Harwell v. Garrett

393 S.W.2d 256, 239 Ark. 551, 1965 Ark. LEXIS 1033

Opinions

Carleton Harris, Chief Justice.

This is a will contest. Frank Garrett, a lifelong bachelor and resident of Columbia County, executed his will on January 21, 1950, leaving his entire estate to his brother, A. C. Garrett. Frank died on February 27, 1962, at the age of 83 years, and in due time, appellee A. C. Garrett petitioned the Columbia Probate Court for admission of the will to probate. Thereafter, appellants filed their contest. Lillie Garrett Viston and Otis Harwell, appellants herein, are respectively the sister and nephew of the testator. Following a lengthy trial, the court dismissed the contest and admitted the will to probate, and from such order comes this appeal.

For reversal, it is contended that Frank Garrett lacked testamentary capacity, and that, in executing the will, he was acting under undue influence.¹ These contentions are so interwoven that they can hardly be discussed separately.

A factual background is in order. Frank, A. C. (Asa) and Lillie were the three surviving children of Levi Garrett,² who died testate in 1946, leaving his estate to Frank and Asa. Lillie and Harwell contested that will, alleging that Levi was mentally incompetent to make a will, and that undue influence had been exercised upon him by Frank and Asa. That contest was unsuccessful. Levi had been a successful farmer, but during the 1930’s, oil was discovered on his property, and on other property owned by Asa. Frank’s estate consists of real property, bank accounts, and oil income, obtained from property which he inherited from his father.

The record in this case is voluminous, containing the testimony of sixty-three witnesses and eleven depositions. Included is the testimony of schoolmates, neighbors, business acquaintances, oil company employees, who worked on the Garrett wells, and various citizens of Magnolia. The Chancellor, at the conclusion of the evidence, rendered a comprehensive opinion, discussing the testimony of a large number of the witnesses, and this opinion will be subsequently referred to.

Winston O. Wilson, Executive Vice-President of the First National Bank of Magnolia, was one of the witnesses to the execution of the will. He testified that he saw Frank Garrett sign the instrument, and stated that Garrett said that he also wanted two others present, W. B. Gantt, Jr., and W. C. Blewster, to witness the will. Wilson testified that Gantt also signed as a witness.³ The will had been prepared by a Magnolia attorney in the bank building. Appellants attempt to establish that A. C. Garrett brought Frank into town for the purpose of making the will. This, in itself, of course, proves nothing, and for that matter, frequently happens, and, in some instances, beneficiaries actually take the testator to the lawyer’s office without ever being accused of exercising undue influence. One argument advanced by appellants is under the sub-heading, “Asa .wanted Frank to execute a will to him.” The proof was not very extensive on this point, but at any rate, it certainly did not establish undue influence. In Langford v. Gates, 238 Ark. 167, this court, quoting from 94 C. J.S., Section 226, Page 1075, stated:

“Every influence exerted on a testator is not undue influence, and it is well settled that influence, consisting of appeals, requests, entreaties, arguments, flattery, cajolery, persuasion, solicitations, or even importunity, is legitimate and becomes ‘undue,’ so as to invalidate the will, only when it is extended to such a degree as to override the discretion and destroy the free agency of the testator.”

Another sub-head asserts that “Frank was under the control of Asa,” and this will be hereafter'discussed.

There is no direct evidence that Frank Garrett was acting under duress at the time of the execution of the will. As long ago as 1887, in McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590, this 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 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 Ms property. And the influence must he 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. ’ ’

See also Rosenbaum v. Cahn, 234 Ark. 290, 351 S. W. 2d 857, and Langford v. Gates, supra.

