Sam Robinson, Associate Justice.
Dr. A. G-. Anderson of Eudora, Arkansas, a bachelor, died on the 15th day of June, 1960. He had signed a purported will on July 3, 1959. The will was filed for probate in the Chicot County Probate Court. Mrs. Helen Short of Louisville, Kentucky, a niece and only relative of the deceased, filed a petition contesting the validity of the will alleging that the testator did not have testamentary capacity, and that the will was procured by undue influence. After an extensive hearing the Probate Court admitted the will to probate. Mrs. Short has appealed.
The case is tried here de novo. Sullivant v. Sullivant, 236 Ark. 95, 364 S. W. 2d 665. Undue influence is defined as “. . . 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.” McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590. Shippen v. Shippen, 213 Ark. 517, 211 S.W. 2d 433.
Where a beneficiary, under the terms of a will, procures the making of the will there is a rebuttable presumption of undue influence, and “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, Adm. v. Crosby, et al., 19 Ark. 533; Orr v. Love, 225 Ark. 505, 283 S. W. 2d 667.
This court said in Phillips v. Jones, 179 Ark. 877, 18 S. W. 2d 352:“ . . . the questions of testamentary capacity and undue influence are so interwoven in any case where these questions are raised that the court necessarily considered them together (St. Joseph’s Convent v. Garner, 66 Ark. 623, 53 S. W. 398), for in one case where the mind of the testator is strong and alert the facts constituting undue influence would be required to be far stronger in their tendency to influence the mind unduly than in another, where the mind of the testator was impaired, either by some inherent defect or by the consequences of disease or advancing age.”
In the case at bar, when undue influence is considered in connection with the lack of mental capacity, undoubtedly probate of the will should be set aside.
Although we have reached the conclusion that the will was procured by undue influence, we do not dwell on that point because we find by a preponderance of the evidence that the testator did not have the necessary testamentary capacity to execute a valid will.
Testamentary capacity means that the testator must be able to retain in his mind, without prompting, the extent and condition of his property, to comprehend to whom he is giving it, and relations of those entitled to his bounty. Tatum v. Chandler, 229 Ark. 864, 319 S. W. 2d 513; Sullivant v. Sullivant, 236 Ark. 95, 364 S. W. 2d 665; O’Dell v. Newton, 228 Ark. 1069, 312 S. W. 2d 339.
The evidence must be examined in the light of the aforesaid principles of law.
Dr. Anderson, the testator, was born and reared in Kentucky, but he spent practically his profession as a physician until he retired from active practice several years ago. He was 89 years of age at the time he executed the alleged will.
Dr. Anderson left an estate valued at about $118,000. The purported will makes specific bequests totaling $9,-400.00. All the rest and residue of the estate, according to the terms of the alleged will, goes to Eobert Stephenson, one of the proponents of the will. Mr. Stephenson was not related to Dr. Anderson, but was an old friend. He was present with Dr. Anderson in a lawyer’s office in Lake Village (both Dr. Anderson and Mr. Stephenson lived at Eudora) when arrangements Avere made for the preparation of the will. He was also present at the home of Dr. Anderson in Eudora on July 3, 1959, when Dr. Anderson signed the alleged will. Mr. Stephenson called the ones Avith whom arrangements had been made to witness the Avill and reminded them to be at Dr. Anderson’s home on the morning of July 3, 1959 to sign as witnesses. Actually, he picked up one of the witnesses in his car and drove her to Dr. Anderson’s home where the doctor lived alone.
The record in this case is large, consisting of about 1,200 pages, but due- to the difference of opinion among the laAvyers for the parties as to Avhat constitutes a fair abstract of the evidence, Ave have examined the entire record and have reached the conclusion that a preponderance of the evidence proves that Dr. Anderson did not have the testmentary capacity required by laAV to execute a valid Avill.
Not only does the evidence support a hypothetical question propounded to an expert witness by counsel for the contestant, but practically all of the facts mentioned in the hypothetical question are proved by a preponderance of the evidence. This evidence, along’ with other evidence in the case, proves that at the time of the execution of the will Dr. Anderson was not mentally competent to make a valid Avill. To abstract here all the evidence in the case would unduly extend this opinion, but Ave point to the facts proved by the evidence and mentioned in the hypothetical question.
