Longer v. Beakley , 106 Ark. 213 ( 1913 )

Smith, J.

This is. the third appeal of tMs case to tMs court. The suit was originally brought by the beneficiaries under a policy of insurance upon the life of one Antone Frankring against the insurance company. The policy was originally payable to the children of the said Frankring; but there was an apparent change in the beneficiary and at the death of the said Frankring, the policy was payable to Mary Longer, the appellant herein.

In the second appeal, the case was reversed and remanded to be tried upon the issue as to whether Frank-ring authorized the change in the benefit certificate. Longer v. Garter, 143 S. W. 575, 102 Ark. 72.

TMs certificate was originally issued by the Loyal Fraternal Home, an insurance corporation, having lodges at various points in the State, and one at Walnut Bidge, the home of the said Frankring, but later the National Annuity Association, a fraternal beneficiary association of Kansas City, assumed the outstanding benefit certificates issued by the Loyal Fraternal Home Company. The request for change of beneficiary was endorsed upon the certificate and was signed in the name of Frankring and attested by Mrs. Lola P. Baulch, the lodge president, and F. S. Pinehback, the dodge secretary, and the transfer had been approved by the president of the annuity association.

The policy contained tMs provision, “A benefit certificate may be made payable to one or more persons bearing the relationsMp to the member of wife, husband, child, sister, brother, grandparent, grandchild, stepparent, affianced wife, half-sister, father, mother, adopted cMld, adopted parent, half-brother, aunt, uncle, niece, or nephew. No certificate can be transferred to any other person than above. No benefits shall be paid to a person designated as a dependent, unless dependency shall be shown to exist at the time of the death of the member.”

At the trial, from which this appeal is prosecuted, it was claimed by the appellant that the said Frankring had boarded with her for some time; that he had become estranged from his family, and that they were engaged to be married, and that, in view of this engagement, the benefit certificate was changed and made payable to her. The contention of appellees, who were the children of the said Frankring, was that the assignment was a forgery and that there was no marriage engagement between their father and the said Mary Longer. Appellant complains of a number of errors alleged to have been committed at the trial, which are substantially as follows:

First, The action of the court in permitting Mrs. Baulch, the lodge president, to testify that she had not signed her name as a witness to the request for change of beneficiary and had not authorized any one else to sign her name, and did not know that this had been done until after Frankring’s death.

Second, Because appellee, who was the plaintiff below, was allowed to ask a witness, named Pinehback, if he signed the name of Mrs. Baulch to the request for change of beneficiary.

Third, Because plaintiff was permitted to prove that just before Frankring died, he sent for his children and plaintiff was allowed to show affection there demonstrated.

Fourth, Because witnesses were permitted to state that after the date of the alleged transfer of the certificate, Frankring had stated to them that his insurance was payable to his children.

Fifth, Because witnesses were permitted to state that Frankring had said to them, after the date of the alleged change of beneficiary, when speaking of appellant, “Old Mollie, the d — d old b-has stolen my money and papers.”

Sixth, In permitting witness Beakley to state that appellant told him she was never engaged to Frankring and would not have married him.

Seventh, Because the court had permitted counsel for appellee to state in his argument to the jury that “Pinchback had admitted that he forged the name of Mrs. Baulch to the certificate and that, if he would do that, he would forge the name of Antone Frankring,” or words to that effect.

The objections above stated were preserved in various exceptions to the action of the court in admitting evidence and in charging the jury. The evidence showed that the policy represented almost the entire estate of the said Frankring, who was unable to sign his name and who had not signed his name to the request for the change of beneficiary. The evidence of Mrs. Baulch that she had not signed her name, nor authorized it to be signed was, of course, admissible under any theory, and it was proper to ask the witness, Pinchback, who testified on behalf of the appellant, on his cross examination, if he had signed Mrs. Baulch’s name. This was necessarily proper, and especially so when that witness had testified on his direct examination that Frankring had told witness that he and Mollie (appellant) were going to marry, and that witness wrote the. names signed to request for change of beneficiary at the direction of Frankring and had written Mrs. Baulch’s name because she was the president of the lodge, and that he wrote her name because she did not have to sign the paper.

