Summary
In Wallace v. Harrison, 218 Miss. 153, 65 So.2d 456, 460 (1953), where a witness on cross-examination admitted that he had signed a statement contradictory of his testimony at the trial, but explained that he signed such statement through fear of the attorney and another individual to whom it was given, it was held that rebuttal testimony was admissible as to circumstances surrounding the execution of the statement.
Summary of this case from Berry v. Monongahela Connecting Railroad Co.Opinion
No. 38754.
June 8, 1953.
1. Wills — contest — proof of probate in common form — prima facie case — met initial burden of proof.
In will contest proof of probate of will in common form made out a prima facie case of its validity and was all that was required of proponents initially in meeting burden of proof resting on them.
2. Wills — evidence sufficient on issue devisavit vel non.
In contest of will wherein will was attacked on grounds that will was not executed in manner required by statute and lack of mental capacity on part of testatrix at time of its execution, on issue devisavit vel non contestants adduced evidence sufficient to make a jury question on both issues.
3. Wills — mark may be adopted as signature by testator.
In will contest wherein it was contended that will was invalid in that will was not executed in manner required by statute because executed by mark of testatrix and that her name appearing beside the mark was not shown to have been written there at her request, statute does not require the signature to a will to be written out but a mark may be adopted by the testatrix as her signature. Sec. 657, Code 1942.
4. Statutes — wills — signature when sufficient.
Under statute providing that a will must be signed by testator, or by some other person in his presence and by his express direction, any signature or mark by testator, or by another in his presence and at his express direction, as and for his completed signature, and acknowledged and adopted by him as such at the time, in presence of subscribing witnesses, is a sufficient signing. Sec. 657, Code 1942.
5. Trial — statutes — instructions — wills — competency of evidence matter for court not jury.
In will contest, instructions on question of due execution, which required finding "from all of the competent evidence in this case," were erroneous, since competency of evidence offered is to be determined by the court, and it is jury's duty to consider all evidence which court has held to be competent and has admitted.
6. Trial — statutes — instructions — wills — subscribing witnesses — competent rather than credible.
In will contest, instructions in which the jury was told that it was necessary for the will to be attested by two "credible" witnesses, were erroneous, for the statute providing that a will, not wholly written and subscribed by testator, must be attested by two or more "credible" witnesses, requires that the witnesses be "competent" rather than "credible." Sec. 657, Code 1942.
7. Trial — statutes — instructions — subscribing witnesses — competent rather than credible.
In will contest, instructions to the effect that it was necessary for will to be attested by two credible witnesses, improperly, made validity of will depend upon whether witnesses were men of truthful reputation or character, rather than whether they were competent to testify, and were particularly prejudicial in view of fact that jury might well have believed, from vigorous attack made upon subscribing witness in an effort to impeach him, that subscribing witness was not credible or trustworthy, although there was no doubt of his competency. Sec. 657, Code 1942.
8. Wills — trial — jury — when and how unnaturalness or unreasonableness considered in determining validity of will.
The unnaturalness or unreasonableness of a will may, under proper qualifications, be accepted by jury as one of the elements in determining validity of will as having been obtained by undue influence or as having been made without testamentary capacity, but however unreasonable and unnatural or unjust the jury may think it is, they must uphold will if, notwithstanding, they believe testator had testamentary capacity or was not unduly influenced.
9. Trial — wills — jury — instructions — on reasonableness or unreasonableness of will must be qualified.
In will contest, instructions which told jury, on issue of mental capacity, to examine disposing parts of will to ascertain whether they were so extravagant and unnatural in forgetfulness of testatrix' natural heirs as to be attributable to a distorted mind, given without qualifications or limitations, unduly directed attention to the reasonableness or unreasonableness of the will as a deciding factor.
10. Wills — ability of testator to make — how determined.
Ability to make a will does not depend upon whether testator has a distorted mind, but upon whether at the time of the execution thereof he understands and appreciates the nature of his act, the beneficiaries of his bounty, and their relation to him, and is capable of determining how he desires to make disposition of his property.
11. Wills — trial — evidence — instructions — burden of proof.
In will contest, instruction which properly placed burden of proof on the proponents, but added that jury should find for contestants if jury were left uncertain and doubtful whether testatrix was of sound and disposing mind, tends to impose too great a burden on the proponent, and the form of such an instruction is not desirable.
12. Wills — trial — witnesses — claimant under not to testify in rebuttal or otherwise.
In will contest, claimant under will cannot testify in rebuttal or otherwise to establish her claim against estate of deceased testatrix. Sec. 1690, Code 1942.
