Orr v. Love

283 S.W.2d 667, 225 Ark. 505, 1955 Ark. LEXIS 625

• Court: Supreme Court of Arkansas
• Decided: November 7, 1955
• Docket: 5-718
• Status: Published

Opinions

Sam Robinson, Associate Justice.

This is a contest of a will of Alice A. Love executed on June 27, 1953, and a proceeding to establish the validity of a will executed by her on May 30, 1953. Appellants, Nellie Orr and other collateral heirs of Dr. George M. Love and Alice Love, are the contestants of the June 27 will and the proponents of the May 30 will; Elaine Love and the Board of Regents of the University of Wisconsin are the proponents of the June 27 will. Alice Love wrote five purported wills. The first was written in 1949, the second on May 30,1953, the third on June 1,1953, the fourth on June 24, 1953, and the fifth and last was executed on June 27, 1953. The last alleged will of June 27 was sustained by the Probate Court. In contesting this will, appellants claim that it was the result of undue influence and fraud, and ask that the May 30 will be probated instead.

George M. Love was a doctor and lived with his wife Alice in Rogers, Arkansas for many years. They had one child, George R. Love, who was also a doctor. In 1923, soon after the son’s graduation from medical school, he married and located in Oconomowoe, Wisconsin, a small city near Milwaukee. George M. Love had made a will years before his death leaving all of his estate, with the exception of $500.00 for his son, to his wife Alice. In 1949, acting on the advice of her son, George R. Love, Alice Love made a will leaving all of her property to her son, or to his estate in the event he predeceased her.

On May 26, 1953, the son, George R. Love, died leaving an estate valued at more than half a million dollars. Four days later, the father, George M. Love who lived in Rogers, died leaving an estate valued at about $125,000. The son, George R. Love, left a will setting up two trusts, one known as the Elaine Love Trust and the other known as the George R. Love Trust. His widow Elaine Love, the appellee herein, is the principal beneficiary. In addition to her rights under the Elaine Love Trust, she is to receive the income from the George R. Love Trust for life. After Elaine Love’s death, the income from the George R. Love Trust goes to her parents for their lifetime; the corpus of the George R. Love Trust then goes to the Board of Regents of the University of Wisconsin to be used to assist athletically minded students in obtaining an education. Elaine Love and Mr. Lynford Lardner, attorney for George R. Love who is now representing his widow, were named as trustees. Under the terms of the will, the trustees have almost unlimited powers; they may move the situs of the trust to any State or foreign country, and are not required to account to anyone for their actions. The George R. Love will setting up these two trusts is very long and involved and consists of over fourteen typewritten pages. For a thorough understanding of its terms considerable study is required.

Mr. Claud Williams, an attorney in Rogers, Arkansas, had represented Mrs. Alice Love for many years. His secretary, Mrs. Jeff a Scott, had looked after business matters for Alice Love and prepared her income tax statements for several years. Elaine Love knew of .the close professional relationship between Mr. Williams and Mrs. Alice Love. When George R. Love died on May 26,1953, Elaine thought it better to let Mr. Williams notify Alice of her son’s death; Elaine therefore had her attorney, Mr. Lardner, telephone Mr. Williams. Four days later on May 30, at about 3 o’clock in the morning, Alice Love’s husband, Dr. George M. Love, died; Elaine was promptly informed of his death. About 10 o’clock that same morning, Alice Love went with Jeff a Scott to Claud Williams’ office where she made a new will leaving the bulk of her estate to her two sisters and to the brother and sister of her late husband. She also left $500.00 to the Rogers Public Library, $500.00 to Cecil Miller, $100.00 to Elaine Love, as well as other bequests of $100.00 each to several nieces and nephews. After Mrs. Love signed this will, she left it in Mr. Williams’ office.

