ARK.] EVANS V. EVANS., 585 EVANS V. EVANS. 4-4522
Opinion delivered February 8, 1937. 1. WILLs—ExEcurIoN. Where the statutory requirements. in the execution of a will have been complied with, the will must be up-. held, as the courts have no power to prescribe 'otfiers. 2. WILL S — STATUTES.—Since the purpose 'of the statute, • § 10494, Crawford & Moses' Digest, is to 'prevent imPosition, franc!, deception and the substitution of •some other writing, in .place of-. the will, its validity will not be heid to depend on, the good apem-ory of one of the witnesses. 3. WILLS—EV IDENCE.—Sinae the validity of a Will depends 'upon • whether it was executed as the law requires, where one witness testifies positively to the - requisites of execution, it may be suffi-
586 EVANS V. EVANS. [193 ciently proved, though another witness does not recollect or denies some: of the requisites. •. 4. APPEAL AiSTE ERROR.—Where the judgment of the circuit court in favor of the validity of a will was supported by a pieponderance of the evidence, it should be affirMed. Appeal from Union Circuit , Court, Second Division ; Gus W. Jones, Jndge; . affirmed. * Tom W. Campbell and Coulter & Coulter; for_appellants. Walter L. Brown, fin! aPpellee. MEHAFFY, J. J. H. Evans, en December 22, 1923, made a will which was signed .by J. A. Stephens and Bob Brown, witnesses. .A.fter, J. H. E y ans' death the will was filed for probate , on Pecember 8, 1934. • On December 10, 1934, the witnesses Stephens and Brown, appeared before the clerk of the county and probate courts of Union county, and made proof of the will. On December 27, 1934, W. F. Evans. Lizzie Evans and Robert S. Evans filed in the probate court of Union county, exceptions. and protest. Several grounds: for contest were contained in the pleading filed. ...A.- response was filed by the contestees on January 29, 1935. On that date the probate court heard Abe evidence and admitted the will to probate. The conteStantS p"rosecuted an appeal to the circuit court, and the case was tried there on March 6, 1936. The jury returned a verdict in favor of the con-testees, finding that the Will was valid, judgment was entered accordingly, and to reverse that judgment this appeal is prosecuted. All grounds for contest have been abandoned except the allegation that the will was void because not executed in accordance with the statutes. Therefore, the only question for ,our consideration is whether the will was executed as required by law. Section 10494 provides the manner in which wills may be executed: fitSt, the will must be subscribed by the testater at the end of the will, or by some perSon for him at his request ; second, such subScription should be made by the testator, in the presence of each of the at-. testing witnesses or shall be acknewledged by him to
ARK.] EVANS V. EVANS. 587 have been . so nrade to each of • the attesting witnesses; third, the testator at the tinie of making such subscription or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament . ; fourth, there shall be at least two attesting witnesses, each of whoM*shall sign his name as a witness at. the 'end of the will at the request : of the testator. • Stephens, one of the' attesting witnesses, testified in 'substance that he lived at Quinn, where the tes-tator . lived; knew ; J. Evans .sOmething like 20 or 25 years; EvanS fartnect and Operated a store; witness Was at Evans' store , dn Deeember 22, 1923, and Mr. Evans called witness and BohBroWn and-asked them io witness the'Signing or ; Witness saw 'Evans sign it. One of the WitneSses' signatureS. is' Stephens' 'and the other iS BOb BroWn's. All three Were together and witness saw BokBrown siim the will.* Mr. Evans ' signed first, stated that it:Was his will, and asked witness te attest it. EVans' 'lame is .signed'in 'green ink, and witness' and Brown's in black ink ;• there Was a post Office in connection With the istore, and the ink Mf. Evans was using was ink that NVas used in the poSt- offiee; and the Other • Was signed by witnesS and . BroWkwith Witness' fountain Pen: Witness, after;EVans had signed, signed his name at the.request of Evans, and .handed his ` Pen to Mr. Brown, who - then signed ; :they were abont tiVo as nd a . balf . feot apart ; neSS waS requested bY EVan g tb sign, and . he understood he wds . witriesSiiie • EvanS" Will; has s not discussed. the execution of the will With any one. SinCe the trial in the Probate • court, but s ' haS thought ' s abont the matter Considerably.' Mr. • Ewin g Called' witness and Bob BroWn; and asked then" fo" vitnes tli6 signing Of a will. The will was then pieSented id witneSs and, he stated that it was . signed by Evan ' s; that' he saW hini sign it,' and 'that witneSs' Signature is there, where 'he signed it; and 'he saw witness - Bob . Br'Owli sign if; they were all there together and Evans sikned first, and , he said it WaS his will. Witness and BA' BróWn both 'SaW EVans Sign 'the will; they were all within' a few feet of' each ; other, and Evans signed jul the -presence Of the 'wis tnesSes; and when witness signed . he thew saw Bob •Brown 'Sign it.
