Opinion
No. 36609.
January 12, 1948. Suggestion of Error Overruled February 23, 1948.
1. WILLS.
Written agreement by which children accepted gift from father and agreed to abide by father's wishes as to his future plans and to have no claim on other property of father, was not sufficiently certain as to purpose and extent of waiver to preclude children from contesting father's will leaving bulk of estate to his second wife.
2. WILLS.
Undue influence must arise from without and be such as virtually to destroy testator's free agency in order to invalidate will.
3. WILLS.
Evidence was insufficient to take will contest to jury on issue of undue influence.
4. WILLS.
Conflicting evidence, in proceeding by testator's children by first marriage to contest will executed by testator at age of 77 leaving bulk of estate to second wife, was insufficient to take case to jury on issue of lack of testamentary capacity.
APPEAL from the Chancery Court of Jones County.
Welch, Cooper Welch, of Laurel, and L.K. Saul, of Ellisville, for appellant.
There was not sufficient testimony to take the case to the jury either on lack of testamentary capacity or on the grounds of undue influence.
Norman et al v. Norman, 196 Miss. 597, 18 So.2d 130; Fortenberry v. Herrington, 188 Miss. 735, 196 So. 232; Smith v. Young, 134 Miss. 738, 99 So. 370, 35 A.L.R. 69; Gillis v. Smith, 144 Miss. 665, 75 So. 451; Helm v. Sheeks, 116 Miss. 726, 77 So. 820; Gholson v. Peters, 180 Miss. 256, 176 So. 605; Lambert v. Powell, 199 Miss. 397, 24 So.2d 773; Scally v. Wardlaw, 123 Miss. 857, 86 So. 625; Wherry v. Latimer, 103 Miss. 524, 60 So. 563, 642; Burnett v. Smith, 93 Miss. 566, 47 So. 117; Moore v. Parks, 122 Miss. 301, 84 So. 230; Estes v. McGhee, 133 Miss. 174, 97 So. 530; Woodville v. Pizzati, 119 Miss. 442, 81 So. 127; Ward v. Ward, 124 Miss. 697, 87 So. 153; Morris v. Morris et al., 192 Miss. 518, 6 So.2d 311; Lum v. Lasch, 93 Miss. 81, 46 So. 559; Mullins v. Cottrell, 41 Miss. 291; Barnett v. Barnett, 155 Miss. 449, 124 So. 498; Cook v. Norton (Ala.), 1 So.2d 890; Kahalley v. Kahalley (Ala.), 28 So.2d 792; Bollinger v. Arkansas Valley Trust Co., 202 Ark. 525, 151 S.W.2d 675; Boland v. Aycock, 191 Ga. 327, 12 S.E.2d 319; Jurgenson v. Applehans, 336 Ill. 427, 168 N.E. 327, 67 A.L.R. 851; Tidholm v. Tidholm Ill., 74 N.E.2d 514; 28 R.C.L. 145, supplement p. 6097; Page on Wills (Lifetime Ed.), Secs. 131, 132, 135, 138, 147, 148-159, 187, 189, 191; 1 Page on Wills 362, Ch. 10.
The contestants were estopped by reason of their contract with their father to contest the will.
Callicott Norfleet v. Callicott, 90 Miss. 221, 43 So. 616; Re Probate of the Will of Frances Julia Cook, Deceased, Rachel Barber et al. v. Bank of America et al., 244 N.Y. 63, 154 N.E. 823, 55 A.L.R. 806; Re Garcelon, 104 Cal. 570, 38 P. 414, 32 L.R.A. 595, 43 Am. St. Rep. 134; Eissler v. Hoppel, 158 Ind. 82, 62 N.E. 692; Re Estate of Hoover, 155 Kan. 647, 127 P.2d 460; 2 Page on Wills (Lifetime Ed.), Sec. 621; 4 Page on Wills (Lifetime Ed.), p. 957, Sec. 1762; 27 Columbia Law Review 758. Gillespie, Minniece Nettles, of Meridian, and Paul G. Swartzfager, of Laurel, for appellees.
