Opinion
No. 39457.
February 7, 1955.
1. Wills — mental incapacity — undue influence — evidence — jury verdict against validity of will.
In will contest, evidence on issues of mental incapacity and undue influence was sufficient to sustain jury verdict against validity of will.
2. Wills — contest — mental incapacity — undue influence — burden of proof.
Burden of proof as to mental incapacity and as to undue influence was upon proponents throughout the case and never shifted to contestants.
Headnotes as approved by Hall, J.
APPEAL from the chancery court of Neshoba County; J.K. GILLIS, Chancellor.
Strong Smith, Louisville; Clayton Lewis, Dees Stribling, Philadelphia, for appellants.
I. The Trial Court was in error in overruling the motion of the appellants for a directed verdict in their favor on the issue of undue influence. Barnett v. Barnett, 155 Miss. 449, 124 So. 498; Burnett v. Smith, 93 Miss. 566, 47 So. 117; Estes v. McGehee, 133 Miss. 174, 97 So. 530; Gillis v. Smith, 114 Miss. 665, 75 So. 451; Hutchins v. Barlow, 221 Miss. 811, 74 So.2d 870; In re Alexander's Will, 221 Miss. 478, 73 So.2d 172; Morris v. Morris, 192 Miss. 518, 6 So.2d 311; O'Bannon v. Henrich, 191 Miss. 815, 4 So.2d 208; Sanders v. Sanders, 126 Miss. 610, 89 So. 261; Ward v. Ward, 203 Miss. 32, 33 So.2d 294; Wherry v. Latimer, 103 Miss. 524, 60 So. 563.
II. The Trial Court erred in overruling the motion of the appellants for a directed verdict in favor of the appellants on the issue of mental capacity. Cowart v. Cowart, 211 Miss. 459, 51 So.2d 775; Ellis v. Ellis, 160 Miss. 345, 134 So. 151; Lum v. Lasch, 93 Miss. 81, 46 So. 559; O'Bannon v. Henrich, supra; Scaly v. Wardlaw, 123 Miss. 857, 86 So. 625; Ward v. Ward, supra.
III. In a will contest, an instruction which properly placed the burden of proof on proponents, but added that jury would find for contestants if it was left uncertain and doubtful whether the testatrix was of sound and disposing mind, was not desirable as imposing too great a burden on the proponents. Blalock v. Magee, 205 Miss. 209, 38 So.2d 708; Wallace v. Harrison, 218 Miss. 153, 65 So.2d 456.
IV. The instruction for the contestants that if you believe from the evidence in this cause that the mental condition of Sim Burnside had been impaired due to age, disease, excessive use of intoxicating liquors, or from any other cause, and that proponents occupied a confidential relationship with Sim Burnside and actively participated in the drafting and executing of said will and kept said will exclusively in their possession until after the death of the said Sim Burnside, then a presumption of undue influence on the part of the proponents arises; and the burden is upon proponents to prove that they had no part in influencing Sim Burnside in the said disposition of his property was error. Brooks v. Brooks, 145 Miss. 845, 111 So. 376; Brown v. Brown, 140 So. 518; Ham v. Ham, 146 Miss. 161, 110 So. 583; Hitt v. Terry, 92 Miss. 671, 46 So. 829.
A.B. Amis, Newton; J.B. Hillman, Philadelphia; Melvin, Melvin Melvin, Laurel, for appellees.
I. Undue influence. Barnett v. Barnett, 155 Miss. 449, 124 So. 498; Burnett v. Smith, 93 Miss. 566, 47 So. 117; Curry v. Lucas, 181 Miss. 720, 180 So. 397; Gillis v. Smith, 114 Miss. 665, 75 So. 451; Hamilton v. Alexander, 221 Miss. 478, 73 So.2d 172; Hill v. Terry, 92 Miss. 671, 46 So. 829; Isom v. Canedy, 128 Miss. 64, 88 So. 485; Morris v. Morris, 192 Miss. 518, 6 So.2d 311; O'Bannon v. Henrich, 191 Miss. 815, 4 So.2d 208; Sanders v. Sanders, 126 Miss. 610, 89 So. 261; Scally v. Wardlaw, 123 Miss. 857, 86 So. 625; Wallace v. Harrison, 218 Miss. 153, 65 So.2d 456; Ward v. Ward, 203 Miss. 32, 33 So.2d 294; Wherry v. Latimer, 103 Miss. 524, 60 So. 563.