Appellants’ strongest arguments are based on their allegations and evidence offered to the effect that Frank Garrett was mentally deficient to the extent that he did not possess testamentary capacity. Appellants strongly argue this contention, and evidence was offered to the effect that Frank had been considered dull, even in school days, probably not finishing the first or second reader; that he was rather quiet and timid, and rarely joined with the other children in the games that would be played. Testimony was introduced by appellants to the effect that Frank would not clean up, but constantly wore the same dirty clothes, “smelled bad,” liked to take a bath in the creek, spent very little for groceries, stating that a $20.00 bill “had to do him a long, long time,” was not interested in modern conveniences, and appeared to think more of his crops than his oil wells. Others testified that Frank would say that he had no money, and as authority for this statement would quote his brother, Asa, as saying, “The government got all their money,” and indicate otherwise that his opinions were formed by what Asa had to say. Oil field workers, who would see Frank off and on over several years, emphasized that he was uncommunicative, and had little to say, except to comment about crops or the weather. There was testimony that Frank would eat cheese and crackers for lunch, and a neighbor testified that one day he saw Frank hide some peanuts behind a fence “because he didn’t want Asa to know about the peanuts, he would take them away from him.” Evidence was offered that Frank lived in filth, rarely shaved, and had frequently stated that he would rather have a water well than an oil well. Frank was apparently more interested in agriculture than in oil, and this seemed strange to some of the witnesses.

The Chancellor commented on some of the testimony as follows:

“ * * * One witness, Lee Roy Hollier, who now lives at Norphlet, Arkansas, where he has lived since the latter part of 1951, testified that he formerly lived in Columbia County where he was an oil gauger; that he first met A. C. Garrett in 1939; he met Frank Garrett shortly after he met A. C. Garrett; that every time he saw Frank, with one exception, he was dirty; he never had any business transactions with him, that all of his dealings were with A. C. Garrett; that Frank seemed to be more interested in growing peas and farming than in oil wells; he saw Frank cutting trees; he never heard Frank talk about current events and in his opinion he did not believe Frank even knew, during the years 1942 and 1943 and 1944, that we were involved in AVorld War .Two and in his opinion he did not possess the mental capacity of a child of more than nine or ten years of age. He further testified that he never saAv Frank Garrett reading; also, on cross examination, he said he never read anything himself in front of Frank Garrett. Later the same day the Respondents⁴ called another oil field worker as a witness, Mr. Hartley, aaTlo testified that during the War Frank Garrett came by where he Avas working’ and during the conversation asked him if he had heard any war neAvs. Another of Respondents’ witnesses, C. B. Simmons, an oil field Avorker, testified that Frank discussed with him food rationing during the war. In the light of this evidence from Respondents’ own Avitnesses, the Court is of the opinion that Mr. Hollier’s statement as to Frank Garrett’s capacity or incapacity is not of much value.

‘ ‘ The Court certainly is not impugning the motive or credibility of people Avho testified for the Respondents, regarding the mental capacity of Frank Garrett, but at the same time the Court cannot overlook the fact that most of their opinions are based upon a few casual and brief conversations without any business dealings or transactions with Frank Garrett. One witness offered by Respondents who testified that in his opinion Frank Garrett was not capable of doing business was Mr. N. W. White but according to his testimony, he tried to sell Frank Garrett a car on one occasion while he was in the automobile business and also testified that he tried to buy royalty from him and further stated that if Frank had agreed to buy a car, he would have sold it to him and that if he had a title opinion from an attorney, he would have bought royalty from him. This Court has known Mr. . White for a long number of years and knows him to be a very high type man and, being committed to the belief that Mr. White would not take advantage of an incompetent person, I do not see how he could have concluded that Frank Garrett was not capable of transacting business when Mr. White testified that he undertook to do business with him. * * #

“ * ® * Another witness offered by Respondents for the purpose of showing mental incapacity, a Mr. Beard,' testified that in a conversation with Frank Garrett concerning damage which salt water was doing to his timber, Frank Garrett told him the number of board feet in trees which had been damaged by salt water. Harry Baker, another of Respondents’ witnesses, who is 67 years of age, testified he was born within three quarters of a mile of the Garrett place and lived there until 1918; that he has known the Garretts since he was six years old; that his family and the Garrett family visited with each other; that he ginned cotton at the Garrett’s Gin; that even though Frank Garrett was some fifteen years older than Mr. Baker, he testified they hunted together; that Frank was a good hunter; he knew the woods and he knew the Garrett land, knew when he was on their land or not on their land while in the woods hunting and that in his opinion Frank was not competent to execute a "Will or transact business. After considering testimony of this type, the Court cannot help but feel that when Respondents own witnesses testified Frank Garrett knew his land, knew that Salt Water was damaging his timber and knew how to even estimate the number of board feet in the damaged trees, certainly this is not descriptive of one who is mentally incompetent. * * *

