Summary
In Curry v. Lucas, 181 Miss. 720, 180 So. 397, 398, this court said that: "From the very nature of the question, evidence showing undue influence must be largely circumstantial.
Summary of this case from O'Bannon v. HenrichOpinion
No. 33145.
April 18, 1938. Suggestion of Error Overruled May 30, 1938.
1. COURTS.
In determining whether will was procured by undue influence, each particular case must stand on its own facts and circumstances.
2. WILLS.
The evidence establishing that will was procured by undue influence cannot be of that direct, affirmative, and positive character which is required to establish a tangible fact and must be largely circumstantial.
3. WILLS.
Evidence sustained verdict that execution of will was procured by undue influence of testator's daughter, the principal beneficiary.
4. TRIAL.
Where will was contested on ground that execution thereof was procured by undue influence, instruction using word "influence" without the qualification of "undue" was error but harmless where, in numerous other instructions, the jury were informed in unmistakable language that the influence had to be undue influence.
5. WILLS.
Where will had not been probated in solemn form and on its presentation a caveat was filed against its probation, instruction that burden of proof was on proponent to establish validity of will by preponderance of evidence was not objectionable.
6. WILLS.
When the proponents of a will make proof of its due execution and the mental capacity of the testator to make will, the proponents make out a prima facie case and it devolves upon the contestants to rebut the proof so made; but, when the contestants have produced evidence tending to disprove the proponents' case, the burden is then on the proponents to establish the issue involved by a preponderance of the evidence.
7. WILLS.
In will contest, refusing to permit proponent in rebuttal to introduce evidence which was along the same line as the testimony of witnesses originally introduced by proponent was not error, since a party may not save part of his evidence for rebuttal.
APPEAL from the chancery court of Adams county. HON. R.W. CUTRER, Chancellor.
Brandon Brandon and Engle Laub, all of Natchez, for appellant.
The evidence upon this contest relative to the lack of testamentary capacity of the testator and the procurement of the will by alleged undue influence exerted on the part of the proponent was insufficient for submission to the jury.
Barnett v. Barnett, 155 Miss. 449, 124 So. 498; Burnett v. Smith, 93 Miss. 566, 47 So. 117; Sanders v. Sanders, 126 Miss. 610, 89 So. 261; Moore v. Parks, 122 Miss. 301, 84 So. 230; Scally v. Wardlaw, 123 Miss. 857, 86 So. 625; Estes v. McGehee, 133 Miss. 174, 97 So. 530; Gholson v. Peters, 176 So. 605; Gathings v. Howard, 122 Miss. 355, 84 So. 240.
If this court on appeal will not upon reversal enter a decree admitting the will and codicil to probate and record, then the decree appealed from should be reversed and a new trial upon the issue devisavit vel non granted unto the proponent for the reasons hereinafter urged.
Ward v. Ward, 124 Miss. 697, 87 So. 153; Ross v. Washington, 171 So. 893; Isom v. Canedy, 128 Miss. 64, 88 So. 485; Moore v. Parkes, 122 Miss. 301, 84 So. 230; Gathings v. Howard, 122 Miss. 355, 84 So. 240; Moore v. Parkes, 122 Miss. 301.
In the trial of this case all that was required of the proponent in offering evidence in chief was to prove the testamentary capacity of the testator by showing he was sane and knew what property he had and knew the natural objects of his bounty and to prove the legal execution of the instrument offered for probate. It then became the burden of the contestant to offer his evidence of alleged imposition of undue influence to overcome the prima facie case made out by the proponent. Assuming such to have been done by the contestant it was then permissible for the proponent to offer evidence in rebuttal to establish the fact that the will had not been procured by undue influence as contended by the contestant. The mere fact that the proponent had gone further than she was required to do in her offering of evidence in chief could not deprive her of the right to offer evidence in rebuttal. For the court to exclude the evidence offered in rebuttal by the proponent was reversible error.
Moore v. Parkes, 122 Miss. 301, 84 So. 230; Gathings v. Howard, 122 Miss. 355, 84 So. 240; Isom v. Canedy, 128 Miss. 64, 88 So. 485.
Luther A. Whittington, J.E. Brown, and William Braden, Jr., all of Natchez, for appellee.
The evidence of the appellant in this case directly shows what was charged against her, that the appellant was solely responsible for the estrangement that no one in this case disputes came between the father and son after the death of the wife and mother. And the jury had a right to believe the evidence offered by the witnesses and the jury by their verdict did believe such evidence, to-wit, that this estrangement was designedly brought about in the pursuance of the avowed purposes and declaration of appellant that she would rather the rankest stranger or the blackest negro get her parent's property than her brother, and that she was going to do everything in her power to keep him from getting any.
We submit to the court most respectfully that under the facts of this case as shown by the record herein the jury in this case was abundantly justified in reaching the verdict which they did reach.
The jury having found for the appellee under the facts in the case, and the record and evidence being sufficient from which the jury might have so found, it would have been error for the lower court to grant a peremptory instruction as asked for and we do not believe that this court would be justified in disturbing the verdict of that jury under all the facts in this record.
In every contest of a will the facts peculiar to that case are the controlling facts.
