Summary
finding a jury issue regarding attestation where "[t]here was no testimony that the alleged testator in any manner personally declared to [the witness] that the instrument was his will at the time of its execution or that he ever requested him to attest it as such"
Summary of this case from Estate of Griffith v. GriffithOpinion
No. 33673.
April 24, 1939.
1. WILLS.
In will contest, evidence warranted submission of issue to jury regarding whether alleged testator possessed sufficient testamentary capacity to execute valid will.
2. WILLS.
In will contest, evidence warranted submission of issue to jury regarding whether execution of will was procured by undue influence.
3. WILLS.
In will contest, where only two witnesses who were present at execution of instrument, competent to testify, had already been examined fully regarding circumstances in connection with its alleged execution, contestant's request to amend petition to conform to proof on question whether instrument was valid so far as the proof and attestation of its execution was concerned should have been allowed without the allowance of further time to answer the amendment such as would terminate trial then in progress.
4. WILLS.
In will contest, where at time contestant asked leave to amend petition to conform to proof on question whether instrument was valid in so far as proof and attestation of its execution was concerned, the only two witnesses who were present at the execution of instrument, competent to testify, had already been examined fully regarding circumstances, motion to assess contestant with costs up to that time was not well taken.
5. WILLS.
In will contest where will had been probated in common form before pleadings were drawn, contestant was entitled to assume that, in so far as the execution of the will was concerned, it had been conducted in due form.
6. WITNESSES.
Will contestant was not entitled to offer a subscribing witness as an adverse witness.
7. WILLS.
Where pleadings in will contest did not raise issue regarding validity of instrument in so far as proof and attestation of its execution was concerned, but a subscribing witness testified that he was not aware of nature of instrument at time he subscribed his name thereto and it was not read by or to alleged testator at that time and it was not shown that he was requested by alleged testator to witness execution thereof, contestant should have been granted permission to amend petition to conform to proof and issue raised thereby should have been submitted to jury.
8. WILLS.
Where pleadings in will contest did not present issue regarding proper attestation of alleged will, refusal to grant peremptory instruction for contestant was proper, notwithstanding there was no testimony that alleged testator personally declared to subscribing witness that instrument was his will at time of its execution or that alleged testator ever requested witness to attest it as such.
9. WITNESSES.
In will contest, alleged testator's attorney was not competent to relate any facts about which he was advised in a professional capacity.
10. WILLS.
In will contest where alleged testator's attorney became a witness, the competency of attorney as witness to each of the transactions to be inquired into should have been ascertained in advance before they were brought to the knowledge of the jury.
11. WILLS.
In will contest, instruction which tended to indicate that issue for determination was whether alleged testator was insane was misleading, since some of jurors may have thought him lacking in testamentary capacity and at same time not insane within ordinary acceptation of that term.
12. WILLS.
In will contest, refusing to permit contestant to offer at trial an alleged prior last will as the true one was not error.
APPEAL from the chancery court of Jones county; HON. A.B. AMIS, SR., Chancellor.
O.M. Oates, of Bay Springs, for appellant.
Section 3550, Code of 1930, declares that one must be of a sound and disposing mind before he can make a will.
Gathings v. Howard, 122 Miss. 355, 84 So. 240.
Moreover, he must be on the very day of the execution of the will.
Scally v. Wardlaw, 123 Miss. 857, 86 So. 625.
While we recognize that a testator may make a will from any motive, whether it be love or caprice, yet this court has held that an unjust and unnatural disposition as well as an unreasonable one is admissible as showing testamentary incapacity or undue influence and if sufficient explanation can't be made of this extravagant and unreasonableness by proponents, then it may be attributed to a disordered mind.
28 R.C.L. 40.
Our court has held that unreasonableness without explanation for it is tantamount to undue influence.
Ward v. Ward, 87 So. 152.
