Summary
In Kelker, et al. v. Jordan, 228 Miss. 847, 89 So.2d 858, where, on a will contest, the witnesses who saw the testator the day before, and on the day after, the execution of the will, and were of the opinion that the testator did not have testamentary capacity, this Court affirmed the decree of the chancery court which overturned the will.
Summary of this case from Maguire v. CarmichaelOpinion
No. 40239.
October 15, 1956.
1. Wills — statutes — attesting not in presence of testatrix — evidence.
In will contest, where evidence disclosed that witnesses signed will at attorney's request first in different room from where testatrix was in bed and attorney then signed name of testatrix and made an "x" representing signature and will was then carried into room of testatrix where she touched pen, will was not executed in accordance with statute providing that will shall be attested by two or more credible witnesses in the presence of testatrix. Sec. 657, Code 1942.
2. Wills — contest — lack of mental capacity — will set aside — evidence — mental condition day before and day after execution of will may suffice — where testatrix' condition continuous.
In will contest, where petition contesting will charged both physical and mental incapacity, as well as undue influence, Supreme Court, while not unmindful of the rule that the test as to mental capacity to execute a valid will is condition of testatrix at time of its alleged execution, confined its decision to affirming Chancellor on ground of lack of mental capacity to execute a valid will on occasion in question, based on testimony of numerous witnesses who saw and observed testatrix on day before and day after testatrix was alleged to have executed will, where condition of testatrix was shown to have been a continuous one through date of execution of the will and thereafter until date of testatrix' death.
Headnotes as approved by McGehee, C.J.
APPEAL from the Chancery Court of Hinds County; L. ARNOLD PYLE, Chancellor.
John B. Gee, R. Jess Brown, Vicksburg, for appellants.
I. The burden of proof has not been met sufficiently by the testimony offered by the contestants to establish a prima facie case. Jamison v. Jamison, 96 Miss. 288, 51 So. 130; Gathings v. Howard, 122 Miss. 355, 84 So. 240; Moor v. Parks, 122 Miss. 301, 84 So. 230; Murray v. Murphy, 39 Miss. 214; Watson v. Pipes, 32 Miss. 451.
II. The decree of the Lower Court is contrary to and against the great and overwhelming weight of evidence.
III. The law provides that the presence contemplated in the statute is a conscious presence, the parties need not be in the same room. Watson v. Pipes, supra.
IV. The law provides that the testimony of the subscribing witness is the best evidence of execution. Smith v. Young, 134 Miss. 738, 99 So. 370, 35 A.L.R. 69.
Joe G. Moss, Raymond, for appellee.
I. The testimony of George Jefferson was that Annie Yates was lying down, and that she took the pen and placed her mark on the instrument unassisted by anyone. The testimony of Aleas Flowers was that Annie Yates was not lying down but was propped up in bed, that she did not take the pen and place her mark on the instrument, but that attorney Brown placed the mark thereon and that Annie touched the pen. Her testimony further revealed that the purported will was not signed by these two witnesses in the presence of Annie Yates, but was signed in another room from where Annie Yates was confined. Not only were these parties not in the same room with the alleged testatrix but, the testimony of Aleas Flowers further revealed that the will was not subscribed at the request of Annie Yates but at the request of the lawyer, R. Jess Brown; that she signed the instrument first, that George C. Jefferson, the other witness, signed next and then Lawyer Brown signed Annie Yate's name to the instrument, and in addition thereto made the "X" representing her mark. It was after the instrument was signed in the manner hereinabove set out, that it was then taken to the bed of Annie Yates where she touched the pen.
II. It was not shown by the witnesses to the purported will that Annie Yates expressly directed the attorney or anyone else to sign her name and make her mark on the instrument. The testimony of Aleas Flowers showed that the purported Last Will and Testament was not signed for Annie Yates, either in her presence or by her express direction. Sec. 657, Code 1942.
III. In a case where the evidence is conflicting and the verdict depends on the weight to be given the testimony of the witnesses, and upon inferences to be drawn from the facts proven and the conduct of the parties in interest, a new trial will not be granted except for clear and manifest error in the rulings of the Court, or where the verdict is against the overwhelming weight of the evidence. Kirk v. Kirk, 206 Miss. 668, 40 So.2d 548; Cox v. Tucker, 133 Miss. 378, 97 So. 721.
The contestants, Daisy Lee Yates Kelker and Charles Henry Yates, are the legally adopted children of Annie Yates and Henry H. Yates, both deceased, under a decree of adoption which conferred the right of inheritance of the estate of such adoptive parents. The contestee, Sweetie Jordan, is a sister of Annie Yates, deceased, and the sole named beneficiary under last will and testament.
Henry H. Yates predeceased his wife Annie Yates, the alleged testatrix. They had no children born of their marriage, and Annie Yates died seized and possessed of certain real estate and personal property in Hinds County, Mississippi, where she and her husband had resided with their adopted children, and with whom Daisy Lee Kelker had continued to reside until their deaths.
