32 S.W.2d 162 | Ark. | 1930
This appeal involves the validity of the alleged last will and testament of Mrs. Lillian M. Gathright. The probate of the will was opposed in the probate court upon the grounds that the execution of the will had been procured by undue influence, and that the testatrix lacked mental capacity to make it. There was a finding in favor of the will, and the same issues were tried in the circuit court, with the same result, and this appeal is from that judgment.
A number of witnesses gave testimony bearing upon these questions, and, while it is contended that the verdict of the jury was contrary to the preponderance of the evidence, it is conceded that the testimony is legally sufficient to support the finding that the execution of the will was not procured through the exercise of undue influence, and that the testatrix had the mental capacity to make the will. It will not, therefore, be necessary to discuss these questions of fact, or to make any recital of them, further than is necessary to present the assignments of error raised on this appeal.
We are asked to reverse the judgment of the circuit court admitting the will to probate for the reasons that *583 error was committed in the admission of the testimony of Dr. George B. Fletcher, and that of Mrs. Helen Knight, and in giving instructions numbered 5 and 12. These assignments of error will be considered in the order stated.
The contestants introduced, over the objection and exception of contestee, the certificate of death issued by the registrar of Vital Statistics of the State, which was based upon the report of Dr. George B. Fletcher, who had attended Mrs. Gathright in her last illness. This certificate recited the cause of death to have been chronic alcoholism, with myocardial failure as a secondary or contributing cause.
Dr. Fletcher was called as a witness at the trial from which this appeal comes by contestee, who was named as executrix of the will and who had qualified as such after its probate had been ordered by the probate court. Dr. Fletcher was asked what the mental condition of Mrs. Gathright was on the day of the execution of the will, and the objection was made that this testimony was privileged and incompetent under 4149, C. M. Digest, which reads as follows:
"No person authorized to practice physic or surgery and no trained nurse shall be compelled to disclose any information which he may have acquired from his patient while attending him in a professional character, and which information was necessary to enable him to prescribe as a physician or do any act for him as a surgeon or trained nurse."
Many cases are cited in the briefs of opposing counsel on the nature of this privilege, and upon the question of the right to waive it, whether by the heir or the personal representative; but we find it unnecessary to decide this question.
Mrs. Gathright was a childless widow at the time of her death, and her father and mother were both dead. She was survived by two brothers and two sisters, none of whom were mentioned in the will, and the sole devisee was contestee, a niece, who was not an heir, for the reason *584 that her mother, one of Mrs. Gathright's sisters, is living, and the contest is on behalf of the other sister and the two brothers, who, together, would, in the absence of a will, take a three-fourths interest in the estate.
In Jones on Evidence (2d ed.) 2198, page 4194, it is said: "By the weight of authority, it is held that, since the patient may waive the privilege for the purpose of protecting his rights, the same waiver may be made by those who represent him alter his death, for the purpose of protecting rights acquired by him. It has been held, in some states, that this privilege cannot be waived by the heirs; that the right if waiver belongs to the personal representative alone."
We have here a contest between all the heirs, except the mother of contestee, and the executrix, although the latter's right to act as such is, of course, dependent upon the validity of the will, which is the question in issue. We think the record made at the trial below, to which reference will later be made, shows that first one and then the other of the parties have waived the privilege of the statute.
That the statute may be waived by a proper party in interest is clearly established by the great weight of authority. In the case of National Annuity Association v. McCall,
We are not unmindful of the case of Fidelity Casualty Co. v. Meyer,
The statute quoted may therefore be waived, and we think the record shows that it has been. It was waived by the heirs when they introduced the record of the Registrar of Vital Statistics, which contained, and was based upon, a certified copy of the death certificate prepared by Dr. Fletcher as the attending physician during the last illness of the testatrix. This certificate was not introduced to prove her death, for that was an admitted fact, and, had it not been, could easily have been proved without reference to the certificate. The purpose of its introduction was to prove death from chronic alcoholism *586 a circumstance calculated to affect mental capacity, and which, according to the testimony of a medical expert offered by contestants, did affect the mental capacity of the victim who had died from that cause.
So, therefore, when this certificate was offered in evidence (over contestee's objection), the purpose of the statute could no longer be affected. The patient's life had been laid bare; her infirmity, against which she had vainly struggled and had sought to conceal, as is shown by other testimony in the case, was disclosed. When this had been done by the heirs, we perceive no reason why the physician who made the certificate might not be called by the executrix to explain and interpret his certificate, as no purpose which 4149, C. M. Digest, was intended to subserve could then prohibit this from being done. Dr. Fletcher testified that Mrs. Gathright was sane on the day the will was made, and we think no error was committed in admitting this testimony under the facts stated.
