74 Ark. 212 | Ark. | 1905
(after stating the facts. ) All the parties demanded a struck jury, but waived a regular drawing, and the court, after completing a panel of twenty-one jurors qualified, to try the case, allowed the parties to strike therefrom nine names, thus leaving twelve jurors in the box. It is insisted that the court erred, in this respect, but the record is silent as to which of the parties struck the names, and how many were struck by appellants. No prejudice is shown to appellants’ fights unless it appeared precisely how many names they were allowed to strike, and how many allowed to their opponents.
But if we assume that the court, as contended by appellants, allowed them, as proponents of the will, to strike three names, and contestants Baldwin, Payne and Kirk to strike three, and appellee to strike three, still no prejudice to their rights is shown, for the reason that they joined with contestants Baldwin, Payne and Kirk in an answer, raising an issue as to the legitimacy of the birth of appellee, and thus challenging her right to contest the will, and upon that issue raised by them they cannot deprive appellee of the statutory number of challenges, and force her to exercise her challenges jointly with Baldwin, Payne and Kirk, who stood as much in antagonism to her as appellants did. Therefore appellants cannot complain of the exercise of the additional challenges made necessary by a situation brought about by their attitude in the case.
2. It is next argued by counsel for appellants that the court erred in submitting to the jury the question of the legitimacy of appellant, and they contend that the statute limits the submission to the sole question “which or how much of any testamentary paper produced is or is not the last will of the testator.” Kirby’s Dig. § 8041. It is only persons who are interested in the estate of a decedent who can be heard to contest a proposed will; and if an issue be made as to the right óf contestant to appear for that purpose, it becomes necessary for the court to determine that question. In this kind of a proceeding the jurisdiction of the probate court, and of the circuit court on appeal, is limited to the sole question as to whether or not the proposed instrument shall or'shall not be admitted to probate as a will; but, for the purpose of ascertaining the right of the parties , to contest, the court may inquire into the interest, of the contestant as a preliminary question. Brogan v. Brogan, 63 Ark. 405; Works on Courts and Jurisdiction, p. 441; Brown on Jurisdiction, § 146.
The better practice is, we think, for the court to settle such incidental or preliminary question before the trial of the main issue, rather than to submit them all together; but this is a matter left to the sound discretion of the trial judge, and we cannot say there has been any abuse of that discretion or any prejudice resulting therefrom to the appellants. They,- having raised the issue as to the legitimacy of appellee, thereby challenging her right to contest the will, and having taken the initiative in producing proof tending to show her illegitimacy, cannot now be heard to complain of the' court’s action in submitting the question to the jury to be determined from the proof.
3. The court, over the objection of appellants, gave the following instruction:
“The court instructs the jury that, in determining whether the paper in question offered as a will is entitled to be so regarded, the paper itself may be considered in connection with all the other evidence in the case. And if the jury believe from the evidence that the deceased had expressed any fixed purposes and intentions regarding the disposition of his property at variance with the provisions of the alleged will, then the jury should consider whether or not the provisions of the will are inconsistent with his previously expressed and fixed purposes; and if the jury find that they are so, or that deceased was unfriendly to the beneficiaries under the will, then these facts should also be weighed by the jury in determining whether the paper offered is the will of the deceased.”
It was held by this court in Leslie v. McMurtry, 60 Ark. 301, that “declarations of a devisor, made after the will was executed, to the effect that he had made no will, are inadmissible to prove that the will was forged.” That decision seems in line with the decided weight of authority, as shown by the.collation of authorities in the note to the recent case of Throckmorton v. Holt, 180 U. S. 552, 571. But the authorities are equally uniform in holding that such declarations are admissible to show the mental capacity of the testator, when that issue is raised. Leslie v. McMurtry, supra; Throckmorton v. Holt, supra; 1 Redfield on Wills, 557, 559; Schouler on Wills, § § 242, 243; Gardner on Wills, p. 137; Boylan v. Meeker, 28 N. J. L. 282.
The petition of contestants Baldwin, Payné and Kirk, contesting the will, directly raised the question of mental capacity or incapacity of the testator; and this instruction was given upon their request, and not upon the request of appellee. The giving of the instruction was not, therefore, erroneous, as it was competent, upon that issue, for the jury to consider whether or not the provisions of the will were inconsistent with the previously expressed purposes of the testator as to the disposition of his property. If appellants conceived that this instruction left it open to the jury to consider the testimony of previously expressed purposes of the testator in determining whether or not the instrument was a forgery, they should have pointed out that objection by asking further instructions by the court on that subject.
' We find no error in the proceedings, and the judgment is affirmed.'
