Summary
In Kirk, the decedent had a prolonged history of violent and eccentric behavior, and was confined to constant medical care. Kirk, 206 Miss. at 676, 40 So.2d at 549.
Summary of this case from In re Estate of CrutcherOpinion
May 23, 1949.
1. Wills — contest — mental capacity — effect of verdict.
When the evidence on the issue of mental capacity is strongly conflicting but there was substantial evidence, ample to support of the verdict, there will be no reversal on the facts.
2. Wills — contest — want of mental capacity, and undue influence.
When there are three issues in a will contest, want of mental capacity, undue influence, and want of proper execution, a verdict for the contestants when sustained on the issue of want of mental capacity will render the other two issues immaterial on review.
3. Trial — instructions — refusal of instructions not error when covered by other instructions granted.
Where refused instruction is fully covered by other correct instructions granted, there is no reversible error.
Headnotes as approved by Hall, J.
APPEAL from the chancery court of Yazoo County, M.B. MONTGOMERY, Chancellor.
Henry Barbour, and L.J. Wise, for appellants.
The court erred in not granting the peremptory instructions asked on each of the three issues in the devisavit vel non and in refusing to set aside the vedict of the jury to award a new trial or final judgment for proponents.
1. The will was properly executed and admitted to record. Sections 495, 496, 497, 498 and 499, Code 1942; Bigleben v. Henry, 196 Miss. 586, 17 So.2d 602.
2. There was no testimony warranting issues of testamentary capacity to go to jury. Review of contestants' testimony. Review of proponents' testimony. Fortenberry v. Herrington, 196 So. 232; Burnett v. Smith, 93 Miss. 566, 47 So. 117; Ward v. Ward, 33 So.2d 294; Lum v. Lasch, 93 Miss. 81, 46 So. 559; Gholson v. Peters, 180 Miss. 256, 176 So. 605; Scally v. Wardlow, 123 Miss. 857, 86 So. 625.
3. There was no testimony warranting the issue of undue influence to go to the jury. Wilburn v. Williams, 11 So.2d 306.
The court committed reversible error in admitting testimony over objection of proponents.
The court committed reversible error in granting contestants instructions 3, 4, 5, and 8 shown on pages 69, 70, 72 and 74.
The court committed reversible error in refusing refused instructions 1, 2, 4, 6, and 9 on pages 58, 59, 61, 63, 65 and 66 and in refusing refused instructions 3, 5, and 7, peremptory instruction shown on pages 60, 62, and 64.
The verdict of the jury was not their fair and honest judgment but was brought about by bias and prejudice.
We call attention to the fact that the case of Scally v. Wardlaw, supra, which was the last case reviewed and Gholson v. Peters, supra, held that even a person afflicted with general insanity may make a valid will during lucid intervals, therefore, the few detached incidents related by the witnesses for the contestants, all of which are traceable to the testator's ill health on account of his violent kidney trouble, must give way to the overwhelming and uncontradicted proof of the state of mind of the testator at the very time that the Will was executed. The testimony of Perrin Kirk, though hostile, shows that for weeks Mrs. Melton had been nursing his uncle at his house and that the uncle showed business ability and a clear undertanding of his business affairs and of his property through the whole month of January, 1946, and up to the time he left his house on March 12, 1946, as well as in December, 1945.
His testimony and that of Mrs. Melton shows that the testator gave Mrs. Melton a check for the amount that was due and insisted on being carried to George Kirk's house. Mrs. Melton carried him there on March 12, 1946, and swore that although she saw him after that date and prior thereto he was never insane in his life. The witness Holmes testified that he was sane the very day the Will was executed as we have shown by the review of his testimony on page 15. The witness L.J. Wise testified that he was sane when he signed the Will and that he understood the contents. This latter is further substantiated by the fact that the testator told Mr. Holmes that he had made the Bank executor.
One of the subscribing witnesses who did not testify signed the usual form of oath that Kirk was of sound and disposing mind and memory and that he executed the Will in the presence of the witnesses and that at his instance signed as witnesses thereto.
