{ "id": 1600538, "name": "Marie VAUGHT v. Wallace VAUGHT et al", "name_abbreviation": "Vaught v. Vaught", "decision_date": "1969-09-02", "docket_number": "5-4833", "first_page": "52", "last_page": "60", "citations": [ { "type": "official", "cite": "247 Ark. 52" }, { "type": "parallel", "cite": "444 S.W.2d 104" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "225 Ark. 410", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1642668 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/225/0410-01" ] }, { "cite": "151 S.W. 1014", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "105 Ark. 558", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347061 ], "opinion_index": 0, "case_paths": [ "/ark/105/0558-01" ] }, { "cite": "165 F. 2d 637", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 8843444, 1204933 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/alaska/11/0498-01", "/f2d/165/0637-01" ] }, { "cite": "323 P. 2d 1011", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1958, "opinion_index": 0 }, { "cite": "159 Cal. App. 2d 600", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 4410915 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/cal-app-2d/159/0600-01" ] }, { "cite": "174 S. W. 1176", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "116 Ark. 565", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1532227 ], "opinion_index": 0, "case_paths": [ "/ark/116/0565-01" ] }, { "cite": "13 N.E. 2d 257", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1938, "opinion_index": 0 }, { "cite": "35 Cal. Rptr. 737", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1963, "opinion_index": 0 }, { "cite": "207 Ark. 32", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1481828 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/207/0032-01" ] }, { "cite": "20 So. 2d 296", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 3104179, 10043628 ], "weight": 2, "year": 1944, "opinion_index": 0, "case_paths": [ "/la/206/1011-01", "/so2d/20/0296-01" ] }, { "cite": "206 La. 1012", "category": "reporters:state", "reporter": "La.", "case_ids": [ 10043628 ], "weight": 2, "year": 1944, "opinion_index": 0, "case_paths": [ "/so2d/20/0296-01" ] }, { "cite": "108 N. E. 2d 908", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "413 Ill. 364", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5313472 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/ill/413/0364-01" ] }, { "cite": "106 S. W. 2d 975", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 2, "year": 1937, "opinion_index": 0 }, { "cite": "269 Ky. 246", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 2463157 ], "weight": 2, "year": 1937, "opinion_index": 0, "case_paths": [ "/ky/269/0246-01" ] }, { "cite": "193 U. S. 411", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3629709 ], "weight": 6, "year": 1904, "opinion_index": 0, "case_paths": [ "/us/193/0411-01" ] }, { "cite": "40 A. L. R. 2d 698", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "2 A. 2d 761", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1938, "opinion_index": 0 }, { "cite": "332 Pa. 257", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1186555 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/pa/332/0257-01" ] }, { "cite": "19 Gratt. 758", "category": "reporters:state", "reporter": "Gratt.", "case_ids": [ 4436434 ], "weight": 3, "year": 1870, "opinion_index": 0, "case_paths": [ "/va/60/0282-01" ] }, { "cite": "11 A. L. R. 832", "category": "reporters:specialty", "reporter": "A.L.R.", "weight": 2, "year": 1919, "opinion_index": 0 }, { "cite": "215 S. W. 800", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "year": 1919, "opinion_index": 0 }, { "cite": "185 Ky. 795", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 4476525 ], "weight": 2, "year": 1919, "opinion_index": 0, "case_paths": [ "/ky/185/0795-01" ] }, { "cite": "1 A. L. R. 3d 1043", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "year": 1963, "opinion_index": 0 }, { "cite": "223 Cal. App. 2d 211", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2124539 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/cal-app-2d/223/0211-01" ] }, { "cite": "215 S. C. 34", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 8714329 ], "weight": 2, "year": 1949, "opinion_index": 0, "case_paths": [ "/sc/215/0034-01" ] }, { "cite": "13 N. E. 2d 257", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1938, "opinion_index": 0 }, { "cite": "368 Ill. 215", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2569163 ], "weight": 2, "year": 1938, "opinion_index": 0, "case_paths": [ "/ill/368/0215-01" ] }, { "cite": "259 P. 2d 1014", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1953, "opinion_index": 0 }, { "cite": "119 Cal. App. 2d 574", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2206122 