Barnett v. Barnett

• Citation: 124 So. 498,155 Miss. 449
• Decision Date: 18 November 1929
• Docket Number: 27921
• Court: United States State Supreme Court of Mississippi
• Parties: BARNETT v. BARNETT et al

124 So. 498

155 Miss. 449

BARNETT v. BARNETT et al

No. 27921

Supreme Court of Mississippi

November 18, 1929

Division A

1 WILLS. Evidence in will contest as to testamentary incapacity held insufficient for submission to jury.

Evidence in will contest relative to testamentary incapacity on date of execution of alleged will held insufficient for submission to jury.

2 WILLS. Evidence as to undue influence exerted on testator at time of executing will held insufficient for submission to jury.

Evidence in will contest relative to undue influence alleged to have been exerted on deceased at the time of the execution of alleged will held insufficient to require submission to jury.

3 WILLS. Declarations of testator at time and before and after executing will are competent on testamentary capacity and undue influence.

Declarations of testator, made at the time of, before, and after the execution of the will are competent, both on questions of testamentary capacity and undue influence.

4. WILLS. "Undue influence" is substitution of another's will for will of testator.

"Undue influence" in the matter of executing a will must be the substitution of another's will for the will of the testator.

HON. ALLEN COX, Chancellor.

APPEAL from chancery court of Lee county, HON. ALLEN COX, Chancellor.

Will contest by Lee Barnett and others against Charlie Barnett and others. Judgment for proponents, and contestants appeal. Affirmed.

Affirmed.

Geo. T. and Chas. S. Mitchell, of Tupelo, for appellants.

On the trials of "issues devisavit vel non," the same rule prevails as in the trial of civil suits at law. In other words, as against a request for a peremptory instruction on the part of proponents in such a trial, all the evidence reasonably tending to establish contestants' case must be taken as true and contestants are entitled to the benefit of all inferences that may fairly be drawn from the evidence; and if the evidence is conflicting relative to the material facts involved, the cause should be submitted to the jury.

In re Newhall, 28 A.L.R. 778; 28. R. C. L. 406; In re Carson, 17 A.L.R. 139; In re Carey, 51 L.R.A. (N.S.) 945; In re Shell, 53 L.R.A. 386.

The declarations of the executor who is also the chief beneficiary under the will and the very person charged with the exertion of undue influence, is competent.

Wigmore, Evidence, 2239; 40 Cyc. 1163; Jackson v. Jackson, 32 Ga. 325; Atkins v. Sanger, 1 Pick. 192; Seal v. Chambliss, 35 Ala. 19; Higginbottom v. Higginbottom, 17 So. 516; 38 L.R.A. (N.S.) 741; 28 R. C. L., p. 401, par. 412.

Moral coercion constitutes undue influence.

28 R. C. L. 138; Gilbert v. Gilbert, 22 Ala. 529; Burney v. Towery, 14 So. 685; Stevens v. Leonard, 56 N.E. 27; Whitcomb v. Whitcomb, 91 N.E. 216; Elkinton v. Brick, 44 N.Y. Eq. 154; Sheehan v. Kearney, 82 Miss. 688.

The declarations of an alleged testator, whether made before, after, or at the time of making the alleged will as to his testamentary intentions, are, both on the issue of testamentary capacity, and of undue influence, competent evidence.

Sanders v. Sanders, 126 Miss. 610; 7 A. & E. Enc. Law, p. 73; Jackson v. Niffen, 3 Am. Dec. 397.

Bolton & Monaghan, of Tupelo, for appellees.

Taking the testimony of appellants as absolutely true, and in the strongest light, they only make out a case to show at times, intermittent, the testator might have been somewhat enfeebled by age.

Scally v. Wardlaw, 86 So. 625.

The testator's statements are not primary evidence of undue influence, but hearsay evidence, and not evidence of the truth or falsity of the declarations.

Burnett v. Smith, 93 Miss. 566, 47 So. 117; Moore v. Parks, 122 Miss. 301, 84 So. 231; Gathings v. Howard, 122 Miss. 355, 84 So. 241; Scally v. Wardlaw, 123 Miss. 857, 86 So. 625; Ward v. Ward, 124 Miss. 697, 87 So. 153; Sanders v. Sanders, 126 Miss. 610, 89 So. 261; Estes v. McGehee, 133 Miss. 174, 97 So. 530.

OPINION

McGowen, J.

