Opinion
No. 32830.
November 1, 1937. Suggestion of Error Overruled December 13, 1937.
1. WILLS.
In action to contest will which left property to testatrix' young granddaughter to exclusion of testatrix' daughers, on ground of mental incapacity in that testatrix was obsessed with unnatural hatred of daughters, evidence indicating that testatrix was otherwise sane and exhibited no monomania at time of executing will but was in fact devoted to granddaughter held not to authorize verdict for contestants.
2. WILLS.
A person afflicted with general insanity or monomania may make a valid will during a lucid interval.
3. WILLS.
Unfounded prejudice or even hatred towards a near relative will not of itself destroy testamentary capacity, but sentiments harbored must amount to insane delusion or monomania and be dominating factor in testamentary act at time thereof.
APPEAL from chancery court of Marshall county. HON. HERBERT M. HOLMES, Special Chancellor.
Lester G. Fant, Sr. and Jr., of Holly Springs, for appellants.
We have carefully abstracted the evidence of contestants. We have searched the transcript painstakingly, and we submit the considered statement that all of the testimony for the contestants, with its inferences, can be placed in three statements of fact concerning Mrs. Crawford: (1) She became estranged from her daughters and their husbands. (2) She was devoted to Mary Ann Peters, her grandchild. (3) On occasions she was angry, and at times spoke bitterly.
We measure the assertion. And as a matter of fact rather than of argument, we make it. Every syllable of evidence touching her capacity can be placed within one of these propositions.
That such evidence is no proof of testamentary incapacity requires no argument. Displeasure, anger, change of affections; these are qualities of sound minds. Every witness for the contestant, we submit, shows that Mrs. Crawford had testamentary capacity.
Moore v. Parks, 122 Miss. 301, 84 So. 230; Mullins v. Cottrell, 41 Miss. 291; Scally v. Wardlaw, 123 Miss. 860, 86 So. 625; Lum v. Lasch, 93 Miss. 81, 46 So. 559; Barnett v. Barnett, 155 Miss. 449, 124 So. 498; Gathin v. Howard, 122 Miss. 355, 84 So. 240; Burnett v. Smith, 93 Miss. 566, 47 So. 117; Nebhan v. Mansour, 162 Miss. 418, 139 So. 166; 28 R.C.L. 90, 102.
The fact that a testator feels an aversion for relatives is no evidence of either a delusion or an insane delusion.
Schneider v. Manning, 121 Ill. 370, 12 N.E. 267, Ann. Cas. 1916C 9; Carpenter's Estate, 94 Calif. 419, 29 P. 1101, Ann. Cas. 1916C 9; Carter v. Dixon, 69 Ga. 82, Ann. Cas. 1916C 9; Mullins v. Cottrell, 41 Miss. 291; Coffey v. Miller, 160 Ky. 415, 169 S.W. 852, Ann. Cas. 1916C 30; In re Alexander's Estate, 240 Pa. St. 58, 91 A. 1042, Ann. Cas. 1916C 33.
Taking the contestant's theory, accepting all their evidence, drawing all inferences, and giving it fullest weight, the principle of law still controls: prejudices and estrangements do not deprive a person of the right to make a will.
Burnett v. Smith, 93 Miss. 566; Mullins v. Cottrell, 41 Miss. 291; Moore v. Parks, 122 Miss. 301.
The will was natural and "reasonable."
68 C.J. 477; Barnett v. Barnett, 155 Miss. 453.
The court should have sustained the motion for a new trial.
Scally v. Wardlaw, 123 Miss. 879.
The court erred in admitting the will of Alice Maud Peel. The will of Alice Maud Peel, discovered and probated one year after the death of Mrs. Crawford was put in evidence by contestants. Its admission was highly prejudicial.
Section 1609, Code of 1930; Cameron v. Watson, 40 Miss. 191; Kinard v. White, 175 Miss. 480, 167 So. 636.