Mrs. Helen Knight, who was the superintendent of the hospital where Mrs. Gathright died and was one of the attesting witnesses to the will, was permitted, over contestants' objection, to answer "Yes, sir" to the following question: "Q. In your opinion or judgment was she capable of making a will on the date that it was made?" It was specifically objected that this was the very question which the jury was called upon to determine and should not have been answered by the witness for that reason, and that the competency of a person to make a will could not be proved by a lay witness.
It may be first said that this question and answer appear in the testimony of Mrs. Knight taken at the trial in the probate court, a transcript thereof being read in the circuit court as her deposition. No specific objection was made to this question and answer in the probate court, and the witness was not present at the trial in the circuit court. But, when this deposition is read in its entirety, it appears that the witness stated fully the facts *587 upon which the opinion was based, and that she had the opportunity to observe Mrs. Gathright to a sufficient extent to express an opinion on Mrs. Gathright's sanity.
Had objection been made to the form of this question when it was propounded to the witness at the trial in the probate court, it might then have been reformed to call for an opinion on Mrs. Gathright's sanity, rather than on her testamentary capacity, but no such opportunity existed when the deposition was read at the trial in the circuit court.
In the case of Sloan v. Newman,
So, here, we say that, conceding that the form of the question constituted an awkward method of eliciting the testimony, yet it was perfectly competent to take the statement of the witness as to Mrs. Gathright's mental capacity at the time she was in the hospital, when and where the will was signed.
Moreover, while Mrs. Knight was a lay witness, she was an attesting witness. There was no contention that Mrs. Gathright was normally a person of unsound mind, *588 but the cause was tried upon the theory that her illness had progressed to such an extent that her mind was so far affected by the disease from which she died that she could not remember the nature, character and extent of her property, and did not know the disposition she was making of it, and did not appreciate the merits of those persons who, as her heirs-at-law, might have claims upon her bounty. Conscious intelligence upon these questions constitutes what is known in the law as testamentary capacity, and the existence of this capacity is the question which the jury was called upon to decide. But attesting witnesses, although lay and not expert, are permitted to express opinions on this subject. Of course, the value of this testimony may be tested by an examination of the witness to disclose his or her own intelligence and the opportunities the witness had to form the opinion and its consequent value.
In the early and well considered case of McDaniel v. Crosby,
That opinion was based upon the case of Kelly's Heirs v. McGuire,
See, also, Potts v. House,
One the instructions specifically objected to was numbered 5, and reads as follows: "You are instructed that the law presumes that Mrs. Lillian Gathright, at the time of the execution of the will by her, was of sound and disposing mind and memory, and the burden is upon the contestants to prove, by a preponderance of the evidence, that she was not of sound mind."
This instruction must, of course, be read in connection with the other instructions given by the court, one of which, given at the request of contestants, told the jury that: "If you further find from a preponderance of the evidence that on said day and at the time of executing *590 said will she did not have the mental capacity, as defined in these instructions, to make a will, you will find against the will."
A similar instruction was given on the question of undue influence, but that feature of the case is not insisted upon for the reversal of the judgment of the court admitting the will to probate.
Instructions similar to the one quoted have been frequently approved by the court, beginning with the case of Kelly's Heirs v. McGuire, supra. A late case is that of Hamilton v. Hamilton,
A similar instruction was approved in the case of Taylor v. McClintock,
The subject was reviewed by Mr. Justice BATTLE, with his usual care, in the case of Bims v. Collier,
The will in this case is rational on its face, and was executed and witnessed in accordance with the statute, and we do not think that the instructions, when read together, offend against the law as announced in the opinion by Judge BATTLE and the other cases cited.
The other instruction alleged to be erroneous and prejudicial was numbered 12, and the portion objected to reads as follows: "The fact that it leaves all of her estate to one relative to the exclusion of others does not raise a presumption of lack of capacity in her to make such will."
It is argued that the instruction was a charge upon the weight of evidence, and excluded from the consideration of the jury the question whether the will was an unnatural one and such a will as a sane person would have made and in conflict with other instructions which permitted the jury to consider the circumstances stated in the instruction for that purpose.
We think the objections stated are not well taken. It is true that instructions were given at the request of contestants which permitted the jury to consider the fact that the will excluded the persons who, in the absence of a will, would be the heirs-at-law, as a circumstance to be considered in determining whether the will was that of a sane person; but there is no conflict in the instructions in this respect. Instruction numbered 12 does not tell the jury not to consider this circumstance, but only declared that the circumstance did not raise a presumption of lack of capacity to make a will. It was not a charge upon the weight of testimony, but was a declaration of law to the effect that one might ignore his heirs-at-law in the disposition of his property by will, and the cases are unanimous to this effect. It is, of course, a circumstance to be considered in determining the sanity of one who makes such a will, but the instruction *593 did net exclude it for that purpose. It merely told the jury that the circumstance itself created no presumption against sanity, and there was therefore no error in giving it.
Upon a consideration of the whole case we find no error, and the judgment must be affirmed, and it is so ordered.