Opinion
No. 42905.
February 24, 1964.
1. Wills — contest — undue influence — valid testamentary disposition.
Evidence sustained finding that testatrix did not make her will pursuant to undue influence, and that will was valid testamentary disposition.
2. Wills — friends of testatrix, natural donees of her bequests.
People who had been interested in testatrix and indicated their friendship were natural donees of testatrix who made them beneficiaries in her will.
3. Witnesses — privileged communications — physician and patient — waiver of personal representative.
Statute authorizes personal representative of deceased patient to waive privilege, and personal physician of testatrix was properly permitted to testify for will proponents, one of whom was executrix. Sec. 1697, Code 1942.
Headnotes as approved by Ethridge, J.
APPEAL from the Chancery Court of Sunflower County; S.B. THOMAS, Chancellor.
Watkins Eager, Jackson; Taylor Townsend, Drew; Lyon Crosthwait, Indianola; Joseph Pike, Louisville, Kentucky, for appellants.
I. Appellees failed to sustain the burden of proof upon them to show by clear and convincing evidence that Miss Chamberlain's will was not the product of undue influence. Cresswell v. Cresswell, 164 Miss. 871, 144 So. 41; Croft v. Alder, 237 Miss. 713, 115 So.2d 683; Cunningham v. Lockett, 216 Miss. 879, 63 So.2d 401; Hickey v. Anderson, 210 Miss. 445, 49 So.2d 713; Hitt v. Terry, 92 Miss. 671, 46 So. 829; Isom v. Canedy, 128 Miss. 64, 88 So. 485; Jamison v. Jamison, 96 Miss. 288, 51 So. 130; McElveen v. McElveen, 233 Miss. 672, 103 So.2d 439; Nubby v. Scott, 186 Miss. 309, 190 So. 911; Puryear v. Austin, 205 Miss. 590, 39 So.2d 257; Olmstead v. Olmstead, 233 Miss. 621, 103 So.2d 399; Wofford v. Wofford, 244 Miss. 442, 142 So.2d 188; Young v. Martin, 239 Miss. 861, 125 So.2d 734; Dorland's Medical Dictionary, word "phobia".
II. If mistaken in the above and in the alternative, this cause must be reversed for a new trial. Blalock v. Magee, 205 Miss. 209, 38 So.2d 708; Eicholtz v. Grunewald (Mich), 21 N.W.2d 914; Hutchins v. Hutchins, 48 App. D.C. 495; Kelly v. Davis, 37 Miss. 76; McCaw v. Turner, 126 Miss. 260, 88 So. 705; Ricks v. Johnson, 134 Miss. 676, 99 So. 142; Rylee v. Union Planters Bank Trust Co., 122 Miss. 385, 84 So. 247; Scott v. Smith, 85 N.E. 774; Watkins v. Watkins, 142 Miss. 210, 106 So. 753; Vance v. State, 182 Miss. 840, 183 So. 280; Secs. 504, 507, 511, 1697, Code 1942; 1 Page, Wills, Chap. 12, Sec. 12:27.
Jacobs, Griffith Hatcher, Cleveland; Clark, Townsend Davis, Indianola, for appellees.
I. The will of the testatrix was just, natural and reasonable. Blalock v. Magee, 205 Miss. 209, 38 So.2d 708; Fountain v. Reid, 214 Miss. 269, 58 So.2d 666; Hutchins v. Barlow, 221 Miss. 811, 74 So.2d 870; In Re Miller's Estate, 116 P.2d 526; In Re Walther's Estate, 177 Oregon 282, 163 P.2d 285; Wallace v. Harrison, 218 Miss. 153, 65 So.2d 455; Young v. Martin, 239 Miss. 861, 125 So.2d 734; 57 Am. Jur., Undue Influence, Sec. 106 p. 108; 94 C.J.S., Wills, Sec. 62 p. 768.
II. The Court was correct in permitting Dr. C.M. Dorrough, Jr. to testify. Calhoun v. Calhoun, 141 F.2d 729; Eicholtz v. Grunewald (Mich.), 21 N.W.2d 914; Frazer v. Jennison, 42 Mich. 206, 3 N.W. 882; Heaston v. Krieg, 167 Ind. 101, 77 N.E. 805; Hutchins v. Hutchins, 48 App. D.C. 495; McCaw v. Turner, 126 Miss. 260, 88 So. 705; Scott v. Smith (Ind.), 85 N.E. 774; Secs. 520, 1697, Code 1942; Wigmore, Evidence (McNaughton rev. 1961), Sec. 2391 p. 865.
III. Full knowledge, independent advice and free agency overcome presumption of undue influence arising from confidential relationship, if any. Hutchins v. Barlow, supra; Sandifer v. Sandifer, 237 Miss. 464, 115 So.2d 46.