In the first place, it was fatally confusing. It is difficult to imagine anything more confusing than in the progress of trial of an issue devisavit vel non to have produced in evidence another will of a third person, the terms of which conflict with the will at issue. It is then impossible to confine the question to the execution of the will. Every time "the will" is mentioned it must be specified. And how can the jury be told which will is questioned, and whether they can sustain one without invalidating the other? We submit that this of necessity destroys the issue to be tried.
Masonite v. Dennis, 168 So. 613; Brown v. Mitchell, 75 Tex. 9; Havens v. Mason, 78 Conn. 410, 3 L.R.A. (N.S.) 172, 62 A. 615.
Hindman Doxey, of Holly Springs, for appellants.
One of sound mind and over the age of twenty-one years may execute a will from any motive, whether that be love, gratitude, partiality, prejudice, whim or caprice.
Burnette v. Smith, 93 Miss. 566; Barnett v. Barnett, 155 Miss. 456, 124 So. 498; King v. Rowan, 82 Miss. 1.
Although the law presumes the testatrix to be of sound mind, it is unquestionably the responsibility of the proponents to make a prima facie case that the testatrix was of sound and disposing mind and over the age of twenty-one years at the time of the execution of the will. The burden then shifts to contestants to prove their defense by preponderance of the evidence on the whole case and the contestants must overcome the prima facie case by testimony, with the privilege of proponents to offer rebuttal testimony.
Gathings v. Howard, 122 Miss. 375, 84 So. 240; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41; Moore v. Parks, 122 Miss. 301, 84 So. 230.
Temporary or intermittent insanity or mental incapacity does not raise a presumption that it continued to the execution of the will.
Scally v. Wardlaw, 123 Miss. 857, 86 So. 625; Nebhan v. Mansour, 162 Miss. 418, 139 So. 878.
In passing upon the mental capacity of a testatrix the testimony of the subscribing witnesses is entitled to greater weight than the testimony of those who had no such duty to perform, and especially is entitled to greater weight than the testimony of witnesses who were not present at the time of executing the will, and who did not see the testator on the day of its execution.
Gillis v. Smith, 114 Miss. 684, 75 So. 451; Tyson v. Utterback, 154 Miss. 392, 122 So. 496.
Testatrix's mental capacity is to be tested as of date of execution of the will.
Scally v. Wardlaw, 86 So. 625.
A will executed by testator in a lucid interval is valid.
Lum v. Lasch, 93 Miss. 81, 46 So. 559; Mullins v. Cottrell, 41 Miss. 291; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41; Barnett v. Barnett, 155 Miss. 449, 124 So. 498.
The court erred in refusing a peremptory instruction to find for the proponents. Appellants respectfully submit that this was reversible error on the part of the trial court and that upon a review of the whole testimony in this case it will be seen there was nothing sufficiently strong in the way of competent evidence to legally justify the court in letting the case go to the jury.
Lum v. Lasch, 93 Miss. 86, 46 So. 559; Moore v. Parks, 122 Miss. 313, 84 So. 230; Nebhan v. Mansour, 162 Miss. 418, 139 So. 166; Ellis v. Ellis, 160 Miss. 345, 134 So. 150; Scally v. Wardlaw, 123 Miss. 857; Whitehead v. Kirk, 104 Miss. 776; Ward v. Ward, 124 Miss. 697; Hitt v. Terry, 92 Miss. 671; Gathings v. Howard, 122 Miss. 355.
Intestacy will be avoided if avoidance is in reason possible.
Hale v. Neilson, 112 Miss. 291.
Hindman Doxey and Lester G. Fant, Jr., both of Holly Springs, for appellants.
Opinions of lay witnesses, unless supported by proper narrative facts, are of no evidentiary value.
Ward v. Ward, 124 Miss. 697, 87 So. 153; Scally v. Wardlaw, 123 Miss. 360, 86 So. 625.
The will is no evidence of mental incapacity.
Jamison v. Jamison, 96 Miss. 288, 51 So. 130; Mullins v. Cottrell, 41 Miss. 291; Newman v. Smith, 77 Fla. 663, 82 So. 326.
L.A. Smith, Sr., of Holly Springs, for appellees.
