86 So. 625 (Miss. 1920), 21229, Scally v. Wardlaw
| Citation | 86 So. 625,123 Miss. 857 |
| Docket Number | 21229 |
| Date | 13 December 1920 |
| Parties | SCALLY ET AL. v. WARDLAW ET AL |
| Court | Mississippi Supreme Court |
Page 625
October, 1920
APPEAL from chancery court of Alcorn county, HON. A. J. MCINTYRE, Chancellor.
[123 Miss. 858] Suit by Mrs. Elizabeth Wardlaw and others against Frank Scally and others, proponents, to contest the validity of the will of Mrs. Catherine Leslie, deceased. Verdict for contestants on an issue devisavit vel non, and from the decree entered thereon, proponents appeal. Reversed and remanded.
Cause reversed and remanded.
[123 Miss. 859]
In the trial of this case the proponents offered in evidence the will in controversy and the complete record of the proceedings probating the will in common form and rested, thus making out a prima-facie cause under the statute that at the time of the execution of the will the testatrix was possessed of testamentary capacity and that she was not unduly influenced to make the will. Hemingway's Code, sec. 1164; Sheehan v. Kearney, 21 So. 41; Dedington v. Mabry, 7 So. 801.
While it is true, as was said in the case of Sheehan v. Kearney, the burden of proof, properly understood, is upon the proponents throughout as to both the issue of testamentary capacity and undue influence but when a prima-facie case has been made under the statute it is incumbent upon the contestants to meet and overcome the prima-facie case by competent proof, or as Prof. Wigmore phrases it, while the burden of proof does not shift, the risk of nonpersuasion does, and it was incumbent upon the contestants to meet this risk of nonpersuasion.
It may be contended by appellees that proof of mental incapacity before the making of the will raises the presumption that such mental incapacity continued to the date of its execution but, it will be noted that not a single one of these witnesses testified to any chronic state of insanity, or permanent mental incapacity; they say that, in their opinion, Mrs. Leslie was not of sound mind at times, part of the time, was a little flighty at times, etc. Granting, for the sake of argument, that the instance detailed by the witnesses, and on which they base their opinions are really of probative value; that the instances recited really are evidences of mental unsoundness, unless it were further shown that such condition as they testified to was permanent, habitual, or chronic, it would not raise a presumption of its continuity, it would raise no presumption that on the day the will was executed Mrs. Leslie was lacking in testamentary capacity. [123 Miss. 860] But these witnesses themselves state that such condition was only temporary. Alexander on Wills, par. 333 (Note 27); In re Murphy's Estate, Ann. Cas. 1912C; Chandler v. Barrett, 99 Am. Dec. 706 (La.); Lum v. Lasch, 93 Miss. 81, 46 So. 550.
It was contended in the lower court by the appellees that the will was unnatural and unreasonable, in that it left her collateral relatives out altogether, and that this was evidence of insanity. That these collateral relatives were the natural objects of her bounty, and that because they were left out, the will on its face is unnatural and unreasonable. These relatives may, or they may not have been the natural objects of Mrs. Leslie's bounty; it depends altogether upon all the facts and circumstances in evidence in the case. It is true that they were her heirs at law, and would have been entitled to her property had she died intestate, but it does not necessarily follow that they were the natural objects of her bounty. Breadheft v. Cleveland, 108 N.E. 5, 110 N.E. 662; Alexander on Wills, par. 355; Lum v. Lasch, 93 Miss. 81; Leach v. Burr, 188 U.S. 501.
We contend in the first place, that the evidence of the contestants was not sufficient to meet the prima-facie case made by the proponents; second that it having been clearly shown that the testatrix possessed testamentary capacity at the time the will was executed and no evidence having been adduced to the contrary, that it is immaterial that the proof shows, which we deny, that before, or after that time, her mind was slightly impaired at times; and third, that the proof for the proponents is absolutely overwhelming that Mrs. Leslie was a woman of sound and disposing mind, memory and understanding. That for any one, or all of said reasons, the court should have granted the peremptory instruction, withdrawing from the jury the question of testamentary capacity.
The second assignment of error was taken to the action of the court in refusing to grant the general peremptory charge, marked requested by the proponents. In view of [123 Miss. 861] the fact that this, assignment of error covers both the questions of withdrawing from the consideration of the jury the issue of testamentary capacity as well as the issue of undue influence, we shall confine our discussion under this assignment solely to the question of undue influence as we have already discussed what we deem error of the court in refusing a peremptory charge on the question of testamentary capacity.
It might not be out of place at this time to review some of the decisions on this subject, and note what the different courts have to say as to what constitutes, and what does not constitute undue influence.