Elaine Love arrived at Joplin, Missouri by plane on May 31 and was met there by Cecil Miller, longtime friend of Dr. Love and his wife Alice. During the trip from Joplin to Rogers by automobile, Miller told Elaine about Alice Love having made a new will. Elaine was extremely displeased upon learning this. She did not go directly to the Love home in Rogers but stopped at a hotel, obtained a room and while there put in a long distance call to Mr. Lardner, her attorney in Milwaukee, to discuss with him the fact that Mrs. Love had made another will. She apparently discussed with Lardner the advisability of having Mrs. Alice Love execute still another will and also talked about obtaining a power of attorney from Alice. Following this conversation Elaine went to the Love home, and the next morning took Alice Love to the office of Mr. Williams where Alice obtained the will she had executed two days before. Although there is some confusion in the testimony as to just exactly what happened next, it appears that Alice Love took the will and put it in her lock box at the bank. Elaine then took Alice to Bentonville to the office of Mr. Vol Lindsey, an attorney of that city. There Alice made a new will leaving her entire estate to Elaine. This will was executed on June 1, only two days after Alice had executed the will drawn by Mr. Williams at her request. Mr.* Lindsey was not told about the May 30 will.

In the meantime, Elaine had again called Mr. Lardner and had instructed him to prepare a power of attorney. Mr. Lardner drafted a general power of attorney and sent it to Elaine in Rogers. This document gave Elaine authority to do anything she might wish with any and all property belonging to Alice, and it was signed by Alice on June 3. On the same day, Alice also changed her bank account, consisting of about $12,000, from a personal account to a joint one with Elaine. On June 4, Elaine returned to Milwaukee. On the 10th day of June she again came to Rogers and returned to Milwaukee on the 13th. A few days later, Alice wrote to Elaine requesting that she return the power of attorney. In the meantime, Alice destroyed the June 1 will which she had executed in Bentonville leaving everything to Elaine, and changed her bank account back into her own name only. On June 24, Alice wrote what purports to be her fourth will, in which she made $1,000 bequests to each of her sisters and to the brother and sister of her late husband, and left Elaine corporate stock apparently valued at about $47,000. This June 24 will then provides: “If any of estate is left then it shall be used to promote my sons education proposition.” As a matter of fact, there would have been under the terms of this document a residuary estate valued at more than $50,-000 after the special bequests. Elaine says that on June 25 Alice called her and asked her to have Mr. Lardner prepare another will. Elaine did this and left Milwaukee on the 27th day of June, taking the new will with her to Rogers. On that same day, while Elaine was present, Alice signed the will. This was the fifth purported will of Alice Love. On June 29, while Elaine was still in Rogers, Alice’s personal bank account of about $12,000 was again made into a joint one with Elaine.

This will of June 27 left the entire estate of Alice Love to the George R. Love Trust. Since Elaine receives the income from this trust for life, she will benefit by approximately $48,000 under the terms of Alice Love’s June 27 will. Elaine was also named executrix to serve without bond.

After Alice signed the June 27 will, Elaine stayed in Rogers for about a week and then returned to Milwaukee. On September 12, Mrs. Alice Love’s health had become, such that it was necessary to move her to a hospital. Elaine returned to Rogers on September 22 and stayed at the Love home until October 10. Mrs. Alice Love died on October 16. The June 27 will was offered for probate and this action contesting it was filed.

We now mentioii some of the rules of law by which we must be guided in reaching a conclusion as to the validity of the will. In a leading case this court said: “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 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 in confidential relations with them at the time of its execution.” McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590. The burden of proving undue influence is on the contestants. Werbe v. Holt, 218 Ark. 476, 237 S. W. 2d. 478; Shippen v. Shippen, 213 Ark. 517, 211 S. W. 2d. 433; McWilliams v. Neill, 202 Ark. 1087, 155 S. W. 2d 344; Smith v. Boswell, 93 Ark. 66, 124 S. W. 264. But, when it is shown that the will is drawn or procured by a beneficiary, there is a presumption of undue influence. Page on Wills, Yol. 2, p. 636. Where the beneficiary plans the will and causes it to be executed, the same rule applies as where he drew the will. Ibid., p. 638. This court has said: “When a will is written, or proved to be written by a person benefiting by it, or by one standing in the relation of attorney or counsel, and who is also benefited by it, — these are circumstances to excite stricter scrutiny and require stricter proof of volition and agency.” The court then quotes with approval from Breed v. Pratt, 18 Pick. R. 115, as follows: “It is incumbent on those, who, in such a case, seek to establish the will, to show beyond reasonable doubt, that the testator had both such mental capacity, and such freedom of will and action, as are requisite to render a will legally valid. ’ ’ McDaniel ad. v. Crosby et al, 19 Ark. 533. The presumption of undue influence is not one of law but is a presumption of fact and subject to rebuttal. Zeigler v. Coffin, 219 Ala. 586, 123 So. 22, 63 A. L. R. 942. There is also a similar presumption where one who draws a Avill is named a trustee therein and is to receive large compensation for his services. Page on Wills, Vol. 2, p. 644; Zeigler v. Coffin, 219 Ala. 536. The cause is tried de novo here and the preponderance of the evidence rule prevails. Brown v. Emerson, 205 Ark. 735, 170 S. W. 2d. 1019. The question of undue influence and mental capacity are so closely interwoven that they are considered together. Phillips v. Jones, 179 Ark. 877, 18 S. W. 2d. 352. It is necessary to the validity of a Avill that the testator knoAv its contents. In Meek v. Bledsoe, 221 Ark. 395, 253 S. W. 2d. 369, this court quoted with approval from 68 C. J. S. 606: “It is indispensable to the validity of a will that the testator should know its contents at the time of its execution, knoAAdedge after the execution being insufficient. However, as elsewhere shown, knowledge will ordinarily be presumed from the execution of the instrument, although the presumption is only a prima facie one and may be rebutted. If it appears affirmatively that he did not read the will and that it was not read to him, it must be shoAvn that the contents were in some way known to him.”