5,88 EVANS V. EVANS. [193 _ Bob -Brown testified in substance as follows : had known Evans for 20 years, and Evans was in themer-cantile business and farming;_ he does not remember the date that the will was signed ;.Evans asked witness to witness his will; asked him to sign it; Stephens and witness were present, and Evans said : "I want you boys to sign the will with me." They went inside the store, around where the little post office departmenfwas, and signed it ; there Were just the three of them; witness first testified that he thought he signed first, but then said he was mistaken, that he did not sign on the top line, but he signed and •anded the pen to Stephens, but did not know whether Stephens 'signed it or not ; did not see Evans sign,, and does not . . know his signature; did not know whether his signature was there or not. Witness said he and Stephens signed the will . with Evans. When witness signed the will they were all three together. The will was execnted on December 22, 1923, and the evidence in the circuit conrt was given on March 6, 1936, mere than 12 years after the execution of the Will. It is entirely probable that *a w . itness might, after 12 years, not recall the details . and everything that was said. , Ste-phens ' Jestimony is clear and positive. Tie swears he Saw. Evans sign the will: • A °sOn of Evans testifies that it is his father's signature. Brown admits that Evans called theth in for the purpose of witneSsing his will. The will was probated in December, 1934. 'The record shows that .Brown and Stephen's appeared before the clerk. and testified that they . were the subscribing witnesses to Evans' Will . ; that the iristrUment was executed at the time, place, and by the person therein named, and that in the presence of both of the witnesses, Stephens and BrOwn, EvanS declared it to be his last will and testament, and subscribed his name thereto in the presence of both witnesses, and that at the request of the testator witnesses wrote their names in Evans' presence and in tie presence of each other. This affidavit was subscribed and sworn to by both Stephens and Brown. It is first contended by the appellants that the court should have directed a verdict in their favor, and tbey call attention to authorities to • the effect -that the right
ARK.] EVANS V. EVANS. 589 to wake a will is created by , statute, the provisions of. which prescribing the method of execution are mandatory in character, and the will must . be execnted in accordance with the prescribed requirements, or' it will be void. The first authority cited is 68 C. J. 648. This an-thority, as well as others cited by appellant, are all to the effect that a failure to comply with the reqUirements is fatal to the validity of the will, and no defect in the execution can be aided or supplied hy parol proof. - But the same section in 68 C. J. cited 'and relied on by apriel-lauds, contains the following: • • "But where the • requirements have been complied With, tlie will mti g t be upheld, a g the . courts have no power th prescribe other requirements.. If:the Will is executed in 'accordance with the statutOrY requirenients, it iS of no consequence who drafted the instrument or under what circumstances it.was drafted:':' • The . pUrpose of Ihe statutes is to prevent imposition, fraud,- deception, and tc; prevent the substitution of some other writing iü place of the will. • . This court has held that -the validity of a will depends oh the compliance :with the-statute, rather than on the good memory of One of the witnesses. The statute requires the- testator to declare; in the presence:of the witnesses, that the instrument he has- signed is his will and testament,- but -he is not required to use any .particular words. Rogers v: Diamond, 13 Ark. 474. In. the • instant . case 'all the parties were together, within a -few 'feet .of. each Other, and the evidence of witnesses, together with the circumstances and situation of the parties,. sufficiently establishes the fact that tbe will was , executed as the statute requires. . Appellant next argues that the, testimony of J. Evans, who te,stified that it was his father's signature at the end of the will, was withont probative force because he did not know when the signature was placed on the al-leged- will. Th . at is . true, , hejlid.not know when the signature was placed there, but he was introduced for the pur, pose of proving that that his father 's signature. , pellant does not dispute that it was his signature, but says that this was not in issue ; but that the . issue wa$
590 EVANS V. EVANS. [193 whether or not the signature was placed there in accordance with the Statutory requirements. It is next contended by appellant that it was necessary for hoth witnesses to see the signature of the tes-tator. As we . have already said, we think the evidence shows that'Brown did see the signature of Evans on the will. . . . • It is not required that, both , witnesses remember all the details. A • requirement of this kind .would defeat many wills. The validity of the will depends upon whether it was executed as the . law yequires, and does not depend on flip memory of a witness. The. will might be executed properly, and .a , witness might forget .about it, especially when, his testimony : is given several. ,years after the execution of the..will.. "While under the Wording :•of, and construction plaCed on, the statutes in a smajority of jurisdictions, it is necessary- to Produce :and examine : the full number of witnesses required by law to attest a will if they are aliVe, sane, and- within the jurisdiction of -the court, a.t .least where the will is contested,-and -a like rule obtains 'in a suit•in equity to .establish a will, it iS • not essential that due execution of the will be.-proved or established by the testimOny 'Of all or: any of the subscribing witnesses so produced :and •examined. Execution May be sufficiently proved where one witnesS 'testifies positively 'to the re-quisites- of execution, and another does not 'recellect, or denies some Of the-requisites.''- 68 C..J. 1021, 1022.! The' èvideike IeaVes no.. dOilbt that EvanS, .in 1923; Made' a will a;rid called Brown and Stephens 'in as witnesses. Stephens testimonY is positive. He testifies that Evans was : Using' a pen at the . post Office, and signed with that in green ink.• If thiS had not been 'true, the introduction of the *ill itself would have shown 'that it Was not signed in gre6n ink. Stephens' explanation is reasonable,- all three parties were together. After Evans signed it with* green 'ink, Stephens signed wi th . his fountain -pen and hal:tiled it -to . BroWn. • Brown-dOes not dent this; he does not deny his' signature,. but he simply says he does not remember. • ,•
ARK.] 591. The verdict and judg l ent of the circuit court Is sup-potted by a preponderanee 'of the evidence, Und . thejudg-ment is, therefore, affirined.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.