“Wilbur and Minnie Ford, his wife, were offered as witnesses for the Respondents to show the incompetency of Frank Garrett. Mr. Ford is a former oil field worker who moved from Columbia County in 1941 and did not return until 1956 when he and his wife, while in Columbia County and driving in the vicinity of near the Garrett place, came upon Mr. Frank on the side of the road. Both Mr. and Mrs. Ford testified that Frank Garrett, without any forewarning or any prompting, recognized Mr. Ford and called him by name although he had not seen either of them for approximately fifteen years. * '* *

“Numerous witnesses also testified for the Proponent to rebut the testimony offered by the Respondents and likewise many of their witnesses were neighbors and people who were closely associated with Frank Garrett, who had worked with him and who had actually transacted business with him. Ned Baker, age eighty, was a school mate and lifelong acquaintance of Frank Garrett. He testified that he went to school with Frank and to Church singings and did the same sort of work. that Frank Garrett did and actually worked with him and had numerous conversations with him and he also testified that Frank Garrett got along in school as well as the average; that he was a good farmer and would exchange ideas with him about how to do farm work * * *

“ # * * Roy Couch, seventy years of age, testified hé had known Frank Garrett most all of his life, * * * that Frank could estimate the depth of an oil well by the number of drilling pipe that was stocked in the derrick. Mr. V. S. Parham, a witness for the Proponent and a resident of Magnolia, testified he has known the Garretts since' about 1921 or 1922 and has been engaged in the oil business since 1935; prior to that time he was in the feed and grocery business and that he has sold groceries to Frank Garrett; that Frank always knew what he wanted, made his purchases and resisted any attempt to be sold items which he did not want. This witness further testified that in November, 1937, he purchased from Levi Garrett, Frank Garrett and A. O. Garrett a mineral interest in lands owned by them; that during tbe course of this transaction, on several occasions, he talked with Frank Garrett alone about the proposed purchase, talked with Frank also in the presence of Levi and A. C. Garrett; that originally offered but finally agreed upon a price which was the highest price paid for royalty in that area; * * #

“Corbin Yelvington, formerly an employee of the Land Department of Lion Oil Company, testified he had known Frank Garrett most all of his life; that in 1928 he bought timber from Levi Garrett, the trees he bought were marked and Frank Garrett alone accompanied this witness and showed him the trees to be cut; * * *’’

The above constitutes only excerpts from a lengthy opinion, but it is apparent that the testimony was much in conflict; it is also evident that some of appellant’s own witnesses contradicted themselves at times.

It is, of course, pertinent to mention the degree of mental capacity required in executing a will. Let it first be stated that one does not have to be a genius, a college graduate, a high school graduate, or even have attended gradé school, to make a will. While a male minor, generally speaking, is unable to enter into binding contracts (he must first attain the age of 21 years), the law does not require that one be an adult before being capable of executing a will. This may be done when a minor reaches the age of 18.

In Volume 1, Page on Wills, Section 12.20, we find two cases cited on this question as follows:

“The making of a will does not require so high a degree of mental capacity as does the making of deeds or contracts. Making a will is not a matching of wits. It is giving, not bargaining. Huffnagle v. Pauley (Mo.) 219 S. W. 373.

“Where the Court gave a correct statement of what testamentary capacity was, in law, it was held not to be error to add that it required less mental powers to make a will than it did to make a contract. Gable v. Rouch, 50 S. C. 95, 27 S. E. 555.”

