Opinion
No. 36666.
March 8, 1948.
1. EVIDENCE.
In will contest between minor beneficiary and sisters of deceased, witness' testimony that minor's mother had told witness that mother had in her possession an unsigned paper, and that mother had tried to persuade witness to claim deceased's personalty and then to give it to mother, was not admissible as against interest of mother or to contradict mother as a witness, where mother was not a party, she took nothing under will and had a mere contingent possibility of future undefined benefit, and she did not testify as a witness.
2. APPEAL AND ERROR.
The erroneous admission of evidence required reversal of decree and remand of cause for new trial, where such evidence might have had great weight with the chancellor in reaching his decision.
APPEAL from the Chancery Court of Smith County.
R.C. Russell, of Magee, for appellant.
Parties seeking to set aside a will as forgery have the burden of showing forgery by clear and convincing pleading and evidence.
Didlake et al. v. Ellis, 158 Miss. 816, 131 So. 267.
The testimony of William Henry Gatewood, as to what Mrs. Christine Millsaps told him, was incompetent.
Illinois Cent. R. Co. v. Langdon, 71 Miss. 146, 14 So. 452; Melius, Currier Sherwood v. Houston, 41 Miss. 59; Herron v. Bondurant Todd, 45 Miss. 683; McRae et al. v. Robinson, 145 Miss. 191, 110 So. 504; Life Casualty Co. of Tennessee v. Nix, 172 Miss. 91, 158 So. 797; Northern et al. v. Scruggs, 118 Miss. 353, 79 So. 227; Neblett et al. v. Neblett et al., 70 Miss. 572, 12 So. 598.
The opinion of an expert is competent evidence to go to the jury, on an issue involving the genuineness of a written instrument, although such expert be unacquainted with the handwriting of a writer of an instrument but such evidence is intrinsically weak and ought to be received and weighed by the jury with great caution.
Moye v. Herndon, 30 Miss. 110.
While the Supreme Court is slow to reverse a chancellor on the facts, it is charged with the duty of requiring the proof to measure up to the legal standard and if according to its view of the facts, and the prompting of conscience, the chancellor is manifestly wrong, it becomes the plain duty of that court to set aside the decree of the court below.
Gillis et al. v. Smith et al., 114 Miss. 665, 75 So. 451.
Judgments or decrees may not be based on conjecture.
Smith et al. v. Young, 134 Miss. 738, 99 So. 370; Tyson v. Utterback et al., 154 Miss. 381, 122 So. 496.
McFarland McFarland, of Bay Springs, and R.S. Tullos, of Raleigh, for appellees.
The finding of the chancellor on an issue of fact will not be overturned on appeal unless such finding is against the great preponderance of the evidence.
Whitney National Bank v. Stirling et al., 177 Miss. 325, 170 So. 692, 694.
The testimony of William Henry Gatewood was competent.
McCloskey Bros. v. Hood Milling Co., 119 Miss. 92, 80 So. 492; 20 Am. Jur., Evidence, Sec. 556.
Hearsay evidence, where admitted without objection, may be properly considered and given its natural and logical probative effect.
Citizens Bank of Hattiesburg v. Miller, 194 Miss. 557, 11 So.2d 457.
A judgment or decree will not be reversed for the admission of incompetent evidence, when supported by other and competent evidence.
Union Planters' Bank Trust Co. v. Rylee, 130 Miss. 892, 94 So. 796; Mississippi Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896.
See also Metzger v. Sessions, 198 Miss. 892, 23 So.2d 746, 748.
Admission of objectionable evidence was not reversible error, where the proof without such evidence was sufficient to sustain verdict.
Gunter v. Reeves, 198 Miss. 31, 21 So.2d 468.
C.W. Grimes departed this life February 1, 1946. On February 6, 1946, an instrument of writing dated January 3, 1946, purporting to be his last will and testament, was admitted to probate in common form in Smith County, Mississippi. The sole beneficiary in this supposed will is Robert Hiram Millsaps, about three years of age. Appellees, two sisters and the only heirs-at-law of Grimes, filed this contest of that will, alleging that the signature was a forgery. By agreement, a jury was waived and the chancellor passed upon the law and the facts. He found that the will had been forged. From that decree, the minor beneficiary, through O.O. Weathersby, his guardian ad litem, appeals.
We find only one error in the proceeding, but that error necessistates a reversal and a remand of the cause for a new trial. It consists of the testimony of William Henry Gatewood, a witness for contestants, detailing oral statements made to him by Mrs. Christine Millsaps. He testified, over objection, that on the date C.W. Grimes was buried Mrs. Millsaps stated to him that she then had in her possession an unsigned and worthless paper — "that the paper wasn't signed and wasn't worth anything" — evidently referring to the alleged Grimes will; that she also tried to persuade him to claim to be the owner of the stock and cattle left by Grimes, so that she herself, through an agreement with Gatewood, might get all, or a part, of such personal property, and that he declined to enter into that arrangement.
Obviously, these statements were pure hearsay as evidence to establish the facts implied therein. They could only have been competent as being against the interest of Mrs. Millsaps or to contradict her as a witness. As to the first ground, that of interest, she was not a party to the litigation, and she took nothing whatever under the will. Nor had she been appointed guardian of Robert Hiram Millsaps, the sole beneficiary in the will. It is true she was his Mother, but the mere contingent possibility of some future undefined benefit accruing to her as Mother if the minor became the owner of the property under the will did not vest in her such property right as justified admission of these statements as being against her interest. Nor was she a witness, either so used on behalf of proponents or adversely by contestants. Whether contestants had the right to place her on the stand as an adverse witness is not before us. The nearest approach to establishing a ground for receiving her hearsay statements was this. The alleged will was purportedly witnessed by William Gatewood, a brother of Mrs. Millsaps, and Mrs. Hodge, a sister. They testified it was executed at the home of Mrs. Hodge, which was some thirty miles from the home of Grimes, and that, after execution, the will was delivered to Mrs. Millsaps, who continuously retained possession thereof until it was delivered by William Gatewood and Mrs. Millsaps to the named executor therein after the death of Grimes. Of course, the foregoing oral statements of Mrs. Millsaps, if true, would have contradicted the fact the will had been executed by Grimes. But such verbal statements were not competent for that purpose as here used. Mrs. Millsaps could not, by extra judicum statements to another, establish, or negative, facts, nor did such statements contradict her as a witness.
We cannot say that such statements did not have weight with the chancellor in reaching the conclusion that Grimes' name had been forged to this instrument. His opinion is not in the record. We can readily understand that such statements might have had great weight with him under the circumstances of this case.
Reversed and remanded.