Blalock v. Magee

Full title: BLALOCK et al. v. MAGEE et al

Court: Supreme Court of Mississippi, In Banc

Date published: Feb 14, 1949

38 So. 2d 708 (Miss. 1949)

38 So. 2d 708

Opinion

February 14, 1949.

1. Wills — mental capacity — evidence.

It is no evidence of unnaturalness or abnormality that testatrix favored her widowed sister, not in as good financial circumstances as other members of the family, and her nephew who had lived in her home for many years, but on the issue of testamentary capacity it was for the serious consideration of the jury whether it was rational that she should have devised to them an unavailable half interest in the home occupied by her husband when she had ample personalty readily available by which she could have provided for her sister and nephew.

2. Wills — mental capacity — peremptory charge, when not proper.

When there are features of a will which the jury is entitled to consider as evidence of mental incapacity and numerous witnesses have given their opinions, supported by factual incidents definitely observed by them, to the effect that the testatrix was not of sound mind, a peremptory charge requested by the proponents on that issue was properly refused, although many other witnesses testified to the contrary.

3. Wills — contest of will on more than one ground — ultimate issue.

Although a will is contested on two grounds, mental incapacity and undue influence, the ultimate single issue is "will or no will".

4. Wills — contest — general verdict, effect of.

Although the contest of a will is based on two grounds, lack of mental capacity and undue influence, a general verdict for the contestants will be sustained if the proponents have failed to prove by a preponderance of evidence the necessary requirements on either or both of the stated grounds. And the fact that there was no real evidence of undue influence will not justify a reversal of the general verdict.

5. Mental capacity — opinion evidence by lay witnesses — rule as to.

Lay witnesses are competent to testify on the issue of mental capacity where they first give the facts upon which their opinions are based, but when they are permitted first to give their opinions followed then by statement of the facts or incidents, without objection as to the incorrect order of their testimony, there will be no reversal because of the fact that their testimony was thus received.

6. Mental capacity — instructions on — considered as a whole.

Although it is safer practice to avoid language in an instruction which might lead the jury to believe that they were authorized to return a verdict for the contestants if in the minds of the jurors it is doubtful or uncertain whether the testator had testamentary capacity, yet if all the instructions taken together and as a whole were sufficient to inform the jury that they would find for the proponents if the preponderance of the evidence sustained the affirmative of the issue of mental capacity, there will be no reversal because some of the instructions were subject to the stated criticism.

7. Trial — general verdict — assumed to be based on ground sustained by the evidence.

When a will contest is upon two grounds, mental incapacity and undue influence, and the evidence sustains the verdict for the contestants on the first ground but not on the other, it will be assumed that the general verdict was upon the ground which the evidence sustains.

Headnotes as approved by McGehee, C.J.

APPEAL from the chancery court of Hinds County, V.J. STRICKER, Chancellor.

Shelby Rogers, and Watkins Eager, for appellants.

The jury in this case heard and was permitted to consider a great many positive statements from a large number of different non-expert witnesses to the effect that in their opinion Mrs. Magee was crazy, or was incompetent to make a will in August, 1943. Practically none of this testimony was competent and it was all highly prejudicial.

The law with reference to the admissibility of this type of evidence is as follows: Mississippi follows the line of cases which admit the opinion of lay witnesses on testamentary capacity if the proper predicate is laid. However, such testimony is only admissible when the witness first states the facts on which the opinion is based; when these facts or incidents forming the basis of the opinion are of the quality that tend to indicate incompetency or insanity; when the facts forming the basis of the opinion relate to a time sufficiently near to be relevant; and when the witness has had sufficient opportunity to observe and form an opinion.

The rule in Mississippi is announced in Fortenberry v. Herrington, 188 Miss. 735, 196 So. 232, as follows: "Nonexpert witnesses are permitted to give opinions in regard to mental capacity when they have stated the facts and circumstances, the acts and declarations of the testator, upon which they finally based the opinion expressed. Ward v. Ward, 124 Miss. 697, 87 So. 153; Wood v. State, 58 Miss. 741."

The case of Ward v. Ward, supra, was reversed because of the admission of non-expert opinion on lack of capacity to the testator, the court in the opinion using the following language: ". . . A great many non-expert witnesses in the case were permitted to express their opinion as to the capacity or lack of capacity of the testator without first stating the facts upon which this opinion was based. This court has repeatedly held this to be error. Martin v. Perkins, supra. This rule is aptly stated in the opinion in Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 35 L.R.A. 102, as follows: "With respect to the rule as to allowing non-experts to give their opinion as to the soundness of mind of the subject of inquiry, the true view is set forth in Wood v. State, 58 Miss. at page 742. They should testify as to the facts, acts, declarations, etc., of the subject of inquiry, and then give their opinions based upon these facts.'"

In the case of Wood v. State, 58 Miss. 741, the court held that the opinion of non-experts must not only be accompanied by statements of the facts on which they are based but it must be determined that the witness had "such acquaintance or opportunities of observation as are likely to make his opinion valuable." The court said: "His testimony should be rejected by the court where it consists of a mere making of a declaration of opinion with neither learning, observation nor acquaintance to support it."

Such evidence was admitted in Gathings v. Howard, 122 Miss. 355, 84 So. 240, because the witnesses who undertook to state their conclusions that the testator was of sound mind were all "in a position to know and observe and pass an opinion upon facts."

There is a very clear and excellent discussion of the necessary predicate for admission of non-expert opinion evidence on sanity in 32 C.J.S., "Evidence", Par. 507, p. 173, et seq.

The reasons for the strict observance of these requirements prior to admission of non-expert opinion on sanity is apparent: The lay witnesses would be no more competent judges of sanity than the jury and, in expressing an opinion on this subject, they are in reality invading the province of the jury and testifying on the ultimate fact, in issue. The opinion of the non-expert rises no higher than the facts upon which it is based and the jury must have full opportunity of itself considering the facts and forming its own opinion. The judge is under the duty of not allowing the opinion of the non-expert to even be presented to a jury unless it is based upon sufficient facts closely related in time and unless the witness has had an opportunity to observe and know the person whose sanity is in question. When the opinion is once expressed, the harm is done, and the jury is prejudiced and would tend to receive and accept the abstract statement of opinion as evidence. This is the basis for the requirement that the facts on which the opinion is based and the qualifications of the evidence be given before the opinion is expressed, so that the judge will have an opportunity to forbid the witness expressing an opinion unless qualified.

In this case, the chancellor below immediately let it be known that his ruling was that he would permit any opinion from any non-expert, without first testing their qualifications or their basis for their opinion, if the question was worded so as to elicit the opinion of the non-expert as to mental capacity on the date of the will, August 3, 1943. This emphatic ruling by the chancellor opened the flood-gate and witness after witness was put on the stand and the jury was permitted to receive as evidence the abstract opinion of incompetency by the witnesses regardless of the fact that they may have had no facts on which to base same, or that they may have based it on facts which clearly, as a matter of law, did not indicate insanity, and regardless of whether or not the facts upon which they based it were so remote in time as to be irrelevant, and, regardless of whether or not they had had suffifficient opportunity to see and observe the testatrix to justify them in forming an opinion, and regardless of whether their opinion arose from a feeling that the will was unjust.

We respectfully submit that if non-expert opinion as to the sanity of a person can be submitted over and over again to a jury with no sounder foundation than as reflected by this record, that the bars have indeed been let down. That in order to prove the insanity of any person one must do more than round up some people with whom the alleged incompetent has fallen out, or someone whom he or she has at sometimes in life bawled out, and let them express an abstract opinion of insanity.

The Will here involved was duly and legally admitted to probate in common form by decree of the chancery court of the First Judicial District of Hinds County, Mississippi, signed by the chancellor of said court on July 21st, 1947. In said decree the court specifically found that the testatrix "was at such time of sound and disposing mind and memory".

Proponents of the Will introduced in evidence the Petition to Probate; the Will itself which had been recorded in Book 007, at page 463; the affidavits of the subscribing witnesses; and the decree admitting the Will to probate. The proponents then rested.

By this proof proponents had established a prima facie case which carried with it a presumption of the validity of the prior decree, a presumption of testamentary capacity, and a presumption against undue influence. It unquestionably cast upon contestants the duty of going forward with the evidence so as to overcome and neutralize the prima facie case and the presumptions arising therefrom. Insofar as the issue of sanity was concerned, the prima facie case needed to be met by clear and convincing proof.

During a lengthly trial the contestants introduced twenty-nine witnesses who were permitted to state that they believed that the testatrix was insane, either without any or with inadequate facts on which such opinion could be based. The proponents then introduced in rebuttal strong proof of testamentary capacity.

The court then granted to the contestants eight repetitious instructions, at least six of which were erroneous and highly prejudicial. The jury was literally bombarded with these instructions telling it that if it had any doubt as to the sanity of the testatrix, it should find for the contestants.