The other subscribing witness, G.W. Lewis, testified that the old man appeared to be in wretched health but he declined to say that there was anything wrong with his mentality and that the testator signed by touching the pen in the presence of him and the other witness and that they signed at the request of the attorney as witnesses thereto. It is in evidence that on that very day the testator was carried to Perrin Kirk's house to get some of his belongings. Nobody in Perrin Kirk's household observed anything abnormal about him that day and it is in evidence that the witness, Gayden, saw the testator on March 15, 16, and 17 and this witness swore that his mind was "clear as crystal" during all of that time, being the day before the Will was executed, and the day of the Will and the day thereafter. The witness John Carley testified to the same effect beginning with March 14, 1946 and continuing throughout the life of the testator. The witnesses Joyner, Wilkinson, Thompkins, Land and Royalty all swore to the same effect, their testimony having covered the period after March 12, 1946 to the date of his death.
No witness for the contestants testified to anything indicating a lack of testamentary capacity for undue influence during this whole period.
Under those authorities, therefore, there is nothing in the testimony of any of the contestants' witnesses sufficient to raise an issue about the testamentary capacity of the testator on March 16, 1946, even if the testator had been insane prior to that time. And against this reasoning there was not even a scintilla of evidence to be submitted to the jury.
We respectfully submit, therefore, that the proponents have met every burden imposed upon them and that the trial court committed reversible error and further that under the cases cited the trial judge should have granted the peremptory instruction on each of the three issues set forth in the devisavit vel non and that the contestants were not entitled to a submission of the case to the jury.
Bridgforth Love, for appellees.
A. On each phase of the issue devisavit vel non the evidence presented a question for the jury, and the court did not err in refusing proponents a peremptory instruction. Rena v. Wells, 175 Miss. 458, 167 So. 620 (1936); Fortenberry v. Herrington, 188 Miss. 735, 196 So. 232 (1940).
B. The court did not err in refusing to grant the motion for a new trial on the ground that the verdict of the jury was against the overwhelming weight of the evidence. Cox, et al, v. Tucker, et al, 133 Miss. 378, 97 So. 721 (1923).
1. As to the issue of testamentary capacity: Fortenberry v. Herrington, 188 Miss. 735, 196 So. 232 (1940); Lum v. Lasch, 93 Miss. 81, 46 So. 559 (1908); Gholson v. Peters, 180 Miss. 256, 176 So. 605 (1937); Ward v. Ward, 33 So.2d (Miss.) 294, (1948); Scally v. Wardlow, 123 Miss. 857, 86 So. 625 (1920).
2. As to the issue of due execution of the will: 28 R.C.L., Sec. 60, page 108, as quoted in Baker v. Baker's Estate, 199 Miss. 388, 24 So.2d 841 (1946); Watson v. Pipes, 32 Miss. 451 (1856); Green v. Pearson, 145 Miss. 23, 110 So. 862 (1927).
3. As to the issue of undue influence: 57 Am. Jur. (Wills, Sec. 403) p. 288; Curry v. Lucas, 181 Miss. 720, 180 So. 397 (1938).
4. If the verdict of the jury, as to any one of the issues, is not opposed by the overwhelming weight of the evidence, then the verdict of the jury as to that issue or issues must stand, and the verdict of the jury on any one issue is sufficient to support the decree of the court below. Blalock v. Magee, 38 So.2d 708, 715, (Miss.) (1949).
While appellant's brief, in conformity with the assignment of error, mentions certain alleged error of the chancellor in the admission of evidence and in the granting and refusing of certain instructions (all urged upon the chancellor without avail in the motion for a new trial), it is evident the brief is directed almost entirely toward setting aside the jury's verdict as contrary to the alleged overwhelming weight of the evidence, buttressed by an allegation that the verdict itself shows it was the result of passion and prejudice, since scant attention was given the other matters. Yet the chancellor, who himself heard the witnesses, observed all the incidents of the trial and was present throughout the argument to the jury, overruled the motion for a new trial where the same arguments now presented in the brief were strenuously urged.
