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CARTER v. MEEK6/28/2000
accident. At the request of Mrs. Carter, Ms. Rugger signed the will on September 10, 1997. According to Ms. Rugger, Mrs. Carter was lucid and fully understood what was happening and why she was executing a will. Ms. Rugger testified that she saw Mrs. Carter read and sign the will, but she could not recall who else witnessed the execution of the will. She stated, "I don't remember whether another gentlemen was there."
Mrs. Meek also testified at the hearing, and she stated that she was present when her daughter signed the will. Mrs. Meek further
testified that she witnessed both Ms. Rugger and Mr. Chapman sign it.
We hold that the probate court erred in failing to set aside its order admitting the will to probate because there was complete lack of evidence as to whether Mr. Chapman was living at a known address within the United States, or whether any diligence was exercised in procuring his testimony at the hearing. We acknowledge that, during the hearing, Mrs. Meek's counsel stated that Mr. Chapman had been subpoenaed for the hearing but failed to appear. However, this did not constitute evidence and there was no testimony as to any effort made on the part of the appellee to procure Mr. Chapman's presence. Moreover, while the record reflects that Ms. Rugger was subpoenaed, it does not contain a subpoena issued for the appearance of Mr. Chapman. The provisions of section 28-40-117 require that the will shall be proved by the testimony of two attesting witnesses unless one or both witnesses are not living at a known United States address and capable of testifying, or cannot be secured by reasonable diligence, and in this case the appellee failed to present proof that either of these exceptions was applicable.
[2-4] The proponents of a will have the burden of proving the genuineness of the signatures of the testatrix and the attesting witnesses, and once shown, the burden shifts to the contesting party to prove the signatures were forgeries. Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960). Probate cases are tried de novo on appeal, but the decision of the probate court will not be reversed unless it is clearly against the preponderance of the evidence. Upton v. Upton, 26 Ark. App. 78, 759 S.W.2d 811 (1988). In the instant case, the probate court's decision that Mrs. Meek met her burden to prove proper execution of the will was clearly against the preponderance of the evidence and contrary to the requirements of section 28-40-117. Therefore, its order affirming the admission of the will to probate must be reversed.
Reversed and remanded for further action consistent with this opinion.
Bird and Meads, JJ., agree.
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