After all this was a case of conflicting testimony, and was submitted to a jury as triers of the fact, and they found she was of unsound mind, and had no testamentary capacity. The rule in Mississippi is that the jury is the sole judge of the facts where there is a conflict.
King v. King, 134 So. 827, 161 Miss. 51; Loper v. Y. M.V.R.R. Co., 145 So. 743, 166 Miss. 79.
A new trial on an issue of devisavit vel non will not be granted on the ground that the verdict is against the overwhelming weight of the evidence, though the court be of the opinion that the evidence against such a verdict is strong, while the evidence in its favor is not unbelievable but substantial.
Cox v. Tucker, 97 So. 721, 133 Miss. 378.
The jury's finding on conflicting evidence as to testamentary capacity will not be disturbed on appeal.
Dabb v. Richardson, 102 So. 769, 137 Miss. 789; Watkins v. Watkins, 106 So. 753, 142 Miss. 210.
The right to execute a will is statutory, and it is a condition precedent under our statute that the testator be of sound mind.
Gathings v. Howard, 84 So. 240, 122 Miss. 355.
We contended, as we did and do, that the will is of itself evidence for the jury to consider, in its unnaturalness and unreasonableness, which we think its perusal amply reveals it to be, both unnatural and unreasonable, when considered in connection with Mrs. Crawford's family and the moral equities and obligations arising therefrom. We think our position in this record is sustained by authority. Unnatural or unreasonable provisions, standing alone, will not support a finding of testamentary incapacity, but in passing on that question, the unreasonableness or unnaturalness of the will is an element to be considered by the jury in connection with all the other evidence.
Scally v. Wardlaw, 86 So. 625, 123 Miss. 857; Jamison v. Jamison, 51 So. 130, 96 Miss. 288.
Rule in giving peremptory instruction for plaintiff is that, conceding all facts to be true which the evidence tends to establish and drawing all logical inferences favorable to the other party from the testimony, there is no defense made, or nothing to be submitted to the jury.
G. S.I.R. Co. v. Prine, 118 Miss. 90, 79 So. 62; Gravette v. Golden Sawmill Trust, 154 So. 274, 170 Miss. 15; Lee Co. Gin Co. v. Middlebrooks, 137 So. 108, 161 Miss. 422.
Where plaintiff requests a peremptory instruction the evidence is to be taken most strongly against him.
Am. Trad. Co. v. Ingram Day Lbr. Co., 110 Miss. 31, 69 So. 707; Dodge v. Cutrer, 101 Miss. 844, 52 So: 208.
A clear conflict in the evidence upon a question of fact requires submission to the jury.
Waldrop v. Crittenden Co., 107 Miss. 595, 65 So. 644; C. G.R. Co. v. Cox, 160 So. 277, 172 Miss. 514; Fore v. I.C.R.R. Co., 160 So. 93, 172 Miss. 451; Keith v. Y. M.V.R.R. Co., 151 So. 916, 168 Miss. 519; Columbia Mut. Life Ins. Co. v. Gunn, 163 So. 454.
Appellants contend that the court erred in admitting the will of Alice Maude Peel, the mother of Mrs. Crawford, in evidence. We do not think so. It was the only way to complete the entire proof of what property Mrs. Crawford owned or thought she owned, and to show that she did not understand her property rights, as a circumstance to show lack of capacity to understand her property rights, and was perfectly permissible.
Y. M.V.R.R. Co. v. Messina, 109 Miss. 143, 67 So. 963; A. V.R.R. Co. v. McGee, 117 Miss. 370, 78 So. 296.
We reject in toto and firmly the hypothesis assumed by appellants that any confusion resulted. We insist and maintain, however, that if any juror became confused that still the evidence was and is competent on the issue of testamentary capacity, and was properly admitted for the reason and purpose set out above.
Fed. Land Bank v. Newsom, 161 So. 864, 166 So. 345.
It has been repeatedly said in effect that any fact which is more consistent with insanity than with sanity may be proved, though it does not tend itself to show either, if it may do so in connection with other testimony.