■ The evidence of Beakley that appellant told him she was not engaged to Frankring was competent for the purpose of contradicting the statement of Pinchback that Frankring had told him of the existence of this engagement. The proof was relevant because, under the by-laws of this society, appellant could not have been named as beneficiary, in the absence of this engagement.

The third and fifth grounds, above mentioned, showed the state of feeling of Frankring to the respective litigants; and the fourth ground relates to his statements, which tended to impeach the authenticity of the change of beneficiary.

There is no question here about Frankring’s capacity to make the request for change of beneficiary, which he is alleged to have made, and if the execution of this request was conceded, either the third, fourth, or fifth grounds would call for the reversal of the case; but it is not admitted that he executed this request. It is not even claimed that he signed the request by his own hand, it is said merely that he authorized Pinchback to make this request for him. .Necessarily, therefore, the argument of appellee’s counsel that the signatures were a forgery, was a proper one, for that is the issue in the ease. There was considerable evidence on the question of the general reputation for truth and veracity of both Pinchback and appellant, and a sufficiency to have supported a finding either way on that question.

Counsel have not cited us to any case, nor have we found one, which discusses and decides the exact point here involved. By analogy, however, there are many cases which are in point and which grew out of contests over the execution of wills and discuss the principles of the law of evidence here involved. For all practical purposes, the execution of this request for change of beneficiary was Frankring’s will, because it disposed of practically all he owned. Did he make such request and has the court committed any error in the admission of evidence bearing upon that question?

In Shailer v. Bumstead and others, 99 Mass. 112, a will was contested upon the ground, among others, that the testatrix was of unsound mind and had been unduly influenced by two of the beneficiaries and was ignorant of the contents of the will at the time of the execution. The contestants relied upon evidence of declarations of the testatrix, made at the time of executing the will, and also before and after that time to the effect that she intended a disposition of her property other than that made by the will, and there was evidence tending to show undue influence of the principal beneficiaries under the will.

As further evidence that the will was made contrary to the real intentions of the testatrix, or that she was ignorant of its contents, and that its execution was procured by fraud and undue influence, tbe contestants offered to prove declarations of tbe testatrix and of tbe beneficiaries subsequent to the date of the will. The evidence of such subsequent declarations and conduct was excluded, so far as they were offered to sustain the allegations of fraud and undue influence and ignorance of the contents of the will. In discussing this action of the court below it was there said: “That the.instrument which contains the testamentary disposition of a competent person, executed freely and with all requisite legal formalities, must stand as the only evidence of such disposal is generally conceded. Such a mil is not to be controlled in its plain meaning by evidence of verbal statements inconsistent with it; nor impaired in its validity and effect by afterthoughts, or changes in the wishes or purposes of the maker, however distinctly asserted. It is to be revoked only by some formal written instrument, some intentional act of destruction or cancellation, or such change or circumstances as amounts in law to a revocation.

“An invasion of this rule opens the way to fraud and forgery; promotes controversy; destroys to a greater or less degree that security which should be afforded to the exercise of the power to control the succession to one’s property after death. But the rule assumes that the will sought to be affected has once had a valid existence. It is always liable to be impeached by any competent evidence that it was never executed with the required formality, was not the act of one possessed, of testamentary capacity, or was obtained by such fraud and undue influence as to subvert the real intentions and will of the maker. The declarations of the testator accompanying the act must always be resorted to as the most satisfactory evidence to sustain or defend the will, whenever this issue is presented. So it is uniformly held that the previous declarations of the testator, offered to prove the mental facts involved, are competent. Intentions, purpose, mental peculiarity, and condition, are mainly ascertainable through the medium afforded by the power of language. Statement and declarations, when the state of the mind is the fact to be shown, are therefore, received as mental acts or conduct. The truth or falsitiy of the statement is of no consequence. As a narration, it is not received as evidence of the fact stated. It is only to be used as showing what manner of man he is who makes it.” And it was further said, “Upon the question of capacity to make a will, evidence of this description is constantly received; and when the issue is one of fraud and undue influence, it is equally material. ’ ’ And it was there further said:

“The precise statements of the testatrix are not reported, nor does it appear at what precise time they were made, but they were offered to show either ignorance of the contents of the will, or that they were contrary to her real intentions, and that the will was improperly obtained by the fraud and undue influence of the beneficiaries.