Proponents of a will have the burden of proof, both as to testamentary capacity and undue influence.
Sheehan v. Kearney, 21 So. 41; Hitt v. Terry, 92 Miss. 671, 46 So. 829.
We think it is universally recognized that in undertaking to prove undue influence in the execution of wills that large latitude is offered in the proving of facts and circumstances from which undue influence might be inferred for the reason as the courts have repeatedly pointed out in such cases it is most difficult to obtain direct evidence of such influences. But in this case may it please the court there is direct evidence of the exercise of such influences and of the intention to exercise such influences and then there were additional facts and circumstances from which the jury were thoroughly warranted in reaching the conclusion that such influences were exerted.
It is recognized by this court in Jamison v. Jamison, 96 Miss. 288, 51 So. 130, that even though the judge might have felt as the jury in this case the court should not set aside the verdict of the jury.
King v. Rowan, 82 Miss. 1, 34 So. 325.
The verdict of the jury was human and right. Before them and in their minds was all the evidence and the testimony of all the witnesses and before them as they heard this evidence and heard the testimony of the witnesses were the faces and countenances of the appellee and appellant. They accepted the evidence of the witnesses who established the contestant's claim as was their right to and their verdict should be left undisturbed.
Argued orally by Gerard Brandon, and S.B. Laub, for appellant, and by L.A. Whittington, for appellee.
The questions in this case involve W.T. Lucas and his wife, Ida E. Lucas, and their two children, Grace E. Lucas Curry, the appellant, and Leslie E. Lucas, the appellee. W.T. Lucas, the father, died in the spring of 1937 leaving what purported to be his last will and testament. His wife had died in March, 1936. In the will the father left all his property of every kind, except $100, to his daughter, the appellant; that sum he gave to appellee. Appellee contested the will upon the ground that it was brought about by undue influence of appellant on her father, in that she by unfair and unlawful means induced him to substitute her will for his. An issue devisavit vel non was made up and submitted to a jury, resulting in a verdict and judgment setting aside the will. From that judgment this appeal is prosecuted.
Appellant assigns and argues as error the refusal of the court to direct a verdict in favor of the validity of the will, and if mistaken in that contention in overruling the motion for a new trial because the verdict was against the overwhelming weight of the evidence. We are of the opinion that both contentions are without merit. We see no good purpose to be answered in setting out even the substance of the rather voluminous evidence tending to establish undue influence. It consists of many facts and circumstances covering a period of more than one year after the death of the mother and while appellant was living with and caring for her father, who was about seventy-seven years old.
It is argued that the evidence showing undue influence lacked the character of being affirmative and positive. From the very nature of the question, evidence showing undue influence must be largely circumstantial. Undue influence often is an intangible thing and is rarely susceptible of what might be termed direct and positive proof. "The difficulty is also enhanced by the fact, universally recognized, that he who seeks to use undue influence does so in privacy." Physical facts or open threats are seldom, if ever, used, and if used care is taken that no witness is present to testify to the fact. Only general rules concerning the character and quality of evidence required to establish undue influence can be laid down. Each particular case must stand on its own facts and circumstances. One main underlying principle must be kept in mind, and that is that the evidence cannot be of that direct affirmative and positive character which is required to establish a tangible fact. Jamison et al. v. Jamison et al., 96 Miss. 288, 51 So. 130.
In one of the instructions given appellee the word "influence" was used without the qualification of "undue." Appellant assigns and argues that as error, and clearly it was, but was utterly harmless. The jury could not have been misled by it. In numerous other instructions given both parties the jury was told time and again in unmistakable language that the influence had to be undue influence. Hitt v. Terry, 92 Miss. 671, 46 So. 829.
The court gave instructions to the jury that undue influence to vitiate the will had to be of such a character as to destroy the testator's free agency and, unless the jury believed from a preponderance of the evidence that his free agency was destroyed and appellant's will substituted for his, they should find in favor of the will. No instructions were given appellee in conflict with those.
Appellant complains of instructions given for appellee to the effect that the burden of proof was on appellant to establish the validity of the will by a preponderance of the evidence. The will was not first probated in solemn form. On its presentation appellee filed a caveat against its probation. On the trial of the issue of its validity appellant assumed the burden of proof and went into the whole question in full. When the proponents of a will make proof of its due execution and the mental capacity of the testator to make a will they make out a prima facie case, and it devolves upon the contestants to bring evidence to rebut the proof so made; but when the contestants produced evidence tending to disprove the proponents' case the burden of proof is then on the latter to establish the issue involved by a preponderance of the evidence. Isom v. Canedy, 128 Miss. 64, 88 So. 485.
Appellee then introduced evidence to overcome the case made by appellant. At the conclusion of appellee's evidence appellant offered as witnesses Charles Bady and Carfielia Hays, on the ground that their testimony was in rebuttal of appellee's and should be admitted. On objection it was ruled out. That ruling is assigned and argued as error. Before it was ruled out, the court heard what their testimony would be. It was plainly not in rebuttal but simply an attempt to add to appellant's original evidence. It was along the same line as the testimony of witnesses originally introduced by appellant. A case cannot be divided up in that manner; having undertaken to go into his whole case he should have done so; he could not save part of it for rebuttal.
Affirmed.