In explanation of the jury's verdict against the will on each of the questions submitted in the agreed issue devisavit vel non, it is said at page 11 of appellant's brief, referring to the witness Ward's testimony of corporal punishment inflicted on the testator by the proponent George W. Kirk several weeks before testator died: "In our judgment it was this unimportant testimony argued most skillfully by the contestant which brought about the verdict."
To our judgment this testimony, to the jury's minds, amounted only to a factual incident adding to the mass of proof presented by the contestants to demonstrate testator's mental incapacity. In our judgment the foundation for the ultimate verdict was laid in the jury's minds by the direct conflicts in the testimony of the subscribing witness G.W. Lewis and of Mr. L.J. Wise, the attorney preparing the will, aided by the former's testimony that the testator "didn't look like he was able to attend to anything" at the time the will was allegedly executed.
This, too, seems to have been the judgment of the chancellor when he overruled the motion for a new trial. In his opinion he stated: "Consequently Mr. Lewis in his testimony fails to give legal effect to the signing of the name of Mr. Kirk to the will and fails to give legal effect to the request of Mr. Wise to the subscribing witnesses to sign their names to said instrument." While in the paragraph following it is said: "The next witness introduced was Hon. L.J. Wise, who testified to each and every requirement required by the statute for the lawful execution of the will."
The writers of this brief stand in the same relationship of association with Mr. Wise and regard for him, as did the chancellor, but it is our duty to our clients to present to this court what in our opinion was a moving influence upon the jury — and to urge upon the court the sanctity of the jury's verdict where conflicting evidence in essential matters must have been considered by the jury. The chancellor directly stated in his opinion that proponents added nothing to the prima facie case made out by the introduction of the probate of the alleged will in common form, by introducing the conflicting testimony noted above; and he definitely recognized the testimony of the two witnesses to be conflicting. This, in our jugdment, was to the jury the key note of the whole case — only the two witnesses testifying to what happened when the instrument was signed.
Two direct conflicts in testimony of the two witnesses are, first, in regard to the presence of the proponent George W. Kirk when the instrument was signed, and second, as to what was stated to the subscribing witnesses by Mr. Wise.
Mr. Lewis said he met two Mr. Kirks coming into Mr. Wise's office door as he was leaving, Mr. C.W. Kirk (the testator) and Mr. George Kirk (the proponent), and he said during the signing of the instrument the latter was "right there by him." That fact was a potent factor in the jury's verdict, certainly on undue influence and possibly on competency as well. Mr. Wise emphatically denied that any one was present at the signing other than himself, the testator and the two subscribing witnesses, one of whom was Mr. Lewis and the other, it was shown, could not testify. Mr. Wise said George Kirk (proponent) was not in his office at the time.
Mr. Lewis said the testator said no word to him, and the only thing said to him was, "Mr. Wise said if I was not in a rush he would like to get me to witness a will." When asked if any one told him he should observe Mr. Kirk and pass on his ability to make a will, Mr. Lewis answered: "No. No, sir, no such doing as that never occurred. No one said nothing." When asked if he had been told that one of his duties was to observe Mr. Kirk would he have signed the will under the circumstances he had testified to, he said "he would have talked to him first" and "if any one had mentioned it to me, possibly I would, but it was nothing like that at all." Mr. Wise said: "And he (referring to the testator) touched the pen and these witnesses executed the will, and I told them, like I do in every case where an old man is involved or an old person, if you have any doubt about his ability, this is the last will and testament of Mr. Kirk, you gentlemen can talk to him and find out for yourselves."