13. Wills — trial — when witness may not be impeached.
Upon impeachment of a witness by showing that he made statements contrary to his testimony, if the witness admits making the statements, it is not permitted to introduce affirmative proof of that which he has so admitted.
14. Wills — trial — witnesses — evidence — admitted contradictory extrajudicial statement — what rebuttal testimony proper.
Where witness on cross-examination admitted that he signed an extrajudicial statement contradictory of his testimony at the trial but explained that he signed such statement through fear, it was proper to admit testimony as to circumstances surrounding the execution of the statement in rebuttal of the explanation, since such testimony was not given in proof of the admitted fact of the signing of the inconsistent statement.
15. Wills — trial — witnesses — evidence — inconsistent extrajudicial statement — not substantive evidence — matter of impeachment.
Inconsistent extrajudicial statement which witness had signed before trial was not substantive evidence of the facts therein stated, but merely a matter of impeachment of witness' testimony to the contrary.
Headnotes as approved by Lotterhos, J.
APPEAL from the chancery court of Copiah County; J.F. GUYNES, Chancellor.
Arrington Arrington, Hazlehurst, for appellants.
I. The court erred in submitting to the jury for determination the question as to whether the will involved was executed in the manner required by law for the execution of a valid last will and testament, inasmuch as the will involved was duly admitted to probate in common form and contestants introduced no evidence tending to prove directly or by implication that the will was not executed in the manner required by law for the execution of a valid last will and testament. Didlake v. Ellis, 158 Miss. 816, 131 So. 267; Sec. 507, Code 1942; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41; Gathings v. Howard, 122 Miss. 355, 84 So. 240; O'Bannon v. Henrich, 191 Miss. 815, 4 So.2d 208; Hilton v. Johnson, 194 Miss. 671, 12 So.2d 524; Rice v. McMullen, 207 Miss. 706, 43 So.2d 195; Bearden v. Gibson, (Miss.), 60 So.2d 655; Sec. 657, Code 1942; Ellis v. Ellis, 160 Miss. 345, 134 So. 150; King v. King, 161 Miss. 51, 134 So. 827; Bigleben v. Henry, 196 Miss. 586, 17 So.2d 602; Sec. 498, Code 1942; Warren v. Sidney's Estate, et al., 183 Miss. 669, 184 So. 806.
II. The court erred in granting contestants an instruction authorizing the jury without qualification or limitation to consider the reasonableness or unreasonableness of the will to determine testatrix's mental capacity, and in not permitting proponents to introduce Mattie Wallace in rebuttal for the limited purpose of rebutting the testimony of contestants' witnesses who stated that Mattie Wallace never went around the deceased, Emma Morgan. King v. Rowan, 82 Miss. 1, 34 So. 325; Jamison, et al. v. Jamison, et al., 92 Miss. 468, 46 So. 945; Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, 62 So. 432, 51 L.R.A. (N.S.) 187.
III. The court erred in granting instruction No. 4 for the contestants defining preponderance of the evidence. Blalock v. Magee, 205 Miss. 209, 38 So.2d 205.
IV. The court erred in permitting contestants to put Hugh Thompson on the witness stand to testify after both proponents and contestants had rested, over the objections of proponents, for the purpose of impeaching Sam Corley, who had admitted signing the statement used to impeach him. Magness v. State, 106 Miss. 196, 63 So. 352; Newcomb v. State, 37 Miss. 383; Dean v. State, 78 Miss. 360, 29 So. 95; Williams v. State, 73 Miss. 820, 19 So. 826; Garner v. State, 76 Miss. 515, 25 So. 363; Attorney General v. Hitchcock, First Exchequer Rept. 90; State v. Patterson, 24 N.C. 346, 38 Am. Dec. 699; Collins v. Stephenson, 8 Gray (Mass.) 438; McGinnis v. Grant, 42 Conn. 77; 7 Enc. of Evidence, pp. 76-86, inclusive; 1 Wharton's Criminal Evidence, Sec. 485; Greenleaf on Evidence (16th Ed.), Sec. 461e; 2 Wigmore on Evidence, Sec. 959; 30 Enc. Law 1102; 58 Am. Jur., Witnesses, Sec. 780, p. 429.
V. The court erred in refusing proponents their refused instruction No. 2 which informed the jury that the testimony of Hugh Thompson about the contradictory statement made by Sam Corley could only be considered for the purpose of impeaching Sam Corley and could not be considered as evidence of the truth or falsity of the statement. 58 Am. Jur., Witnesses, 421, Sec. 770, 449, Sec. 804; 20 Am. Jur., Evidence, Sec. 458; Borders v. State, 138 Miss. 788, 104 So. 145.