“As we have already seen, this evidence was not competent as a declaration or narrative to show the fact of fraud or undue influence at a previous period. But it was admissible not only to show retention or loss of memory, tenacity or vacillation of purpose, existing at the date of the will, but also in proof of long cherished purposes, settled convictions, deeply rooted feelings, opinions, affections, or prejudices or other intrinsic or enduring peculiarities of mind, inconsistent with the dispositions made in the instrument to be set up as the formal and deliberate expressions of the testatrix’s will; as well as to rebut any inference arising from the non-revocation of the instrument.”

The case of Mobley v. Lyon, 67 S. E. 668, originated in a proceeding to probate a paper as the will of one Mary L. Spencer and it was there alleged that: (1) “The instrument offered was not the will of the said Mary L. Spencer, and, if it was signed by her, it was not drawn by her, was not read over to her, and she was ignorant of its contents at the time of signing same and remained ignorant of it during the remainder of her life and died ignorant of its contents; (2) It is not the will of said Mary L. Spencer, because she never signed it, and knew nothing of it, bnt the same is a forgery.” The court said: “One of the witnesses whose name appeared to be signed to the will was J. A. Stover. The evidence showed he was dead and the propounders introduced testimony to prove his handwriting. The caveator introduced counter testimony for the purpose of proving that the purported signature of Stover was not genuine. The caveator offered evidence of the son of Stover that he had had several conversations with his father occurring after the death of the testatrix, in which his father said that it seemed very strange that Mrs. Spencer did not make a will, and asked the son if he had heard Mrs. Spencer say anything about a will. This evidence was admitted over objection upon the part of the propounders. The objections may be reduced to two substantial points (1) was the evidence inadmissible as hearsay; (2) was it inadmissible on the ground that the attesting witness being dead, he could not be asked touching conflicting statements, and therefore, could not be impeached by their production.” The court speaking through Atkinson, Justice, said: “We do not think either reason sufficient ground for excluding the evidence,” and, after citing a large number of cases, both English and American, and discussing the conflicting views expressed by them, said in regard to the admissibility of the evidence above offered : ‘ ‘ The proof of attestation, therefore, carries with it something more than the mere fact that the witness signed the paper. If the witnesses are placed on the stand, they can be cross examined, and can be asked if they have not made statements conflicting with other testimony as given. If one or more of these is dead, and evidence is introduced to prove his signature, the pur: pose and effect is not solely to prove that such witness or witnesses signed the paper, but from that fact to derive inferences, largely dependent upon the presumption that, when they purported to sign properly, they did so. When this additional effect is to be used, it can not be contradicted; it not being possible to cross examine such attesting witness, or to lay the foundation for impeachment. If proof of the handwriting of the attesting witness is to carry with, it the force of an assertion by him that the instrument was executed because he witnessed it, this implied assertion should be impeachable by showing that he had made statements conflicting with it. The rule as to making a preliminary examination and calling the attention of the witness to conflicting statements before introducing them, can not be applied in such a case, * * * We recognize the fact that there may be some danger arising from the admission of such impeaching testimony, but there is also danger in admitting dying declarations, statements claimed to be part of the res gestae, opinions of witnesses, and proof of the signature of an attesting witness itself, as having probative value in lieu of the introduction of the witness. But the danger of abuse arising from the admissibility of the evidence can not destroy such admissibility, or outweigh the counter danger arising from admitting mere proof of the handwriting of a witness to have evidential value of the execution of a will without the introduction of the witness, and at the same time absolutely shutting off any practical mode of impeaching or destroying such evidential value, thus in effect, relaxing the rule requiring the production of the witness in favor of one person without relaxing the rule that the witness when produced must be asked about the conflicting statements before proving them. ’ ’