Indirectly the whole testimony of the two witnesses is conflicting. As the chancellor noted in his opinion, Mr. Wise testified to a lawful execution of the will; Mr. Lewis testified to a situation showing there was no manifestation of testator's conscious violation by word of mouth, no statement by testator that the instrument was his will, no request to the subscribing witnesses to attest as such, and the only act of the testator manifesting any appreciation of the situation was his touching of the pen, after Mr. Wise signed the will. According to Mr. Lewis, the testator never at any time spoke a word; the proponent was right by his side; he was weak in a "general run down condition" and seemingly unable to attend to business. If the jury believed him, and seemingly the jury did, the execution of the will was to the jury a mere ceremony without legal efficacy; and a strong implication of undue influence was raised in the jury's mind and a framework was there set up for subsequent proof of mental incapacity. The subsequently introduced testimony served but to support the implication of undue influence and to clothe the framework of mental incapacity already built.
B.B. Allen, also for appellees.
This brief was devoted in the main to an elaborate discussion of the facts.
This suit involves the validity of an alleged last will and testament of C.W. Kirk dated March 16, 1946. Upon the trial on the issue of devisavit vel non the jury found against the will and the beneficiaries therein have appealed.
The principal contention of appellants is that the evidence was not sufficient to warrant the submission of the case to the jury or, at least, that the verdict is so contrary to the overwhelming weight of the evidence that the cause should be reversed and remanded for another trial. This contention necessitates a summary of the evidence.
A large number of witnesses testified for both sides of the controversy and the record is too voluminous to quote in extenso. The evidence for the contestants discloses that the testator had no children, and his wife died before execution of the will here in question. In the last few years of his life he had become feeble and in ill health. He suffered a paralytic stroke about 1942 or 1943 from which he partially recovered, but the evidence shows that from that time on until his death in August 1946 his mind gradually deteriorated. In October 1945 he was placed in a hospital at Yazoo City; he tried to jump out of a window and was prevented by attendants from so doing; tall barriers were placed around his bed and he climbed over these and got on the floor underneath his bed, and stated that he preferred a hard bed like that, as it was the kind he slept on at home; he would strip off his clothes and walk the corridors of the hospital totally nude; he refused to use a bathroom or a bed pan to answer the calls of nature, and would use the bed or floor or any place he happened to be; he was so completely insane and ungovernable that the hospital authorities notified his relatives that he would have to be placed in a strait-jacket if they did not remove him from that institution, and they carried him to his home where he was attended by a nephew who had rented the place.
He remained there until March 12, 1946, and during that time he required the constant attendance of nurses; numerous witnesses covered this period in their testimony and said he continually did and said things that were not normal; he would get up and wander about the house, did not want to be dressed, constantly soiled himself and would not use the bathroom; he could not carry on a coherent conversation and frequently failed to recognize people whom he had known for many years; he would express a desire to go home when he was already in the only home he had owned for many years; he was a very religious man and had for many years served faithfully on the board of deacons of his church, but during the months just mentioned he would fly into fits of temper and without provocation violently curse those who were trying to help him.
On March 12, 1946, the nurse who had been attending him night and day for several weeks desired a rest, and by agreement among his relatives the testator was on that day removed to the home of another nephew, George W. Kirk, Sr. On the following Saturday, March 16, he was carried to Yazoo City where a will was prepared and signed by the testator, by mark, under the terms of which his entire estate was left to the said George W. Kirk, Sr., and his wife. On this week-end the testator was carried to the home of his sister, Mrs. Cheatham, near Bentonia and on the following day, March 17, he became so violent that it became necessary to call a physician to quiet him. A son in law of Mrs. Cheatham was offered as a witness by the proponents and testified on direct examination that Mr. Kirk's mind was perfectly normal and he was competent to transact any kind of business, but upon cross-examination he admitted that the old gentleman was "just raising hell, — whooping and hollering and going on" and that nothing would satisfy him, the water didn't taste right, his pillow wasn't right, etc., and this witness went to Bentonia and telephoned George Kirk, Sr., to come and get his uncle, which he did. It was the opinion of many of the witnesses for the contestants that Mr. Kirk was never mentally competent after he went to the hospital in 1945.