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/cal-app-2d/119/0574-01" ] }, { "cite": "1 A. L. R. 3d 1048", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "year": 1953, "pin_cites": [ { "page": "1050" }, { "page": "1051" } ], "opinion_index": 0 }, { "cite": "49 Mo. 171", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 982248 ], "year": 1872, "opinion_index": 1, "case_paths": [ "/mo/49/0171-01" ] } ], "analysis": { "cardinality": 739, "char_count": 12848, "ocr_confidence": 0.591, "pagerank": { "raw": 2.5392314832654303e-07, "percentile": 0.8132613136904893 }, "sha256": "223538a7e0a67c24a29f98d3dd108065c405d18535ef14b48cccef35bf800fc4", "simhash": "1:142f24232d9b8739", "word_count": 2357 }, "last_updated": "2023-07-14T16:32:29.213565+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "George Eose Smith, Brown and Byrd, JJ., dissent.", "George Rose Smith and Byrd, JJ., join in this dissent." ], "parties": [ "Marie VAUGHT v. Wallace VAUGHT et al" ], "opinions": [ { "text": "John A. Fogleman, Justice.\nThe sole question to be determined is whether an instrument executed by Otey R. Vaught on January 11, 1951, in his own handwriting is entitled to probate as his holographic will. Appellant contends that the trial court erred in denying probate of the instrument as being based on a contingency which did not occur. We find that the instrument was not contingent or conditional and that it should be admitted to .probate.\nOtey R. Vaught died June 5, 1966. He left only collateral heirs at law surviving him. Appellant Marie Vaught, a sister-in-law in whose home the decedent had lived on various occasions for many years and who had cared for him during various illnesses was the proponent of the will. Probate was opposed by the collateral heirs. The will bears the date of execution and signature of the testator. Its text is reflected in the record as folIoavs :\nThis is my will if I should die at once. I want Marie Vaught, to have my land and personal property. Sign by. /s/ Otey R. Vaught\nThis purported will was never revoked by the decedent. The denial of probate would result in intestacy and' the .descent .and distribution of his property to numerous collateral heirs.\nThe rules governing determinations of this sort are easier to state than to apply. The particular question depends upon whether the contingency is referred to as the occasion of, or reason for, making the will at the time of execution, or is referred to as the reason for making the particular disposition of property which would be disposed of thereby and is intended to specify the condition upon which the will is to become operative. In the latter case, the will is contingent or conditional. In the former it is not. 1 Page on Wills (New Rev. Treatise), 418, 423, \u00a7\u00a7 9.1, 9.5; Annot. 1 A. L. R. 3d 1048, 1050; 57 Am. Jur. 453, 456, \u00a7\u00a7 671, 674; 94 C. J. S. 939, Wills \u00a7 152; In re Taylor's Estate, 119 Cal. App. 2d 574, 259 P. 2d 1014 (1953).\nIt is when the contingency and the disposition of the property are so related to each other that the one is dependent on the other that the will is contingent. Barber v. Barber, 368 Ill. 215, 13 N. E. 2d 257 (1938); Capps v. Richardson, 215 S. C. 34, 53 S. E. 2d 876 (1949).\nUnless the terms of the will clearly show that it was intended to be contingent it will be regarded as absolute and unconditional. 1 Page on Wills (New Rev. Treatise), 423, \u00a7 9.5; 94 C. J. S. 940, Wills \u00a7 152; 57 Am. Jur. 454, Wills \u00a7 672; In re Desmond\u2019s Estate, 223 Cal. App. 2d 211, 35 Cal. Reptr. 737, 1 A. L. R. 3d 1043 (1963); Walker v. Hibbard, 185 Ky. 795, 215 S. W. 800, 11 A. L. R. 832 (1919); Skipwith v. Cabell, 19 Gratt. 758 (Va. 1870); In re Moore\u2019s Estate, 332 Pa. 257, 2 A. 2d 761 (1938). If the language used can reasonably be construed to refer to a possible danger or threatened calamity only as a reason for making a will at the time, rather than as a condition precedent to the will becoming operative, it will not be construed to render the will conditional. Annot. 40 A. L. R. 2d 698, 731 et seq.; 57 Am. Jur. 454, Wills \u00a7 672; 94 C. J. S. 940, Wills \u00a7 152; Walker v. Hibbard, supra; In re Taylor\u2019s Estate, supra; Skipwith v. Cabell, supra. See also 1 Page on Wills (New Rev. Treatise) 424, \u00a7 9.5; Eaton v. Brown, 193 U. S. 411, 24 S. Ct. 487, 48 L. Ed. 730 (1904).\nAs a corollary of the rule requiring that a will be given an interpretation which avoids intestacy, long recognized in Arkansas, a will must be construed as unconditional in case of doubt. 57 Am. Jur. 454, Wills \u00a7 672: Walker v. Hibbard, supra; Watkins v. Watkins, 269 Ky. 246, 106 S. W. 2d 975 (1937); In re Trager\u2019s Estate, 413 Ill. 364, 108 N. E. 2d 908 (1952); Succession of Gurganus, 206 La. 1012, 20 So. 2d 296 (1944).