We must bear in mind that Elaine is one of the principal beneficiaries named in Alice Love’s June 27 will, and that the will was prepared by this beneficiary’s laAvyer at her request and according to her instructions. Moreover, Mr. Lardner is one of the trustees named in the George R. Love Trust which is incorporated by reference in Alice Love’s June 27 will. In the event of Elaine Love’s death, Mr. Lardner would be the sole trustee. With the broad powers given to him as trustee, he could benefit considerably from the George R. Love Trust and hence from the June 27 mil of Alice Love. Since both Elaine and Mr. Lardner would benefit under the terms of the June 27 will, and since Lardner was acting on instruction from Elaine when he prepared the will, it is the proponents’ burden to prove not only that Alice Love had the mental capacity to execute a valid will but that she was free from undue influence and understood the terms of the will. The proponents of the will have not met this burden.

Elaine attempts to make a reasonable explanation of everything that was done and to show that the will was not made because of any undue influence on her part, and that there was no fraud in failing to fully inform Alice Love about the George R. Love Trust. Both sides offer expert and lay testimony as to the mental capacity of Alice Love. But this is a case where actions speak louder than words.. Undue influence may be inferred from facts and circumstances. Alford v. Johnson, 103 Ark. 236, 146 S. W. 516. “Undue influence is generally exercised in secret, not openly, ... its sinister and insidious effect must be determined from facts and circumstances surrounding the testator, his physical and mental condition as shown by the evidence, and the opportunity of the beneficiary of the influenced bequest to mold the mind of the testator to suit his or her purposes. ” Hyatt v. Wroten, 184 Ark. 847, 43 S. W. 2d. 726. The undisputed facts and the reasonable inferences to be deduced from such facts inevitably lead to the conclusion that Alice Love was not acting according to her own free choice in executing wills at any time after Elaine’s arrival in Rogers on May 31, 1953. In the first place, on May 30 Alice Love had gone to her lawyer’s office and made a will. She had gone to a man she had known and trusted for many long years, the same man who had been selected by Elaine to notify Alice of her son’s death. This lawyer’s secretary had also been Alice’s longtime friend and business advisor. It is argued that Jeff a Scott, the secretary, wrongfully induced Alice to go to Mr. Williams ’ office and execute the May 30 will, wherein Jeff a was named executrix. But we are not convinced at all that Alice went to Mr. Williams’ office due to importunities on the part of Jeff a Scott. On May 27, the day after the son, George R. Love, died, a Mrs. Chandler was present in the Love home in Rogers and heard Alice say to Jeffa Scott: “Now, Jeffa, I want to get that will [the 1949 will] changed and I want to get it right.” And Jeffa replied: “Now, Mrs. Love, there’s plenty of time to do that. You don’t need to rush anything like that.” We are convinced that Alice went to Mr. Williams’ office because she wanted to dispose of the business of making a will as quickly as possible. By the recent death of her husband, she had acquired a large estate and the unexpected death of her only son had changed the situation considerably. In her May 30 will she did the natural thing, the thing that anyone would expect her to do; the large bulk of her estate was left to her two sisters and to the brother and sister of her late husband. The evidence is convincing that the May 30 will was the free and voluntary act of the testator.