By Instruction 3 the jury was instructed that the burden of proof was on the proponents to show by a preponderance of the evidence that the Will was made without undue influence and "at a time when the testatrix was of sound and disposing mind."

By Instruction 4 the jury was again told that the burden of proof was upon the proponents to show by a preponderance of the evidence that at the time of the execution of the Will the testatrix was of sound and disposing mind, and, if from the evidence "it is left uncertain and doubtful in your minds", that it was their duty to find for the contestants.

By Instruction 5 the jury was again told that the proponents must show by a preponderance of the evidence that the testatrix was of sound and disposing mind at the time of the making of the Will and that it was done without undue influence and "if from the whole evidence in the case you are unable to determine whether the said Jim Hailey Magee was of sound and disposing mind at the time of the execution of said will or whether she freely and voluntarily executed said will without the undue influence of anyone, it is your sworn duty to find for the contestants."

By Instruction 6 the jury was again instructed that in order for them to return a verdict for the contestants, it was not necessary that the believe that the testatrix was crazy, but if from all of the evidence they were "unable to determine" whether or not she was sound and disposing mind at that time, they should find against the will.

By Instruction 7 the jury was again told that the burden of proof was upon the proponents to show by a preponderance of the evidence that the testatrix was of sound and disposing mind at the time of the execution of the will and, if the jury found that this burden had not been met and if "it was left uncertain and doubtful in your minds" as to her insanity, then it was their duty to find for the contestants.

By Instruction 8 the jury was again told that it was not necessary for the contestants to show that the testatrix was of unsound mind, but that it devolved upon the proponents to show to the satisfaction of the jury by a preponderance of the evidence that the testator was of sound and disposing mind at the time she made the will.

By Instruction 9 the jury was again told that the mere fact that the will was signed by the testatrix and acknowledged and published and declared to be her Last Will in the presence of witnesses was not enough to justify a verdict in favor of the will, but that the proponents must go further and show by a preponderance of the evidence that the testatrix was of sound and disposing mind at the time of its execution and if from the whole evidence, "you are unable to determine" whether or not she was then of sound and disposing mind, it was their duty to find for the contestants.

By Instruction 10 the jury was again told that in order to find a verdict for the contestants it was not necessary for them to believe that the testatrix was crazy at the time of the execution of the will, but if "you are unable to determine" whether she was of sound and disposing mind, the verdict should be for the contestants.

It is small wonder that a jury, faced with these eight repetitious instructions and these eight extreme, highly prejudicial instructions, brought in a verdict for the contestants.

The above instructions do not correctly state the law with reference to the value and weight of the evidence necessary to be produced by contestants of the will on issue of sanity.

The Supreme Court of Mississippi has again and again reiterated that under Section 507, Code 1942, the proof of prior probation of a will establishes a prima facie case and prima facie evidence of the validity of the will, including testamentary capacity and lack of undue influence. Helms v. Bratton, (Miss.) 26 So.2d 455; Bigleben v. Henry, 196 Miss. 586, 17 So.2d 602; O'Bannon v. Henrich, 191 Miss. 815, 4 So.2d 208; Hilton v. Johnson, 194 Miss. 671, 12 So.2d 524.

The duty unquestionably fell upon the contestants here to move forward and overcome the prima facie case made by the proponents by proof on their part. The question arises as to the amount of proof and kind of proof necessary on their part to overcome the prima facie case. Without any doubt the rule is that the contestants must, under such circumstances, do more than raise some doubt or uncertainty in the minds of the jury. The proof necessary to overcome the prima facie case must be clear and convincing and sufficient to rebut or equalize the presumption of sanity arising from the proof of probation and also the presumption of law that every man is sane unless proven otherwise.

The issue of lack of testamentary capacity to execute a will comes under the same category of the issue of fraud in the execution of a will.

In the case of Didlake v. Ellis, 158 Miss. 816, 131 So. 267, the will had been probated. Appellants filed a bill seeking to cancel and revoke the probate on the ground of fraud. This court sustained a demurrer to the complaint to set aside the probate on the ground that the bill did not set forth sufficient facts indicating that the will was a forgery, holding: "Parties seeking to set aside will as forgery have burden of showing forgery by clear and convincing pleading, and evidence." In the opinion the court used the following language: "The parties complainant had the burden of showing, by clear and convincing pleading, and evidence that the will already probated was forged, and, in addition thereto, of showing that a true and valid will existed which the court could and would admit to probate."

Had the case gone into a trial contesting the prior probation, then, technically speaking, the burden of proof in the entire case would have been on the proponents of the will, the appellees; but clearly the duty would have been upon the contestants, the appellants, to overcome the prima facie case by clear and convincing evidence, not merely by such evidence as would raise some doubt or uncertainty in the minds of the jury.

We find no other Mississippi authority touching on the amount of evidence which contestants must produce when the burden of going forward with the evidence of lack of testamentary capacity is shifted upon them. We find no other State holding contestants can set aside a duly probated will on proof which is merely sufficient to create some uncertainty and doubt in the minds of the jury. On the other hand, the universal rule is, even in the few jurisdictions holding that the burden of proof, properly speaking, never shifts, that contestants must, on the issue of insanity, introduce sufficiently such clear and definite proof that it overcomes and neutralizes the effects of the prima facie case and the affirmative testimony given in favor of the will and the presumption arising from the general rule of law that all men are presumed sane until the contrary is proven; that, in weighing the conflicting proofs, the party supporting the will must be given the benefit of these presumptions.

We, therefore, respectfully submit that irreparable damage was done proponents by the blasting of the jury with these erroneous instructions, not only permitting but demanding that they find for appellees if there was any doubt at all left in their minds about the testamentary capacity of the testator, or if they were at all uncertain in their minds about her testamentary capacity. We submit because of these erroneous instructions this cause must be reversed.

We respectfully submit that the testimony in this case follows the pattern of and has only the same effect as that in Ward v. Ward, 33 So.2d 294, where Mr. Justice Alexander as the organ of this court said: "The issue of a lack of testamentary capacity was made up out of numberous instances set against a background of emotional instability. For some time, the testator had floundered in the seas of desolation after the tides of tragedy had cast him adrift. He was at the time the will was executed approximately seventy-seven years old. In addition to those eccentricities common to those of advancing age, there were shown many instances of conduct which with obsessive force pressed against the flexible bounds of the definition of eccentricity. When assembled apart from other conduct and disassociated from those periods of calm and discretion which all witnesses for the contestants conceded, they could constitute an impressive challenge. However, this testimony fails to establish the fact that at the crucial moment when evidence of testamentary capacity attains its maximum and controlling relevancy, that is, at the time of the will's execution, there was any lack of capacity to appreciate the nature and effect of his act and the natural objects of his bounty. . . ."

In the case at bar contestants attempted to raise the issue of testamentary capacity by a large number of insignificant incidences narrated by a host of witnesses and thus attempted to make up for the quality of the evidence submitted by the quantity thereof.

We submit to this court that the normal reaction from a reading of this record is a feeling of fear for the efficacy of our legal system. The evidence upon which an issue of lack of testamentary capacity was sought to be made was more reminiscent of back-fence gossip than a modern jury trial. There was an attempt to raise the petty bickering of club women to the level of competent evidence of lack of testamentary capacity.

The evidence in this case presents a picture of a brilliant woman who was subject to periodic epileptic seizures, some severe but more often of the type known as "petite mal", resulting in a mental cloudiness and forgetfulness during and immediately following the seizure; a woman who between such seizures was a competent business woman, and active in every field of modern-day life. This record presents a picture of a woman who was headstrong and domineering and had an almost ungovernable temper. It presents a picture of a woman who had some pecularities. It failed entirely to present a testatrix lacking in testamentary capacity. On the other hand, the undisputed evidence conclusively shows that the testatrix was a woman who, save when in the immediate throes of an epileptic seizure, had unusual capabilities and unquestionable ability to understand the nature of her acts.

When the evidence is sifted and the facts separated from bare, unsupported allegations of mental incapacity, there appear in the record no facts upon which a jury would be permitted to base a verdict of lack of testamentary capacity on August 3rd, 1943.

We wish to submit to Your Honors authorities to the effect that: (a) None of the facts purportedly indicating lack of mental capacity, except intermittent seizures and concurrent mental cloudiness, were sufficient as a matter of law to form the basis of a jury verdict of incompetency as lack of testamentary capacity is understood at law; that, on the other hand, the undisputed proof is that save for the epileptice seizures Mrs. Magee was mentally competent during 1943. (b) That mental competency save during epileptic seizures being shown, the burden was upon contestants to show that the will was executed at a time when Mrs. Magee was subject to epileptic seizure, and that there was absolute failure of any such proof; that, therefore, judgment must be entered here for the proponents. Turning first to the legal definition of lack of testamentary capacity, we respectfully submit: (a) Proof of emotional instability, peculiarities, unfounded prejudicies, or antipathies, hatred, cruel and unnatural devises, wrath, etc., are all insufficient to establish lack of testamentary capacity; if the testator is competent to know and remember the natural objects of his bounty and the kind and character of property he owns and is competent to form a plan in his own mind of disposing of the property, this is sufficient.