\nAppellees rely upon Wilson v. Higgason, 207 Ark. 32, 178 S. W. 2d 855, to sustain the judgment of the trial court. The language contained in the instrument in that case was very different from that involved here. In one sentence the testator there stated, \u201cNow Lillie since I have made you my beneficiary in all my insurance, I want you, in the event I should die anytime soon, to collect all my insurance and if I have any money left anywhere I would want you to get it all together and divide it equally among your mother, Eddie, Mattie, Myrtise\u2019s heirs, Bill, Lauree and yourself.\u201d In another sentence, he said, \u201cNow in case of my death anytime soon, I would want Myrtise\u2019s part or part of it anyway to go towards paying some of the expenses of her sickness and death, but should these bills be already paid I -would want it to go to Ned and Olive...\u201d The writer of that letter certainly did not desire that the addressee collect his insurance and money and make the division directed unless he died \u201canytime soon.\u201d Nor did he intend for his other desires to be carried into effect except in case of his death soon. In other words, the conditions there stated could have only been construed as stating the conditions under which the testamentary document became operative and not as the reason for making a will. On the other hand, the language \u201c'This is my will if I die at once\u201d can be construed as stating the reason for the making of the will, i. e., that possibility of impending death which provokes much testamentary action. Since it can be so construed, it should be.\nThe decision in the Wilson case is not contrary to the rules for determining whether a will is contingent or absolute. Most of these rules are specifically stated or recognized in Walker v. Hibbard, 185 Ky. 795, 215 S. W. 800, 11 A. L. R. 832 (1919), cited as authority in the Wilson opinion, as will appear from citations above. Walker v. Hibbard is also cited in Kentucky as authority for most of these rules. See, e. g., Watkins v. Watkins, 269 Ky. 246, 106 S. W. 2d 975 (1937).\nIn resolving doubtful cases, parol evidence of extrinsic circumstances is admissible to show that the testator\u2019s intention was to make an absolute, rather than a contingent will. In re Desmond\u2019s Estate, 223 Cal. App. 2d 211, 35 Cal. Rptr. 737, 1 A. L. R. 3d 1043 (1963); In re Moore\u2019s Estate, supra; In re Trager\u2019s Estate, supra; Barber v. Barber, 368 Ill. 215, 13 N.E. 2d 257 (1938); 57 Am. Jur. 457, Wills \u00a7 677; 94 C. J. S. 940, Wills \u00a7 152; Annot., 1 A. L. R. 3d 1048, 1051. Such evidence may be considered in interpretation of wills, not to show what the testator meant as distinguished from what his words express, but for the purpose of showing the meaning of the -words used. Eagle v Oldham, 116 Ark. 565, 174 S. W. 1176. Extrinsic circumstances which may be considered include: (a) those surrounding execution and delivery of the document In re Del Val\u2019s Estate, 159 Cal. App. 2d 600, 323 P. 2d 1011 (1958)] (b) instructions upon delivery of the instrument [In re Del Val\u2019s Estate, supra; In re Taylor\u2019s Estate, 119 Cal. App. 2d 574, 259 P. 2d 1014 (1953)] (c) subsequent declarations of the testator (In re Del Val\u2019s Estate, supra; In re Taylor\u2019s Estate, supra) (d) lack of a subsequent will or revocation [In re Del Val\u2019s Estate, supra; Succession of Gurganus, 206 La. 1012, 20 So. 2d 296 (1944); In re Taylor\u2019s Estate, supra] (e) lack of any alternative disposition of his property (In re Del Val\u2019s Estate, supra) (f) whether disposition is of entire estate or part thereof (In re Del Val\u2019s Estate, supra).\nDelivery of a will to someone for preservation is evidence a testator intended it to be unconditional. In re Taylor\u2019s Estate, supra. The fact that a long term of years passed between the writing and the testator\u2019s death without revocation is significant. Succession of Gurganus, supra.\nIt is not inappropriate that we also take into consideration the fact that appellant was a natural and proper object of the decedent\u2019s bounty. Eaton v. Brown, 193 U. S. 411, 24 S. Ct. 487, 48 L. Ed. 730 (1904); Skip- with v. Cabell, 19 Gratt. 