VI. The court erred in overruling proponents' motion for a peremptory instruction on the issue of testamentary capacity and in overruling proponents' motion for a new trial, as the contestants failed to produce sufficient proof to put in issue the testatrix's mental capacity at the time of executing the will in issue. Lum v. Lasch, 93 Miss. 81, 46 So. 559; Scally, et al. v. Wardlaw, et al., 123 Miss. 857, 86 So. 62; Fortenberry v. Herrington, 188 Miss. 735, 196 So. 232; Cowart v. Cowart, 211 Miss. 459, 51 So.2d 775.
W.M. Broome, Crystal Springs, for appellees.
I. There was not sufficient evidence to submit to the jury the issue of whether Emma Morgan was possessed of testamentary capacity to execute the alleged last will and testament. Sec. 657, Code 1942; Gathings v. Howard, 122 Miss. 355, 84 So. 240.
II. Unnatural or unreasonable provisions in a will are not sufficient to show incapacity yet the same may be considered with other evidence. Scally, et al. v. Wardlaw, et al., 123 Miss. 857, 86 So. 625.
III. This was a case for the jury on testamentary capacity. Sheehan, et al. v. Kearney, et al., 82 Miss. 688, 21 So. 41.
IV. On making proof the due execution of the will the proponents make out a prima facie case, and it devolves upon contestants to produce proof to rebut the proof so made; but, when the contestants produce proof which tends to disprove the proponents' case, the burden of proof is then on the proponents to establish the issue involved by a preponderance of the evidence. Isom, et al. v. Canedy, et al., 128 Miss. 64, 88 So. 485.
V. Findings of the chancellor based upon substantial evidence would not be disturbed by the Supreme Court. King, et al. v. Rowan, et al., 82 Miss. 1, 34 So. 325; Cowart v. Cowart, 211 Miss. 459, 51 So.2d 775; Lum, et al. v. Lasch, 93 Miss. 81.
VI. The issue of whether the alleged last will and testament was executed in the manner required by law for the execution of a valid last will and testament was properly submitted to the jury. Sec. 657, Code 1942.
VII. The instructions were proper. Ellis v. Ellis, 160 Miss. 345, 134 So. 150; King v. King, 161 Miss. 51, 134 So. 827; King v. Rowan, 82 Miss. 1, 34 So. 325; Blalock v. Magee, 205 Miss. 189, 38 So.2d 708.
This case involves a will contest. Emma Morgan is alleged to have executed her will on November 6, 1948, leaving all of her property to her niece, Mattie Wallace, and the husband and children of Mattie Wallace, appellants. The will appears to have been executed by Emma Morgan by her mark, and to have been witnessed by Sam Corley and his wife. Emma Morgan died on October 31, 1951, and the alleged will was duly probated in common form. Thereafter, John Harrison and others, heirs of Emma Morgan and appellees herein, filed a contest of the will. On trial by jury in chancery court, there was a decree in favor of the contestants, from which this appeal is taken.
The two grounds of attack on the will which were submitted to the jury were that (1) it was not executed in the manner required by statute and that (2) Emma Morgan lacked testamentary capacity.
At the trial, the proponents, appellants, introduced the record of the original probate, and rested. The contestants, appellees, then offered several witnesses on the issue of mental capacity, who testified to strange and unusual conduct of the testatrix during the last few years of her life. For example, there was testimony that she had insisted that there was no timber on her place, when in fact there was timber there; that she would frequently demand that a fire be made, even in the summer months, stating that she was cold; that often she would not recognize her friends; that she mumbled, and "hollered" at night; that after eating a meal she would claim she had not eaten; and that she would imagine some one had gotten into the house at night. Emma Morgan was in her late seventies, and had been very ill about 1947. Several of these witnesses were of the opinion that she was not mentally capable of making a will, and that her mind was not right. The proponents' witnesses stated that on several occasions when they saw the testatrix she was normal and all right.
On the issue of due and proper execution of the will, the proponents had the benefit of the probate in common form, and of the testimony of Sam Corley, one of the subscribing witnesses, who stated that he and his wife went to Emma Morgan's home on November 6, 1948, that she executed the will by affixing her mark, and that he and his wife then witnessed the will at her request and in her presence. The contestants offered as a witness, Mattie Jackson, who had lived with the testatrix for several years and took care of her. Mattie Jackson stated that Sam Corley and his wife did not come to the house on November 6, 1948. In attempting to impeach the testimony of Sam Corley, the contestants obtained his admission that he had signed a written statement to the effect that he did not know whether Emma Morgan made her mark on the will, that Mattie Wallace brought the document to his house, that Emma Morgan was not there, and that Mattie Wallace requested him and his wife to sign as witnesses.
