This case involves the contest of the will of Grace Abel Evans by her 74-year-old brother C. W. Abel. Mrs. Evans died in the Ouachita County Hospital on April 12, 1969, when she was 81 years of age. She was a widow without any children and survived only by appellant with whom she had lived for many years. Abel had never been married. Mrs. Evans had successfully operated cafes and boarding houses. Because of a heart attack, high blood pressure and failing eyesight, she retired from the operation of a coffee shop in Chidester three years before her death. She was not able to operate her automobile. She and her brother lived on a farm about Wz miles from Chidester for over 15 years. Abel had farmed the lands for over 20 years. This land was conveyed to Mrs. Evans by her mother, shortly before the latter’s death. Mrs. Evans employed Mrs. Belton Stinnett, who was not a relative, to drive her automobile for her, and to mow and keep her downtown lots and other yards, and care for her flowers. She paid Mrs. Stinnett $1 per hour for her services.
The will was not probated or its existence disclosed to appellant until after Mrs. Stinnett’s death in an automobile collision one month after Mrs. Evans’ death although he testified that Mrs. Stinnett frequently came out to the house, where he and his sister had lived, after Mrs. Evans’ death and that she borrowed his sister’s car (which she was using at the time of her death) from him on several occasions. After Mrs. Evans’ death Mrs. Stinnett’s son disclosed that the will was in his mother’s purse. Later the will was delivered by Henderson Stinnett, the widower of Mrs. Belton Stinnett, to Carl Dickinson, the executor nominated therein. Dickinson caused a copy of the will to be made, which he delivered to appellant. Later he took the original to its scrivener, Mr. Thomas Gaughan, an attorney at Camden, who offered it for probate.
The will directed payment of Mrs. Evans’ debts, devised a life estate in a 40-acre tract and a 2-acre tract of land to appellant, with remainder to Charles Franklin Stinnett, one of the sons of Mrs. Stinnett, and devised lots in Chidester to Mrs. Stinnett. Carl Dickerson [Dickinson] was nominated as executor. No mention was made of personalty and the will contained no residuary clause, although Mrs. Evans owned her automobile, an interest in her mother’s furniture and other personal property. Mrs. Evans had no close relatives, other than her brother. Neither Mrs. Stinnett nor her son was related to Mrs. Evans by blood or marriage.
The probate judge found that the evidence was insufficient to show that Mrs. Evans was incompetent to make a will at the time of its execution, that a preponderance of the evidence showed that she was of sound and disposing mind and memory and fully competent to dispose of her property and estate by last will and testament, and that she was not acting under the influence of Mrs. Belton Stinnett or any person whatsoever in the making or publication of the will.
Appellant’s first point for reversal is that the court failed to exclude the lots in Chidester from the will. He contends that his sister did not own the lots since he was the owner of an undivided one-half interest as a tenant in common, as the only heir of his mother beside Mrs. Evans. The lawyer who drafted the will explained that he failed to note that the ownership of this property indicated on the tax receipts given him to identify Mrs. Evans’ property was listed in the names of both Mr. Abel and Mrs. Evans. Resort to tax receipts and deeds of a testator to determine what he meant by a land description he employed is proper. Eagle v. Oldham,
Appellant next contends that the will is so unreasonable as to overcome the presumption of testamentary capacity and so unnatural as to give rise to an inference that it resulted either from lack of testamentary capacity or undue influence. The fact that a will is unjust, unreasonable or unnatural does not affect its validity. Blake v. Simpson,
We have held, however, that the courts may consider that the provisions of a will are unjust, unnatural and unreasonable as a circumstance in determining the mental capacity of the testator. See Brown v. Emerson,
We are unable to say that a preponderance of the evidence shows that the disposition made by Mrs. Evans by her will was unjust, unnatural or unreasonable. It is only where a testamentary disposition is unaccountably unnatural that less evidence is required to establish undue influence. Dunklin v. Black,
This is not a case where a parent attempted to disinherit her only child in favor of her youngest brother, a successful 40-year-old businessman of independent means, as was the case in Brown v. Emerson, supra, or a case where the testatrix disinherited a sister for whom she had great affection and who had given her part of their mother’s estate to the testatrix by favoring a male business associate with whom she had become infatuated as was the case in Howell v. Miller, supra. It is unexplained inequality and unreasonableness which do violence to natural instincts of the heart, to the dictates of affection, to natural justice, to solemn promises and moral duty that are entitled to weight in considering questions of testamentary capácity and undue influence. Brown v. Emerson, supra. If a disposition can be rationally explained, it cannot be said to be unnatural. In re Llewellyn’s Estate,
Facts which mitigate against a finding that Mrs. Evans’ will was unjust, unnatural or unreasonable are appellant’s advanced age, his and the testatrix’s childlessness, the absence of any other close relatives, the provision for a life estate for Abel, his inheritance of any personal property of his sister remaining after payment of debts and expenses of administration, his succession to three joint bank accounts (once amounting to at least $22,000) established by the testatrix, and the relationship that had developed between Mrs. Evans and Mrs. Stinnett. Among Mrs. Evans’ personal belongings was a collection of antiques and of her own works of art, some of which were shown to have some value. She also owned some stocks, which Abel said had been "cashed out” after her death. Not only does it clearly appear that Mrs. Stinnett performed well the services for which she was employed by Mrs. Evans, it is also obvious that these two ladies shared a warm affection for each other. Abel himself testified that Mrs. Stinnett "loved his siter to death,” “petted her all the time,” and would sit down and talk and “gossip” with her nearly every day of the week during Mrs. Evans’ entire three years’ illness. Abel said that Mrs. Stinnett visited his sister on occasions when she was "not on the payroll.” Charles Franklin Stinnett, her son, was a pallbearer at Mrs. Evans’ funeral. He testified that he visited Mrs. Evans about once a month during the two or three years preceding her death. He said that she had loaned him money and given him advice about saving money. Etheleen Garrison, Ouachita County Health Nurse, observed that Mrs. Evans became more and more dependent on others. The nurse rarely met any social visitors when she made at least semimonthly professional calls on Mrs. Evans. We cannot say that Abel was in need of his sister’s bounty or that Mrs. Evans’ bounty to Mrs. Stinnett and her son is not rationally explained or that it is unaccountably unnatural.
