Opinion
No. 35212.
January 18, 1943.
1. WILLS.
A motive will not be allowed to thwart purpose of courts to give effect to last solemn wish of a testator, once it is established that, regardless of its incidents, the wish represents testator's own will.
2. WILLS.
Evidence was insufficient to authorize annulling will leaving testator's entire estate to his brother and sister and housekeeper, pretermitting heirs of a deceased brother, on ground that will was occasioned by exercise of undue influence of housekeeper.
3. WILLS.
An attorney who drafts a will is not disqualified to attest and prove it as a witness.
4. WILLS. Witnesses.
Testator's request for attorney who drafted will to attest will as a witness was a "waiver" of any privilege which might have existed between testator and attorney and an authorization to give effect thereto by proving its due execution.
APPEAL from chancery court of Yalobusha county, HON. L.A. SMITH, SR., Chancellor.
Creekmore Creekmore, of Jackson, and Stone Stone, of Coffeeville, for appellants.
It is our position that under the plain requirements of law there was a burden resting on the proponent, Mrs. Williams, on account of the fiduciary relation borne toward the testator, that of housekeeper and nurse for the testator through many years, to explain the unnaturalness of the will, and to demonstrate by the testimony that the said fiduciary relation did not influence the testator in making this unreasonable and unnatural will; it appears to us that all these positions are clearly established by the contestants because it is shown that Mrs. Williams was paid a certain amount per month and received her board and lodging and that she had nothing, and it is clearly shown without any sort of contradiction that the participation in the estate, if allowed, would net Mrs. Williams in the neighborhood of $8000; this on a proposition of service rendered by Mrs. Williams for years in which she had been fully paid, and just simply to give her a bonus at the expense of his nieces and nephews, we think requires at her hands some explanation in the testimony.
See Jamison v. Jamison, 96 Miss. 288, 51 So. 130; Ham v. Ham, 146 Miss. 161, 110 So. 583; Meek v. Perry, 36 Miss. 190; Hitt v. Terry, 92 Miss. 671, 46 So. 829.
We admit that as contestants we had to show the confidential or fiduciary relations, and we admit that, as held in the case of Cresswell v. Cresswell, 164 Miss. 871, 140 So. 521, 141 So. 41, "The presumption of fraud or undue influence arises when and if the grantor establishes the fiduciary relation as existing between the parties at or before the time of the execution of the instrument sought to be invalidated."
Measured by the above, we have no hesitation in saying that the contestants show here beyond all possible doubt that the confidential relation existed, and that, having shown that, the duty devolved on the appellee, Mrs. Lula Williams, to explain the unnaturalness of the will.
It is our earnest opinion that a decree should be rendered vacating the pretended will, for the reason that it is unnatural in its terms and there is not in the record the slightest explanation of the unnaturalness of the terms of the will.
Beach v. Wilton (Ill.), 91 N.E. 492; Thomas v. Whitney (Ill.), 57 N.E. 809, 810; Mayrand v. Mayrand (Ill.), 61 N.E. 1041; McKnatt v. McKnatt (Del.), 93 A. 367-373; Mors v. Peterson (Ill.), 104 N.E. 216.
The will was not properly attested by two or more credible witnesses in accordance with statutory provisions, in that R.F. Kimmons, one of the attesting witnesses, was attorney for the testator, and the relationship between him and the decedent was therefore a confidential one and the matters transpiring between them were privileged.
Section 3550 of the Code of 1930 provides that wills shall be attested by two or more "credible" witnesses. Our court has consistently held that the word "credible" as used in the statute relates to the competency of the witness to testify in court.
Rucker v. Lambden, 12 Smedes M. (20 Miss.) 230; Swanzy v. Kolb, 94 Miss. 10, 46 So. 549; Gore v. Dace, 157 Miss. 221, 127 So. 901; King v. King, 161 Miss. 51, 134 So. 827.
See also Crisler v. Garland, 11 Smedes M. (19 Miss.) 136; Parkhurst v. McGraw, 24 Miss. 134; Lengsfield v. Richardson, 52 Miss. 443; Russell v. State, 185 Miss. 464, 189 So. 90; Smith v. Smith, 185 Miss. 702, 188 So. 305.
