{ "id": 6137578, "name": "Charles UPTON III and Sue Love Upton v. Joyce UPTON, Administratrix of the Estate of Charles J. Upton, Jr., Deceased", "name_abbreviation": "Upton v. Upton", "decision_date": "1988-11-16", "docket_number": "CA 88-64", "first_page": "78", "last_page": "83", "citations": [ { "type": "official", "cite": "26 Ark. App. 78" }, { "type": "parallel", "cite": "759 S.W.2d 811" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "294 Ark. 222", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895724 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/294/0222-01" ] }, { "cite": "9 Ark. App. 233", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140585 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "241-42" } ], "opinion_index": 0, "case_paths": [ "/ark-app/9/0233-01" ] }, { "cite": "225 Ark. 1024", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1642472 ], "weight": 3, "year": 1956, "pin_cites": [ { "page": "1027" } ], "opinion_index": 0, "case_paths": [ "/ark/225/1024-01" ] }, { "cite": "234 Ark. 290", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1688344 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/ark/234/0290-01" ] }, { "cite": "236 Ark. 95", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1681298 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/ark/236/0095-01" ] }, { "cite": "254 Ark. 89", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1624072 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "92" }, { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/ark/254/0089-01" ] }, { "cite": "241 Ark. 842", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1724197 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "844" } ], "opinion_index": 0, "case_paths": [ "/ark/241/0842-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-25-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 } ], "analysis": { "cardinality": 489, "char_count": 7871, "ocr_confidence": 0.894, "pagerank": { "raw": 2.2555917050400437e-07, "percentile": 0.7820388370132776 }, "sha256": "190d10cdee0fc7395cf53bb6350fd7d9527bcebcbf736e51ecf5562b2be674c8", "simhash": "1:91482b674528b313", "word_count": 1323 }, "last_updated": "2023-07-14T21:36:57.673702+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Corbin, C.J., and Cracraft, J., agree." ], "parties": [ "Charles UPTON III and Sue Love Upton v. Joyce UPTON, Administratrix of the Estate of Charles J. Upton, Jr., Deceased" ], "opinions": [ { "text": "Melvin Mayfield, Judge.\nCharles J. Upton, Jr., died on December 14,1985, survived by two adult children from his first marriage, his second wife, Joyce, and their daughter, Pamela Rene Upton. A will dated June 12,1979, left Upton\u2019s entire estate to his wife Joyce. Upton\u2019s two adult children, appellants herein, appeal from the decision of the probate court admitting their father\u2019s will to probate. Their stepmother, as executrix of her husband\u2019s estate, is the appellee.\nOn appeal, the appellants argue that the appellee failed to prove the proper execution of the will. They cite Ark. Stat. Ann. \u00a7 60-403 (Repl. 1971) [now Ark. Code Ann. \u00a7 28-25-103 (1987)] which they contend \u201crequires two attesting witnesses who sign in the presence of the testator and of each other,\u201d and appellants claim that the evidence does not \u201cprove that these formalities were followed.\u201d\nWe first point out that appellants are mistaken in their contention that the attesting witnesses are required to sign the will in the presence of each other. In Coleman v. Walls, 241 Ark. 842, 844, 410 S.W.2d 749 (1967), the court said: \u201cThere has never been any requirement in Arkansas that the two witnesses sign in the presence of each other, though in construing our original statute we said that such a course might be most prudent.\u201d Coleman was considering Ark. Stat. Ann. \u00a7 60-403 (Supp. 1965), but Ark. Stat. Ann. \u00a7 60-403 (Repl. 1971), which is applicable in the present case, contains the same provisions as were considered in Coleman.\nAs to the sufficiency of the evidence in regard to the other formalities, the evidence shows that one of the witnesses to Upton\u2019s will, William E. Hightower, was the former law partner of the attorney who prepared the will, James C. McCaa, but Hightower was unavailable to testify because he had predeceased Mr. Upton. The other witness, Clyde A. Self, testified that he was called by Upton and asked to come to McCaa\u2019s office to witness Upton\u2019s will. He said he observed Upton sign the will and then signed as a witness. He remembered Joyce Upton and McCaa being in the office but could recall no one else being present. He said he left as soon as he had signed the will. He also testified that he had known Upton for twenty to twenty-five years, knew that Upton was an alcoholic and knew that Upton had been very ill. However, Self said, on the day of the will signing, Upton looked well, did not appear to him to have been drinking and did not appear to be acting under improper influence of anyone.\nMcCaa, who currently resides in Virginia, testified by deposition upon written interrogatories that he prepared the will for Upton, following Upton\u2019s instructions. He said he reviewed the contents of the will with Upton before its execution and was satisfied that Upton understood its provisions and that they represented his wishes. McCaa said he never observed any conduct of Joyce Upton which indicated that she was attempting to influence Upton in any way. In response to interrogatory number 6, \u201cWhere was this Will executed?