For nearly one hundred years now the Supreme Court of Mississippi has supported in its decisions the opinion of the Psychiatrist, Dr. May, witness in this case. His undisputed testimony was that the first indications of true insanity were the existence of delusions and hallucinations. He commented on the absolute absence of any hint of any such condition in the present case.

In the case of Mullins v. Cottrell, 41 Miss. 291, a testator disinherited his daughters, the natural objects of his bounty. The will was sought to be set aside on the ground of insanity based on an insane antipathy on the part of the father toward the daughters and also upon proof of insanity consisting of a strong will, bitter prejudices particularly as to the conduct of his daughters, antipathy toward the Church, cruel and unnatural treatmeant of his daughters, and other highly reprenhensible conduct. It appeared that his daughters had disobeyed him by attending night Church service and that he had driven them from home and disinherited them for this disobedience. This court held that the acts of the testator while reprehensible did not rise to the level of those necessary to show insanity and lack of testamentary capacity. In this opinion, the court used the following language: "These extravagant notions, which amount to delusion or insanity, appear, by the cases cited by medical writers, to be either a wild and insane belief of the existence of some palpable fact, manifest to the senses not to exist, as that a particular individual is another person, or a horse, or a wild beast, or the like; or, that a state of moral facts exists, when it is clear, to a sound mind, that it exists only in the morbid imagination of the person laboring under it, as the belief that the person's best friend is his deadly enemy and is always seeking to destroy him. Ray on Insanity, Sections 104, 105. . . .

". . . If the delusions be not so great as to affect seriously the intellectual powers, or to dethrone the reason, as to the particular act in reference to which the question arises, it cannot be said to amount to insanity. `The intellectual disturbance', says Taylor, `may be sometimes difficult of detection; but in every case of true insanity it is more or less present; and it would be a dangerous rule to pronounce a man insane, when such evidence of its existence was not forthcoming. The law hesitates at present to recognize moral insanity, at least in civil cases; hence, however, perverted the affections may be, a medical jurist must look for some indications of intellectual disturbance, i.e., of disturbed reason.' Taylor, 627. Upon the same principle, it is laid down, that no eccentricity or peculiarity of character, no degree of moral depravity or of unnatural feeling, not amounting to destitution of reason, or mental incompetency to do the particular act, is to be considered as insanity. Ib. 668. So a will may be manifestly unjust to the surviving relatives of a testator, and it may display some of the extraordinary opinions of the individual, yet it will not necessarily be void, unless the testamentary dispositions clearly indicate that they have been formed under a delusion. Ib. 648."

As pointed out above, there is in this record not one iota of proof of any delusion and not even any evidence of any display of temper toward or exhibitions of peculiarities in her relations with Dr. Magee, who would have been her heir-at-law.

See also, Gholson v. Peters, 180 Miss. 256, 176 So. 605; and Moore v. Parks, 122 Miss. 301, 84 So. 230.

To the same effect see: Lambert v. Powell, 199 Miss. 397, 24 So.2d 773; Ellis v. Ellis, 160 Miss. 345, 134 So. 150; Fortenberry v. Herrington, 188 Miss. 735, 196 So. 232; Gillis v. Smith, 114 Miss. 665, 75 So. 451; Helms v. Bratton, 26 So.2d 455, (Miss.); Provenza v. Provenza, 29 So.2d 669, (Miss.).

We have heretofore pointed out the applicability of Ward v. Ward, 33 So.2d 294, (Miss.), where this court held that lack of testamentary capacity could not be made up out of those "numerous instances set against a background of emotional instability . . ." or from "many instances of conduct which with oppressive force pressed against the flexible bounds of the definition of eccentricity", and where the court held that, under such a state of facts, the peremptory instructions ought to have been given for the proponents and where the court reversed the decree of the lower court and entered judgment in the appellate court for the appellant.

We respectfully submit that from the above authorities there is no evidence to support a verdict of insanity, save during intermittent attacks of epilepsy and the concurrent mental cloudiness.

We next submit that a verdict for the contestants cannot be supported merely by the evidence in this record of intermittent epliepsy seizures and concurrent mental cloudiness on the following authorities: (b) Temporary or intermittent periods of lack of testamentary capacity interspersed with periods of testamentary capacity are insufficient to submit to the jury the issue of testamentary capacity on August 3rd, 1943, where there is no proof in the record that testatrix was having an epileptic seizure on the day of the execution of the will.

It is true that there is evidence in this record to the effect that intermittently and occasionally Mrs. Magee had epileptic seizures which rendered her, during the period thereof or immediately thereafter, lacking in mental capacity. There is not even a suggestion of proof in the record that these epileptic seizures with resultant mental cloudiness were more than temporary or intermittent. In fact, as has been pointed out above, such inference would be so incredible in view of other admitted facts and a jury verdict based thereon would shock the conscience and could not be permitted to stand.

The record presents a case of a woman who was at most times perfectly competent and capable of making a valid will and here arises the presumption that the will here involved was made during such a lucid period; and, in the absence of proof that the will was actually made during a period of temporary mental incapacity due to epilepsy, the same must be sustained.

There was no witness who was present and actually recalled the occasion of testatrix publishing and signing the will. There was no witness who attempted to state the physical or mental condition of the testatrix on the actual date or close to the actual date that the will was executed. However, there is ample circumstantial evidence of full testamentary capacity at that time. The will was executed in town in the office of the Building Loan Association. The subscribing witness did not recall the actual execution thereof, which is evidence that there was nothing about the appearance of or in the acts of Mrs. Magee to cause comment or arouse a suspicion of a temporary epileptic condition. The will is signed in a clear, firm hand-writing (according to undisputed testimony) indicating full mental capacity. The subscribing witness (witness for contestants) to the will testified that Mrs. Magee was in and out of the Magnolia State Building Loan Association often throughout the year 1943 and she always appeared to be competent and normal and if there had been the slighest indication of any abnormality at any time, she would have reported it to her superior; that during all of the years in which Mrs. Magee handled her own account with the Magnolia State Building Loan Association, including the year 1943, her actions were always normal and that she had never seen her do any act that was not the act of a normal competent person.

As has been pointed out, the will on its face is natural and normal and the devises therein show full recollection of the kind and character of the property which testatrix owned, full recollection of the identity of the natural objects of her bounty, and contained a full explanation of the plan that was in her mind in making the disposition that she did of her property. That being true, the fact that on some day prior to this date, or some day after this date, testatrix may have had a temporary or intermittent epileptic seizure with resultant mental cloudiness would not affect that validity of the will here made.

In the case of Lambert v. Powell, 199 Miss. 397, 24 So.2d 773, which was a deed case, but where the court stated that the rule as to the testing of mental capacity was the same in determining the validity of a deed as of a will, the record was silent as to the circumstances as to which the deeds were executed. However, there was no proof that the grantor therein suffered intermittent abnormality. There was not shown a cause for this abnormality, as was the case here with the proof of epilepsy. This court in reversing the decree of the lower court and entering a decree for the appellants in the Supreme Court, used the following language: "The mental capacity of one executing an instrument to pass a title to land is to be tested as of the date of its execution, and temporary or intermittent insanity or mental incapacity does not raise a presumption that it continued to the date of such execution. Alexander on Wills, Vol. 1, p. 327; Schouler on Wills, Vol. 1, p. 134; Lum v. Lasch, 93 Miss. 81, 46 So. 559; Moore et al. v Parks et al., 122 Miss. 301, 84 So. 230; Scally et al. v. Wardlaw et al., 123 Miss. 857, 86 So. 625; and Fortenberry v. Herrington, 188 Miss. 735, 196 So. 232.

"It is true that in each of the cases above cited the instrument involved was a will, but the rule as to the time for testing the mental capacity in the light of the evidence is the same in determining the validity of a deed as for a will. There is no reason for the application of any different rule in such cases, even if it could be said that a higher degree of mental capacity should be required for the valid execution of a deed than in case of a will."

See also Lum v. Lasch, supra; and Scally v. Wardlaw, supra; Moore v. Parks, supra; Gholson v. Peters, 180 Miss. 256, 176 So. 605; Ward v. Ward, 33 So.2d 294, (Miss.). Jackson, Young, Daniel Mitchell, for appellees.

