166 Ark. 509 | Ark. | 1924
(after stating the facts). The jury found against the will, and the contestee insists that there was no testimony legally sufficient to support that finding. We think, however, that there was enough testimony to warrant the submission of the issues of lack of testamentary capacity and of undue influence to the jury, and, this being true, we do not stop to consider what the preponderance of the testimony shows.
■ We do not think any error was committed in refusing to give the instruction directing the jury to disregard the testimony showing that Mr. Kennedy had been arrested on three occasions. This testimony was admitted without objection, and counsel for contestee asked questions relating to those incidents, which elicited answers exculpating Mr. Kennedy. There appears to have been no denial that Kennedy was guilty of speeding, and, while this does not appear to involve moral turpitude which would tend materially to impair the credit of the witnesses, we cannot say that the jury should have been told to disregard it, especially as the testimony had been admitted without objection. We do not understand that Mr. Kennedy denied having shot a man in Kentucky, and this was not therefore a mere accusation agninst him, although he was not indicted. The charge against Kennedy in regard to having carnally abused a child appears to have been a mere accusation, and, had the request to exclude been limited to it, the court should have excluded that testimony.
We have frequently, and recently decided that a witness cannot be interrogated on his cross-examination for purpose of impeachment concerning indictments or mere accusations of crime. He may be asked if he was guilty or was convicted, but he cannot be asked if he was indicted or accused. Johnson v. State, 161 Ark. 111; Jordan v. State, 165 Ark. 506; Parnell v. State, 163 Ark. 316.
But, as we have said, the instruction was not asked until after this testimony had been admitted without objection, and the request, as made, included not only the mere, accusation of having carnally abused the child, but included also the admitted acts of speeding and of having shot a man.
The reference in the argument to appellant having been accused of train robbery was, of course, improper; but the court sustained the objection thereto, and told the jury that this testimony had been excluded and should not be considered, and we think this admonition removed any prejudice resulting therefrom.
We are also of the opinion that the argument of counsel that appellant had committed the offense of carnal abuse was improper; but no objection appears to have been made to it.
Contestee asked an instruction numbered 17, reading as follows: “The evidence of statements and declarations on the part of Sue E. Kennedy of her intention to make a will or not make it, disposing of her property in a certain way, can be considered by you for the purpose only of determining whether she was sane or insane at the time she signed the will.”
This instruction obviously related to the testimony that Kennedy had caused a will, similar in its provisions, in that he was made the chief beneficiary, to be prepared, and that his wife had refused to sign it, and had stated that she would never sign such a will so long as she was in her “right mind.”
It is conceded that this testimony was competent on the issue of lack of testamentary capacity on the part of the testatrix, and it is insisted that the instruction was asked for the purpose of excluding the. testimony from the consideration of the jury when they came to the question of undue influence, and it is urged that the instruction should have been given upon the authority of the case of Mason v. Bowen, 122 Ark. 407, where we said: “It seems to be well settled, both by text-writers and the decisions of courts of the various States, that the statements and declarations of a testator, whether made before or after the execution of a will, are not competent as direct or substantive evidence of undue influence, but are admissible to show the mental condition of the testator at the time of making the will. When the condition of the testator’s mind is the point of contention, statements or declarations of the testator are received as external manifestations of his mental condition and not as evidence of the truth of the things he states. If offered to prove an external fact, such as undue influence or fraud, such statements or declarations are merely hearsay and are liable to all the objections to which mere declarations of third parties are subject.”
In so announcing the law, we quoted the decision of the Supreme Court of Tennessee in the case of Hobson v. Moorman, 115 Tenn. 73, which case is annotated in 5 Am. & Eng. Ann. Cas. 601, and 3 L. R. A. (N. S.) 749.
This case, as we said in Mason v. Bowen, supra, was a well considered case, and, by approving and following it, we are committed to the doctrine that the statements and declarations of a testator, whether made before or after the execution of the will, are not competent as direct or substantive evidence of undue influence, and counsel insist that the purpose and effect of the refused instruction was to apply that doctrine to the facts of this case.