II. Mental incapacity. Blalock v. Magee, 205 Miss. 209, 38 So.2d 708; Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 86 L.Ed. 89, 62 S.Ct. 156; Cowart v. Cowart, 211 Miss. 459, 51 So.2d 775; Ellis v. Ellis, 160 Miss. 345, 134 So. 151; Jerke v. Delmont State Bank, 54 S.D. 446, 223 N.W. 585; Lum v. Lasch, 93 Miss. 81, 46 So. 559; McMillan v. Mather, 131 N.J.L. 309, 36 A.2d 408; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 35 L.R.A. 102; 14 Mississippi Law Journal 103-08; 6 Harvard Law Review 125-32; Thayer's Preliminary Treatise on Evidence, pp. 353-89; Vol. IX, Wigmore on Evidence (3rd ed.), Secs. 2487(c), 2489, 2495(b) pp. 280, 285, 305.
III. The contestants need not establish any facts to avoid a directed verdict against them and be entitled to get past the judge to the jury. They need only create some doubt as to the existence of the proponents' essential facts. Fortenberry v. Herrington, 188 Miss. 785, 196 So. 232; Lowrey v. Wilkinson, 222 Miss. 201, 75 So.2d 643; Miller v. Bluemenshine (Ill.), 75 A.L.R. 362; Rena v. Wells, 175 Miss. 458, 167 So. 620; Williams v. Duston, 79 N.H. 490, 111 A. 690.
IV. The questions of testamentary capacity and undue influence are peculiarly for the jury. American Products Co. v. Willwock (Wash.), 132 A.L.R. 1010; Doe Dem Thatham v. Wright, 6 Nev. 132; Franklin Fire Ins. Co. v. Staton (Ala.), 200 So. 564; French v. State (Ala.), 141 So. 713; Knidt v. Reading Co. (Pa.), 162 A.L.R. 1; Woovett v. Pezzeati, 119 Miss. 442, 81 So. 127; 53 Am. Jur., Sec. 186 p. 159; Anno. 3 L.Ed. 156; Vol. II, Wigmore on Evidence (3rd ed.), Secs. 219-35.
V. Contestants take it that the proponents will not here argue that the Court, in passing upon the question of proponents' right to a directed verdict, must not consider the evidence and the inferences to be drawn therefrom in the light most favorable to the contestants. Dufour v. Continental Southern Lines, 219 Miss. 296, 68 So.2d 489; Farish v. Canton Flying Services, 214 Miss. 370, 58 So.2d 915; Masonite Corp. v. Dennis, 175 Miss. 855, 108 So. 613; Stricklin v. Harvey, 181 Miss. 606, 179 So. 345; 53 Am. Jur., Sec. 340 p. 273; 57 Am. Jur., Sec. 927 p. 611.
VI. Proponents in their argument in support of their requested peremptory instructions do not have the benefit of any statutory prima facie case. Halloway v. Halloway, 189 Miss. 723, 198 So. 738; Helms v. Sheeks, 116 Miss. 731, 77 So. 820; Maxwell v. Lake, 127 Miss. 107, 88 So. 326; Quick v. State, 191 Miss. 179, 2 So.2d 818; Smith v. Young, 134 Miss. 738, 99 So. 370, 35 A.L.R. 69; 20 Am. Jur., Secs. 187, 1251 pp. 160, 1102; 53 Am. Jur., Secs. 187, 680 pp. 160, 524.
VII. Instructions. Adams v. Board of Suprs. Union County, 177 Miss. 403, 170 So. 684; Armstrong v. Gaddis, 81 Miss. 35, 32 So. 917; Brooks v. State, 209 Miss. 150, 46 So.2d 94; Chrismond v. Chrismond, 213 Miss. 189, 56 So.2d 482; Clark v. State, 206 Miss. 701, 39 So.2d 783; Cox v. Tucker, 133 Miss. 378, 97 So. 721; Estes v. Memphis C.R.R. Co., 152 Miss. 814, 119 So. 199; Gillman v. McLemore, 100 So. 99; Grace v. Dogan, 151 Miss. 267, 117 So. 596; Hayes v. Slidell Liquor Co., 99 Miss. 583, 55 So. 356; Jessup v. Reynolds, 208 Miss. 50, 43 So.2d 753; Johns-Manville Products Co. v. Cather, 208 Miss. 268, 44 So.2d 405; Kirk v. Kirk, 206 Miss. 668, 40 So.2d 548; Milner Hotels v. Brent, 207 Miss. 892, 43 So.2d 654; Sansing v. Thomas, 211 Miss. 727, 52 So.2d 478; Southern R.R. Co. v. Jackson (Miss.), 49 So. 738; Studdard v. Carter, 120 Miss. 246, 82 So. 70; Teche Lines, Inc. v. Keller, 174 Miss. 527, 165 So. 303; Wallace v. Harrison, supra; Whittington v. H.T. Cottam Co., 158 Miss. 847, 130 So. 745; Willoughby v. State, 154 Miss. 653, 122 So. 757; 3 Am. Jur., Sec. 385 p. 121.