Our court has always recognized that a contestant need not establish any facts — that the burden of proving the essential ultimate facts always rests upon the proponent and the contestant need introduce only evidence sufficient to throw the existence of proponents' essential ultimate facts into doubt so that a jury of reasonable and prudent men might find the proponent had failed to establish his essential ultimate facts by a preponderance of the evidence. See Annotation in 76 A.L.R. 373-386, where Mississippi cases of Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 35 A.L.R. 102; Gathings v. Howard, 122 Miss. 355, 84 So. 240; Isom v. Canedy, 128 Miss. 64, 88 So. 485, are cited in support of the Annotator's general rule, but the risk of nonpersuasion is on the proponent of the will throughout the entire case and never shifts.

In Wigmore on Evidence, Volume II, Third Edition, Section 219-235, the author considers the question of evidence of undue influence and testamentary capacity under the premise that they are human conditions and attributes and not things subject to direct proof. See also French v. State, (Ala.) 141 So. 713, 716, where the court said: "Insanity itself is a condition and not a thing and is not therefore susceptible of the usual means of proof, therefore the evidence must take a wide range for which no ironclad rule can be laid down . . ." In Doe Dem Thatham v. Wright, 6 Nev. 132, 146, the court says "Such an issue (insanity) opens a wide door for the admission of evidence as every transaction of the testator's life, every expression he ever used and his manner of conducting himself on the most ordinary concerns may have a bearing on the question."

In Wigmore on Evidence, Volume II, Section 228, Page 9, the author says: "Sanity and insanity are terms applied to the mode of operation of the mind as judged by some accepted standard for normality. The mode of operation of the mind is ascertainable from the conduct of the person in question, that is, from the effect produced by his surroundings on his mind when responding by action to those surroundings. Virtually, then the mind is one, while the surroundings are multifold; and the mode of operation cannot be ascertained to be normal or abnormal except by watching the effects through a multifold series of causes. On the other hand, no single act can be of itself decisive; while on the other hand any act whatever may be significant to some extent.

The first and fundamental rule then will be that any and all conduct of the person is admissible in evidence. There is no restriction as to the kind of conduct. There can be none for if a specific act does not indicate insanity it may indicate sanity. It will certainly throw light one way or the other upon the issue . . . Every act of the party's life is relevant to the issue. There can be no escape from this consequence. There is no distinction in kind (whatever there may be in degree) between one or another piece of conduct as evidence to be considered; some inference is always possible."

It is thus apparent that testamentary capacity and undue influence are not subject to direct proof — they are only conditions the existence of which may be determined by general inferences drawn from specific facts proven. The minds of reasonable men may reach different conclusions or inferences from the same specific facts — some inference may be draw from each fact proven and each fact proven throws some light on the subject, but as to what the inference to be drawn may be is a question for a jury to determine and not a question which the court should decide.

It is well settled in Mississippi, as in all jurisdictions, that a prima facie case, or a presumption, disappears when all of the facts are in evidence; and from the facts in evidence the jury will determine the issues. Neither a prima facie case nor a presumption is conclusive of the issue of testamentary capacity and undue influence — they may be rebutted and from the facts rebutting such prima facie case or presumption the jury is entitled to determine the issue. See 20 Am. Jur. 170, Sec. 166, where author says: "The effect of a presumption is to invoke a rule of law which compels the jury to return a verdict in accordance therewith in the absence of any evidence to the contrary from the other side. If the opponent does present such evidence, then the prsumption vanishes and the jury may consider the proof free from any such rule . . . The presumption of sanity that flows from admission of a will to probate is similarly not entitled to be weighed as evidence . . ."

As has been hereinbefore shown, in meetings proponents' prima facie case the contestants were not required to assume the burden of proving any fact, but are only required to make a justiciable issue as to the existence or non-existence of proponents essential facts. See 20 Am. Jur. Sec. 1251, p. 1102, where the author says: "When the party having the burden of proof establishes a prima facie case he will prevail in the absence of proof to the contrary offered on the part of his opponent. If the latter would avoid the effect of such prima facie case, he must produce evidence to meet it. It is not necessary that this prima facie case be met by a preponderance of the evidence or by evidence of greater weight. It is sufficient if the defendant's evidence equalizes the weight of the plaintiff's evidence, or in other words, puts the case in equipoise. The burden of maintaining the affirmative of the issue involved in the action is upon the party alleging the fact which constitutes the issue and remains upon him throughout the trial. If upon all the facts the case is left in equipoise that party must fail."

A close examination of appellants' brief discloses that the proponents although labelling their argument on the issue of undue influence and testamentary capacity as an argument that the lower court erred in refusing to grant appellants' requested peremptory instruction, have in fact argued that the verdict of the jury was against the overwhelming weight of the evidence. Proponents find it necessary to label their arguments on the overwhelming weight of the evidence as an argument on the alleged error of the lower court in refusing to grant proponents requested peremptory instruction due to the fact that proponents made no motion for a new trial in the lower court and are thus precluded from asserting on appeal that the verdict of the jury was against the overwhelming weight of the evidence.

It is a general rule of law and a settled rule in Mississippi that on appeal of a case tried before a jury that the appellate court will not consider an argument that the verdict of the jury was not supported by the evidence or was against the overwhelming weight of the evidence in the absence of a motion for a new trial presenting these questions to the lower court. Saenger Theatres, Inc. v. Faulk (Miss.) 193 So. 910; Justice, et al. v. State, 170 Miss. 96, 154 So. 265.

Under such circumstances, the contestants respectfully submit that the proponents having failed to make a motion for a new trial in the lower court that their argument designated as the error of the lower court in refusing to grant proponents' requested peremptory instruction which is in truth and in fact an argument that the verdict of the jury was against the overwhelming weight of the evidence cannot be considered on this appeal

As has been hereinbefore shown, every case cited by contestants in support of their argument that they were entitled to go to the jury on the question of undue influence is a case in which the court has held that there was a presumption of undue influence where a party in confidential relationship with the testator was "actively concerned in the preparation of the will", and received property under the will to which the party would not have been entitled had the testatrix died intestate. This being true, in the absence of evidence to the contrary, the contestants were entitled to a peremptory instruction on the issue of undue influence. To assert this point on appeal there is no necessity that the contestants take a cross appeal urging error in the refusal of the court below to grant the contestants' requested peremptory instruction for before the proponents can establish any prejudicial error in the court below they must show that the will was valid. If the will was invalid on any ground it was invalid on all grounds. If the proponents were entitled to a peremptory instruction on the ground of testamentary capacity, they were not injured by a refusal to grant that requested peremptory instruction unless they were entitled to at least get to the jury on the question of undue influence. Such reasoning is so basic that it is settled law that a successful party may not appeal from a judgment in his favor. 2 Am. Jur. 945, Sec. 153.

There is not one word of testimony in this entire record to rebut the fact that there was a confidential relation between the testatrix and the proponent, Agnes Hailey Blalock. It is admitted that Agnes Hailey Blalock would have received none of the testatrix' property had she died intestate. Nor can there be any dispute as to the fact that Agnes Hailey Blalock was actively concerned in the preparation of the will in question. It is true that on appeal proponents attempt to avoid and explain away the admission of their answer to the contestants' petition, however, proponents cannot explain away the written admissions made in their answer. Contestants submit that the proponents' contention on appeal that Agnes Hailey Blalock did not prepare the will in question is surprising to say the least, for in the trial court this was not taken as disputed. A clear indication of this appears in the record at page 585 where Dr. Schmid was analyzing the language and the terms of the will. His testimony was very damaging to the proponents' case and the response made to his testimony by counsel for proponents is in the following words: "You didn't know that she didn't write it, did you?"

Counsel for the proponents even attempted to get Dr. Schmid to state that the will "sounds like the language of a foolish woman."

Are counsel for proponents going to be allowed to blow hot and cold on the question of who wrote the will? Settled law mandates against such conduct. See 3 American Jurisprudence 419, Sec. 873; Anderson v. Maxwell, 94 Miss. 138, 48 So. 227; and Williams v. Lumpkin, 169 Miss. 146, 152 So. 842.

Under such circumstances contestants respectfully submit that the remaining points of the proponents' brief may be entirely disregarded, for they deal solely with the questions of errors concerning testamentary capacity. If any such errors exist, which contestants deny, such errors were harmless as the contestants were entitled to a directed verdict on the issue of undue influence and thus upon the invalidity of the will.

The Supreme Court of Mississippi has on numerous occasions pointed out that there is but one issue in the trial of a will contest, that issue being will or no will. See Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 45. And as is pointed out on Page 4 of the proponents' brief, "the court below submitted to the jury both the issue of undue influence and the issue of testamentary capacity of Mrs. Magee on the date of the execution of the will and the verdict of the jury is a general one and could have been based on either of these issues." It cannot, therefore, be taken as disputed in the present case that both contestants and proponents are in accord as to the verdict of the jury being a general verdict. However, contestants would call to the court's attention that the issue is single, that is will or no will in so far as the province of the jury is concerned.

