Opinion
No. 35611.
May 22, 1944.
1. WILLS.
Will contestants' offer to prove how testator acquired certain personal property was properly rejected, where such property was acquired more than 20 years prior to the making of the will and was too remote to have any bearing on issue of mental capacity and it was not shown that any of such property was in existence at time of testator's death.
2. WILLS.
Where the source of testator's property does not affect the justice of the will, evidence with reference thereto is inadmissible.
3. WILLS.
Evidence established that the relations between testator and certain nephews and nieces named as beneficiaries in the will were such as stamped the disposition of property to them, to the exclusion of other nephews and nieces and an incompetent brother, as being natural and just, and failed to establish testator's lack of testamentary capacity or that the will was result of undue influence.
4. WILLS.
Trial court's suggestion to will contestants that proffered evidence as to the source of testator's property be developed by questions and answers and that court would rule on the competency of the evidence thus developed, did not constitute an exclusion of the proposed evidence, and contestants could not complain where witnesses were not placed on the stand.
5. WILLS.
Generally, nature and extent of testator's estate may be shown on an issue of capacity and undue influence.
6. WILLS.
In will contest, the contention that contestants were not permitted to show the value and extent of testator's estate was without merit, where evidence was introduced to show testator had been a successful farmer and witness had testified as to value of his estate, although it was not shown that the inventory and appraisement were before the jury.
7. WILLS.
In a will contest, error in refusing to admit in evidence a cruise made of the timber on testator's land was not reversible where there was other evidence introduced as to the value of the estate.
APPEAL from the chancery court of Newton county, HON. R.D. COOPER, Special Chancellor.
W.I. Munn, of Newton, and J. Knox Huff, of Forest, for appellants.
We fail to find anywhere that this court has ever held in a case of this kind where the alleged will is attacked upon the grounds of undue influence and mental incapacity that the contestants cannot show the nature and extent and the value of the estate of the testator, and this court has never held as we can find that the contestants cannot show the source from which the testator acquired his property, on the other hand, on examining the opinions as rendered by this court, this court has recognized the right of the contestants to show the nature and the extent and the value of the estate of the testator, and the source from which he acquired his property.
Meek v. Perry, 36 Miss. 190; Hitt v. Terry, 92 Miss. 671, 46 So. 829; Scally v. Wardlaw, 123 Miss. 857, 86 So. 625; Maxwell v. Lake (Miss.), 88 So. 326; Sanders v. Sanders, 126 Miss. 610, 89 So. 261; Ham v. Ham, 146 Miss. 161, 110 So. 583; Morris v. Morris, 192 Miss. 518, 6 So.2d 311; 1 Page on Wills (2 Ed.), Secs. 693, 762, 766. C.E. Johnson, of Union, and Welch Cooper, of Laurel, for appellee.
Evidence showing how testator acquired the property which he is disposing of by will is admissible in most jurisdictions if the manner in which it was acquired might reasonably affect the disposition thereof which a rational man would make. Where the method by which testator acquired his property could not affect the testamentary disposition which he would naturally make of it, evidence of such method of acquisition is immaterial. Evidence is admissible to show the amount and value of testator's estate.
1 Page on Wills (2 Ed.), Sec. 693, 2 Page on Wills, (Lifetime Edition), Sec. 775.
The manner in which decedent acquired his estate was wholly immaterial upon the issue as to whether the paper in question was or was not valid as his last will and testament.
Ormsby v. Webb, 134 U.S. 47, 33 L.Ed. 805.
Appellants say that the size of the estate should be admitted in evidence. The size of the estate certainly would not throw any light on whether the testator was mentally incompetent or competent. Even if it were admissible, still we insist on the record of this case that the error would be harmless.
Argued orally by J. Knox Huff and W.I. Munn, for appellants.
This is a contest of the will of L.M. Norman, deceased, on the grounds of undue influence and lack of testamentary capacity. The court gave a peremptory instruction for proponents on the issue of undue influence and the jury found for them on the issue of capacity.
There are four proponents — two nephews and two nieces of testator. The contestants are a nephew and a niece and a non compos mentis brother of testator, the latter being the father of the four beneficiaries in the will.