An unnatural disposition of property, standing alone, may not avoid a will, but the results of such unhappy distribution may be tempered and toned down, possibly to avoidance by allowing it to be weighed by the triers of fact, along with other facts tending to show undue influence or testamentary incapacity.
Jamison v. Jamison, 96 Miss. 288, 51 So. 130.
The mere fact of the will being unnatural in its provisions, coupled with other, though slight, evidences of undue influence is sufficient to take the case to the jury.
Scally v. Wardlaw, 123 Miss. 857, 86 So. 625; Norman v. Norman, 196 Miss. 597, 18 So.2d 130; Meier v. Buchter, 197 Mo. 68, 94 S.W. 883, 6 L.R.A. (N.S.) 202.
Where there is even slight evidence of undue influence other than that shown by the will itself, the question of undue influence may be submitted to the jury on that evidence and the reasonableness of the will itself.
Jamison v. Jamsion, supra; Curry v. Lucas, 181 Miss. 720, 180 So. 397; Isom v. Canedy, 128 Miss. 64, 88 So. 485; O'Bannon v. Henrich, 191 Miss. 815, 4 So.2d 208.
There seems to be a division of authority in this country on the question of the validity of a contract of prospective heirs to release their prospective interest in their ancestors' estate, during his lifetime, for a valuable consideration. We think the better reasoned cases are those that hold that the heirs have nothing to release and that such a release is a nullity.
Mow v. Baker (Tex.), 24 S.W.2d 1, 68 A.L.R. 405; Weddington v. Adkins, 245 Ky. 747, 54 S.W.2d 331; Ferenbaugh v. Ferenbaugh, 104 Ohio St. 556, 136 N.E. 213; Theissen v. Moore, 105 Ohio St. 401, 137 N.E. 906; State Bank of Woolstock v. Schutt, 174 Iowa 583, 156 N.W. 762; Kass v. Brown, 68 N.H. 85, 44 A. 86; Headrick v. McDowell, 142 Va. 124, 45 S.E. 104; Pritchard v. Pritchard, 76 W. Va. 91, 85 S.E. 29.
The instrument executed in the case at bar did not amount to a release or a contract not to contest the will of the testator herein. This release was not so plain that parole evidence could not be introduced to show the intent of the agreement.
Patterson v. Carr, 189 Iowa 69, 176 N.W. 265; Binns v. Dazey, 147 Ind. 536, 44 N.E. 654.
Argued orally by W.S. Welch, for appellant, and by Thomas Y. Minniece, for appellees.
This action is a contest of the will of E.J. Ward, Sr., on the grounds (1) of undue influence, and (2) of a lack of testamentary capacity. An issue devisavit vel non was made up and submitted to a jury which rendered its verdict for the contestants, appellees here.
At the threshold of the case, the proponents interposed a written agreement of settlement between E.J. Ward, Sr., and his children who are the contestants. The wife of E.J. Ward, Sr., had died in October 1936. Mr. Ward was at that time approximately seventy-three years of age. It was not long thereafter that he disclosed to the children a growing attachment to appellant. To the considerate protests of his children, he pleaded an overpowering sense of loneliness. The objection of the members of his family, based on grounds which were at least logical and plausible, became a disquieting factor in an emotional state given impetus by the death of his wife. Without detailing here the illustrations of this expanding dilemma, we set forth the relevant portion of a written agreement executed by the children in June 1937.
After making transfer of certain stocks to all of his children estimated to be approximately of the value of $7,000 to each, the agreement above referred to concluded in the following language: "This gift is of my own free will and accord, my children in accepting this agree not to interfere in any way with my plans as to my future. Nor to have any claim on any other stocks, real-estate or personal property that I may have or acquire." It was signed by each transferee beneath the written language: "We the undersigned accept the above and agree to abide by our father's wishes as to his future plans." It was dated June 8, 1937, and acknowledged eleven days later.