It is argued that Alice Love had not been in contact with her two sisters for a long time and was hardly acquainted with the brother and sister of her husband; but she was certainly better acquainted with them than with the parents of Elaine to whom she left a contingent life estate under the terms of her June 27 will. Furthermore, the record indicates that the relationship between Alice and Elaine was not a close one. Alice lived in Rogers, Arkansas, and Elaine in Wisconsin. They had only seen each other on a few visits during their entire lives. There is no evidence of any correspondence written prior to June, 1953, that shows any affection whatever between them, and yet, the day after Elaine’s arrival in Rogers on May 31, she took Alice to an attorney’s office in Bentonville where Alice made a will leaving her entire estate to Elaine. Elaine tries to explain taking Alice to an out-of-town lawyer’s office by saying that she was mad at Mr. Williams, claiming that he had wrongfully prevailed on Alice to make a new will so soon after the death of her husband. The record does not justify a conclusion that Mr. Williams induced Alice to make a new will or any will at all. Actually, May 30 was a holiday, and Williams did not want to come to the office, only doing so after he was called twice. He charged only a nominal fee of $25.00 for drawing the will, and received no other benefits from it. The fact that Elaine took Alice to an out-of-town lawyer on June 1, and not to Mr. Williams, the lawyer who had been Alice Love’s legal advisor for many years and who had written wills for her on previous occasions, is in itself a suspicious circumstance; especially so in view of the fact that Elaine, upon her arrival in Joplin and being told by Cecil Miller about the May 30 will, called Mr. Lardner, her attorney in Milwaukee, with reference to the will and the advisability of obtaining a power of attorney from Alice.

We do not believe there is a shadow of a doubt but that Elaine called Mr. Lardner seeking advice with reference to avoiding in some manner the May 30 will. Elaine attempts to show that the June 1 will, in which Alice left to her the entire estate, was not due to any conniving on her part, and tries to explain that the June 1 will was only a stop-gap to serve until such time as another will could be prepared in which Alice would leave the bulk of her estate to the George R. Love Trust. It is explained that Mr. Lindsey, the lawyer who prepared the June 1 will, did not have sufficient information about the trust to make a will whereby Alice would leave her estate to that trust. Mr. Lindsey is an able lawyer. He lives in Bentonville, a town very near Rogers, and yet, at no time subsequent to June 1, was he furnished with the necessary information about the George R. Love Trust so that he could prepare another will for Alice Love. Also, when Elaine was in Rogers from the 10th to the 13th of June, she did not mention the will business to Alice, or bring with her from Milwaukee a copy of the George R. Love will.

Another circumstance which carries great weight in establishing the fact that Alice Love was unduly influenced by Elaine is that Alice signed the power of attorney. This power of attorney is very broad. It was prepared by Elaine’s lawyer in Milwaukee and signed by Alice on June 3, just four days after the death of Dr. Love, Sr., and only four days after she had executed the May 30 will, of her own volition, leaving Blaine only a token $100.00. Bnt that is not all. On June 3, Alice’s bank account, consisting of about $12,000, was changed to a joint account for herself and Elaine. Prom the record, we can conclude that Alice Love was very frugal and careful about any expenditure of money, and the evidence in this case is far from convincing that Alice would, of her own free will, give power of attorney or joint account privileges to Elaine. Subsequently, Alice revoked the power of attorney and changed the bank account back to her own name. But the bank account was again changed to a joint one when Elaine next came to Rogers.

Moreover, the record is replete with evidence to the effect that at all times following May 30, Alice Love was using habit-forming drugs that produced both a sedative and hypnotic effect. She was weak physically and mentally. She was worn out from caring for her husband who had been bedfast for several years prior to his death. She was 77 years of age, and lived only three and a half months after the deaths of her husband and only son.