It is well settled in Mississippi that a general verdict which is sustained by any count of the declaration is not reversible on appeal where all counts of the declaration lead to the same liability. Here in the present case the counts may be considered as testamentary capacity and undue influence, but the issue is but single will or no will and both of the counts lead to the same liability. See Levy et al. v. McMullen, 169 Miss. 659, 152 So. 899, where our court said: "The general argument in the briefs is directed upon the first count. We lay aside that count since, in our opinion, the judgment must be sustained upon the second count. There was a general verdict for the plaintiff. Within the usual rule dealing with general verdicts there is here but one cause of action; the two counts state differences in detail leading to exactly the same liability. In such cases in the absence of any motion or request in the trial court bearing upon the point, a general verdict is sufficient if sustained under either count. See, for instance, Goins v. State, 155 Miss. 662, 124 So. 785."

See also Mississippi Central Railroad Company et al. v. Aultman et al., 173 Miss. 622, 160 So. 737, 739, where our court said: "The rule is that where there is a general verdict for the plaintiff under a declaration containing two counts leading to the same liability such verdict is sufficient if sustained under either count. Levy v. McMullen, supra.

The rule is so well settled in Mississippi that it has been applied to criminal as well as civil cases. See Goins v. State, supra.

As has been hereinbefore shown, testamentary capacity is a condition and not a tangible thing subject to direct proof — the presence or absence of testamentary capacity can be determined only by a general inference based upon the facts in evidence. It has also been pointed out that this court in considering the question of the proponents' right to a peremptory instruction of the issue of testamentary capacity has by its previous decisions bound itself to consider the contestants' evidence as true, eliminate all conflicting evidence and inferences, consider the contestants' evidence and the reasonable inferences therefrom in a light most favorable to the contestants and determine whether reasonable and prudent men would be warranted in determining that the proponents have failed to establish the issue of testamentary capacity by a preponderance of the evidence. There is no requirement (as has been asserted by proponents in their brief) that the contestants introduce sufficient evidence to warrant the jury in determining that there was a lack of testamentary capacity — on the other hand, proponents at all times have the burden of proving by a preponderance of the evidence that the testatrix had testamentary capacity at the time the will was executed.

Contestants' testimony consumes 439 pages of the record and is devoted to establishing the actions of the testatrix in every walk of her life. It is presented by the friends and associates of the testatrix in her church life, her social life, her school life, her business life, her home life and her family life. Almost every witness called had known testatrix for a period of ten to fifteen years and was fully acquainted with her. Her actions and peculiarities are traced from the time she was a child until the time of her death. No witness called was vindictive, many were close friends of testatrix — three were members of her family and were devisees under the will. In this state of the record contestants submit that the testimony and the inferences to be drawn therefrom, considered in the light most favorable to the contestants, is undoubtedly sufficient to warrant the lower court in determining that a jury of reasonable and prudent men might find that proponents had failed to establish testamentary capacity by a preponderance of the evidence.

Proponents assert "there was some attempt to show that epilepsy causes mental deterioration and this suggestion was thrown at the jury again and again by question of counsel for contestants. However, the proof was merely that epilepsy, over a long period of time, might or might not cause mental deterioration, with no proof whatsoever of the extent of such possible deterioration, or proof that there was, as a matter of fact, any mental deterioration of the testatrix in 1943."

The greater part of the proponents' argument is based upon this mistaken premise. In complete answer to proponents' argument is the testimony of Dr. Schmid, who testified that he examined testatrix in 1941.

Dr. Schmid's testimony that in 1941 Mrs. Magee was mentally deteriorated, that she had frequent seizures, that she loved and hated the same object, that she had vertigo and a patchy memory; that she had a great deal of trouble with her thought processes; that she had mental confusion and was unable to concentrate, does not give any indication of lucid intervals, when in the opinion of the witness the testatrix would have been mentally capable to execute a will.

In the face of this testimony the proponents assert: "There was not one iota of testimony to the effect that Mrs. Magee did not have lucid intervals". It is true that Mrs. agee had some intervals which were more lucid than others, however, witness after witness testified that she was never at any time capable of transacting business without assistance and did not at any time have the requisite testamentary capacity.

Contestants submit that there is no dispute in this record that epilepsy, over a long period of time, causes mental deterioration. There is no dispute in this record that Mrs. Magee's epileptic seizures began in 1934. It is not disputed that Mrs. Magee's epilepsy had caused mental deterioration in 1941; it is not disputed that once mental deterioration begins there is no hope of recovery; it is not disputed that if deterioration has begun and epileptic seizures continue the deterioration grows worse; it is not disputed that Mrs. Magee's epileptic seizures continued until and caused her death. Under this testimony alone, contestants submit that without regard to Mrs. Magee's ungovernable temper or inability to concentrate, her periods of depression and exhilaration, her loss of memory, her unco-ordinated thought processes or her mental confusion, contestants have presented sufficient evidence to go to the jury on the question of the testamentary capacity of Mrs. Magee at the time the will was executed.

Proponents allege that the lower court erred in allowing eleven witnesses for the contestants to give their opinions as to the testimentary capacity of the testatrix. Generally, the proponents' point is directed toward these lay witnesses expressing an opinion as to the testamentary capacity of the testatrix without having first stated the basis of their opinion.

Prior to a discussion of proponents' argument in regard to the contestants' failure to lay a proper predicate for the expression of an opinion of testatrix's capacity by a lay witness, contestants would call to the court's attention a few general rules or principles concerning an argument that the lower court erred in admitting certain testimony which the proponents have entirely overlooked.

It is a general rule that relevant evidence received without objection may be considered although it should have been excluded if the proper objection had been made. Citizens Bank of Hattiesburg v. Miller, 194 Miss. 557, 11 So.2d 457, 459. See also Wingo-Ellett and Crump Shoe Store v. Naaman, 175 Miss. 468, 167 So. 634, 636. It is a general rule that the admission of evidence will not be reviewed on appeal where no objection was made to its admission in the lower court. See 3 Am. Jur. 25, Section 246; and 3 Am. Jur. 87, Section 343. Compare Kaufman and Sons v. Foster, 89 Miss. 388, 42 So. 667, and Fox v. Baggett, 101 Miss. 519, 58 So. 481. See also Willoughy v. State, 154 Miss. 653, 122 So. 757, 63 A.L.R. 1319; 3 Am. Jur. 91, Section 346; 53 Am. Jur. 121, Section 137; Bessler Movable Fairway Company v. Bank of Leaksville, 140 Miss. 537, 106 So. 445, 446.

Requesting that the court retain these general principles in mind, the contestants would call to the court's attention the lack of objections to the testimony of the eleven witnesses of whose opinion the proponents complained.

It appears that after 215 pages of testimony from 13 witnesses 12 of whom gave their opinions as to the testamentary capacity of Mrs. Magee, counsel for the proponents for the first and only time in the Record make the objection which they here argue on appeal as applicable to the testimony of 11 witnesses. Counsel for propenents never once during the testimony of the preceding twelve witnesses made any objection other than that lay witnesses were not competent to testify as to their opinion of a person's sanity or testamentary capacity. The proponents did not specify their objection as a failure to lay a proper predicate for the expression of an opinion so as to give the court and counsel for contestants an opportunity to correct that alleged error — on the other hand proponents hid such objection in their bosom during the testimony of thirteen witnesses which consumes 215 pages of the record, before they advised the court of the specific grounds of objection which they here urge. Under such circumstances contestants respectfully submit that this court should not hold that there was any error in allowing lay witnesses to first testify as to their opinion and then give the facts upon which such opinion was based. Proponents, by allowing the trial to proceed through the testimony of twelve witnesses, following a procedure of allowing the lay witnesses to first express his opinion, and then state the facts upon which such opinion was based, without once specifying their objection to such procedure, have waived the right to complain of such procedure. See Bennett v. Haden, 87 S.W.2d 413, 101 A.L.R. 1190, 1194.

Not being satisfied with their attempt to place upon the contestants the burden of proof (non-persuasion of the jury) of the testamentary capacity and undue influence by a preponderance of the evidence, under their argument in support of their requested peremptory instructions, the proponents here assert that not only do the contestants have the burden of proof on these issues, but that contestants' proof "must be clear and convincing" in order to rebut the proponents' prima facie case. Proponents throw about the words "any doubt" which do not once appear in contestants' instruction, in a desperate effort to obtain a reversal of this cause by misleading this court, as to the nature of the contestants' instructions.

Proponents have complained of two phrases in contestants' instructions, that is the phrase: "it is left undertain and doubtful in your minds" and "if you are unable to determine". The latter phrase under settled law in Mississippi needs no qualification or restriction. The prior phrase may need qualification in Mississippi, and it was qualified in every instruction granted to contestants.