John Horan, of Water Valley, for appellees.
The contestants offered only three witnesses — the clerk to prove some records and Mr. Turnage, a druggist, to show that he had sold some sort of tonic to the testator, and then Mrs. M.C. Wilsford, a nurse, to show that Mrs. Williams had stated while at the hospital on a visit to a sick friend that Mr. Wood had made a will including her and two others as beneficiaries and that she wished Mr. Wood would let the other two persons know about it. And that's their case, and on which they state the burden is on Mrs. Williams to explain the unnaturalness of the will, and to demonstrate by testimony that the fiduciary relation did not influence the testator in making this unreasonable will. And to sustain their position they cite the Jamison v. Jamison case, 96 Miss. 288, 51 So. 130, beginning on the bottom of page 297. But a study of this case shows that the burden to show undue influence is on the contestants, the court simply holding that they could make the proof by circumstances and may not always be required to produce positive proof. We concede that the burden was on us to show that the will was duly executed by a person of lawful age and sound mind, but we did that when we offered the two subscribing witnesses who both testified to these facts, and that when we did that we made out a prima facie case and may well rest our case; and then the burden of proof was on the contestants to show undue influence.
Gathings et al. v. Howard et al., 122 Miss. 355, 84 So. 240; Moore et al. v. Parks et al., 122 Miss. 301, 84 So. 230.
A man of sound mind may execute a will or a deed from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even a whim or caprice.
In the case at bar the chancellor heard all the evidence on both sides and found for the proponents on the facts on this issue. The law books are replete with cases holding that the findings of fact will not be disturbed by the Supreme Court where the evidence is conflicting or there be sufficient evidence to sustain the chancellor in his findings.
There is no law against the attorney signing the will as a subscribing witness, and no law against his telling that the testator signed the will and asked him to attest it. The privilege only goes to the attorney undertaking to testify about confidential communications between him and his client.
Smith v. Smith, 185 Miss. 702, 188 So. 305; Claude Smith v. Torrey Smith (Miss.), 200 So. 448; Randel v. Yates, 48 Miss. 685; Smith et al. v. Young et al., 134 Miss. 738, 99 So. 370; Nebhan v. Mansour et al., 162 Miss. 418, 139 So. 166; Swanzy et al. v. Kolb et al., 94 Miss. 10, 46 So. 549; Sovereign Camp Woodman of the World v. Farmer, 116 Miss. 626, 77 So. 655; New York Life Ins. Co. v. Burris, 174 Miss. 658, 165 So. 116; Dixie Greyhound Lines, Inc., v. Matthews, 177 Miss. 103, 170 So. 686; Fornea v. Goodyear Yellow Pine Co. et al., 181 Miss. 50, 178 So. 914; Hanson v. First National Bank of Birmingham (Ala.), 116 So. 127; 28 R.C.L. 561; 40 Cyc. 2377; 5 Wigmore on Evidence, Sec. 2311; 70 C.J. 438, Sec. 587; 70 C.J. 471, Sec. 637.
Argued orally by W.I. Stone, for appellants, and by John Horan, for appellees.
Complainants, who are appellants here, are the legal heirs of Arthur Wood, deceased. The deceased, with Homer Wood and Mrs. Della Strolin, were the brother and sister respectively of Oran K. Wood who died in September, 1941, leaving a will which complainants seek by their bill to annul. The will contained the following provision: "2 — Subject to the reservation and condition hereinafter set forth I will, bequeath, devise to my brother, Homer N. Wood, and my sister, Mrs. Della Strolin and Mrs. Lula Williams all my property, real, personal and mixed, money on hand or on deposit in any bank, and choses in action of every kind and description wherever it may be situated of which I may die, seized and possessed to have and to hold unto them share and share alike forever. However the devise and bequest to Mrs. Lula Williams is dependent on her remaining with me as my housekeeper until my death, and in the event she should leave me, or for any reason whatever cease to be with me or employed by me as such housekeeper then in that event her right under this will shall cease and all of my property herein mentioned of every kind and description shall belong to and be the property of my brother and sister above named."