Early in 1956, Dr. Anderson bought three head of cattle from John Crabtree and forgot all about them; in the Spring of 1956, he bought a very expensive bull for which he had no need. There were several incidents during the years 1957 and 1958 showing complete loss of memory of various transactions. On April 25, 1958, he sold several hundred acres of land and on April 30, 1959 he was unable to remember any terms of the sale. For some 20 years Dr. Anderson was deathly afraid of snakes and always carried a hoe in his car and would never walk through grass or crops without this protection; in June, 1958, he forgot all about snakes and never carried his hoe again.
In the Fall of 1958, Dr. Anderson bought two loads of corn and when it was delivered, he had the man take it back. Shortly thereafter, he sent Joe Hardeman to the same person to buy the same corn at the same price. He made several loans to persons whose names he could not remember. The Saturday afternoon before Christmas, 1958, Dr. Anderson voided off the front porch of his office on Main Street, and gave no sign that he recognized Lee Scott, who had knocked on his porch and caused him to come out of his office. In 1956 and 1957, Edgel Burgess negotiated with Dr. Anderson for the purchase of a piece of property and he forgot about the transaction within a short period of time.
For several years prior to 1958, Dr. Anderson employed Charles Wade to farm and raise cattle for him with the agreement that he pay Wade a small salary, but Wade would share in the profits of the farm and cattle operations. In 1958 he sold cattle and land to Frank Pylate without consulting Wade and forgot all about their agreement that Wade was to share in the profits. In the Spring of 1959, he refused on one occasion to make a loan that he had promised to Lee Scott, and a short time later he met Scott on the street, took him to his office, made the loan, and didn’t remember having refused it less than an hour before.
On April 11, 1959, Dr. Anderson failed to recognize his only living relative, his niece, Mrs. Helen Short.
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Sam Robinson, Associate Justice.
Dr. A. G-. Anderson of Eudora, Arkansas, a bachelor, died on the 15th day of June, 1960. He had signed a purported will on July 3, 1959. The will was filed for probate in the Chicot County Probate Court. Mrs. Helen Short of Louisville, Kentucky, a niece and only relative of the deceased, filed a petition contesting the validity of the will alleging that the testator did not have testamentary capacity, and that the will was procured by undue influence. After an extensive hearing the Probate Court admitted the will to probate. Mrs. Short has appealed.
The case is tried here de novo. Sullivant v. Sullivant, 236 Ark. 95, 364 S. W. 2d 665. Undue influence is defined as “. . . 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.” McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590. Shippen v. Shippen, 213 Ark. 517, 211 S.W. 2d 433.
Where a beneficiary, under the terms of a will, procures the making of the will there is a rebuttable presumption of undue influence, and “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, Adm. v. Crosby, et al., 19 Ark. 533; Orr v. Love, 225 Ark. 505, 283 S. W. 2d 667.
This court said in Phillips v. Jones, 179 Ark. 877, 18 S. W. 2d 352:“ . . . the questions of testamentary capacity and undue influence are so interwoven in any case where these questions are raised that the court necessarily considered them together (St. Joseph’s Convent v. Garner, 66 Ark. 623, 53 S. W. 398), for in one case where the mind of the testator is strong and alert the facts constituting undue influence would be required to be far stronger in their tendency to influence the mind unduly than in another, where the mind of the testator was impaired, either by some inherent defect or by the consequences of disease or advancing age.”
In the case at bar, when undue influence is considered in connection with the lack of mental capacity, undoubtedly probate of the will should be set aside.
Although we have reached the conclusion that the will was procured by undue influence, we do not dwell on that point because we find by a preponderance of the evidence that the testator did not have the necessary testamentary capacity to execute a valid will.
Testamentary capacity means that the testator must be able to retain in his mind, without prompting, the extent and condition of his property, to comprehend to whom he is giving it, and relations of those entitled to his bounty. Tatum v. Chandler, 229 Ark. 864, 319 S. W. 2d 513; Sullivant v. Sullivant, 236 Ark. 95, 364 S. W. 2d 665; O’Dell v. Newton, 228 Ark. 1069, 312 S. W. 2d 339.
The evidence must be examined in the light of the aforesaid principles of law.
Dr. Anderson, the testator, was born and reared in Kentucky, but he spent practically his profession as a physician until he retired from active practice several years ago. He was 89 years of age at the time he executed the alleged will.