The proponents cite no decision of any court condemning the use of the first phrase "unable to determine". In support of the use of this phrase, contestants would therefore cite only the case of D'Antoni v. Teche Lines, Inc., 163 Miss. 668, 143 So. 415, 416, 417, where our court in holding that there was no error in such instruction, said: "The defendant obtained the following instructions: `The court instructs the jury that if from all the evidence in the case you are not satisfied and you are unable to determine just how the collision did occur, then your verdict should be for the defendant.' The second instruction complained of, quoted above, is only erroneous in not having after the word `satisfied' a qualification viz. `from a preponderance of the evidence'. The jury are not required to be entirely satisfied but only reasonably satisfied by a preponderance of the evidence. Of course, if the jury were unable to determine from the evidence how the collision did occur, then the plaintiff would not have met the burden imposed to show by a preponderance of the evidence the negligence on the part of the defendant."

The phrase "uncertain and doubtful in your minds" appears in instructions No. 4 and instruction No. 7 and in both of these instructions the jury were told that if they found that the burden of proof had not been met and it was uncertain and doubtful in their minds, then it was their duty to return a verdict for the contestants. See R. p. 854 where instruction No. 4 appears as follows: "The court instructs the jury that the burden of proof is upon the proponents of the will to show by the preponderance of the evidence that the alleged testatrix Jimmie Dye Hailey Magee was at the time of the execution of the alleged will of sound and disposing mind; and that if upon consideration of all the evidence in the case the jury finds that this burden has not been met and that is left uncertain and doubtful in your minds whether the said Jim Dye Hailey Magee was of sound and disposing mind, then it will be the duty of the jury to find for the contestants."

Proponents cite in support of their argument of error in the granting of this instruction four cases, all of which are Mississippi decisions. The first case cited by proponents is that of Gentry v. Gulf and S.I. RR. Co., 109 Miss, 66, 67 So. 849, where the jury was instructed that "if they are in doubt" then the jury should return a verdict for the defendant. The court pointed out that this phrase required that plaintiff remove "all doubts from the minds of the jury". In the case of Durret v. Mississippian RR. Co., 171 Miss. 889, 158 So. 776, the instruction provided that if the jury was "in doubt" they should return a verdict for the defendant. Here again the court pointed out that the "plaintiff is not required to prove his facts beyond doubt." In Mardis v. Y. M.V. RR. Co., 112 Miss. 899, 76 So. 640, the instructions required that if the jury were "in doubt" they should return a verdict for the defendant. Here again the court pointed out that the instruction required that all doubt be removed from the minds of the jury. In Stevenson v. Y. M.V. RR. Co., 115 Miss. 734, 74 So. 132, the instruction provided that if the jury were "in doubt and cannot say of a certainty" then they should return a verdict for the defendant. The court here also pointed out that the instruction required "all doubt to be overcome by the plaintiff by a preponderance of the testimony."

There is obviously a large distinction between the use of the word "doubt" as used in the above instructions and the use of the words "doubtful" as used in contestants' instruction — the former word requires that all doubt be removed, which the latter word makes no such requirement. The Supreme Court of Mississippi has expressly recognized the correctness of the Instruction here used and has, of its own volition, expressly set forth this instruction as a proper one. See Brown et al. v. Walker (Miss.) 11 So. 724, where our court in considering the burden of proof in a will case, and in noting the difference between "any doubt" (which contestants' instructions do not contain) and "doubtful" which contestants' instructions do contain, with qualifying words, said: "The burden of proof was upon the proponents throughout. But by the first instruction for the contestants this burden was increased unduly. By this instruction, given for the contestant, the jury was informed . . . that if there was a doubt left in the minds of the jury as to the same, or any one or all of these four essentials, the jury must solve the doubt in favor of the contestant, and against the will. The sound objections to this instruction are many. A doubt, whether reasonable or not, and whether arising out of or suggested by the evidence, as to any of the four essentials necessary to give validity to the will offered for probate in this case, was declared to be fatal to the case of the proponents. There must have been absolute mathematical certainty and not reasonable moral certainty according to the instructions; an infinitely higher degree of proof than is required to establish guilt in capital felonies. But the rule applicable in criminal cases is not to be invoked in civil controversies . . . The instruction imposed a burden too great to be borne. The true statement of the law applicable to the developed facts of the case would have been substantially this: That if all the evidence in the case left it doubtful whether the instrument propounded was the true last will of the deceased, the jury should find against its validity, for it was incumbent upon the proponents, by a preponderance of the evidence to reasonably satisfy the mind of the jury that the instrument was in truth the last will of the deceased; and this is what was, in effect, contained in the contestant's second charge. On this she should have been made to stand."

Contestants respectfully submit that this case supplies a full and complete answer to the proponents' assertion of error. If the ruling of this case is not sufficient to answer proponents' contention then the instructions themselves are sufficient for they require that the jury find that the burden of proof has not been met and that it was uncertain and doubtful in the minds of the jury.

McGehee, C.J.

This suit involves a contest of the purported last will and testament of Mrs. Jimmie Dye Hailey Magee, wife of the appellee Dr. Hosea F. Magee, a physician and surgeon of Jackson, Mississippi. The contestants are the husband and some of the sisters of the testatrix, all devisees under the will, and the proponents are the appellants James A. Blalock, a nephew of Mrs. Magee, and his mother Mrs. Agnes Hailey Blalock, and other members of the Hailey family, who are all likewise devisees under the will. The validity of the instrument is contested on the ground of the lack of testamentary capacity and because of undue influence alleged to have been exerted, by the two proponents hereinbefore specifically mentioned, in connection with the preparation and execution thereof.

The proponents requested a directed verdict in their favor on both grounds of the contest, but such instructions were refused by the trial court and there was a general verdict by the jury against the validity of the will. The principal assignment of error on this appeal is the failure of the Court to grant these instructions for a verdict in favor of the proponents.

At the trial on the contest the proponents established the probate in common form of the purported will by the introduction of the petition for probate, the affidavits of the two subscribing witnesses, the original instrument and the decree admitting the same to probate. They thereupon rested their case, awaiting the introduction of proof by the contestants to sustain the allegations of the contest to the extent of overcoming or equalizing the prima facie case presented by the proof of probate in common form.

To overcome the prima facie case thus made, the contestants introduced 29 witnesses, whose testimony was devoted almost exclusively to their acquaintance, association and experiences with the testatrix, their opinions as to her want of testamentary capacity and the facts and incidents upon which such opinions were based, except that some of the contestants (other than Dr. Magee, who was not permitted to testify at all because of his incompetency to do so as sole heir at law of the testatrix) testified in regard to the close relationship between the testatrix and James A. Blalock, who resided in her home for a number of years, and that existing between the testatrix and her sister Mrs. Agnes Hailey Blalock, who was a widow living in the State of Virginia but who had visited in the Magee home for three months just prior to the date on which the will is alleged to have been executed and had prepared or obtained and mailed to Mrs. Magee the form of the original draft thereof, and also except the testimony of Miss Jimmie Mae Tucker, one of the subscribing witnesses, introduced by the contestants for the purpose of showing that though the witness was able to identify the signatures of the testatrix and that of the other subscribing witness and her own, she had no independent recollection of the occasion, year, circumstances, or the fact of the testatrix having signed in her presence any instrument purporting to be a will. The other subscribing witness was unable to be present and did not testify.

The instrument in question is typewritten and on the letterhead of Dr. Magee, and bears the date at the caption thereof of August 3, 1943. The blank places left in the typewritten draft are filled in with pen and ink as to the name of some of the donees of certain specific articles of personal property and the names are left blank as to the donees of other such articles therein mentioned. The instrument bears no date at the conclusion thereof. But there is a notation on the back of the instrument in the handwriting of the testatrix bearing date of September 18, 1945, in the following words:

"In case of my sickness if I am not able to sign papers or checks money is necessary I ask that Mrs. Agnes H. Blalock and Mrs. Lyda H. Sproles be allowed to draw money for my needs.

"/s/ Jim Hailey Magee "/s/ Mrs. Jimmie Hailey Magee.

"Some money in name of Mrs. H.F. Magee."

It was testified by a Mrs. Parker, who served as housekeeper and attendant or companion of the testatrix for several years prior to her death, that the testatrix stated to her in the fall of 1944 that she had a will but had not signed it; that the testatrix was then worrying a great deal about what to do about her property and could not make up her mind in regard thereto. And since the subscribing witness, Miss Jimmie Mae Tucker, had testified before the jury that she did not remember anything about the occasion of the execution of the will; or when it was signed, the jury was not required to find that the same was executed on August 3, 1943, unless they had believed so from a preponderance of the evidence.

The first bequest set forth in the instrument is in favor of the husband and consists of "My interest in all government bonds, building and loan stock and other moneys jointly owned by us." It seems that these bonds and some of the monies on deposit were payable to "Dr. H.F. Magee or Mrs. H.F. Magee," and her interest therein would have been paid to him at her death, as survivor, without regard to whether or not she had made a will.