IV. The question of undue influence was a question of fact properly resolved by the jury. Barnett v. Barnett, 155 Miss. 449, 124 So. 498; Croft v. Alder, 237 Miss. 713, 115 So.2d 683; Maguire v. Carmichael, Exr., 240 Miss. 732, 128 So.2d 581; Watkins v. Watkins, 142 Miss. 210, 106 So. 753.
APPELLANTS IN REPLY.
I. Appellants proved by clear strong evidence that Mrs. Norwood and Mrs. McShan exerted undue influence on Miss Chamberlain in the making of her will, totally invalidating the same. Appellees offered no evidence of any probative value to refute this proof of appellants, and no jury issue was made thereasto. Walls v. Walls (Ky.), 99 S.W. 969.
A. The testatrix was unusually subject to undue influence because of her advanced age, weakness, illnesses and pain. Young v. Martin, 239 Miss. 861, 125 So.2d 734.
B. The testatrix was unusually susceptible to undue influence because of mental weakness and mental deficiencies. Halford v. Hines, 223 Miss. 786, 79 So.2d 264; Nubby v. Scott, 186 Miss. 309, 190 So. 911; Puryear v. Austin, 205 Miss. 590, 39 So.2d 257.
C. The testatrix reposed trust and confidence in Mrs. Norwood and Mrs. McShan with the resulting confidential relationship between them. Adcock v. Merchants Manufacturers Bank of Ellisville, 207 Miss. 448, 42 So.2d 427; Bourn v. Bourn, 163 Miss. 71, 140 So. 518; Cresswell v. Cresswell, 164 Miss. 871, 144 So. 41; Cunningham v. Lockett, 216 Miss. 879, 63 So.2d 401; Halford v. Hines, supra; Ham v. Ham, 146 Miss. 161, 110 So. 583; Hickey v. Anderson, 210 Miss. 445, 49 So.2d 713; Olmstead v. Olmstead, 233 Miss. 621, 103 So.2d 399; Puryear v. Austin, supra; Thorn v. Reiser (Iowa), 60 N.W.2d 784; Risk v. Risher, 197 Miss. 155, 19 So.2d 484; Robinson v. Cannon, 220 Miss. 63, 70 So.2d 80; Wofford v. Wofford, 244 Miss. 442, 142 So.2d 188; 2 Pomeroy, Equity Jurisprudence, Sec. 956.
D. Mrs. Norwood and Mrs. McShan, the two beneficiaries against whom complaint is made, dominated and controlled and influenced the testatrix in many kinds of circumstances, and had full opportunity to exert undue influence in the making of her will. In Re Feeley's Estate (Wis.), 33 N.W.2d 139; In Re Roehl's Will (Wis.), 53 N.W.2d 180.
E. Actual overt acts of Mrs. Norwood and Mrs. McShan in attempting from time to time to unduly influence the testatrix to make a will in their favor.
F. There was a discrepancy between Miss Chamberlain's making a last will and testament and the previously often declared intentions not to make one, i.e., to let the law take its course. Croft v. Alder, 237 Miss. 713, 115 So.2d 683; Newman v. Smith (Fla.), 82 So. 236; Whitelaws v. Smith (Va.), 19 S.E. 113.
G. The devises of fifty percent of a large estate to persons not related to the testatrix by blood was unnatural, certainly to the extent that the results of the will indicated undue influence and created the presumption thereof. Blalock v. Magee, 205 Miss. 209, 38 So.2d 708; Croft v. Alder, supra; Fountain v. Reid, 214 Miss. 269, 58 So.2d 666; Ham v. Ham, supra; Hutchins v. Barlow, 221 Miss. 811, 74 So.2d 870; In Re Hampton's Estate (Cal.), 103 P.2d 611; In Re Miller's Estate (Wash.), 116 P.2d 526; In Re Regaldo's Estate (Ariz.), 268 P.2d 973; In Re Walther's Estate (Oregon), 163 P.2d 285; Livermore v. Seward (Mass.), 41 N.E.2d 290; Moore v. Horne (Texas), 136 S.W.2d 638; Wallace v. Harrison, 218 Miss. 153, 65 So.2d 456; Wofford v. Wofford, supra; Young v. Martin, supra; 94 C.J.S., Wills, Sec. 62 p. 768.
H. No jury issue was raised by the mere conclusions or opinions of some witnesses that the testatrix was strong-willed and not easily influenced. Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Croft v. Alder, supra; Ham v. Ham, supra; Harris v. Pounds, 185 Miss. 688, 187 So. 891; In Re Hanson's Estate (Wash.), 14 P.2d 702; In Re Hillman's Estate (Mich.), 185 N.W. 684; In Re Operpeck's Will (Iowa), 120 N.W. 1044; In Re Stephen's Estate (Minn.), 293 N.W. 90; Isom v. Canedy, 126 Miss. 64, 88 So. 485; Meek v. Perry, 36 Miss. 190; 32 C.J.S. 379.