Again, in Section 12.37 of the same volume, we find a discussion of “eccentricity,” as follows:

“To distinguish eccentricity from insanity is easy in theory and difficult in practice. Eccentricity is deviation from the methods of conduct and behavior usual to the great mass of mankind similarly situated. Every person has slight peculiarities of his own, which may never cause-any suspicion of his testámentary capacity. It is only when they become pronounced by contrast with those about him that they become known as eccentricities, and are invoked to discredit his testamentary capacity. Eccentricity has no effect on testamentary capacity; and the wills of persons who are highly eccentric, and in some cases eccentric to the verge of insanity, have been upheld. This is especially true where eccentricity is due, not to any form of mental derangement, but to vanity, selfishness and the like. A testator may avoid the society of others and yet be sane enough to make a will.

“The fact that the testator was filthy, forgetful and eccentric, or that he was miserly and filthy, or that he was blasphemous, filthy, believed in witchcraft, and had dogs cat at the same table with him or that he was filthy, frequently refused to eat, and would lie in bed with his clothes on for two weeks at a time, or that he would leave his home only at night, and would count or recount his money, or that he was high tempered and violent, or was irritable and profane, or that testator thought that others were plotting against him and was afraid to go out in the dark, or that he was inattentive when spoken to and mumbled when trying to talk, does not establish lack of capacity.”

It is true that Frank Garrett may not have always acted in a manner consistent with what the average person considers “normal,” but the acts mentioned by appellants, we think, at most, only establish that Garrett was “peculiar,” and it might be added that, frequently, wealthy persons act as though extremely poor, and there are, of course, numerous instances where eccentric persons have lived in abject poverty, though thousands of dollars would be found on the premises. Our own court, in the case of St. Joseph’s Convent v. Garner, 66 Ark. 623, 53 S. W. 298, said:

“Over the objections of the plaintiff, Jacob Hufsteder, J. A. Luttrell and D. W. Reynolds, who did not attest the will, were allowed to testify as to the mental capacity of Ellen McKenzie. Hufsteder testified that her mind was weak and that he did not think that she understood what a contract is. Luttrell did not think that she was very bright, or that she was capable of making- wills or contracts, and testified that her teacher said that she could not learn anything-; and Reynolds said she did not have a brig'ht intellect like other children.

“The effort to impeach the testamentary capacity of Ellen McKenzie was indeed feeble. * * * The substance of it was, she was ‘weak-minded,’ ‘not bright,’ not as intelligent as other girls. * * * The fact that her mind was weak, not ‘bright,’ or that she was not as intelligent as the average girl, does not show that she did not have sufficient testamentary capacity to execute the will in question. ’ ’

Let us look at some of the other circumstances adduced by the evidence as a matter of determining if Frank Garrett possessed testamentary capacity. The record reflects that some seventy legal documents, about half of which had been recorded, were introduced into evidence, all of these documents admittedly being signed by Frank Garrett. These instruments consist of bills of sale, deeds, releases, Division Order contracts with oil companies, •Income Tax returns, checks (including checks in payment of Federal and State Income Tax), and, numerous other instruments, all signed over a period of years. During this time, not once has anyone questioned Frank Garrett’s competency to execute these instruments until the present litigation. Not one single medical witness testified that Frank Garrett was incompetent. To the contrary, the only medical witness who appeared, Dr. Joe Rushton, a respected physician of Magnolia, stated that, in his opinion, based on several conversations with Frank, the testator was competent, and it is interesting to note that the will in question was executed only twelve days after Dr. Bushton’s last conversation with Frank Garrett.

Of course, there was a close connection between the testator and the beneficiary, and it may well be that Frank, in some business matters, depended quite a bit upon the judgment of his brother, Asa. But this fact does not establish mental incompetency — or undue influence. In Dunklin v. Black, 224 Ark. 528, 275 S. W. 2d 447, we said:

‘ ‘ * * * It definitely appears that Hattie Boone was also the dominating personality — in business affairs; that her decisions were generally the ones accepted in matters relating to business.”