Johnson v. Armstrong, 97 Ala. 731; Dennison's Appeal, 29 Conn. 399; Robinson v. Adams, 62 Me. 369; Hoopee's Estate, 174 Pa. St. 373.
The court will recall that Mrs. Crawford in her purported will attempted to make some testamentary disposition in the entire homestead to appellee, Marion C. Peters, who already owned an undivided one-fourth therein, and in so doing ignored and did not take into consideration that she was devising to her daughter rights her daughter already owned in the property by virtue to this will of Alice Maude Peel, which had been duly admitted to probate. This is a relevant fact, and is competent to introduce the will to show it, as of course had to be done in this case.
Fountain v. Brown, 38 Ala. 72; Goodbar v. Lidikey, 136 Ind. 1; Tunison v. Tunison, 4 Bradf. Sur. 1124; Welch v. Welch, 113 So. 197, 147 Miss. 728; Johnson v. Armstrong, 97 Ala. 731; Tobin v. Jenkins, 29 Ark. 151; Hertrich v. Hertrich, 114 Iowa 643; Davis v. Calvert, 5 Gill J. 269; Woodville v. Pizzati, 81 So. 127, 119 Miss. 442.
The nature of the issue and the necessity for admitting circumstantial evidence results in opening a wide field of inquiry. It may be said, indeed, that the great majority of cases discuss the question of evidence, rather from the standpoint of its weight than of its competency.
Bulger v. Ross, 98 Ala. 267; Taylor v. McClintock, 112 S.W. 405; Pergason v. Etcherson, 91 Ga. 785; Ross v. McQuiston, 45 Iowa 145; Bradshaw v. Butler, 30 Ky. L. 1249; Beaubien v. Cicotte, 12 Mich. 459; Matter of Woodward, 167 N.Y. 28.
A will is admissible in evidence as proof of title.
Tittipo v. Morgan, 99 Ind. 269; Conley v. McElmeel, 149 N.Y. 228.
Argued orally by Lester G. Fant, Jr., and Hindman Doxey, for appellant.
Appellees are the two daughters, and the only surviving children, of Mrs. Mamie Peel Crawford, who died testate on May 29, 1935, the testatrix being then about sixty-five years of age. One of the daughters, named Sidney, had married some years before and resided in Texas. The other daughter, Marion, had also married and for a few years lived in Memphis, but her marriage was a failure and she was divorced, after which she returned to the home of her parents where she continued to reside until some time after her mother's death.
During the time that the daughter Marion was living in Memphis a child was born to her, and in a while this child was brought to the home of her grandmother, where she thereafter resided until the death of the latter, a period of some four or more years. The grandmother became devotedly attached to the child; all the love which she had formerly shown or could have shown towards her own daughters she bestowed upon this little girl, her granddaughter. Every witness testified in affirmance of this dominant fact; and all agreed that the grandmother, on every occasion and under all circumstances, avowed her intention to leave all her property by will to this granchild.
In pursuance of that intention, from which there had never been any deviation, the grandmother, Mrs. Mamie Peel Crawford, on December 18, 1933, made and executed her last will by which she devised and bequeathed to the said granddaughter, Mary Ann Peters, almost the whole of her property, with appropriate provisions for the care and preservation of the estate through executors to be followed by trustees, and for the entire protection of the child throughout the years when she would most need such protection. The aggregate value of the estate so devised and bequeathed was between twenty-five and thirty thousand dollars. Within the time allowed by law, Marion, the mother of the child, together with the sister Sidney, the two daughters of the testatrix, filed a contest of the will on the ground of mental incapacity, and particularly upon averments that the testatrix was, at the time of the execution of the will, so obsessed with an unnatural and unfounded hatred of her said two daughters as to render her of unsound mind so far as her relationship to them was in anywise concerned. Dr. Crawford, the husband of the testatrix, and the father of the contestants, did not join in the contest and was made a defendant. The issue of testamentary capacity was submitted to a jury, a verdict for contestants was returned, and hence this appeal.