The next provision is a devise to Agnes Hailey Blalock and James A. Blalock of a half interest in fee simple in the residence property which was being occupied by the testatrix and her husband as a home, subject to the right of her husband to occupy the same during his lifetime, and the duty was imposed upon the said devisees to in return "see that my husband Hosea F. Magee is cared for in his old age" and that he "have someone to care for his home, his clothes and see that he needs nothing." This provision in the will further stipulates that "the money for his support has been provided by my life insurance, $9,000.00," then it is stated that the "money provided shall be made available to James A. Blalock and Agnes Hailey Blalock to meet the necessary expenses and such extras as my husband shall need."

Dr. Magee was the beneficiary in the life insurance policy and would have received the proceeds thereof at any rate. The last above quoted statement from this provision of the instrument, appears to be an effort to give unto these two devisees the control of either the proceeds of the life insurance wherein her husband is the beneficiary of the funds to be derived from the government bonds, building and loan stock and other monies which were jointly owned by the testatrix and her husband, or the survivor of them, if not control of the funds to be derived from both sources, although the husband was at that time virtually in the prime of life.

The purported will then contained a provision bequeathing unto the said James A. Blalock certain household furniture which had been purchased and paid for by Mrs. Lilly Hailey Martin, a sister of the testatrix, now of Memphis, Tennessee, and who had left it in the Magee home on account of the fact that their mother lived there for more than a decade prior to her death, and it was shown that Mrs. Magee knew the circumstances as to the purchase and ownership of this furniture. And there followed devises in favor of all the other proponents and to each of the contestants, save to Dr. Magee, for undivided interests respectively in the remainder of her estate.

Then under the head of "additional bequests" there is one to Mary Catherine Odom, one of the contestants, of a cluster diamond ring, and "to V. Clair bar pin; to ____ Onyx ring; To ____ watch." The names of two of the beneficiaries and the one-tenth undivided interest of each in the remainder of the estate, as well as the names of the donees of the cluster diamond ring and bar pin, respectively, were left blank in the typewritten draft of the will and later filled in with pen and ink.

Except as to the interest devised in the residence property in favor of Agnes Hailey Blalock and James A. Blalock there was no discrimination under the terms of the will as to the remainder of the estate against the members of the Hailey family who joined in the petition as contestants of the same, and of course if the verdict of the jury against the validity of the purported will should be upheld then the entire estate of Mrs. Magee will go to the husband as her sole heir at law, since they had no children.

(Hn 1) It was neither unnatural nor evidence of abnormality that the testatrix should have favored her widowed sister Agnes Hailey Blalock, who was not in as good financial circumstances as other members of the Hailey family, and also her nephew who had lived in her home for many years, that is to say, James A. Blalock, under all the facts and circumstances shown; but, it was for the serious consideration of the jury as to whether or not it was either natural or rational that she should have devised unto them a half interest in the home occupied by her husband, thereby complicating his status as a home owner, since the testatrix had ample personal assets, easily convertible into cash, with which to have sufficiently provided for them to an extent equal to or greater than the value of the undivided interest devised to them in the residential property at Jackson, and especially when it is considered that such devise was subject to the right of occupancy by her husband for life and that the devisees could not receive any revenue therefrom or sell the same during such time, and in view of the further fact that Mrs. Blalock lived in Virginia and was in greater need of money than she was of an undivided interest in a home in another state which she could not utilize to any advantage.

The contestants, other than Dr. Magee, were permitted to testify on the trial, since they are claiming nothing under the will, and would not inherit if Mrs. Magee is held to have died intestate.

Several doctors, including some psychiatrists, and two of the nurses of the testatrix, gave their opinion on the question of mental capacity, all of whom knew the testatrix, along with the great number of other witnesses for the contestants; and one expert testified for the proponents, after hearing all of the witnesses in the case, but who had made no personal observation of the testatrix, that in his opinion there was no lack of testamentary capacity on her part to make a will, and 19 lay witnesses introduced by the proponents also gave their opinions, based upon their association and acquaintance with the testatrix, that she possessed the necessary testamentary capacity.

No useful purpose could be served by relating in this opinion the facts and incidents upon which the opinions of the numerous witnesses on both sides had based their opinions. (Hn 2) It is sufficient to say that after a reading, at the conference of all the members of this Court, of the questions and answers of the witnesses for the contestants on the issue of testamentary capacity and the recitals in their testimony of the incidents upon which such opinions were based, we are of the unanimous opinion that there was ample evidence to warrant the trial court in submitting that issue to the jury for its finding thereon, not only because of the well settled rule that a fact which the testimony reasonably tends to establish and every reasonable inference to be deducted therefrom will be held to have been established against the party asking for a peremptory instruction in his own favor, but because we think that the preponderance of the evidence was in favor of the contestants upon the issue in question.

(Hn 3) Under the decision of Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 45, 35 L.R.A. 102, involving a will contest on the ground of lack of testamentary capacity and the existence of undue influence, it was held that: "The issue is single, — will or no will. And, when we consider that the exercise of undue influence implies some degree of mental capacity to be overcome, and how indissolubly the two things are implicated the one in the other, it seems to us clear that the burden as to both is on the proponent throughout, and there is no shifting of this burden."

(Hn 4) And even in a criminal case, the court has announced and applied the rule that "where there is one good count sustained by the proof, a general verdict of guilty will be referred to and sustained by it, although there are other counts in the indictment which are defective or unsupported." Goins v. State, 155 Miss. 662, 124 So. 785.

And in the civil case of Levy et al. v. McMullen, 169, 152 So. 899, the court observed that the principal argument was directed to the sufficiency of the proof upon the first count of the declaration, and it was said that: "We lay aside that count, since, in our opinion, the judgment must be sustained upon the second count. There was a general verdict for the plaintiff. Within the usual rule dealing with general verdicts there is here but one cause of action; the two counts state differences in detail leading to exactly the same liability. In such cases, in the absence of any motion or request in the trial court bearing upon the point, a general verdict is sufficient if sustained under either count."

In the recent case of Ward v. Ward et al., Miss., 33 So.2d 294, 295, involving a will contest on the grounds of lack of testamentary capacity and the existence of undue influence, the court said that "since the verdict of the jury was a general one and invested with uncertainty as to whether it is referable to either or both issues, there is raised a serious question whether, in view of what has been said, the cause should at all events be remanded. In view of what follows, we do not decide this question." The court reversed, and rendered a decree here for the proponent for the reason that neither of the grounds for alleging that the will was invalid had been established in view of the preponderance of the evidence offered by the proponent on these issues.

In the instant case there was a request for a peremptory instruction on each of the grounds of the contest, and both instructions were refused as hereinbefore stated. The issue then submitted to the jury was whether or not the proponents had shown by a preponderance of the evidence both testamentary capacity and lack of undue influence at the time of the execution of the will. And since under the holding in Sheehan v. Kearney, supra, the issue was single — will or no will, and the burden was on the proponents to prove both testamentary capacity and lack of undue influence, the general verdict of the jury should be sustained in the instant case if they failed to prove either or both of these necessary requirements. This is especially true where practically the entire trial of several days duration was consumed with the hearing of the testimony on the question of testamentary capacity or incapacity, and where the contestants obtained no instructions on undue influence as a separate issue, but rather upon the burden of proponents to establish both testamentary capacity and lack of undue influence by a preponderance of the evidence. Since the jury was amply warranted in finding that the proponents had not met this burden, and since it is extremely doubtful whether any other jury would reach any different verdict as to the invalidity of the will on the single issue of will or no will on a new trial, and especially on the question of the want of testamentary capacity, we do not feel justified in reversing the case because of the refusal to grant a peremptory instruction on the question of undue influence. And we do not, therefore, discuss herein the sufficiency of the proof on that question.

(Hn 5) But it is strongly urged by the proponents that court committed prejudicial error in permitting the several lay witnesses of the contestants to give their opinions as to the mental incapacity of the testatrix to make a will on the date of its alleged execution without having first stated the facts upon which such opinions were based. However, we have searched this voluminous record in vain to find any objection interposed by the proponents to the expression of these opinions by the witnesses for the contestants on the ground that they had not previously stated the facts upon which their opinions were given. The objections were on the ground that the proffered testimony involved the opinion of a lay witness in each instance. Lay witnesses are competent to testify on such an issue where they first give the facts upon which their opinions are based. In this case the course followed was that the witnesses first gave their opinion and then stated the facts or incidents in connection with their acquaintance, association and experience with the testatrix. We are of the opinion that under the state of this record no reversible error was committed by the admission of this testimony.

In the case of Fortenberry v. Herrington, 188 Miss. 735, 196 So. 232, 236, it was said that: "It is true that no one of these actions (of the testator), by itself, would be held to establish his mental incapacity, at the time he executed the will; but taken as a whole, we are of the opinion that although intrinsically weak, there was enough to avoid the scintilla rule, which is held not to be sufficient to raise an issue of fact as to his mental capacity." Although the Court held in that case that the verdict in favor of mental incapacity was against the great weight of the evidence and reversed the case for a new trial for that and other reasons, it was nevertheless held on a state of facts of less weight on the issue of mental incapacity than those testified to in the instant case, a peremptory instruction in favor of the proponents was properly denied.