The word undue, when used to qualify influence, has the legal meaning of wrongful; hence undue influence means a wrongful influence. Sears v. Vaughn, 82 N.E. 881 (Ill.); Caughety v. Bridenbaugh, 57 A. 921 (Pa.); Burnett v. Smith, 93 Miss. 566, 47 So. 117-118; 2 Alexander on Wills, at the bottom of page 871; 2 Alexander on Wills, 874; Estes v. Montgomery, 9 So. 311 (Ala.); Estate of Carey, Ann. Cas. 1915B. 956 (Cal.); Trost v. Dinglar, 4 Am. St. Rep. 593 (Pa.); Weber v. Stroeble, 139 S.W. 188 (Mo.); Gavit v. Moulton, 96 N.W. 395-399 (Wis.); Muller v. Johnson, 47 S. O. 484-487 (Ala.); Dowie v. Sutton, 118 Am. St. Rep. 226 (Ill.); Waters v. Waters, 113 Am. St. Rep. 366 (Ill.).
We contend that the evidence introduced by the contestants to meet the prima-facie case made by the proponents on this issue falls far short of showing any undue influence such as the law condemns, and does not measure up to the standard set in the cases above cited.
PRIMA-FACIE CASE MADE FOR PROPONENTS ON ISSUE OF
UNDUE INFLUENCE.
It is true in the trial of the issue devisavit vel non, that the burden of proof, properly understood, is upon the proponents throughout not only as to the question of testamentary capacity but also on the question of undue influence; but when the proponents made out their prima-facie [123 Miss. 862] case, it was incumbent upon the contestants, before they are entitled to prevail on the issue of undue influence, to overcome the case so made by competent proof. Scheehan v. Kearney, 21 So. 45 (middle 2nd. col.); 2 Alexander on Wills, page 895; In re Hess's Will, 31 Am. St. Rep. 666 (Minn.); 2 Alexander on Wills, page 911; See Trost v. Dinglar, 4 Am. St. Rep. 593 (Pa.); 2 Alexander on Wills, pages 873, 920; Goodbar v. Lidikey, 43 Am. St. Rep. 30 (Ind.), 107 Am. St. Rep. 465 (Note Div.) Ann. Cas. 1917D, 717 (Note); Bush v. Lisle, 89 Ky. 393; White v. Starr, 47 N.J.Eq. 244; Caughey v. Bridenaugh, 57 A. 828.
It was contended in the lower court by the contestants that the relationship which was shown to have existed between the testatrix and the Scallys was such a confidential relationship from which the law will presume undue influence, and in fact, they asked for and were granted instructions Nos. 7 and 8, embodying this erroneous conception of the law, which we shall discuss further under another assignment.
The court below and the contestants seemed to have been misled by the expression, "confidential relationship" found in many of the authorities, and gave the expression its ordinary "lay" meaning. According to our conception of the law the terms confidential relationship, and fiduciary relationship, are synonymous. Bouvier defines the word fiduciary, as in trust, in confidence.
Under the law, a fiduciary relationship is such relationship as exists between attorney and client, guardian and ward, trustee and the beneficiary under the trust, as physician and patient, etc. The latest expression of the courts in defining this relationship from which the inference of undue influence may be drawn, is from the supreme court of Illinois in the case of Abbott v. Church, 4 L. R. A. 975, in which it said: "Any relationship, existing between the parties to a transaction wherein one of the parties is in duty bound to use the utmost good faith for the benefit of the other is a confidential, or fiducial relationship."[123 Miss. 863]
No such relationship as above defined, is shown to have existed between the testatrix and the Scallys; the confidence which she reposed in them was simply such confidence as one has in a neighbor who has proved his worth by long and intimate friendship. Goodbar v. Lidikey, 43 Am. St. Rep., beginning at the bottom of page 299; Bancroft v. Otis, 24 Am. St. Rep. 904; Moore v. Spier, 80 Ala. 129.
We contend that the evidence for the contestants was not sufficient to show any undue influence exercised by the Scallys, or any one for them, to procure the making of the will, and for this reason the court erred in refusing to grant the peremptory charge.
The error here complained of is predicated upon the action of the court, in refusing for the proponents, the instruction marked "c" which in effect, tells the jury that argument, persuasion, entreaty, and the like do not constitute undue influence unless it were, so persistent and importunate as to overthrow and overwhelm the will of the testatrix and substitute another's will for her own. While there was no direct evidence to show that any of these methods had been used in trying to influence the testatrix, nor, as we contend, any facts or circumstances from which...
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