Giving the disposition made by Mrs. Evans its strongest probative force, however, we still could not say that the chancellor’s findings are clearly against the preponderance of the evidence.
For proof of lack of testamentary capacity, appellant relies upon Mrs. Evans’ age, her being an invalid for two or three years and her loss of memory which he claimed to have resulted from a stroke about one month before the will was made, in addition to the alleged unnatural disposition of her real property. He depends for the most part on his own testimony, particularly as to the alleged stroke. He concluded that an illness suffered by his sister was a stroke because when she awakened him about 1:00 a.m. she was lying in the bed with her eyes open and in such condition that he knew something was badly wrong, causing him to get help to get an ambulance to take her to a hospital where she remained for two weeks. His conclusion was contradicted by the testimony of a supervising nurse at the hospital where Mrs. Evans was a patient. This witness, called by appellant, testified that there was no diagnosis of a stroke prior to Mrs. Evans’ death, that she did not see anything like that on the patient’s chart, and did not observe any personality change in the testatrix after a time at least one month prior to the alleged stroke.
Dr. J. L. Dedman was Mrs. Evans’ physician for about five years, beginning July 7, 1964. He attributed her death to heart failure. For four or five years she was in his office every month or so. She was under his care in the hospital approximately a dozen times. Before her death, she was coming to the doctor’s office every three or four weeks. Each of her visits was for a period of five to ten minutes. He described her mental condition as “sharp as a tack.’’ He identified a notation on her will dated April 18, 1968, that Mrs. Grace Evans was mentally able to take care of her business as having been written and signed by him. Although he said that Mrs. Evans was getting worse and weaker all the time, and was “going downhill” after February 1968, he saw her thereafter on March 12, and found no difference in her mental condition. He attributed her hospital visits tó the necessity for draining fluid that accumulated in her system because of a heart weakened by high blood pressure and hardening of the arteries. He stated that Mrs. Evans did not have a stroke during his treatment of her. He stated that he knew nothing of her mental ability to know the nature and extent of her property or the just deserts of her different kinsmen.
Mr. Thomas Gaughan, a practicing attorney at Camden since 1934, was the scrivener. The will was dated February 26, 1968, and prepared in his office to which Mrs. Evans and Mrs. Stinnett came on that date. He testified that Mrs. Evans asked him to prepare her will, and told him the disposition she wanted to make of her property. He had not known either Mrs. Evans or Mrs. Stinnett prior to this occasion. He observed that the testatrix was approaching 80 years of age. He discussed the matter with the two ladies, who remained in the room while he dictated the will to his secretary. He said that Mrs. Evans looked at the will before signing it. According to him, Mrs. Evans was in his office VA to 2 hours. He testified that he evaluated Mrs. Evans as having testamentary capacity, or he would not have prepared the will. His consultation revealed nothing to him abnormal or subnormal, except for her advancing years, and he was of the opinion that she knew her property.
The burden of showing lack of testamentary capacity lay upon appellant. Hilter v. Cude,
This leaves the question whether the preponderance of the evidence shows that Mrs. Evans’ will was induced by the undue influence of Mrs. Belton Stinnett. While the burden of proof on this issue was upon appellant, he seeks to shift it, just as the appellants did in Hiler v. Cude, supra, and Sullivant v. Sullivant,
Appellant relies upon the fact that one of the principal beneficiaries of the will, who was the mother of the other, drove Mrs. Evans’ automobile to the office of the scrivener, helped her into the office, and engaged in discussions about the terms of the will. There was, as appellant admits, no element of fear or duress involved. Furthermore, there is no actual proof that Mrs. Stinnett procured the will or directed its making. The mere fact that a beneficiary is present when the will is made does not give rise to any presumption of undue influence when there is no evidence that he induced or procured the execution of the will. Jones v. National Bank of Commerce,