(Hn 6) Finally it is insisted that the trial court in the case at bar erred in giving alleged repetitious, highly prejudicial instructions demanding a verdict for appellees if the testamentary capacity of the testatrix at the time of the execution of the will was even uncertain or doubtful in their minds. One of the instructions complained of was to the effect that "the burden of proof is upon the proponents of the will to show by a preponderance of the evidence that the alleged testatrix, Jimmie Dye Hailey Magee, was at the time of the execution of the alleged will of sound and disposing mind; and that if, upon consideration of all the evidence in the case the jury finds that this burden has not been met and that it is left uncertain and doubtful in your minds whether the said Jimmie Dye Hailey Magee was of sound and disposing mind then it will be the duty of the jury to find for the contestants." (Italics ours)

Another instruction complained of told the jury "that the buden of proof is upon the proponents of the will to to show by the preponderance of the evidence that the alleged testatrix, Jimmie Dye Hailey Magee, was at the time of the execution of the alleged will of sound and disposing mind; and that if upon consideration of all of the evidence in the case the jury finds that this burden has not been met and that it is left uncertain and doubtful in your minds whether the said Jim Dye Hailey Magee was of sound and disposing mind then it will be the duty of the jury to find for the contestants." (Italics ours)

There was an instruction for the proponents expressly defining what was meant by "a preponderance of the evidence" and that if after considering the weight and creditability of the evidence, "your minds are naturally led to the conclusion that the instrument was executed by Mrs. Magee when she was mentally able to do so and know and understand what she was doing and the effect thereof, then the court tells you as a matter of law such instrument would under such circumstances be and constitute her last will and testament, and if you so believe from the evidence, then your duty is to return a verdict upholding and sustaining said will, and the form of such verdict may be: `We, the jury, find for the proponents.'" It is to be noted that the two instructions for the contestants hereinbefore mentioned said the jury was first required to find that this burden (of showing by the preponderance of the evidence that the testatrix was of sound and disposing mind) had not been met. Therefore, if they did so find it would have been immaterial as to what else they may have thought about the evidence in the case. And regarding the statement contained therein, "and that it is left uncertain and doubtful in your minds" whether the testatrix was of sound and disposing mind, it was expressly stated by the Court in the case of Brown v. Walker, Miss., 11 So. 724, that an instruction was fatal in imposing too great a burden upon the proponents as there worded on the question of a doubt left in the mind of the jury, but the Court then proceeded to say:

"The true statement of the law applicable to the developed facts of the case would have been substantially this: That, if all the evidence in the case left it doubtful whether the instrument propounded was the true last will of the deceased, the jury should find against its validity, for it was incumbent upon the proponents, by a preponderance of the evidence, to reasonably satisfy the mind of the jury that the instrument was, in truth, the last will of the deceased; and this is what was, in effect, contained in the contestant's second charge. On this she should have been made to stand."

It will be noted that in the foregoing quotation the court gave its reason for saying that "if all the evidence in the case left it doubtful whether the instrument propounded was the true last will of the deceased, the jury should find against its validity" by saying "for it was incumbent upon the proponents, by a preponderance of the evidence, to reasonably satisfy the mind of the jury that the instrument was, in truth, the last will of the deceased." We think that the two instructions for the contestants hereinbefore quoted are an improvement in favor of the proponents on the above quoted statement of the Court contained in the opinion in Brown v. Walker, supra, in that under the common acceptation and meaning of the language complained of in these instructions, the jury should have reasonably understood that the use of the word "and" therein meant that it should be left uncertain and doubtful in their minds because of the fact that the burden had not been met of showing by a preponderance of the evidence that the testatrix was of sound and disposing mind.

At any rate, when all of the instructions are considered as a whole we think that the jury was correctly informed that the burden which rested upon the proponents was to show testamentary capacity and lack of undue influence by a preponderance of the evidence. They were so advised by the instructions obtained by the proponents and other instructions obtained by the contestants.

Some of the Judges are of the opinion that it is unnecessary that we should reaffirm as being in accord with the better practice in obtaining instructions by a contestant in a will case or a defendant in other civil cases, the rule announced in Brown v. Walker, supra, hereinbefore quoted; and because of the risk of error to be incurred in trying to properly phrase an instruction containing such words as being "left uncertain and doubtful," we think it would avoid the hazard of reversal instant thereto, in cases where a too close issue of fact is involved, if a contestant in a will case or defendants in other civil cases should be content for their instructions on the burden of proof to go no further than to advise the jury that the proponent or plaintiff is required to establish the issue by a preponderance of the evidence.

As illustrating the risk to be incurred in drafting instructions containing words "left uncertain and doubtful" in civil cases it was held in the case of Gentry v. Gulf S.I.R. Co., 109 Miss. 66, 67 So. 849, 850, that an instruction should not have been given which read as follows: "The court instructs the jury, for the defendant, that if they are in doubt as to whether plaintiff was injured or not in the derailment of the train, and this doubt cannot be removed by a clear preponderance of the evidence in the case, the verdict of the jury should be, `We, the jury, find for the defendant.'" However, this instruction emphasizes to the jury in the forepart thereof "that if they are in doubt," etc., whether from a preponderance of the evidence or not, and omitted after the word "and" at the beginning of the next clause the words "if from a consideration of all the evidence," and which words are in the instructions complained of in the instant case.

In the case of Stevenson v. Yazoo M.V.R. Co., 112 Miss. 899, 74 So. 132, 133, the Court condemned a lengthy instruction containing a recital of numerous alleged facts, because it concluded by the use of the words after a semi-colon, as follows: "and further the court charges you that, if you are in doubt about this proposition and cannot say of a certainty which (of two acts or conditions) was the cause of the damage, then is it your duty under the law to return a verdict for the defendant." The instruction, however, contained no reference to the burden of the plaintiff as to the preponderance of the evidence.

In the case of Durrett v. Mississippian R. Co., 171 Miss. 899, 158 So. 776, the Court condemned an instruction as being obviously erroneous which read as follows: "The court further instructs the jury for the defendant that if after consideration of all the evidence in the case the evidence for the plaintiff and the defendant is evenly balanced or if you are uncertain or in doubt from the evidence in the case how the fire was set out, . . ." the verdict should be for the defendant. The use of the word "and" in the instruction complained of in the instant case clearly distinguishes it from the instruction last above quoted in that the instruction here required that the jury should first believe that the proponents had not met the burden of proof and that it was (for that reason) left uncertain and doubtful as to whether or not the testatrix was of sound and disposing mind.

However, the case of Brown v. Walker, supra, has not been overruled and was cited by the Court in Warren v. Sidney's Estate et al., 183 Miss. 669, 184 So. 806, as to the burden of proof in a will contest.

After a careful consideration of all the evidence and the legal questions involved we have concluded that no error was committed by the trial court which would justify a reversal of the case and that the verdict of the jury was justified under the proof, and that, therefore, the judgment holding the will to be invalid should be affirmed.

(Hn 7) If it should be assumed, as contended for by the the proponents, that there was not one iota of proof to sustain a verdict on the alleged ground of undue influence, but which we do not discuss, then it should be further assumed that the verdict of the jury was on the ground of want of testamentary capacity which was amply supported in favor of the contestants.

Affirmed.

Roberds, J., (dissenting in part).

I concur in the conclusion that the question of capacity of testatrix to execute a will was a question for the jury under the evidence in this case. However, I am of the opinion the request of proponents for an instruction telling the jury to find for proponents on the question of undue influence should have been granted, and that the granting to contestants of the if-you-have-a-doubt instruction on testamentary capacity of testatrix was erroneous.

There was no substantial proof whatever of undue influence. It was misleading to leave that issue before the jury. What effect that had on the verdict cannot be known. Indeed, the verdict might have rested entirely on that issue so far as this record discloses. In Ward v. Ward, Miss., 33 So.2d 294, the Court pretermitted a decision of this question. The very fact the verdict is general and that no one can say on which ground it rests, or whether on both grounds, demonstrates the necessity, in the interest of justice, of eliminating from consideration by the jury of a question presenting no issue for decision by it. Leaving that question before the jury can only result in confusion and uncertainty.

The if-you-have-a-doubt instruction was justified by the old case of Brown v. Walker, Miss., 11 So. 724, but the rule announced there ought to be clarified and modified. The majority opinion, in effect, does that. The danger is that the the jurors will test whether proponents have shown testamentary capacity by whether the jurors have a doubt on that question. Few wills would be sustained if the test of mental capacity rested upon the jurors having a doubt, or being doubtful, of such capacity after hearing a parade of the pecularities, eccentricities and acts of forgetfulness of testators, although such testators might have possessed the brightest minds of their day.