dissenting. A careful consideration of this case forces me to a different conclusion from that of the majority.
Mrs. Alice Love made a will in 1949 leaving her estate to her only son. On May 30, 1953, four days after the death of her son and seven hours after the death of her husband Mrs. Alice Love made a will [revoking her 1949 will] leaving the bulk of her estate to her two sisters and the brother and sister of her husband, some of whom she had not seen in years and one of whom she said she would not know if she met her on the street. This last will Mrs. Love destroyed with her own hands, and on June 27, 1953 she executed another will — the one here contested.
The majority opinion voids the June 27th will and reinstates the May 30th will — just the opposite of what the Chancellor did. To justify such action on the part of the majority compelling reasons should appear.
I submit that no such reasons are set forth in the majority opinion and that none appear in the record.
Under the record in this case it is obvious that the June 27th will can only be set aside by establishing at least one of these things; (a) Mental incapacity,- (b) Undue influence, or (c) Fraud. These will be discussed in that order.
(a) Mental Capacity. We do not understand that the majority or the appellants lay much, if any, stress on the lack of mental capacity of Mrs. Love to execute the June 27th will. At the end of the first paragraph in the majority opinion appears this sentence: “In contesting this will appellants claim that it was the result of unclue influence and fraud. . . .” Nothing is said of lack of mental capacity. The only allegation in the complaint relating to lack of mental capacity is a statement to the effect that Mrs. Love, “on account of her advanced age, her failing health and the grief” [recent loss of husband and son] was on June 2nd, 1953, in the hands of Elaine Love . . . “as clay in the hands of the potter.” This statement by appellants must be weighed in the light of the following facts: Appellants claim [and the majority hold] that on May 30, 1953 Mrs. Love had mental capacity to execute a will, but now contend that three days later she had advanced in age and deteriorated in health to such an extent that her mind had deteriorated. Nor can we understand why her grief would be less on the day her husband died than it was three days later.
In an attempt to show that Mrs. Love lacked mental capacity shortly before and on June 27, 1953 appellants showed that Mrs. Love had been taking sedative tablets. It was claimed that the continued use of these tablets rendered her incompetent and that, if she left them off, she would be worse off mentally. Again this contention is wholly lacking in force. The record is that Mrs. Love did take such tablets, but she had been doing so long before the May 30th will was executed, and they were given to her by her family doctor and her doctor son. Appellants must concede Mrs. Love’s mental capacity was not impaired on May 30, 1953 just 29 days before the contested will was executed. Moreover I for one would not like to intimate that Mrs. Love’s son and her family doctor either ignorantly or intentionally destroyed her mind by giving her drugs which would do so if she took them or if she quit taking them.
There can be, I think, no question about Mrs. Love’s mental capacity on June 27, 1953. The record is replete with evidence that she transacted business as usual from the death of her husband until June 25, 1953.
(b) Undue Influence. Much of what has already been said refutes the charge that Elaine unduly influenced Mrs. Alice A. Love to make the will in contest. To my mind the entire record refutes such a charge under the rules announced in the majority opinion.
1. The foundation of appellants’ contentions and the majority opinion, it seems to me, must rest on the assumption that Elaine is a strong willed, unprincipled, and selfish woman. In the Petition it is alleged that Mrs. Alice Love knew her to be “strong and forceful and to be selfish and greedy,” and that Mrs. Love feared Elaine. The record does not justify this appraisal of Elaine’s character, but, on the contrary, it shows the exact opposite. The only testimony in the record about Elaine’s character is that given by Attorney Lardner who had known her intimately from her childhood. According to him Elaine, a woman 50 years old, is friendly and likeable. He said of her: “She is sensitive and I believe a very gentle person, so gentle she is almost fragile, . . . nor can I picture her coercing anyone nor exercising the slightest degree of influence over anyone in a business or financial matter.” Of course this could possibly be the picture of a biased friend, but it is the only picture we have based on the record, and it is not unlike the woman you would expect a man of George E. Love’s character to select for a wife.
2. Did Mrs. Alice A. Love “fear” or did she love and respect her daughter-in-laAV, Elaine? Though it is true she had not had the opportunity to Iuioav Elaine well prior to May, 1953 due to the fact they were both wives of busy doctors in different states, yet the record reflects nothing but love and respect after that time. The record contains six letters written by Mrs. Alice Love to Elaine, between June 6 and June 24, 1953, which show only love and respect for Elaine. The record also contains nine such letters after the will was made.
3. The Power of Attorney, the joint bank account, and numerous will. Somehow, appellants profess to believe, all these things indicate a weak mind on the part of Mrs. Alice A. Love and undue influence on the part of Elaine. The record explains these things and disputes the justification for any such belief. The Power of Attorney and joint bank account were executed by Mrs. Alice A. Love, with her full knowledge and consent, at a time when she was sick and grief stricken, with the idea that Elaine could help her better manage her extensive business activities and especially in the event she should become incapacitated. It soon developed that she got better and was able to transact her own business, and so, using good business judgment, she revoked them. The salient point is, Elaine never tried to exercise any authority under them although she had the time and opportunity to do so.
