Ann. § 60-406 as controlling1 It reads in part: ... a will, or any part thereof, can be revoked only a. By subsequent will; or (b) By being burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself or by another person in his presence and by his direction. If such act is done by any person other than the testator, the direction of the testator and the facts of such injury or destruction must be proved by two [2] witnesses who are not benefitted by the revocation of the will. [Emphasis added.] The appellant emphasizes that the phrase “or any part thereof’ means that Mrs. Dodson could have, and in fact did, lawfully change her will. We held in Cook and Walpole that if a testator obliterated or interlineated a will, thereby changing the testamentary disposition, it is invalid unless attested. (The dissent in Walpole was regarding the majority’s treatment of whether the same rule applies to a holographic will.) It is undisputed the change was not attested and the obliteration changed the will, in effect making a new testamentary disposition. Instead of each devisee receiving one-sixth, the devisees, other than Walton, would receive one-fifth. We have then a situation exactly like that dealt with in Cook and Walpole. In Cook we said: . . . The rule supported by the weight of authority is, as is stated in the text of Ruling Case Law, supra that ‘when an attempt has been made by interlineation or obliteration to make a different disposition of the estate, the attempt will be abortive if made without the attestation required by law, and the will as originally drawn will be given effect.’ [Emphasis added.] If the interlineation or obliteration does not change the testamentary disposition provided for in the will, then the change may be valid and the property devised goes by the law of intestacy. That was the case in Cook v. Jeffett, supra, where there was no residuary clause in the will. In Walpole, the obliteration did make a different disposition of the property and the interlineation or obliteration was declared void. In both Cook and Walpole we considered the same statutory language that appellant argues is controlling. In Cook, the statute in effect at that time, provides: No will in writing, except in cases hereinafter mentioned, nor any part thereof, shall be revoked or altered otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation and alteration, and executed with the same formalities with which the will itself was required by law to be executed, or unless such will be burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same by the testator himself, or by some other person, in his presence, by his direction and consent of the testator, or the fact of such destruction, shall be proved by at least two witnesses. [Emphasis added.] In Walpole we had before us Ark. Stat. Ann. § 60-406 which replaced the statute considered in Cook. It can be readily seen that the statutes are essentially the same so far as the question before us is concerned. Our interpretation of the law has been the same for at least 55 years and there are good reasons for our decisions in Cook and Walpole. Any other rule would permit anybody to obtain a will and strike through a name thereby defeating the intent of the testator. The books are full of cases where witnesses have declared after the death of someone, or attempted to declare, what the intent of the testator was. Finding that the probate judge correctly applied the law to the facts in this case, we affirm the judgment. Affirmed. Purtle and Stroud, JJ., dissent. LAST WILL AND TESTAMENT OF LORA E. DODSON I, Lora E. Dodson, of Route 1, DeValls Bluff, Prairie County, Arkansas, being over the age of twenty-one years and of sound and disposing mind and memory, do hereby make, publish and declare this to be my last will and testament, hereby revoking all wills heretofore made by me at any time. (1) I direct that I be given suitable burial and that all my just debts be paid as speedily as possible. (2) All the rest and residue of my estate, whether real, personal or mixed, after payment of my debts and burial expense, I give, bequeath and devise to my hereinafter named executor and direct that he liquidate all of my assets, both real and personal, and divide the proceeds therefrom among the following: K. W. Dodson, Ruby VanHouten, Geneva YmmiarH jCarl Slaughter, and Pauline Lease, share and share alike. (3) I hereby nominate, constitute and appoint K. W. Dodson as executor of ay estate under this my last will and testament and request that he be not required to make bond; however^ should K. W. Dodson fail to qualify as executor for any reason, then 1 hereby nominate, constitute and appoint Carl-Slaughter as alternate executor of my estate and request that he be not required to make bond. In Testimony Whereof, I have hereunto set my hand this 14th day of October, 1975, in the presence of Jno. B. Moore, Jr., and Robert G. Serio, who at my request attest the same in my presence. [[Image here]] We, Jno. B. Moore, Jr., and Robert G. Serio, do hereby certify that Lora E. Dodson, the testatrix in the above and foregoing last will and testament, subscribed the same in our'presence, at the time declaring to us that said instrument was her last will and testament; and we, at her request, and in her presence, and in the presence of each other, now sign our names hereto as attesting witnesses. [[Image here]] Footnotes [1] This statute was amended by Act 814 of 1979. The amendment was not enacted in time to have any bearing on this case.