The contestants offered to prove that certain personal property came into the hands of the testator from his mother and father upon the death of his mother in 1916 and of his father in 1919, basing their contention on the rule that evidence to show how testator acquired the property of which he is disposing by will is admissible in most jurisdictions if the manner in which it was acquired might reasonably affect the disposition thereof which a rational man would make, citing Page on Wills, Vol. 1 (2 Ed.), Sec. 693. The contention is of no avail to appellants here for these reasons:
The acquisition by testator of this property, if he so acquired it, was some twenty-three years prior to the making of the will and would be too remote, under circumstances here, to have any bearing upon the issue of capacity. Also, it is not shown, or claimed, that any of this property was in existence at the time of the death of Norman, or that any of it was disposed of by the will. In fact, the property, as detailed into the record by contestants, is by its nature such that during this time it was either consumed or ceased to exist, except perhaps some furniture. Furthermore, contestants are in the inconsistent position of having successfully objected to the introduction by proponents of two deeds executed to testator by his father and mother in 1893 and 1913 to 290 acres of land.
Again, it is said in Section 766, Page on Wills, Vol. 1 (2 Ed.), "If the source of testator's property does not affect the justice of the will evidence with reference thereto is inadmissible." We glean from this record that the relations between the beneficiaries and the testator were such as stamps his disposition of his property as being natural and just. They resided within three hundred yards of him; his nephews had worked with and assisted him in the operation of the farm; the father of the beneficiaries had been an inmate of an asylum for twenty-two years, and was in a hopeless mental condition. To the home of the beneficiaries the testator was carried when he left the hospital. As between the beneficiaries and contestants, the bestowing of his property upon the beneficiaries under the picture here disclosed was the natural act of a normal man.
And lastly, as we construe the record, the court, in his final ruling, made after statements and arguments of counsel on both sides, did not exclude the proposed evidence of contestants. What he finally did do was to suggest to contestants that the testimony be developed by questions to and answers of the witnesses on the stand, and he would rule on the competency of the evidence as thus developed, the record showing that the trial judge said ". . . Bring in your witnesses and I will rule on the testimony as it comes in . . . as it comes up we will rule on it like any other testimony." The witnesses were not placed on the stand.
Appellants next contend for a reversal because they say the court would not permit them to show the value and extent of testator's estate. It is a general rule that the general nature and extent of testator's estate may be shown on an issue of capacity and undue influence. We think that was shown in this case. The proof disclosed that he had farmed all of his life, and had been very successful; that he was a bachelor and lived upon his farm and operated it; proponents, as above stated, offered in evidence two land deeds to testator conveying to him 290 acres of land, to which contestants objected; the inventory and appraisement are in the record but we do not know whether they were before the jury. Perhaps they were not. However, Judge D.M. Anderson, who had been the legal adviser of testator for many years and who prepared and witnessed his will, gave this testimony as to his estate:
"Q. He was a man of large estate, was he not? A. Well, he had a good sized estate I would say.
"Q. What as his counsel, is your opinion of the value of his estate? A. I say twenty-five to thirty thousand dollars.
"Q. Twenty-five to thirty thousand dollars? A. Yes, sir.
"Q. Was he a man of such estate when you first began to advise him? A. Well, I could not say — no he didn't have as much property back thirty years ago as he had when he died.
"Q. Do you mean to say he had been successful in the operation of his business within the period you were first his counsel? A. That is right."
Contestants had a cruise made of the timber on the lands of testator and offered that in evidence, which the court excluded. This was error but in view of the other evidence relating to the estate and the observation hereafter made in this opinion, it is not reversible error.
As to both of the foregoing contentions we will now observe that we have carefully read and considered all of the evidence in this case. The evidence that testator had sufficient testamentary capacity to execute this will at the time he did so is clear, specific and convincing. On the other hand, there is no substantial evidence that he did not possess such capacity at the time of its execution. In our opinion no fair, intelligent jury could have returned any verdict other than upholding the will on that issue. If a contrary verdict had been returned, we would have felt impelled to set it aside on this record. This being true, neither of the foregoing contentions, even if well taken, could have affected the result.
Affirmed.