Dr. Anderson left an estate valued at about $118,000. The purported will makes specific bequests totaling $9,-400.00. All the rest and residue of the estate, according to the terms of the alleged will, goes to Eobert Stephenson, one of the proponents of the will. Mr. Stephenson was not related to Dr. Anderson, but was an old friend. He was present with Dr. Anderson in a lawyer’s office in Lake Village (both Dr. Anderson and Mr. Stephenson lived at Eudora) when arrangements Avere made for the preparation of the will. He was also present at the home of Dr. Anderson in Eudora on July 3, 1959, when Dr. Anderson signed the alleged will. Mr. Stephenson called the ones Avith whom arrangements had been made to witness the Avill and reminded them to be at Dr. Anderson’s home on the morning of July 3, 1959 to sign as witnesses. Actually, he picked up one of the witnesses in his car and drove her to Dr. Anderson’s home where the doctor lived alone.
The record in this case is large, consisting of about 1,200 pages, but due- to the difference of opinion among the laAvyers for the parties as to Avhat constitutes a fair abstract of the evidence, Ave have examined the entire record and have reached the conclusion that a preponderance of the evidence proves that Dr. Anderson did not have the testmentary capacity required by laAV to execute a valid Avill.
Not only does the evidence support a hypothetical question propounded to an expert witness by counsel for the contestant, but practically all of the facts mentioned in the hypothetical question are proved by a preponderance of the evidence. This evidence, along’ with other evidence in the case, proves that at the time of the execution of the will Dr. Anderson was not mentally competent to make a valid Avill. To abstract here all the evidence in the case would unduly extend this opinion, but Ave point to the facts proved by the evidence and mentioned in the hypothetical question.
Early in 1956, Dr. Anderson bought three head of cattle from John Crabtree and forgot all about them; in the Spring of 1956, he bought a very expensive bull for which he had no need. There were several incidents during the years 1957 and 1958 showing complete loss of memory of various transactions. On April 25, 1958, he sold several hundred acres of land and on April 30, 1959 he was unable to remember any terms of the sale. For some 20 years Dr. Anderson was deathly afraid of snakes and always carried a hoe in his car and would never walk through grass or crops without this protection; in June, 1958, he forgot all about snakes and never carried his hoe again.
In the Fall of 1958, Dr. Anderson bought two loads of corn and when it was delivered, he had the man take it back. Shortly thereafter, he sent Joe Hardeman to the same person to buy the same corn at the same price. He made several loans to persons whose names he could not remember. The Saturday afternoon before Christmas, 1958, Dr. Anderson voided off the front porch of his office on Main Street, and gave no sign that he recognized Lee Scott, who had knocked on his porch and caused him to come out of his office. In 1956 and 1957, Edgel Burgess negotiated with Dr. Anderson for the purchase of a piece of property and he forgot about the transaction within a short period of time.
For several years prior to 1958, Dr. Anderson employed Charles Wade to farm and raise cattle for him with the agreement that he pay Wade a small salary, but Wade would share in the profits of the farm and cattle operations. In 1958 he sold cattle and land to Frank Pylate without consulting Wade and forgot all about their agreement that Wade was to share in the profits. In the Spring of 1959, he refused on one occasion to make a loan that he had promised to Lee Scott, and a short time later he met Scott on the street, took him to his office, made the loan, and didn’t remember having refused it less than an hour before.
On April 11, 1959, Dr. Anderson failed to recognize his only living relative, his niece, Mrs. Helen Short. He also failed to recognize several other people whom he had known well over a long period of years. During 1958 and 1959 he was continually forgetting where he left his automobile; he would also forget when he had eaten and return in a short time thinking he had not eaten, and would eat again. On at least two occasions in June, 1959, he went into a restaurant at 8:30 in the evening and asked for breakfast and could not be made to realize that it was not early in the morning.
During the last ten years of his life, Dr. Anderson talked more and more of events that happened in the remote past and seemed unable to remember recent and intermediate events. Late in 1958 and early in 1959, he forgot old events that he had so often recounted in the past; he forgot his birthday on January 25, 1959, although he had celebrated it at a special dinner each year for many years and had always enjoyed it. There was also considerable change in personal appearance and habits; his irrationality increased markedly, such as throwing coffee at a waitress, walking out and refusing to eat, and getting angry when someone would try to help him in other ways.
He lost interest in things in. general; his interest centered more and more on himself. He suffered from nocturnal restlessness; he became difficult and sometimes impossible to understand while talking. He appeared to be talking either to himself or some imaginary person; there was a definite change in his speech, it became slower and more difficult. He suffered more and more from tremors and agitation during the last few years of his life; his judgment became seriously impaired; his driving became hazardous; he failed to observe traffic signals or take reasonable precautions to protect his life or the lives of others; he unnecessarily drove his car into mud holes.