The record gives a rational explanation for the different wills. The first was executed in 1949 [estate to son] before her husband and son died. The second one was executed May 30, 1953 seven hours after her husband died, in which she gave her estate to her and her husband’s sisters and brothers, some of whom she had not seen in years. Later she went to the bank, got this will and tore it in pieces. After two days reflection she executed the third will to Elaine. It was explained that this was a “stop gap” will until a proper one could be made to give the bulk of her estate to her son’s Educational Fund. The fourth will was made, in her own handwriting, as her own effort when, according to her letters, she could not hear from Elaine who was in Wisconsin. The fifth and last will was prepared, at her request, by the Wisconsin Attorney who wrote her son’s will. This series of events, I submit, reveal a course of meditation and judgment much more than it shows fraud, undue influence or mental incapacity. The last will was witnessed by Mr. and Mrs. Mackey, who said she read it, and that she was mentally alert at the time — • facts not denied. After this will was executed she had 110 days [before her death] to reflect on what she had done and change her mind [in the absence of Elaine] if she desired to do so. She never did.
(c) Fraud. Before discussing this last ground for setting aside the June 27th will it is pertinent to observe that we have the following situation. Three of the judges helping make the opinion base the same on three grounds, viz; lack of mental capacity, undue influence and fraud. The concurring opinion specifically rules out lack of mental capacity and undue influence and rests solely upon the ground of fraud. Since it takes a majority of this court, or four in number, to make an opinion I conclude that now we have an opinion in this case which sets aside Mrs. Love’s June 27th will solely on the ground of fraud. Hereafter I shall refer to the majority opinion as the combined opinion of the four judges.
As I read the record and the majority opinion only one incident is relied on to show a “fraudulent representation” on the part of Elaine. I shall now discuss this question of fraud.
In the second paragraph of Mrs. Alice A. Love’s will [being contested] she stated: “My only son, George It. Love, having preceded me leaving one-half his estate to an educational trust fund and to aid and assist worthy, ambitious and needy young men . . . it is my desire to further his wishes and intentions in this regard by adding my own estate to the funds which his worthy objects are to be fulfilled.” Following this she gave her estate to the “George R. Love Trust which is created under the last will and testament of George R. Love dated May 26, 1953. . .
The George R. Love will gave one-half his estate to his wife, Elaine, and the other half to the “George R. Love Trust” — the fund to which Mrs. Alice A. Love’s estate was added by her will. The “fraudulent representation” relied on by appellants is that Elaine did not tell Mrs. Alice A. Love that she, Elaine, would, under the terms of George R. Love’s will, get the income during her life time from this Trust.
It will be noted that Elaine is not charged with any fraudulent misrepresentation, but, in effect, she is charged with fraudulently concealing vital information which she, Mrs. Alice A. Love, did not have or know.
The charge against Elaine of concealing valuable information from Mrs. Love at the time she made her June 27th will really consists of two parts which are: (a) The motive of self gain and (b) The act of concealment. The majority profess to believe that Elaine unjustly profited to the extent of, as they say, approximately $48,000 which she would receive during her life time or expectancy. I take it this would amount to a cash value of not more than $25,000.00. The alleged act of concealment consists of this: Mrs. Love, it is charged, wanted her estate to go directly to the educational fund created by her son and not the George R. Love Trust Fund, and that Elaine Love fraudulently concealed from Mrs. Love the fact that she [Elaine] would [under George R. Love’s will] for her life receive the income from the George R. Love Trust Fund and also that Elaine’s parents and her husband’s parents would likewise share for life in the income from the same Trust Fund. The only logical deducible conclusion is that the majority believe Elaine was motivated by the desire for financial gain in committing the alleged fraud.
I respectfully submit that the record conclusively refutes (a) the motive and (b) the fraudulent act of concealment.
(a) There was no such motive. It is not disputed that Mrs. Love on June 24th [three days before the questioned will was executed] executed a will in her own handwriting. It is not and can not be contended that this will of the 24th was the result of undue influence or fraud on the part of Elaine, because Mrs. Love, at that time, was in Rogers, Arkansas and Elaine was in Wisconsin. It is pointed out by the majority the June 24th will left Elaine more money [approximately twice the cash value] than she gets under the June 27th will.
(b) There was no fraudulent concealment by Elaine. In the case of Green v. Bush, 203 Ark. 883, 159 S. W. 2d 458, at page 887 of the Arkansas Reports, this court said: “This is a suit to cancel a deed upon the ground that its execution was procured by fraud; which is never presumed, but must be affirmatively proved by testimony which is clear and convincing. ’ ’ I propose to now show by the record that it not only does not reveal any “clear and convincing” evidence of fraud on the part of Elaine, but that it shows conclusively that she did not commit any fraud.
Contained in the record is a copy of a Wisconsin newspaper, properly introduced in evidence, under date of June 18th, 1953. This paper contains an article on the front page entitled “Dr. Love’s Will Provides U. W. Educational Fund.” Under this heading, on the front page, is a paragraph about the George R. Love Trust explaining its provisions, from which I shall presently quote. One witness, Mrs. Mackey, testified positively and without contradiction that Mrs. Love had in her possession a clipping of this same article before she executed the will on June 27, that she knew its contents, that she was proud of -what her son had done, “and she intended putting her money to the same purpose. [Record pages 647 and 649.]
This same newspaper article referred to above, after explaining that Dr. George R. Love had given approximately one-half of his estate to the Elaine Love Trust, reads: “Income from the other half, the George R. Love Trust, will be paid to the %oidow [Elaine] during her life, and upon her death, to any of the couples’ parents still living at that time.” [Emphasis supplied].
Thus it conclusively appears from the uncontradicted record that every item of information which the majority hold Elaine fraudulently withheld from Mrs. Love [inducing her to execute the June 27 will] was in the possession and knowledge of Mrs. Love when said will was executed by her.
With both the motive and the act of concealment being thus refuted by the record, it is beyond my comprehension to understand how the majority opinion can be justified.