But the instruction was not so worded. It did not tell the jury that the testimony of Mrs. Kennedy in regard to the disposition of her estate could not be considered on the question of undue influence. It stated that this testimony could1 be considered for the purpose only .of .determining whether Mrs. Kennedy was sane or-insane .'at the time she signed the will. The case of Hobson v. Moorman, which we followed in Mason v. Bowen, does not thus limit the testimony. Mr. Justice McAlister, who delivered the opinion of the court in that case, there said: “In our opinion, the great weight of authority confirms the rule, announced by the circuit judge in his instructions to the jury, that such previous declarations (indicating the disposition which the testator intended to make of his estate) are always admissible for the purpose of illustrating the mental' capacity of the testator and his susceptibility to extraneous influence, and also to show his feelings, intentions-, and relations to his kindred and friends; but such declarations are not admissible as substantive evidence of undue influence.”
Had the requested instruction been given, the jury would have had no right to consider the declarations of Mrs. Kennedy for the'purpose of showing her feelings towards the parties to this litigation, and. the evidence was competent for that purpose, although it was not admissible as substantive evidence of undue influence.
The court gave, over contestee’s objection, an instruction numbered 7, reading as follows:' “The jury, are instructed that, if you find from the testimony in this case that the defendant, H. B. Kennedy, unduly influenced' the deceased, Sue Kennedy, to execute the alleged will in his favor, by constant' entreaty, importunity or persuasion, and that, on account of her weakened1 physical condition, she yielded to his request and executed, the same, then your verdict will -be for the plaintiffs.”
The objection to this instruction is that it rendered ' the will inyalid on account of Mrs. Kennedy’s weakened physical condition if, while she was in such condition, Kennedy exercised influence on her which induced the execution of the will. It is, of course, the law that a person’ may enjoy full testamentary capacity although he is suffering from extreme physical weakness or from the violence of disease; but the jury may 'consider the evidence showing the physical condition of the testator in determining whether a will executed under those circumstances was in fact the will of the testator. The instruction does not direct the jury to find for contestants because an influence was exercised on Mrs. Kennedy while she was in a weakened physical condition, but to do so if she was unduly influenced while in that condition, and other instructions defined undue influence in accordance with the decisions of this court on that subject as announced in McCulloch v. Campbell, 49. Ark. 367.
■ We understand the instruction.to.'mean that, if the jury should-find that if Mrs.’ Kefinedy was induced by constant entreaty, importunity or persuasion to execute the will, and'that she was'unable, because of her physical condition, to resist this entreaty, importunity or persuasion, when she would not have yielded otherwise, that ah undue influence had bben exercised, and, as thus interpreted, the instruction is 'the law. The instruction might more accurately have expressed this idea, but there was no specific objection to it, and, as we have said, other instructions given on behalf of contestee made it plain to the jury that Mrs. Kennedy could make a valid will notwithstanding her weakened'physical condition, if she possessed testamentary capacity, and that the will would not be invalid because of undue influence on account of Kennedy’s'conversations with his wife on that subject, if she knew and understood what she was doing, and had not been induced so to do because she was unable, on account of weakened physical condition, to resist influences brought to bear upon her whereby she executed a will which she would not otherwise have made.
The court gave, over contestee’s objection, an instruction numbered 5, reading as follows: “The jury are instructed that, if you find from the testimony in this case that the testator, in the execution of the will, did not act intelligently or voluntarily and as a free agent, but was subject to the will and purpose of the defendant, H, B. Kennedy, then your verdict will be for the plaintiffs and against the will.”
The objection to this instruction is that it leaves out of account any consideration of the question of undue influence, and that, under this instruction, the jury would! have to find against the will, although the jury might believe that Mrs. Kennedy was subject to the will of her husband because of her love for him and her desire to benefit him. ¡We do not think the instruction is open to this objection. The jury was not instructed to find against the will upon the mere finding that Mrs. Kennedy had become subject to the will and purpose of her husband, but to do so if they found that she did not act intelligently or voluntarily and as a free agent. The influence would be an improper one if it deprived the testator of the capacity to act intelligently or voluntarily and as a free agent, and we think no error was committed in giving the instruction.
Certain other questions are raised which we do not think require discussion, and, as we find no prejudicial error, the judgment is affirmed.