Lee Barnett and other heirs at law of J. A. Barnett, Sr., filed their bill in the chancery court against Charlie Barnett and Willis Barnett, the son and grandson, respectively, of the said J. A. Barnett, Sr., contesting the will of Barnett, Sr. An issue was made up by the court under the pleadings, and a jury was impaneled to try said issue. Two questions were presented by the issue: First whether or not the deceased, Barnett, Sr., was possessed of testamentary capacity on the date of the execution of the alleged will, March 26, 1927; second, whether or not the deceased, Barnett, Sr., was under the undue influence of Charlie Barnett and Vivian Barnett at the time of the execution of the said alleged will. After the proof for the proponents and the contestants of the will was all in, the court peremptorily instructed the jury to find for the proponents on both issues, and, judgment being entered thereon accordingly in favor of the proponents, the contestants appeal to this court.

One of the proponents, Charlie Barnett, named as executor in the will, petitioned the court to probate the will and presented with his petition the affidavits of the subscribing witnesses thereto, that the testator was of sound mind, of testamentary capacity, and that the will presented was the true last will of the testator, and that they, together with the testator, signed the instrument in the presence of the testator and of each other, and that they saw him sign the will. Thereupon, on the 19th day of May, 1928, the will was admitted to probate in common form. The testator died on May 17, 1928.

The evidence, so far as we deem it necessary to state, shows that J. A. Barnett, Sr., went to the office of Noel Monaghan, an attorney at law, with a list of the names of his children and grandchildren, and asked him to prepare his will, reminding Monaghan that he and the lawyer's father were old friends. Under the terms of the will sixty acres of land north of Coonewah creek, in Lee county, Mississippi, were ordered to be sold by the executor and divided equally between his son Lee Barnett, his daughter Mattie Barnett, his daughter Mug Pettigrew, his daughter Emma Pettigrew, his grandson Curtis Barnett, his grandson Willis Barnett, and his granddaughter Birtie Pettigrew. The balance of the estate he devised and bequeathed to his son Charlie Barnett. The balance of his estate consisted of about one hundred fifty acres of land, a five hundred dollar government bond, and one thousand two hundred dollars on deposit in the bank. It was stated in the will that the testator had already given to two of his sons, T. B. and Jim Barnett, all that he considered proper, and that they were to take nothing under the will. It will be observed that these two sons are not contesting the will. By the terms of the will the proponent, Charlie Barnett, was given a major portion of his father's estate. Monaghan, the lawyer who drafted the will, Dabbs, a banker, and Spencer, a physician, the subscribing witnesses, all testified that the will was executed under circumstances indicating perfect freedom of mind on the part of the testator, and that he was at the time of sound and disposing mind and mentally capacitated to execute a will; that he knew his property, and how he wanted to dispose of the same; that he was a man of strong will and not easily influenced; and that he was seventy-nine years of age, but that, in their judgment, his mental faculties were not impaired.

It appears further that some weeks before this will was executed Barnett, Sr., had executed another will in exactly the same words, with the exception that the lawyer, in drafting the will, had failed to state the county in which the land was located, and after the first will had been executed the lawyer became concerned about it, spoke to the physician, Dr. Spencer, and said he would feel better if the will was re-executed. Whereupon, on the 26th day of March, 1928, the testator reappeared in the lawyer's office and the will was redrafted, with the addition of the words "in Lee county, Mississippi," in precisely the same form as originally executed, and the old will was destroyed by the testator, and the same witnesses who were selected by the testator were present at this second execution of his will, and signed same as subscribing witnesses.

More than a score of witnesses testified to substantially the same facts as we have detailed above. "Squire" Sample, a justice of the peace, testified that the testator came to him some weeks before the execution of his will in the lawyer's office, and wanted the justice of the peace to write his will, and stated somewhat as to the disposition he wanted to make of his property, and said that Charlie and his wife Vivian, had been better to him than any child he had, and he wanted to do a better part by him. The justice of the peace told him he was busy, and requested that he come back at a later date.

For the contestants it is shown that the testator was seventy-nine years of age, and that his health had not been good. Some of the witnesses said that he had been feeble, and that he was forgetful, but there was nothing in their testimony to indicate that the testator was of unsound mind, save his age. He was shown to have gone about the community and visited his neighbors, and, by the contestants' witnesses, to have been a man of strong mind. Counsel for the contestants does not concede that a peremptory instruction should have been given on the question of mental capacity, but he does not argue, and there is...