Although there is a rebuttable presumption that Alice knew the effect of her will when she left all of the estate to the George R. Love Trust, 57 Am. Jur. 573, this presumption is overcome by a preponderance of the evidence. Por one thing, Elaine never told Alice about her life estate in the George R. Love Trust or the interest of her mother and father in the trust. Elaine testified that Alice understood her money was to go to the George R. Love Educational Fund and not to Elaine in any way. Elaine even states in the petition for probate of the June 27 will that she has no interest in Alice Love’s estate, when as a matter of fact, under the terms of this will she has a very large interest amounting to about $48,000. Also, Alice never saw a copy of the George R. Love will setting up the trusts, although it is claimed that she read newspaper articles explaining the will. However, the only article that described the terms of the George R. Love will was not published until June 18, and it appears that all the clippings referred to by witnesses which Alice Love saw were published prior to that date.

The record does not lead one to believe that Alice had any idea that she was leaving a life estate to Elaine and then to Elaine’s parents before her money would ever go to an educational fund. There is nothing in Alice’s June 27 will to indicate that she herself had any knowledge of the actual results of the terms of that will. Elaine testified that both she and Alice thought that, under the terms of the June 27 will, Alice’s estate would go directly to the educational fund and that none of it would go to Elaine. This shows conclusively that Alice did not understand the contents of the will.

We have concluded that the May 30 will was the free and voluntary act of Alice Love. Due execution of this will was established. The same evidence which is convincing that subsequent wills grew out of undue influence persuades us that the May 30 will was destroyed as a result of that same undue influence. The making of one and the destruction of the other were parts of one transaction.

In 57 Am. Jur. 323, it is said: “When a testator in destroying his will acts under fraudulent and undue influence, the will is considered not to have been revoked, and may be admitted to probate on establishing facts showing the existence and due execution of the will and its destruction by reason of such improper influence. The execution of a will and the destruction of a former will may be so closely connected in point of time as to constitute one transaction, indivisible as to inducement and purpose, so as to render inescapable the conclusion that undue influence sufficient to invalidate the later will rendered the destruction of the former will ineffective as a revocation. ’ ’ In support of the text there is cited In re Simmons’ Estate, 166 Minn. 65, 207 N. W. 189, and Neal v. Caldwell, 326 Mo. 1146, 34 S. W. 2d 104, 109. In the Simmons case, 28 R. C. L. 168 is quoted with approval as follows: “A will destroyed by the testator himself in his lifetime, acting under fraudulent or undue influexice, is not considered as having been revoked, and may be admitted to probate on establishing facts showing the existence and due execution of the will, and its destruction by such improper influence. ’ ’

It appears that when Mrs. Elaine Love took Alice to Mr. Williams’ office on June 1 to get the will Alice had executed May 30, Alice had not been completely influenced to revoke that will. This is indicated by the fact that the will was not destroyed immediately, but was taken to the bank in Rogers and placed in Alice’s lock box. Later, when Elaine and Alice returned from Bentonville where Alice had executed the June 1 will, they again went to the bank and obtained the May 30 will. There Elaine says that Alice tore it into pieces; but Elaine kept the pieces and delivered them to her lawyer, Mr. Lardner, in Milwaukee. Mr. Lardner kept the torn pieces in his files. They were put back together and later introduced as evidence in this case. The May 30 will is not so badly mutilated that its terms are not clear. Moreover, the notebook of Mr. Williams’ secretary containing the terms of the May 30 will was available as evidence.

Proponents of the will further contend that even if the June 27 will was the result of undue influence, the testator ratified it by not changing the will between the time it was made and the time of her death some three months later. In support of this contention there is cited Cude v. Culberson, 30 Tenn. App. 628, 209 S. W. 2d 506. However, in the Cude case there was a republication of the will in the nature of a codicil executed some fifteen years after the making of the original will. In Page on Wills, Vol. 1, p. 392, it is said: “Since a will must be either valid or void and cannot be voidable, the doctrine of ratification has no application. If the will is invalid when made, the only method by which it can be made valid, in accordance with the statutes of wills, is by re-execution or republication.” In 57 Am. Jur. 257, it is said: “Undue influence, fraud and mistake are recognized grounds for contesting the probate of a will or setting aside probate, except where there has been a valid re-execution or republication of the will.” In the case at bar, there was no republication.

The judgment is reversed with directions to set aside probate of the June 27 will and to admit to probate the will of May 30.

The Chief Justice and Mr. Justice George Bose Smith not participating.

Mr. Justice McFaddin concurs. Mr. Justice Ward dissents.