\u201d McCaa replied, \u201cAt my then office in West Memphis, Arkansas, at the corner of 4th Street and Broadway.\u201d\nBased upon this evidence, the probate judge found that the will had been properly executed and should be admitted to probate. It is clear that if attesting witnesses are unavailable, the genuineness of their signatures, and the signature of the testator, may be proved by two credible witnesses who are disinterested. See Walpole v. Lewis, 254 Ark. 89, 92, 492 S.W.2d 410 (1973), and Ark. Stat. Ann. \u00a7 62-2117 (Repl. 1971).\nIn explaining his decision, the trial judge read from the opinion in Walpole where the Arkansas Supreme Court said:\nIn determining whether there is sufficient proof of the only lacking essential, we follow our historical practice of avoiding a strict technical construction of statutory requirements where there is no indication of fraud, deception, imposition, or undue influence. If that were not done but few wills could be sustained. As a corollary, the meeting of some of the requirements for due execution may be inferred from all the attending circumstances. The only fair inference to be drawn from the circumstances shown here is that Arthur F. Turley signed as an attesting witness at the request of Lovie Harris. As we said in Hanel, it would be a strict, if not a dangerous, construction to require proof that the testator made a specific request of each witness to sign his name as a witness before the will is held valid. [Citations omitted.]\n254 Ark. at 94. Relying upon the Walpole rationale, the judge said that the only reasonable inference that could be made from the deposition of McCaa in the instant case, particularly the number 6 question and answer, would be that Upton\u2019s will was properly signed by the testator and the attesting witnesses.\nAppellants argue that no presumption should arise in the present case because Self did not remember seeing any other witness in the room at the time Upton executed the will and Self witnessed it, and two disinterested persons must verify the authenticity of the testator\u2019s signature. They argue that McCaa is not disinterested because he prepared the will and it is in his professional interest that the court hold it valid. The Arkansas Supreme Court, however, has held that the attorney who drafted a will and was named therein as attorney for the estate was a qualified attesting witness. Sullivant v. Sullivant, 236 Ark. 95, 98, 364 S.W.2d 665 (1963), and Rosenbaum v. Cahn, 234 Ark. 290, 305, 351 S.W.2d 857 (1961). Therefore, we think the judge could properly consider McCaa\u2019s deposition in making his decision.\nThe appellants also contend that McCaa\u2019s deposition did not address the formalities that are required by Ark. Stat. Ann. \u00a7 60-403 (Repl. 1971) and that it was error to presume from the overall tenor of his testimony that those formalities were complied with. In Edwards v. Knowles, 225 Ark. 1024, 287 S.W.2d 449 (1956), the court said it is the general rule that no presumption of the due execution of a will arises from the mere production of an instrument purporting to be a last will and testament; however, where a will is presented which appears to have been properly executed, and the attestation is established by proof of the handwriting of the witnesses, it will be presumed, in the absence of evidence to the contrary, that the will was executed in compliance with the requirements of the statute. 225 Ark. at 1027.\nMore recently, in Green v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983), after citing some of the cases cited here, this court stated:\nThe requirements for establishing an attested will must be read together and construed to permit establishment of the will by any legally admissible evidence or requisite facts in order that the testatrix\u2019s wishes may not be thwarted by straightlaced construction of statutory language where there is no indication of fraud, deception, imposition or undue influence.\n9 Ark. App. at 241-42.\nProbate cases are tried de novo on appeal, but the decision of the probate judge will not be reversed unless it is clearly against the preponderance of the evidence. Conkle v. Walker, 294 Ark. 222, 742 S.W.2d 892 (1988).\nAfter reviewing the record, the testimony of Mr. Self, the deposition of Mr. McCaa, and the will itself, we have concluded that the trial judge\u2019s decision that the inference from McCaa\u2019s deposition that the will was properly signed and attested is not clearly against the preponderance of the evidence.\nAffirmed.\nCorbin, C.J., and Cracraft, J., agree.", "type": "majority", "author": "Melvin Mayfield, Judge." } ], "attorneys": [ "Morgan E. Welch, for appellants.", "Saxton & Ayres, for appellee." ], "corrections": "", "head_matter": "Charles UPTON III and Sue Love Upton v. Joyce UPTON, Administratrix of the Estate of Charles J. Upton, Jr., Deceased\nCA 88-64\n759 S.W.2d 811\nCourt of Appeals of Arkansas Division II\nOpinion delivered November 16, 1988\nMorgan E. Welch, for appellants.\nSaxton & Ayres, for appellee." }, "file_name": "0078-01", "first_page_order": 98, "last_page_order": 103 }