It is thus seen that the heirs of the deceased brother, complainants here, were pretermitted. The complaint alleges that the devise to appellee, Mrs. Williams, was occasioned by the exercise of undue influence, and that the purported will was not subject to probate because it was attested as a witness by the attorney by whom it was prepared.
Testator was a bachelor and at the time of his death was between sixty and sixty-five years of age. About seven years prior to his death in 1941, he engaged Mrs. Williams as housekeeper, whose duties, in addition to those implied thereby, included supervision of such dietary and ordinary medicinal needs as was occasioned by the physical condition of the testator. His condition was not however such as to incapacitate him from getting about and attending to his business affairs. The evidence discloses that in all his affairs Mrs. Williams assisted him and that she usually attended him upon his trips to town and elsewhere in discharge of business. Appellants do not contend that their relationship involved anything other than a degree of solicitude which tended to engender a complete dependence upon and a consequent domination by Mrs. Williams resulting in an unnatural disposition of his estate. No motive, whether born of sympathy, gratitude or attachment, or provoked by prejudice, caprice or revenge, may be allowed to thwart the purpose of the courts to give effect to the last solemn wish of a testator, once it is established that, regardless of its incidents, it represents his own will. Burnett v. Smith, 93 Miss. 566, 47 So. 117; Estes v. McGehee, 133 Miss. 174, 97 So. 530; Scally v. Wardlaw, 123 Miss. 857, 879, 86 So. 625; Morris v. Morris, 192 Miss. 518, 6 So.2d 311. We shall not rehearse the testimony upon which the allegation of undue influence is bottomed nor decide whether the relationship was of such fiduciary character as to affect the burden of proof thereby invoking the rule asserted in Jamison v. Jamison, 96 Miss. 288, 51 So. 130; Ham v. Ham, 146 Miss. 161, 110 So. 583; Cresswell v. Cresswell, 164 Miss. 871, 140 So. 521, 141 So. 41; O'Bannon v. Henrich, 191 Miss. 815, 4 So.2d 208. The principles imminent in the status of fiduciary relationship are adjective and involve primarily the matter of proof. It is enough that such testimony was not sufficient to establish conduct other than a degree of concern consistent with her employment and not inconsistent with natural or legal obligations. The inferences which are by counsel asserted to reveal a dominating influence were found by the chancellor not to rise to the degree of undue influence. On the other hand, there is positive evidence forming an ample basis for concluding that the expressed attitude of the testator toward complainants was not such as to compel an acceptance of their omission as unnatural. We will refer definitely only to the fact that in a prior will, executed two years before his acquaintance with Mrs. Williams, he had likewise pretermitted them. Cf. Scally v. Wardlaw, supra. The will now in suit stresses the importance of Mrs. Williams' services above any concern for her individually, by making the devise to her contingent upon their continuance. Moreover, in item 3 of the will, it is provided that in the event of the prior death of either of the other two devisees, the sister and brother named, the survivor alone shall take the interest of such other. The finding of the chancellor upon the fact issue is affirmed.
The remaining assignment refers to the incapacity of R.F. Kimmons, the attorney who at the instance and in the presence of the testator dictated the will, to attest and prove same. Aside from the question whether the dictation of will in the presence of a stenographer would constitute a privileged communication, and whether if so her presence lifted the restraint thereto applicable (Nebhan v. Mansour, 162 Miss. 418, 139 So. 166), it seems well settled that an attorney is not disqualified to attest and prove same as a witness. A request to attest a will as a witness is a waiver of any privilege which may exist and an authorization to give effect thereto by proving its due execution. Schieffelin v. Schieffelin, 127 Ala. 14, 28 So. 687; In re Pitt's Estate, 85 Wis. 162, 55 N.W. 149, 39 Am.St.Rep. 828; In re Lane's Estate, 50 Wyo. 119, 58 P.2d 415; 60 P.2d 360; 1 Alexander on Wills, p. 327; Atkinson on Wills, pp. 272, 528; 1 Page on Wills, Sec. 342; 1 Schouler on Wills (6 Ed.), Sec. 553, p. 623. Cf. Randel v. Yates, 48 Miss. 685.
Affirmed.