There is abounding and abundant testimony in this record in the case at bar tending to show undue influence and lack of testamentary capacity which would warrant the jury in considering the unreasonableness for which, we say, was no explanation, whatsoever, as to why Torrey Smith and his brother should receive more than the others. Proponents must make some reasonable explanation of its unnatural character.
Jamison v. Jamison, 51 So. 130, 96 Miss. 288.
Denial of relatives at the time testator makes his will is always considered a circumstance tending to prove undue influence.
28 R.C.L. 100, 104.
It has been held in 28 R.C.L. 98 that if a will is procured by deception and fraud it is void. Evidence in this respect is largely in effect circumstantial, and the evidence required to establish need not be that direct, affirmative and positive character required to establish a tangible fact. Proponent must explain its unnatural character.
Curry v. Lucas, 180 So. 397; 28 R.C.L. 49.
The facts in each case must stand out for themselves in this respect. We respectfully submit that if there was ever a case where the facts stand out in this respect of undue influence it is in the case at bar which became a proposition of law for the court to have ruled upon under the peremptory.
I submit that the instruction given where the words "sane and insane" are used for "sound and disposing" mind is a fatal error and is highly misleading to the jury. Testamentary capacity and sanity are not equivalent terms, and there may be testamentary incapacity without actual insanity or unsoundness of mind.
28 R.C.L. 97, par. 47; Slaughter v. Heath, 127 Ga. 747, 57 S.E. 69, 27 L.R.A. (N.S.) 1; Dillman v. McDaniel, 222 Ill. 276.
Surely the instruction given proponents with reference to the form of the verdict in which they named Mrs. Mollie Smith the wife of testator as a proponent should not have been since Mrs. Smith was not a proponent having withdrawn altogether from the case. This, of course, was for the purpose of influencing the jury.
We believe the court erred in permitting D.B. Cooley, attorney for testator for many years, to have permitted him to detail at length professional transactions for over a long period of time since this was privileged. This was done over the objection of appellant, and we think it was not only privileged, and the transactions many years ago had nothing to do with the condition of the mind of Mr. Smith when the purported will was executed even if it had been competent. For this reason, it was highly prejudicial on a vital issue.
Jeff Collins, of Laurel, for appellant.
The court erred in sustaining the demurrer to the original bill, and thus ruling out the proposition of presenting a former will of the deceased which contestant claims was the last true will and testament of W.J. Smith, deceased.
This action of the court will be found in the decree sustaining the demurrer in which the chancellor stated that the bill was multifarious and held that the amended bill should not present the question or offer what contestant claimed to be the last true will and testament of W.J. Smith.
Contestant was thereby held in his amended bill only to a presentation of the one question as to whether the contested will was the last true will and testament of W.J. Smith. He was not allowed to offer what he said was the last true will and testament of the deceased for probate as a substitute for the contested will.
Mims v. Johnson, 92 So. 577; Williams v. Morehead, 116 Miss. 653, 77 So. 658; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41; Ellis v. Ellis, 134 So. 150.
The circumstances as set out in the statement of facts as "undisputed facts" are sufficient within themselves to warrant the court in giving a peremptory instruction for the contestant, and this point is that the court erred in refusing a peremptory instruction at the close of the testimony as requested by the contestant.
Curry v. Lucas, 180 So. 397.
In attesting a will the attesting witnesses must not only witness the signing and publishing of the will by the testator but it is also their duty to satisfy themselves that he is of sound and disposing mind and memory and capable of executing the will.
Smith v. Young, 99 So. 374; Green v. Pearson, 110 So. 826; Maxwell v. Lake, 127 Miss. 107, 88 So. 326; Brock v. Luckett, 4 How. 459; Helm v. Sheek, 116 Miss. 726; Sheehan v. Kearney, 21 So. 41; Wall v. Wall, 30 Miss. 91; Sartor v. Sartor, 39 Miss. 760.