It is argued by appellants that they were entitled to a directed verdict both on the issue of due execution of the will and the issue of testamentary capacity. In our opinion, neither point is well taken, and, on this record, the issue was for the jury's decision in each instance. (Hn 1) It is true that probate of the alleged will was prima facie evidence of the validity of the will (Sec. 507, Code of 1942), and that proof of the probate was all that was required of proponents initially in meeting the burden of proof resting upon them (see Bearden v. Gibson, Miss., 60 So.2d 655, and cases therein cited). However, (Hn 2) in the case at bar, the contestants adduced evidence sufficient to make a jury question.
It is claimed by the contestants that the will was invalid because it was executed by the mark of the testatrix, which she made, according to appellants' proof, and that her name appearing beside the mark was not shown to have been written there at her request. This contention is not sound. (Hn 3) According to Sec. 657, Code of 1942, a will must be "signed by the testator or testatrix, or by some other person in his or her presence, and by his or her express direction"; but, in Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, the Court held, in considering Sec. 4488, Code of 1892, which contained the same language as quoted above, that the statute does not require the signature to a will to be written out, and that a mark may be adopted as a signature. It was said — (Hn 4) "Any signature or mark signed by the testator, or by another in his presence and at his express direction, to the will, as and for his completed signature, and acknowledged and adopted by him as such at the time, in the presence of the subscribing witnesses, is a sufficient signing within the meaning of Code 1892, Sec. 4488."
(Hn 5) Appellants argue that error was committed when the court below granted to the contestants five instructions to the jury on the question of due execution of the will. Three of the instructions required the jury to believe "from all of the competent evidence in this case . . ." The use of the term "competent evidence" in an instruction in this manner has been condemned by the Court in Ellis v. Ellis, 160 Miss. 345, 134 So. 150, where it was said: "Competency of the evidence offered is determined by the court, and it is the duty of the jury to consider all the evidence which the court has held to be competent and has admitted." But we do not find it necessary to determine whether this error alone would be reversible, as the case must be reversed and remanded for other reasons.
(Hn 6) In three of said instructions the jury was told that it was necessary for the will to be attested by two "creditable" witnesses. Although the statute (Sec. 657, Code of 1942) states that a will, not wholly written and subscribed by the testator, must be attested by "two or more credible witnesses," yet it is well established that what the statute means is that the witnesses must be "competent" rather than "credible." In King v. King, 161 Miss. 51, 134 So. 827, a similar instruction given to a contestant was held to be fatally erroneous, and the rule was discussed at some length. The gist of the holding is shown by this language from the opinion: "This makes the validity of the will depend upon whether the witness or witnesses who signed it as such were men of truthful reputations or men of truthful character, rather than the fact that they were competent to testify in the court." In the case at bar, (Hn 7) these instructions were particularly prejudicial in view of the fact that the subscribing witness, Sam Corley, who testified at the trial, was vigorously attacked, in the effort to impeach him, by use of a statement he had signed which was in conflict with his testimony on the vital issue of whether the testatrix was present at the time and place of signature by the witnesses. The jury might well have believed that Corley, having signed a statement of certain facts and then testifying to the contrary, was not a credible or trustworthy witness, although there is no doubt of his being a competent witness. This case must be reversed because of the giving of these instructions to the contestants.
Exception is also taken to another instruction given at the request of the contestants. It told the jury, on the issue of mental capacity, to examine the disposing parts of the will "to ascertain whether they are so extravagant and unreasonable in forgetfulness of her natural heirs as to be attributed to a distorted mind and hence if you find from the evidence that the alleged will is the product of such a mind . . ." In condemning an instruction of this type, this Court has stated, in King v. Rowan, 82 Miss. 1, 34 So. 325:
(Hn 8) "There doubtless are many cases in which the unnaturalness or unreasonableness of a will may, under proper qualifications, be accepted by the jury as one of the elements in determining the validity of the will as one having been obtained by undue influence, or as having been made without testamentary capacity. (Hn 9) But courts should always, in giving this principle in charge to a jury, be careful to scrupulously guard the principle, so as to inform the jury that the issue which they are to try is whether the testator had testamentary capacity, or whether, though having it, he had been unduly influenced; and not whether, in the opinion of the jury, the will was an unnatural or an unreasonable one. It should be made clear to the jury that, however unreasonable and unnatural or unjust they may think the will is, they must uphold the will if, notwithstanding, they believe the testator had testamentary capacity, and was not unduly influenced."
