Summary
In Alexander's Estate v. Hatcher, 193 Miss. 369, 9 So.2d 791, 792 (1942), a hand printed holographic will was challenged. It was printed with a lead pencil.
Summary of this case from Matter of Estate of HandOpinion
No. 35050.
October 5, 1942.
1. WILLS.
Where an instrument was printed throughout with pencil including signature of alleged testator, although alleged testator could write within the ordinary meaning of that term, and instrument was not attested by any witnesses, the alleged execution occurring only in presence of sole beneficiary and his son-in-law, it was question for jury whether the instrument was printed and signed by the hand of the alleged testator.
2. WILLS.
Where the question as to whether an instrument has been signed by the alleged testator is in issue and is submitted to the jury, proof tending to show the unnaturalness of the will is admissible, even though testamentary capacity and undue influence are not in issue.
APPEAL from the chancery court of Newton county, HON. A.B. AMIS, SR., Chancellor.
H.R. Stone, Sr., of Decatur, for appellant.
Every person 21 years of age or over, being of sound and disposing mind, shall have the power, by last will and testament, to devise all the property that he may die seized and possessed of.
Mississippi Code of 1930, Sec. 3550.
One may execute a will from any motive satisfactory to him, if he has mental ability therefor, whether it be love, affection, gratitude, partiality, prejudice or even a whim or a caprice.
Moore v. Parks, 122 Miss. 301, 84 So. 230; Gholson et al. v. Peters, 180 Miss. 256, 176 So. 605.
The naturalness or unnaturalness, reasonableness or unreasonableness of the terms of a will does not constitute a jury question, unless the mental condition of the testator is involved.
Moore v. Parks, supra; Gholson et al. v. Peters, supra.
Where one charges another with the commission of a fraud as a ground of equity relief, he must definitely charge the acts constituting fraud, and then he must clearly and convincingly prove the acts of fraud charged with a high degree of proof, before relief will be granted him.
Griffith's Mississippi Chancery Practice, Secs. 176, 589. Graham Graham, of Meridian, for appellee.
The jury heard the witnesses Judge Pool absolutely repudiate all knowledge justifying him in making the affidavit on which the will was probated and they also heard the testimony of K.C. Williams, son-in-law of the alleged legatee, with the opportunity of noting his demeanor and conduct on the witness stand, who when he was pressed on cross examination about matters he was bound to know the truth about sought refuge by disclaiming any such knowledge. All this, coupled with the fact that Judge Pool never saw I.B. Alexander before or after this date, never saw him write this will, and the fact that the man who was said to be I.B. Alexander never came after the will, but only the parties who were interested in getting the will came after it, the jury was bound to conclude that so little interest was manifested in this particular will by I.B. Alexander that it could not be his will and that he never had any knowledge of it before his death.
The appearance of the will itself, in the original, is the strongest evidence of fraud in its procurement, and, as the undisputed proof was that the deceased wrote a plain hand and never had been seen to print anything and the printing of his name as well as the body of the will under the facts and circumstances in this case, spoke fraud to all the senses. The law presumes that I.B. Alexander died intestate as was held by this court in Smith v. Stanley, 159 Miss. 720, 132 So. 452, 4 Ency. of Evidence 578, Sec. C; Lion v. Kien, 36 Illinois 362; Baxter v. Bradbury, 20 Maine 260, 37 Am. Dec. 49; Miss. Code of 1930, Sec. 1410, so that after the effect of the probation was destroyed there was no presumption in favor of the proponent, but this clear legal presumption existed in favor of the contestants.
The cases cited by counsel have no earthly application, because no one disagrees with the law announced in the cases of Moore v. Parks or Goldson et al. v. Peters, supra, cited by counsel in their brief. The trouble with counsel is the fact that his prima facie case made out by the introduction of the records disappeared of its own weight when it was developed by the sworn testimony before the court and jury that the very facts contained in the two affiadvits on which probation was had were utterly untrue. If the true facts had been presented in the beginning to the chancellor there never would have been any probation, and without the decree of probation the proponent had no testimony sufficient to justify a probation either before or after.
We submit that it is unnecessary to cite any law in this case because it is purely a question of fact to be determined by a jury.
There was submitted to a jury the issue of whether or not the purported last will and testament of I.B. Alexander, deceased, was in fact executed by him, there being no issue of undue influence or mental incapacity involved. The instrument was printed throughout with a lead pencil, including the signature of the alleged testator, and was not attested by any subscribing witnesses thereto. It was probated in common form as a holographic will. The proof disclosed that the alleged testator could write within the ordinary meaning of that term, and while under the law "handwriting includes, generally, whatever the person has written with his hand, and not merely his common and usual style of chirography" (Ballentine's Law Dictionary), it was a question for the jury as to whether the instrument here involved was in fact printed and signed by the hand of the said I.B. Alexander in view of the fact that its alleged execution occurred only in the presence of the sole beneficiary and his son-in-law under the unusual circumstances disclosed by the testimony, including the fact that it was printed by hand instead of being written, and that the alleged testator was able to write, and was signed before a justice of the peace who was not sufficiently acquainted with the person who appeared before him for the acknowledgment to be able to identify him except to say that he was "one of the Alexanders." This is true notwithstanding the testimony of the son-in-law who claims to have been present at all times when the instrument was printed and signed and whose testimony is not contradicted by any direct evidence. In finding that the instrument had not in fact been executed by the alleged testator the jury was evidently of the opinion that it was wholly unreasonable that a man should execute a will under such circumstances.
Certain proof offered by the contestants and an instruction based thereon which enabled the jury to consider the alleged unnaturalness of the will is also complained of on appeal and the case of Moore et al. v. Parks et al., 122 Miss. 301, 84 So. 230, is cited in support of the contention that the unnaturalness of a will cannot be considered by the jury except on an issue of testamentary capacity or undue influence. In that case the question of whether the instrument had been in fact signed was not in issue and under the facts and circumstances there involved the court did say that the unnaturalness of the will was only to be considered on the two issues thus involved, but the case is not authority for the contention that such proof is inadmissible where the fact as to whether an instrument has been signed by the alleged testator is in issue, and we see no good reason why proof tending to show the unnaturalness of a will should be held inadmissible where such an issue is submitted to the jury.
Affirmed.