I. No jury issue was made by the fact that testatrix, during the period of the will and thereafter, was represented by counsel, i.e., witness Griffith. Croft v. Alder, supra; Halford v. Hines, supra; In Re Coins' Will, 237 Miss. 322, 114 So.2d 759; Isom v. Candey, supra; Jamison v. Jamison, 96 Miss. 288, 51 So. 130; Young v. Martin, supra.
J. The case of undue influence made by appellants, and unrefuted by appellees, cannot be destroyed on any theory of free will to revoke the same after the making thereof. Hutchins v. Barlow, supra; Wofford v. Wofford, supra.
K. Appellees cite no authority requiring submission of an issue of undue influence to a jury where there was strong proof thereof, as here, and no refutation thereof. Alden v. Lewis, Exr., (Miss.), 160 So.2d 181; Barnett v. Barnett, 155 Miss. 449, 124 So. 498; Croft v. Alder, supra; Fountain v. Reid, supra; Hitt v. Terry, 92 Miss. 671, 46 So. 829; Hutchins v. Barlow, supra; Maguire v. Carmichael, 240 Miss. 732, 128 So.2d 581; Newman v. Smith, supra; Puryear v. Austin, supra; Watkins v. Watkins, 142 Miss. 210, 106 So. 753; Wofford v. Wofford, supra; Young v. Martin, supra.
This is a will contest. Miss Rosye Chamberlain died in October, 1961, at the age of 94 years. There was an original will and two codicils. The appellee is Mrs. Eddie H. Norwood, appointed executrix by the will, and one of its beneficiaries. The appellants are Mrs. Sarah Grant, Mrs. Beatrice Field, Mrs. Rosalie Brehme, and Mrs. Annette Quin. They received nothing under the will. They were the first cousins and sole heirs at law of Miss Chamberlain, except for another first cousin, Louis J. Chamberlain, a beneficiary. After the will was probated and Mrs. Norwood, designated as executrix, was approved and qualified, the four appellants filed a contest, asserting the will and codicils were executed at times when Miss Rosye was mentally incapable, and they were executed through undue influence exercised upon testatrix by Mrs. Norwood and Mrs. Luevenia McShan.
After a lengthy trial, the jury found for the proponents, and the decree of the chancery court adjudicated the will and codicils to be valid in accordance with that verdict. Appellants concede that a jury issue was made on testamentary capacity, and do not assign as error the verdict on that issue. The sole question is whether there was sufficient evidence to support the finding of the jury that the will and codicils were not made through undue influence upon testatrix by Mrs. Norwood and Mrs. McShan, but were the product of testatrix's free and independent intent and will. A subsidiary question, related to the main one, is whether there was a confidential relationship of a fiduciary nature existing between Miss Rosye and Mrs. Norwood and Mrs. McShan.
(Hn 1) After careful consideration of the lengthy evidence in this record, we have concluded that there was ample evidence to support the jury finding that testatrix did not make her will pursuant to such undue influence, and that it was a valid testamentary disposition. The great preponderance of the evidence supported the verdict.
The jury was also warranted in finding that there was no fiduciary relationship between Miss Rosye, and Mrs. Norwood and Mrs. McShan. However, assuming there was, the evidence showed clearly that these ladies exercised no undue influence upon Miss Rosye, but on the contrary, her will and codicils were the product of her own independent mind and purpose. (Hn 2) The beneficiaries, except Louis J. Chamberlain, were not blood relatives of testatrix. They were close personal friends and people who had demonstrated their interest and affection for her. The evidence indicates appellants had no personal relationships with the testatrix, and certainly not any close personal contacts. Under all of the facts Miss Rosye left her property to these people who had been interested in her and had indicated their friendship. A will is unnatural only when it is contrary to what the testatrix, from her own views, feelings, and intentions, would have been expected to make. When it is in accordance with such views, it is not unnatural. Hence whether a will is natural or unnatural is a question to be determined in each case by the facts. In the present instance the beneficiaries of this will were the natural donees of Miss Rosye. 94 C.J.S., Wills, § 62.
(Hn 3) The personal physician of the testatrix testified for the proponents, over the objection of contestants. The trial court correctly overruled the objection. Mississippi Code 1942, Rec., section 1697 provides that communications made to a physician by a patient are privileged, and the former can not be required to disclose the same in any legal proceeding "except at the instance of the patient or in the case of the death of the patient, by his personal representative or legal heirs in case there be no representative." Miss. Laws 1944, ch. 315. The statute expressly authorized the personal representative of the deceased to waive the privilege. 58 Am. Jur., Witnesses, § 439; 97 C.J.S., Witnesses, § 307(b), pp. 852-853.
Affirmed.
Lee, C.J., and McElroy, Rodgers and Patterson, JJ., concur.