758 (Va. 1870). Previous association of the testator and the beneficiary of the will indicating that the former desired the latter to be the recipient of his property whenever death occurred tends to show that testator\u2019s statements concerned the reason for making a will. Wood v. Greimann, 165 F. 2d 637 (1948);\nIf resort is had to the extrinsic evidence offered, there is ample support for a finding that it was absolute, in spite of the fact that Fannie Vaught, one of appellees, testified that Otey told her in 1960 that he had never made a will.. Bob Vaught, son of appellant, testified that he took Otey Vaught to a hospital on two different occasions, the first time for surgery and the second because of a stroke. Bob said that on the first occasion his uncle told him to get the instrument in question and a certain deed from a trunk and to take them to appellant. On the second occasion (apparently in 1959), according to this witness, he asked Otey Vaught if this instrument should not be \u201cnotarized,\u201d but the latter said that it was all right and to tell appellant to just keep it. Appellant testified that her son brought the paper to her after Otey\u2019s first hospitalization and told her to keep it and not let anyone have it. Willard R. Bowling testified that when he attempted to purchase a 40-acre tract of land from Otey Vaught, Mr. Vaught stated that he had \u201cwilled\u201d the property to appellant and wanted her to have it when he died. When this testimony is considered along with evidence showing that appellant, her deceased husband and their two sons, cared for and provided a home for the decedent on various occasions, the length of time intervening between the writing,of the will and Otey\u2019s death without revocation or attempt to recover the instrument, and the fact that the will disposed of all his property, the conclusion that the will is absolute rather than contingent is amply supported.\nWe reverse, with directions to admit the paper writing to probate as tbe last will .and testament of Otey E. Vaugbt.\nGeorge Eose Smith, Brown and Byrd, JJ., dissent.\nSee Galloway v. Darby, 105 Ark. 558, 151 S.W. 1014; Bradshaw v. Pennington, 225 Ark. 410, 283 S.W. 2d 351.", "type": "majority", "author": "John A. Fogleman, Justice." }, { "text": "Lyle Brown, Justice,\ndissenting. The chancellor had a right to conclude from the evidence that Otey E. Vaught executed the will at a time when he was preparing to enter Veterans Hospital in Little Eock for an operation. Bob Vaught, son of the appellant, Marie Vaught, testified to this effect:\nQ. Will you tell the court how you came into possession of this piece of paper that\u2019s been offered as a will of Otey' Vaught?\nA. Well, I took him to the VA Hospital and he made this out the night before or sometime\u2014 shortly before that, and when I got ready to come home to leave him over there to the VA Hospital he told me about where it was at \u2014 the deeds and everything \u2014 he told me to get them and give them to my mother, and when I got back from over there I got them and gave them to her.\nQ. After that time did Otey get well and leave the VA Hospital?\nA. Well, he never did get well, but he come home for \u2014 I don\u2019t remember just how long it was. He had a stroke and he was an invalid for around eight years. He was took to my aunt and uncle\u2019s home at Crystal Hill, and then he was later placed in the Eosa\u2019s Nilrsing Home and that was where he was at when he got real bad sick. He died at the Polk County Memorial Hospital.\nThe appellant corroborated her son. Eeferring to the time when the will came to her hands from her son, she testified:\nA. Well, I don\u2019t know whether I could tell you exactly what year that was, but it was when he had his first operation. When he was going to Little Eock to have his first operation. I couldn\u2019t say what year it was to save my neck.\nConcededly there is some evidence to the contrary, but I am convinced the record preponderantly shows that the testator was in ill health and facing an operation at the time he wrote these words: \u2018 \u2018 This is my will if I should die at once.\u201d To my thinking the statement is susceptible of but one meaning. As here used and according to all the reliable dictionaries, the word \u201cif\u201d has a most simple meaning: \u201cin case that,\u201d \u201cgranting or supposing that,\u201d \u201con condition that.\u201d The same authorities tell us that \u201cif\u201d implies a condition on which something depends and the typical synonym is \u201cprovided.\u201d It was aptly stated in the will case of Robnett v. Ashlock, 49 Mo. 171 (1872): \u201c\u2018If\u2019 may be a small word, but all know its meaning, and instead of a more formal phrase it is used in common language to express condition or limitation ...\u201d\nFor the reasons recited I am convinced that there is a clear showing of a contingent will. Certainly the finding of the chancellor is not against the preponderance of the evidence.\nGeorge Rose Smith and Byrd, JJ., join in this dissent.", "type": "dissent", "author": "Lyle Brown, Justice," } ], "attorneys": [ "Shaw & Shaw, for appellant.", "Joe H. Ilardegree, for appellees." ], "corrections": "", "head_matter": "Marie VAUGHT v. Wallace VAUGHT et al\n5-4833\n444 S. W. 2d 104\nOpinion delivered September 2, 1969\nShaw & Shaw, for appellant.\nJoe H. Ilardegree, for appellees." }, "file_name": "0052-01", "first_page_order": 74, "last_page_order": 82 }