The contestants did not attack the general mental capacity of the testatrix, and the evidence of all the witnesses who touched upon that subject is in substantial agreement that the testatrix was deemed of sound mind as regards the general affairs of life as well as in the ordinary management of her business and business concerns. It sufficiently appears, however, that the testatrix was of a moody and suspicious temperament, and that on many occasions, when in a temperamental period, she would resort to language of intense bitterness and sometimes of hatred towards her daughters, and would complain of her neighbors and friends upon charges which had no sufficient foundation in fact; but that, when these periods had subsided, her attitude was one which approached sufficiently near enough to that of a normal and well-disposed person. Throughout it all, however, and whatever her temper happened at any time to be, there always shone out, with an ever-increasing brilliancy, the light of her profound and devoted love and adoration of this grandchild, Mary Ann Peters; and also throughout there prevailed in her an affectionate interest in small children, and particularly for those who were the neighbors and playmates of Mary Ann.
We do not attempt to detail the evidence, deeming the summaries herein stated to be sufficient. We may say, however, that in material respects the evidence is somewhat similar to that outlined in the lengthy opinions in Mullins v. Cottrell, 41 Miss. 291, and Moore v. Parks, 122 Miss. 301, 84 So. 230, in both of which cases this court held the evidence was insufficient to sustain a verdict for contestants on the issue of mental capacity; and we add that, in our opinion, the evidence in the present case is not so strong in favor of affirmance as was the record in the two cases cited.
The monomaniac, or one suffering with an insane delusion, being sane in other respects, and knowing that, if he display his delusion or monomania, he may be in danger of being declared insane, will sometimes, as the books on medical jurisprudence tell us, take cautious pains to conceal his affliction from all other persons; but generally, and therefore with the greater probability, as pointed out in the Mullins Case, a person under the abiding influence of an insane delusion on a particular subject or who may properly be termed a monomaniac on that subject will show excitement and will exhibit the symptoms of the delusion or mania whenever the subject is mentioned. But here, as in the Mullins Case, while two or three of the witnesses for the contestants testified that the testatrix would, in her conversations with them, continuously and freely revert to her dislike or hatred of her daughters, several other witnesses testified without contradiction that in her conversations with them, and on numerous occasions, when the subject of her family and of her daughters in particular was mentioned, the conversation by testatrix on that topic would proceed normally and without any exhibition whatever of the alleged delusion or monomania.
It becomes, in consequence, of importance to state that when the testatrix discussed with her banker her intention to make a will with the grandchild the chief beneficiary, and outlined in general the terms which she desired incorporated in the instrument, and which were afterwards incorporated therein by her attorney, her attitude was one of calm reflection and of intelligent perception and apprehension as to the natural objects or persons of her bounty and their relations to her. The reasons given by her for the terms of the will were such as would appeal to the mind of a prudent and cautious person, however much some other particular person or persons might disagree with her. And when later, after the will had been prepared and was read to her by one of the subscribing witnesses, she expressed her entire satisfaction with it, and signed it in an attitude of normal demeanor, so far as any of those present could discern; in which connection it may be interesting to note that the daughter Marion was with her on this occasion, although she did not see the actual signing of the will by the testatrix or by the attesting witnesses. Certain it is then that, since a person afflicted with general insanity may direct and make a valid will when in a lucid period, the testatrix here, accepting all that the witnesses for contestants say of her monomania, could do likewise in a lucid interval.
It is laid down in the authorities that an unfounded prejudice, or antipathy, or even hatred towards a near relative is not itself enough to destroy testamentary capacity. A testator may entertain his animosities, cherish his prejudices, and nurse his wrath against those who would be the heirs at law of his estate, and may be guided by those feelings in the disposition of his property and still have testamentary capacity, unless the sentiments harbored by him amount to an insane delusion or to monomania on the subject. See notes to Dibble v. Currier, Ann. Cas. 1916C, 1. See, also, Burnett v. Smith, 93 Miss. 566, 47 So. 117. The affliction must be such as to be the dominating factor in the testamentary act and at the time thereof, whereas here, not the hatred or dislike of the daughters was the dominant agency, but the great love which she bore to her little granddaughter, the object — and a natural one — around which her whole life had become centered.
Reversed and decree here for appellants.