There were two subscribing witnesses to the will. One of these was desperately ill at the time of the trial and was unable to testify. The other testified that he had known Mr. Kirk for about 50 years and that on the day when he was called in to attest the will Mr. Kirk was in a general run-down condition, did not enter into any conversation, did not speak to this witness and apparently did not recognize him; that the witness did not talk with the testator or ask him any questions, and, therefore, he would express no opinion as to his mental capacity. He also said that no request was made of him to satisfy himself as to the testator's capacity, and that one of the beneficiaries, George Kirk, Sr., was present at the time. Another person present at the time of execution of the will, but who did not attest the same, testified that the testator was of sound mind, that he called on all present to satisfy themselves as to the testator's mental capacity, and that George Kirk, Sr., was not present. Thus it is seen that there was a sharp conflict in the testimony of the two who were present when the will was executed.
The evidence for the contestants further shows that Mr. Kirk did not improve after the date of the will but that his condition gradually became worse until he died in August 1946.
The evidence for proponents of the will was to the effect that Mr. Kirk was mentally sound up until near his death except when he would have violent attacks such as above mentioned and after a careful review of the entire record we are of the opinion that there was sufficient evidence to justify submission of the case to the jury on the issue of mental capacity, and that the verdict is not contrary to the overwhelming weight of the evidence, and should not be disturbed.
(Hn 1) In the case of Cox v. Tucker, 133 Miss. 378, 97 So. 721, which involved the contest of a will upon the issue of mental capacity, and other grounds, the evidence was conflicting, as in the case at bar, and this Court said: "Clearly this was not a case for a peremptory instruction for appellants, because there was evidence for as well as against the validity of the will.
"The only question presented is whether or not the verdict of the jury was against the overwhelming weight of the evidence. If it was, appellants should be granted a new trial. In a case where the evidence is conflicting and the verdict depends upon 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. Wood v. Gibbs, 35 Miss. 559; Garland v. Stewart, 31 Miss. 314; Mobile O.R. Co. v. Bennett, 127 Miss. 413, 90 So. 113. . . . The evidence in favor of the alleged will is very strong, while the evidence against its validity has many elements of weakness. But the latter cannot be said to be unbelievable. This court under the law has no authority to set its judgment up against that of the jury except for the purpose of determining whether there was sufficient evidence to support the verdict. It is the duty of this court where the verdict of the jury is against the overwhelming weight of the evidence to grant a new trial. However, we cannot say with perfect confidence that this is that kind of a case. We are therefore constrained to permit the verdict of the jury to stand."
(Hn 2) There was also submitted to the jury the question whether the will was properly executed and whether it was obtained by undue influence, and the jury found against the will on both of these issues. It is unnecessary for us to review the propriety of submitting those issues to the jury for the reason that the verdict for contestants on the issue of mental capacity is sufficient to uphold the decree of the trial court. Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 35 L.R.A. 102; Blalock v. Magee, Miss., 38 So.2d 708, not yet reported in the State Reports.
Appellants assign error with reference to some of the rulings of the trial court pertaining to the admission of evidence, but we are of the opinion that if there was any error respecting such rulings the same was not prejudcial to the extent of requiring a reversal. The record as a whole shows that the Chancellor was liberal yet fair to both sides in the exercise of his control over the reception of evidence.
(Hn 3) It is also contended that error was committed in the granting of four instructions to the contestants and in the refusal of five instructions for the proponents. We find that the appellants obtained fifteen instructions which covered every conceivable principle of law involved in the case, and the applicable principles in those which were refused were fully covered in other instructions which were granted to appellants. As to the four instructions granted to appellees which appellants contend were erroneous, these dealt primarily with the issues of legal execution of the will and undue influence, and were largely neutralized by instructions granted to appellants. Furthermore we find no error in the principles therein announced, and it is unnecessary for us to enter upon a discussion of these instructions since our affirmance is based upon the issue of mental capacity.
Affirmed.
Montgomery, J., took no part in the consideration or decision of this case.