Not only was the testimony of Dr. Kittrell incompetent because it was privileged but the testimony of D.B. Cooley, attorney, was also privileged and incompetent. His testimony was also objected to by counsel for contestant, on the ground that it was privileged, yet the court permitted him to testify with reference to the things that occurred in the business transactions, and this was over the objection of the contestant. It was error.
Estes v. Magee, 97 So. 530; Dabbs v. Richardson, 102 So. 769.
The instruction at the bottom of the page 141, given the proponents of the will, places its basis for testamentary capacity upon the word "sane." The statute basis testamentary capacity upon "sound and disposing mine."
Sec. 3550, Code 1906.
The weight of the testimony is clearly with the contestants, and therefore the court erred in overruling the motion for a new trial. The verdict was contrary to the law and the testimony. And the testimony was so strong and convincing for the contestants that we think it warranted a peremptory instruction.
Deavours Hilbun, of Laurel, for appellees.
The objection raised by appellees to the original bill of complaint by the special demurrer was not that the appellant alleged that there was a prior will, but to the prayer of the bill wherein the appellant sought to establish the prior will and have the same admitted to probate in the proceedings.
There are entirely different statutes governing the probating of a will and the contest of a will. The former is an ex parte proceeding in effect and governed by Sections 1599 through 1607 of the Mississippi Code of 1930, annotated, while the latter is governed by Sections 1608 through 1612, inclusive, and must be tried before a jury, being the only instance in which a jury is required by law to try cases coming within the jurisdiction of the chancery court.
It is readily seen that the two questions could not be brought in one proceeding before the chancery court, as the appellant tried to do here, but each matter must be disposed of in regular order and in compliance with the statutes governing each separate proceeding.
It will also be noted that the court did not preclude the appellant from referring to the prior will, but only sustained the demurrer to so much of the prayer of the bill of complaint as sought to probate the prior will referred to in the original bill.
We seriously doubt if the original bill of complaint or any amended bill of complaint filed in the cause, alleged the existence of undue influence at the time of the execution of the will with enough particularity or in a manner sufficient to even raise that issue in the trial of the cause.
Such allegations of undue influence as there are in the bill and the amended bill, are general and are at most conclusions of the pleader, and fail to set out the manner in which such undue influence was exercised or that it was exercised for the purpose of procuring the particular will in question. Nor is there any allegation to the effect that the testator was influenced for the purpose of defrauding this contestant. The pleader concludes the existence of undue influence upon the testator at the time he signed the will from the mere fact that he was old, ill and away from his home, and therefore probably easily influenced. We do not think this is proper.
Corpus Juris, sec. 436, page 743.
Another error assigned by appellant is that the court permitted the Hon. D.B. Cooley, who was the testator's attorney, to testify concerning the execution of the will. He further objects that Mr. Cooley was allowed to testify concerning anything, because it so happened that Mr. Cooley was the testator's attorney. As we understand the law of privilege existing between the attorney and his client, it is this: That an attorney cannot reveal any matter of a confidential nature communicated to him by his client, not in the presence of third parties, when it is intended that such information shall be accepted in confidence by the attorney.
During the long years of dealings between Mr. Smith as a client, and Mr. Cooley as an attorney, Mr. Smith no doubt had become well acquainted with the fact that his communications to his lawyer were privileged and would not be revealed. Over this long period of time, he no doubt found Mr. Cooley to be an attorney who subscribed to that obligation. We conclude this because he continued for twenty-five years or more to retain Mr. Cooley as his solicitor. He knew when he requested Mr. Cooley to attest his will that Mr. Cooley in time would be called upon to reveal the fact that the testator signed it and what his mental condition was at the time he signed it, and the circumstances under which it was executed. Could it be said that William Smith intended to execute his will and at the same time have it witnessed by people who, because of their professional relation to him, could not aid him after his death to establish it and dispose of his property as he so desired? We do not believe that he so intended and it necessarily follows, as in the case of the physician, that it is not the intention of the law, to create such an analogous situation. Since the purpose of the law is to protect and carry out the intentions of the parties, it must follow that William J. Smith, by calling upon his attorney to witness the will, waived such privilege, if in fact any existed. 5 Wigmore on Evidence, sec. 2311, page 53, sections 2314 and 2315, pages 61 and 62.