As illustrative of the motive for this distribution, the agreement had been preceded by a letter to his fiancee, appellant here, dated June 7, 1937, which is as follows:
"Mrs. Rosalie Collins "Ocean Springs, Miss.
"Dear Mrs. Collins:
"This is to advise that father has proposed a satisfactory settlement which is acceptable to us and that we have no further objection to his marriage. We hold no ill feeling against you and feel that if you consent to marriage it will make father happy, which is our desire, above all else.
"Mrs. R.D. Peterson "Robert Ben Ward "Mrs. Laurie W. Rischer "John M. Ward"
A majority of the Court are unable to agree that the effect of such settlement is to bar subsequent claims against the estate of Mr. Ward. The finding of the chancellor that the agreement is lacking in certainty as to the purpose and extent of the waiver, and is not therefore controlled by Norfleet v. Callicott, 90 Miss. 221, 43 So. 616, is therefore not disturbed.
The proponents requested a peremptory instruction upon the issue of undue influence. We have carefully weighed the meager testimony to establish this issue in the light of the terms of the will itself; of the precedent settlement; of the circumstance that the purpose of the testator was to assure himself of a successful marriage by bringing to it a substantial estate, without which he feared its consummation could not be effected; of the important circumstance that the bulk of his estate was left to his wife to whom he was primarily and solemnly obligated above "all others"; of the testimony upon the issue of mental capacity; and of the requirement that such influence must arise from without and be such as virtually to destroy his free agency. Our conclusion is that the peremptory instruction for the proponents upon this issue ought to have been given. Compare O'Bannon v. Henrich, 191 Miss. 815, 4 So.2d 208, and Burnett v. Smith, 93 Miss. 566, 47 So. 117.
Since the verdict of the jury was a general one and invested with uncertainty as to whether it is referable to either or both issues, there is raised a serious question whether, in view of what has been said, the cause should at all events be remanded. In view of what follows, we do not decide this question.
The issue of a lack of testamentary capacity was made up out of numerous instances set against a background of emotional instability. For some time, the testator had floundered in the seas of desolation after the tides of tragedy had cast him adrift. He was at the time the will was executed approximately seventy-seven years old. In addition to those eccentricities common to those of advancing age, there were shown many instances of conduct which with obsessive force pressed against the flexible bounds of the definition of eccentricity. When assembled apart from other conduct and dissociated from those periods of calm and discretion which all witnesses for the contestants conceded, they could constitute an impressive challenge. However, this testimony fails to establish the fact that at the crucial moment when evidence of testamentary capacity attains its maximum and controlling relevancy, that is, at the time of the will's execution, there was any lack of capacity to appreciate the nature and effect of his act and the natural objects of his bounty. Lum v. Lasch, 93 Miss. 81, 46 So. 559. On the contrary, the only available attesting witness testified to the testator's complete sanity at the time of his careful examination, before signing, of the will as to whose contents and import he made intelligent and solicitous inquiry. Compare Gholson v. Peters, 180 Miss. 256, 176 So. 605. Assuming that there were detached incidents of conduct suggesting aberration, the establishment of intervals of unquestioned lucidity, during one of which the will was executed, so far outweighs the inferences from isolated instances of eccentric deviations as to depreciate such instances below a substantial probative value. In this connection, it is appropriate to note that none of the host of witnesses for the proponents, many of whom had known the testator long and intimately, and none of whom, with possibly one exception, had a personal or financial interest in the issue, were or had ever been aware of any abnormal conduct or emotional upset.
We have not been at pains to delineate these illustrative incidents since neither this case nor those from which controlling principles have evolved are ever duplicated in their factual patterns.
Our conclusion is that the peremptory instruction requested by the proponents on the issue of testamentary capacity ought to have been given.
Reversed and decree here for appellant.