A few weeks prior to the death of Annie Yates, her sister Sweetie Jordan carried her to the home of the latter in the City of Vicksburg, where she remained until her death. On May 9, 1955, Sweetie Jordan summoned to her home George C. Jefferson, an undertaker at Vicksburg, and represented to Jefferson that her sister Annie Yates desired to discuss with him the matter of disposing of her property in Hinds County. Jefferson testified that he advised Annie Yates, after talking with her about her affairs, that she needed a lawyer, and he procured the services of R. Jess Brown, who prepared the last will and testament which is the subject of this contest.
The testimony of some of the witnesses discloses that Annie Yates, who was sixty-seven years of age, and had been ill to some extent for about eighteen years, and that her illness had been worse during the four years immediately preceding her death on May 18, 1955; that her adopted daughter and others had arranged for her to consult a doctor at a hospital in Jackson who had advised that it might be necessary for her foot to be amputated, but that the patient returned home because of her unwillingness to have the operation if the same could be safely avoided; that thereafter her sister Sweetie Jordan went to the home of Annie Yates, had her lifted out of the house and placed her in an automobile, and carried her to the home of the former in Vicksburg on the idea that she might be able to get her into the charity hospital there for treatment without an operation, although the patient was never placed in the charity hospital at Vicksburg but remained in the home of her sister Sweetie Jordan until her death.
The purported last will and testament was executed Monday, May 9, 1955, nine days prior to the death of the alleged testatrix. Some of the witnesses for the contestants testified that she was both physically and mentally ill on May 8, 1955, which was Mother's Day, when they visited her, and that she paid no attention to anyone and some of them said that she appeared to be in a coma. On Tuesday, May 10, 1955, several other relatives visited her and testified that she was neither physically nor mentally able to have executed a will on that date, but they did not see her on the date on which the will is alleged to have been executed. The chancellor found from conflicting evidence that more than a dozen witnesses had testified that "for a number of days prior thereto (meaning the date of the execution of the will) and thereafter until the date of her death, Annie Yates was lying flat of her back in a bed impaired of mind and body to the extent that she did not know where she was or what she was doing at any time. She was an extremely sick person and was not possessed of either the mental or physical ability to execute a last will and testament." The chancellor further stated in a finding of fact that he did not rely however upon the testimony of the witnesses for the petitioners alone for such finding, but also on the conflicting testimony of the two witnesses to the purported last will and testament, Aleas Flowers and George C. Jefferson, and that it was the opinion of the court that the witness Aleas Flowers' testimony more nearly reflects what happened at the time of the execution of the alleged will; that "her testimony shows that the instrument was executed not in the presence of the deceased Annie Yates, but in a room adjacent to the room wherein Annie Yates was lying in bed, that she (the witness) signed the instrument first, not at the request of Annie Yates but at the request of lawyer Jess Brown; that George C. Jefferson, the other witness, signed it next, and that lawyer Brown signed Annie Yates' name to said document, and in addition thereto made the `X' representing the signature of Annie Yates; that thereafter the instrument was taken to the bed of Annie Yates where she touched the pen."
(Hn 1) It is contended here that although the chancellor found as a fact that a fraud was perpetrated upon the alleged testatrix in the procurement of the execution of the will, there was no charge of fraud in the petition filed by the contestants. But be that as it may, we are of the opinion that, as charged in the petition, the will was not executed in accordance with the requirement of Section 657, Miss. Code of 1942, since the finding of the chancellor is supported by the testimony of Aleas Flowers on cross-examination as to the manner of its execution, and which alleged facts were not specifically denied by the other subscribing witness, George C. Jefferson. One of the subscribing witnesses testified that the testatrix caused her mark to be made while lying down and the other testified that she was sitting up in the bed when she merely touched the pen, and neither of them testified that they signed it as witnesses in her presence. The chancellor believed that part of the testimony of the witness Aleas Flowers which discloses that the witnesses signed the instrument first, and in a different room from where the testatrix was in bed, and that the name of the testatrix was signed to the instrument in such other room and then carried into the room of the testatrix where she touched the pen. It is of course immaterial whether she was lying down or sitting up, but it was essential that the testatrix should have executed the will and that the witnesses should have subscribed to it in her presence. (Hn 2) Aside from the foregoing observations, there was ample testimony to support the finding of the chancellor that Annie Yates was in such physical and mental condition that she did not know her relatives and was not able to say anything when they went to the bedside and asked her about her condition.
The petition contesting the will alleged both physical and mental incapacity, as well as undue influence, but we confine this decision to the question of mental incapacity.
We are not warranted in disturbing the finding of the chancellor in this regard where there were more than a dozen witnesses testifying in support of his finding as to her condition on the day before and on the day after she is alleged to have executed the will. We are not unmindful of the rule that the test as to mental capacity to execute a valid will is the condition of the testator or testatrix at the time of its alleged execution, but in the instant case the condition of Annie Yates was a continuous one through May 9, 1955, under the facts disclosed by the testimony of the witnesses who saw her on May 8th and May 10th, 1955. The decree of the chancellor in sustaining the contest to the will on the ground of the lack of mental capacity to execute a valid will on the occasion in question is therefore affirmed.
Affirmed.
Hall, Kyle, Arrington and Gillespie, JJ., concur.