It can readily be seen from an examination of appellant's brief on this point, that no error of real merit is being complained of, but the appellant is seeking some technical grounds to secure a reversal of this cause, the merits of which have already been passed upon by a jury and the true facts established. The Chancellor was very lenient in his rules and in his effort to have the entire case properly presented to the jury that they might have all the facts before them, so they could arrive at a just and righteous verdict, and we believe that they arrived at such a verdict and that the evidence is sufficient to maintain it.
Jamison v. Jamison, 51 So. 130.
We think, under the law, a man is not deprived of the right to make his will merely because he is sick, nor is he required under the law to dispose of his property equally among his children. He has the right to dispose of it as he sees fit, whether the disposition be reasonable or unreasonable, as long as the disposition is his own. The question to be decided by the jury was not whether the testator disposed of his property in a reasonable manner, but whether or not he had the mental capacity to dispose of it at all.
King v. Rowan, 34 So. 325; Jamison v. Jamison, 51 So. 130.
Before influence becomes undue and is condemned by law, it must be so strong as to surplant the will of the testator with the will of the person exerting the influence. The influence could not possibly be undue such as would be condemned by law, when it goes only to the extent of persuading a person to make a will. It can only be undue influence when it goes further and surplants the will of the testator with the will of the person exerting the influence, so as to control and direct the particular provisions of the will. Unless the influence goes to the particular provisions of the will no one could sustain any damages and the influence would not be condemned by law.
Sanders v. Sanders, 89 So. 261; Barnett v. Barnett, 124 So. 498; Isom v. Canedy, 88 So. 485; Gathing v. Howard, 84 So. 240; Scally v. Wardlaw, 86 So. 625.
There was but one conclusion that the jury could reach and that was that W.J. Smith well knew that he had executed a will and thoroughly understood the provisions thereof and that such understanding continued even until the time of his death.
Tucker v. Whitehead, 59 Miss. 594.
The will itself is strong evidence of the testator's testamentary capacity.
We submit that the will was a sound one and showed that the testator had given it a great deal of consideration. It showed that he realized and appreciated the nature and quality of the act that he was performing in executing his will. It proves that he understood thoroughly what the effect of that act would be. Behind each device in the will there is a sound reason. Not only that, but during the year of his life remaining after the execution of the will, he had ample opportunity to make any changes that he desired, and yet made none.
Furthermore, we earnestly submit to the court that the case was fairly and properly submitted to the jury upon the issues involved. That the jury over a period of more than a week had an opportunity to observe the witnesses as they testified pro and con concerning the testamentary capacity of William J. Smith. The jury had ample opportunity to observe the demeanor of the witnesses as they appeared before them; to weigh the testimony and its sincerity; it had before it the will. Some members of the jury probably knew some of the witnesses who testified or probably knew the property in question.
Can it be said then that merely because one of the sons of the testator is dissatisfied with that portion of his property which his father gave him, that the will of the father should be set aside and the provisions which he made for the other members of his family, including his widow, should be destroyed? This court has frequently held that when these matters are submitted to a jury for decision, the verdict of the jury will not be disturbed, where the testimony is in conflict and where there is any testimony upon which to base the verdict of the jury.
Jamison v. Jamison, 51 So. 130; Scally v. Wardlaw, 86 So. 625; Haggerty v. Williams, 184 So. 165.