VIII. If the verdict be plainly and clearly right according to law and the justice of the case, this Court will not reverse for an erroneous instruction. Hale v. Hinkle Mercantile Co., 159 Miss. 796, 132 So. 751; Sikes v. Thomas, 192 Miss. 647, 7 So.2d 527; Trolio v. Nichols, 160 Miss. 611, 133 So. 207.
IX. Confidential relationship. Barker v. Barker (N.D.), 27 N.W.2d 576, 171 A.L.R. 447; Beach v. Wilton, 244 Ill. 413, 91 N.E. 492; Floyd v. Green, 288 Ala. 42, 188 So. 867; Ham v. Ham, 146 Miss. 161, 110 So. 583; Hubbard v. Moseley (Ala.), 75 So.2d 658; In re Aldrich Estate (Fla.), 3 So.2d 856; King v. Rowan, 82 Miss. 1, 34 So. 325; Little v. Sugg, 8 So.2d 866; 57 Am. Jur., Secs. 365, 389, 391, 396, 405, 438; 12 C.J. 421; 15 C.J.S. 822; 28 R.C.L. 146; Vol. II, Pomeroy's Equity Jurisprudence (4th ed.), Secs. 955-6.
X. The verdict of the jury was a general verdict and, if sustainable on either ground, there should be no reversal of this cause. Goins v. State, 155 Miss. 662, 124 So. 785; Levy v. McMullen, 169 Miss. 659, 152 So. 899; Mississippi Cent. R.R. Co. v. Aultman, 173 Miss. 622, 160 So. 737; 57 Am. Jur., Sec. 443.
XI. Contestants have introduced sufficient evidence to warrant the Lower Court in submitting the issue of testamentary capacity to the jury. Blackmon v. Edsall, 17 Colo. 429, 68 P. 792.
This suit involves the validity of the alleged last will and testament of Sim Burnside who died December 31, 1952, at the age of eighty-three. The purported will was admitted to probate in common form and shortly thereafter was contested by the appellees on the ground that the testator at the time of the execution of the will on April 8, 1952, did not have sufficient mental capacity to make a valid will, and further on the ground of undue influence leading to the execution of the will. The issue on the contest was made up and submitted to a jury which returned a general verdict against the validity of the will. Judgment was accordingly entered declaring the will to be invalid, and from that judgment the proponents appeal.
(Hn 1) The principal grounds argued are that the proponents were entitled to a peremptory instruction on the issue of mental capacity and that they were also entitled to a peremptory instruction on the issue of undue influence. The record in this case is voluminous and we do not deem it necessary to set forth the evidence at any great length. It does show that the testator had a serious illness in the year 1950 and some of the witnesses for the proponents admit that he was mentally incompetent following that illness. Twenty witnesses for the contestants testified that he never regained his mental capacity but was obsessed by hallucinations continuously from that time until his death. Fourteen witnesses for the proponents testified that he improved after his serious illness in 1950. The witnesses for both sides were to a great extent immediate neighbors of the deceased. We think the evidence strongly preponderates in favor of the mental incapacity of the testator at the time of the execution of the will and at least the question was one for the jury to determine. On the question of undue influence we are of the opinion that it was sufficient to make a jury issue and, as we have already stated, there was a general verdict in this case. The issue was will or no will on two different grounds, and we are unable to find from the record whether the verdict was on one ground or the other or both, but, regardless of this, we think that the evidence was ample to support a verdict on both grounds.
(Hn 2) The only other contention made by the appellants is with reference to some of the instructions granted to the contestants with reference to the burden of proof. Some of the instructions granted to the proponents were couched in similar, and at least in one instance, almost identically the same language. We have repeatedly held that the burden of proof rests on the proponents throughout and never shifts to the contestants. We think that what was said in the early case of Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 35 L.R.A. 102, which was repeated in Blalock v. Magee, 205 Miss. 209, 38 So.2d 708, is particularly applicable here: "The issue is single, — will or no will. And, when we consider that the exercise of undue influence implies some degree of mental capacity to be overcome, and how indissolubly the two things are implicated the one in the other, it seems to us clear that the burden as to both is on the proponent throughout, and there is no shifting of this burden."
The judgment of the lower court is accordingly affirmed.
Affirmed.
Roberds, Lee, Holmes and Ethridge, JJ., concur.