During the latter part of 1958 and the early part of 1959, Dr. Anderson’s physical condition became steadily worse. His appetite decreased and he became very weak and feeble; his posture became stooped. It was necessary for him to be hospitalized five times during the first four months of 1959; by July 3, 1959, he was 89 years of age and had become so weak and emaciated that he had to be helped up and down stairs and it was often necessary to feed him with a spoon.
On the morning of July 3, 1959, at 7:30 o ’clock, Dr. Anderson was unable to talk, and appeared to be disoriented to the extent that he didn’t realize where he was or what he was doing; he was unable to eat and unable to recognize people whom he had known for years.
Dr. W. P. Holman, a qualified neuro-psychiatrist at the Arkansas State Hospital, testified that, in his opinion, as far back as 1958 Dr. Anderson suffered with senile psychosis. He further testified that when a person is suffering- with senile psychosis his defect in judgment is permanent and is not transitory; that when one is afflicted with this condition he is out of contact -with his surroundings and there is a disturbance in a person’s relation to reality; that once he is incompetent from senile psychosis he remains that way; that Dr. Anderson would not be capable of realizing the nature and extent of his property or his obligation to those who were most entitled to his bounty, and would not be capable of carrying-on business and realizing the nature and consequence of his actions; that he would not be mentally competent to do those things; that his memory would be impaired so severely he would not know his natural heirs and his judgment would be impaired.
In addition to the foregoing facts, there are other facts supporting the conclusion that Dr. Anderson did not have testamentary capacity. The record is convincing that he was a good man, a fair-minded man; that before he became afflicted with senile psychosis he could be counted on to do the right thing.
Joe Hardeman, an old negro, 73 years of age at the time Dr. Anderson executed the purported will, had worked for the doctor for 32 years. The evidence is convincing that he had been loyal and faithful to Dr. Anderson. Many many nights, when Dr. Anderson was very sick, Old Joe sat up all night long in the room with the doctor to keep the fire burning and to help in any manner required. In fact, he sat up with the doctor so many nights that it was suggested that a cot be placed in the doctor’s room for the old negro to make it a little easier on him. Joe was never paid for this kind of service.
By the so-called will, Dr. Anderson left Joe only two old mules that are practically worthless, one of them being over 30 years old, and the so-called will also provides for the cancellation of any debts that the old negro might owe the doctor. Joe did not owe anything of any consequence. He ‘ ‘ paid out ’ ’ every year. From the record it does not appear that such ingratitude was the act of the just and fair-minded man that Dr. Anderson was before he became afflicted with senile psychosis.
The testator’s physical and mental condition for months immediately preceding- the execution of the so-called will supports the conclusion that he did not have testamentary capacity. On January 25, 1959, Dr. Anderson was admitted to the Greenville, Mississippi, hospital. Appellee made an objection to the admission in evidence of the hospital records, but from the record on appeal it is not clear as to just what portion of the hospital records appellee objected. The records were introduced by the attending physicians — the ones who made the diagnoses. The doctors had written out the diagnoses in the records in their own handwriting and had signed the records. The attending physicians were on the witness stand; they could have been cross examined on any phase of the records, and if it developed that the records contained matter of which the witnesses had no personal knowledge, a motion could have been made to strike that specific part, which motion may or may not have been granted, but there could be no valid objection to that part of the records made by the witnesses. Ark. Stat. Ann. § 28-928 (Repl. 1962).
The diagnosis on January 25, 1959, when Dr. Anderson was admitted to the Greenville Hospital was “general arteriosclerosis”. He was discharged from the hospital two days later on January 27, 1959. Less than a month later, on February 17, 1959, he was admitted to the hospital at Lake Village; the diagnosis was “arteriosclerosis and senility”. He was discharged five days later on February 22, 1959. Again, about a month later, on March 25, he was admitted to the Lake Village Hospital; the diagnosis was “myocarditis, senility . . . very feeble senile male”. He was discharged four days later on March 29, 1959. Again less than two weeks later, on April 9, 1959, he was admitted to the Lake Village Hospital; the diagnosis was “senility, frail, senile male— very weak”. He was discharged the next day, April 10. In less than two weeks, on April 19, he was again admitted to the Greenville Hospital; the diagnosis was “arteriosclerotic heart disease — digitalic intoxication”. He was discharged April 30, 1959. He signed the purported will about two months later on July 3, 1959.
Although appellee introduced evidence tending* to prove that Dr. Anderson was mentally capable of making* a valid will, we are of the opinion that the preponderance of the evidence is to the contrary. The judgment is, therefore, reversed with directions to set aside the probate of the will.
Harris, C. J., McFaddin & George Rose Smith, J. J., dissent.