This appeal is from a decree upholding the validity of a certain instrument of writing alleged to constitute the last will and testament of William J. Smith, deceased, late of Jones County, who owned approximately 1800 acres of land and certain personal property at the time of his death. The instrument was sufficiently probated in common form upon the affidavits of the two subscribing witnesses; and thereafter a contest was instituted by W. Claude Smith, a son of the deceased, against his two brothers, Torrey and Oscar Smith, his sister, Mrs. Emma Smith Ball, his mother, Mrs. Mollie Smith, and Torrey Smith as executor, on the grounds of alleged testamentary incapacity and undue influence. The record discloses that Mrs. Emma Smith Ball admitted the allegations of the petition by her answer, and that the mother, Mrs. Mollie Smith, declined to take sides as between the contestants and the proponents, but expressed a willingness that the property involved might be divided, after having first withdrawn pleadings filed on her behalf on each side of the issues in controversy.
Upon the trial, there was sufficient testimony to warrant the submission of the issue to the jury as to whether or not the alleged testator possessed sufficient testamentary capacity to execute a valid last will and testament; and this was likewise true on the issue of undue influence. We would not reverse the case on the finding of the jury as to these issues, except for certain errors hereinafter mentioned, even though the great preponderance of the evidence seems to us to establish the contrary.
It also appears that one of the subscribing witnesses, Dr. J.R. Kittrell, the family physician of the deceased, was not aware of the nature of the instrument at the time he subscribed his name thereto, according to his testimony on the trial, the same not having been read by or to the alleged testator at that time; and it was not shown that he was requested by the alleged testator to witness the execution thereof. On the contrary, such request he said was made either by the attorney, who was one of the subscribing witnesses, or by Torrey Smith, the son to whom more than half of land owned by the testator was devised in the instrument. The attorney testified that he asked Dr. Kittrell to witness the instrument but he did not state as to when or where the request was made; and there was a conflict in the testimony of the attorney and physician as to whether the physician had been advised as to the nature of the instrument that he was called upon to witness.
There was no dispute among the great number of witnesses who testified in the case as to the fact that the alleged testator, a man seventy years of age, suffered a second stroke of paralysis in February, 1936, prior to the alleged execution of the instrument on October 3rd of that year, and that he thereafter remained helpless, physically at least, until the date of his death in November, 1937; that he could not walk; that his speech was greatly impaired because of the fact that his tongue was partially paralyzed; that he could not use his hands even to the extent of being able to make a mark to affix his signature to any writing; that he had to be helped on and off of the bed; and that he was unable to feed himself.
There was also considerable testimony from witnesses, including that of tenants on the place, the ice man (who visited his home every other day), and other disinterested friends and neighbors, to the effect that his words could not be understood without difficulty; that his attempted conversations were incoherent, and that he did not possess sufficient mental capacity to transact any business throughout the entire period in question. But, as heretofore stated, there were other witnesses who, although admitting his physical helplessness in the particulars hereinbefore mentioned, testified that his mind was all right. Dr. Kittrell was unable to attest as to his testamentary capacity on the date of the execution of the instrument for the reason that he said he did not make sufficient observation of him for that purpose at the time.