After stating that this is not unusual, the court went on to say that likely

“In every family,'one person’s business judgment is looked upon by members of the family as being more reliable, either because of business ability, or because of business experience, and that particular one’s opinion is generally given more weight in matters that arise for a decision. ’ ’

This is certainly not a case where an unnatural will was made. Under all the facts, it is clearly established that Frank felt closer to his brother, Asa, than to anyone else. He had been constantly associated with his brother during his entire adult life. Actually, human nature being what it is, a stronger case for incompeteney might well be made if Frank had named appellants (his sister and nephew) beneficiaries in the will. Lillie Garrett Yin-ton, the sister, had resided in St. Louis, Missouri, for the past forty years, and there is no evidence that, during all of this time, she either visited or communicated with Frank Garrett. Otis Harwell, the .nephew, had lived in Texas for the past forty-years, and did not remember ever having talked to Frank Garrett. Though he had visited in this state six or seven times, and had seen other relatives, apparently no effort was made to visit with Uncle Frank. These facts are sufficient, within themselves, to suggest why neither appellant was made a beneficiary, but there is even a more cogent reason why Frank might well have ignored these relatives. When Levi Garrett, father of Asa, Frank, Lillie, and Harwell’s mother, died, he devised and bequeathed substantially all of his property to the two boys, Asa and'Frank, leaving appellant Lillie Vinton and appellant Otis Harwell $1.00 each. These same two appellants (in the present case) contested the will of Levi Garrett, alleging in their complaint that for a long time Levi Garrett “had been under the undue influence of said Asa O. Garrett and Frank Garrett and each of them, and said Levi Garrett by reason of said undue influence did not make said instrument of his own free will in the disposition of his property, but made it, controlled by and under the influence of said Asa O. Garrett and Frank Garrett and each of them; the deceased resided with his son, Frank Garrett, and said son and Asa Garrett, another son of the deceased, looked after and had the personal care and attention of their father for a long time prior to and up to the time of his death. * * * said sons had influenced and dominated their, father as aforesaid in the execution of said instrument purporting to be his last will and testament. During the last illness of the deceased he was grossly neglected by his said sons in that they did not provide him with the necessary nourishing foods to sustain his life, or with medicines, nursing care or the adequate service of a physician as was plainly indicated by his age, feebleness and illness, and absolutely necessary for the preservation of his life, but on the contrary permitted and caused him to die for the want of such attention, and which under the facts and circumstances amounted to criminal neglect.”

Frank and Asa Garrett prevailed in this lawsuit, but harmonious family relationships' are not preserved through litigation. Certainly, Frank Garrett would have been a most unusual • person, if he had devised or bequeathed any property to appellants, who not only had accused him of exercising undue influence upon his father, but had further alleged that he and his brother had so neglected Levi Garrett that they were guilty of “criminal neglect,” and had caused the father “to die for the want of such attention.”

The inconsistency of appellants’ allegations is quite noticeable. In contesting Levi Garrett’s will, they asserted that Frank Garrett exercised undue influence over, and dominated, his father; yet, in the present complaint, they assert that Frank did not even have testamentary capacity. To say the least, it is out of the ordinary for a man characterized more or less as a simpleton (in the present litigation) to dominate a normal individual (as alleged in the first litigation).

There is certainly nothing unusual or abnormal about the will. This is not a case where a total stranger — -or an acquaintance of a short period — inherits the property. This is not a case where those who have been close to the testator, and who might have reasonably expected to be included in a will, are left with nothing. To the contrary, the man with whom Frank Garrett had been most closely associated throughout his life — Ms brother, to whom, according to all witnesses, he was quite devoted — was named the beneficiary.

We are unable to say that the Chancellor’s findings were against the preponderance of the testimony.

Affirmed.

Eobinson, Johnson and Holt, J. J., dissent.

1 Originally, the complaint also alleged that the signature of Frank Garrett was a forgery, and this issue was included in the trial below, but the allegation has been abandoned on appeal.

2 Harwell is the son of a deceased daughter, Alice.

3 Gantt died before the will was offered for probate. Gantt’s signature was established by the testimony of Wilson, T. A. Monroe, a vice-president of the bank, Mrs. John Dexter, former wife of Gantt, and W. C. Blewster, President of the First National Bank of Magnolia.

4 Here, appellants.