In the case at bar, the will left the testatrix's property to her niece, who had at one time lived with her, and to the niece's husband and children. The heirs were a brother, a sister, another niece, and a nephew, none of whom lived in the house with the testatrix. In these circumstances, it can hardly be said that there was anything unreasonable or unnatural in the terms of the will. But, aside from that, the instruction did not properly qualify the extent to which the jury might consider the terms of the will, as required under the doctrine of the King case, supra, and it unduly directed attention to the reasonableness or unreasonableness of the will as a deciding factor. As we have observed, the nature of the disposition made by this particular will has little if any bearing on the issue of testamentary capacity, and it certainly should not have been submitted to the jury with the particularity and forceful effect given it by this instruction. It should be commented also that (Hn 10) the ability to make a will does not depend upon whether the testator has "a distorted mind," but upon whether at the time of the execution thereof he understands and appreciates the nature of his act, the beneficiaries of his bounty, and their relation to him, and is capable of determining how he desires to make disposition of his property. See Cowart v. Cowart, 211 Miss. 459, 51 So.2d 775.
Appellants have assigned error on account of another instruction which the trial court gave at the request of the contestants. (Hn 11) This instruction properly placed the burden of proof upon the proponents, but then added that "if upon consideration of all of the evidence in this case, the jury finds that this burden has not been met and that it is left uncertain and doubtful in your minds whether the said Emma Morgan was of sound and disposing mind" then you will find for the contestants. This form of instruction is not desirable, as it tends to impose too great a burden on the proponents, although the Court declined to reverse on account of the instruction in Blalock v. Magee, 205 Miss. 209, 38 So.2d 708. However, as commented in that case, "because of the risk of error to be incurred in trying to properly phrase an instruction containing such words as being `left uncertain and doubtful,' we think it would avoid the hazard of reversal instant thereto, in cases where a too close issue of fact is involved, if a contestant in a will case or defendants in other civil cases should be content for their instructions on the burden of proof to go no further than to advise the jury that the proponent or plaintiff is required to establish the issue by a preponderance of the evidence."
Appellants say the court should have permitted Mattie Wallace to testify in rebuttal of testimony that she was not at Emma Morgan's house on the day the will was executed. (Hn 12) This witness, being a claimant against the estate under the will, could not testify to establish her claim. Sec. 1690, Code of 1942; Helm v. Sheeks, 116 Miss. 726, 77 So. 820.
It is also argued by appellants that it was error to permit the witness Hugh Thompson to be recalled by the contestants in rebuttal after the proponents had rested their case in rebuttal. It is asserted that the testimony of Thompson in proof of an extrajudicial statement made by the witness Sam Corley was incompetent, because Corley admitted the signing of the written statement. The circumstances involved were that on the cross-examination of Sam Corley by the contestants, he had freely admitted that he signed the statement which was contradictory of his testimony at the trial, but he explained that the reason he signed it was that he was afraid of the two men (Hugh Thompson and an attorney) who were present and asked for the statement, and that he did not understand it. (Hn 13) The rule is that upon the impeachment of a witness by showing that he has made statements contrary to his testimony, if the witness admits making the statements, it is not permissible to introduce affirmative proof of that which he has so admitted. 58 Am. Jur., Witnesses, Sec. 780, p. 429; Magness v. State, 106 Miss. 195, 63 So. 352. (Hn 14) However, in the case at bar, when the objection was made to the rebuttal testimony of Thompson, the chancellor admitted the testimony only "to the extent that it may impeach this witness as to whether he knew what he was signing at the time." We think it was proper to permit the witness Thompson to testify as to the circumstances surrounding the execution of the statement in rebuttal of Sam Corley's explanation of why he signed it when, according to him, it was not true. This is not the same thing as proving the signing of the statement, which Corley had freely admitted that he did. Of course, (Hn 15) the statement which Corley had signed was not substantive evidence of the facts therein stated, but was merely a matter of impeachment of Corley's testimony to the contrary. 58 Am. Jur., Witnesses, Sec. 770, p. 421.
For reasons which are set out in this opinion, it is necessary that this case be reversed and sent back for another trial of the issues.
Reversed and remanded.
Roberds, P.J., and Lee, Kyle, and Ethridge, JJ., concur.