At the close of the testimony, the contestant asked leave of the court to amend his petition so as to conform to the proof on the question of whether or not the instrument was valid in so far as the proof and attestation of its execution was concerned. Thereupon, the court made it known that the amendment would be allowed, but that the proponents of the alleged will would be given additional time to answer the amendment, which course would have terminated the hearing which had then been in progress for some three or four days, and would have resulted in an additional trial of the issues involved. Also, counsel for the proponents asked that the contestant be taxed with the cost up to that time. Confronted with this situation, the contestant thought it expedient to withdraw his motion to amend, and request a peremptory instruction on the ground that the testimony failed to show that the instrument had been legally executed, and also on the other issues involved. The chancellor was of the opinion that the peremptory instruction should not be granted for the reason that a conflict in the testimony of the attorney and physician had been presented on the question of whether the instrument had been validly executed, and that this would have been a question for the jury even if pleadings had originally raised that issue. We are of the opinion that the requested amendment should have been allowed to conform to the testimony of Dr. Kittrell, and without the allowance of further time to answer the amendment such as would terminate the trial then in progress, and that the motion to assess the contestant with the costs up to that time was not well taken, for the reason that the only two witnesses who were present at the execution of the instrument in question, competent to testify, had already been examined fully as to the facts and circumstances in connection with its alleged execution, and we are unable to see how any good purpose could have been served by the requested delay. The will had been probated in common form before the pleadings were drawn, and the contestant was entitled to assume that in so far as the execution of the instrument was concerned it had been conducted in due form. Counsel for the contestant offered Dr. Kittrell as an adverse witness but the court properly held that he was not entitled to do so. He then developed upon his direct examination of him the fact that he had merely subscribed to the instrument and that he had not attested it, according to his testimony, as required under the principles of law announced in the cases of Maxwell v. Lake et al., 127 Miss. 107, 88 So. 326; and Austin v. Patrick, 179 Miss. 718, 176 So. 714; and proponents having failed to then cross-examine him, the contestant was not advised as to what the full extent and purport of his testimony would ultimately be until he was later examined as a witness by the proponents near the end of the trial. Therefore, we think that the amendment should have been allowed and the trial permitted to proceed, and that the issue raised by Dr. Kittrell's testimony should have been submitted to the jury.
There was no testimony that the alleged testator in any manner personally declared to Dr. Kittrell that the instrument was his will at the time of its execution or that he ever requested him to attest it as such. However, since the pleadings did not present this issue, the refusal to grant the peremptory instruction for the contestant was proper since the proponents were entitled to rely upon the prima facie case made by the probate of the instrument in common form. But it is necessary that we reverse and remand the case because of the error in disallowing the amendment without the terms imposed, and because of other errors hereinafter mentioned.
The proof also disclosed that the alleged testator was carried by Torrey and Oscar Smith from his home in the country through the City of Laurel to a schoolhouse about ten miles away where he was met by the attorney and Dr. Kittrell for the execution of the will in question. Torrey and Oscar being incompetent to testify as witnesses, it was shown without dispute by two other persons that he objected to being carried away in the car, when he was told that they desired to take him out for a ride, until they said to him that they would only go as far as a Mr. Hosey's place if he preferred. The fact that the schoolhouse was selected as the place for executing the instrument was explained by the attorney on the ground that the alleged testator was sensitive about his condition, and that for this reason he was not carried to the office of the attorney. Neither Mrs. Smith, Mrs. Ball, nor the contestant, were advised that the will was to be executed.
All of the business of the testator had been transacted under powers of attorney in favor of the contestant and Torrey Smith during his illness, and by means of other documents executed by mark made by the attorney and witnessed by him and one or the other of the two sons. To establish testamentary capacity during the period in question, the attorney was offered as a witness, and although objections to his testimony were repeatedly sustained by the court and the rule correctly announced to the effect that he was not competent to relate any facts or circumstances about which he was advised in a professional capacity, it appears that one transaction after another, including the circumstances under which the instrument in question was prepared and submitted for approval in advance, were inquired into to the extent that the jury became acquainted with a number of transactions concerning which such testimony was privileged. These inquiries should not have been made in the presence of the jury. The competency of the witness as to each of the transactions to be inquired into should have been ascertained in advance, before they were brought to the knowledge of the jury.
Inquiries were also made into the alleged conduct of the contestant which were calculated to prejudice the jurors against him, and which in our opinion went beyond the proper scope of the investigation into the mental capacity of the deceased.
While the instructions given the jury may have been correct, when considered as a whole, some of them were calculated to be misleading as tending to indicate that the issue for determination was whether or not the alleged testator was insane. Some of the jurors may have thought him lacking in testamentary capacity and at the same time not insane within the ordinary acceptation of that term.
No error was committed in denying the contestant the right to offer at the trial an alleged prior last will and testament as the true one. The one being then contested was last in time, and its validity or invalidity must first be determined.
For the reasons hereinbefore stated, the cause must be reversed and remanded for further proceedings in accordance with the views herein expressed.
Reversed and remanded.