Birchett v. Hundermark

• Decision Date: 18 October 1926
• Docket Number: 25686
• Citation: 145 Miss. 683,110 So. 237
• Court: Mississippi Supreme Court
• Parties: BIRCHETT et al. v. HUNDERMARK. [*]

110 So. 237

145 Miss. 683

BIRCHETT et al. v. HUNDERMARK. ^[*]

No. 25686

Supreme Court of Mississippi

October 18, 1926

Division A

Suggestion of Error Overruled Nov. 29, 1926.

APPEAL from chancery court of Warren county, HON E. N. THOMAS, Chancellor.

Will contest by W. A. Hundermark against T. G. Birchett and others. Decree for contestant, and contestees appeal. Affirmed.

The first six paragraphs of the contract between contestant and the named contestee are as follows:

"Witnesseth:

"First. That it is the intention of W. A. Hundermark to institute appropriate proceedings in the chancery court of Warren county, Miss., to vacate and annul the will of Mrs. Mary E Bruzelias, which has been filed for probate in the chancery court of Warren county.

"Second. That T. G. Birchett will waive any and all claims which he has individually as legatee, beneficiary, devisee, and residuary legatee under the last will and testament of Mrs. Mary E. Bruzelias, deceased, and will immediately after the execution of this contract, sign, execute, and deliver appropriate bills of sale, deeds, and other instruments so as to vest in W. A. Hundermark any and all assets of said estate which is bequeathed and devised in said will to the said T. G. Birchett, subject, however, to his lien and claim for fees as executor and attorney and his attorney hereinafter contained.

"Third. That T. G. Birchett will immediately execute quitclaim deed conveying to W. A. Hundermark the real estate devised in said will to Mrs. Kate Kenney by item 8 in said will, to which he makes no claim, and will further include in said quitclaim deed any and all other real estate owned by Mrs. Mary E. Bruzelias not specifically devised by her, should there be any of which he now has no knowledge.

"Fourth. In the event the will is set aside and held for naught, W. A. Hundermark will pay all of the court costs incurred in the administration of the estate of Mrs. Mary E. Bruzelias and all of the court costs accruing in the proceeding for the contest of said will.

"Fifth. In the event the will is sustained, T. G. Birchett shall receive, as his compensation as executor and as attorney and his attorney for the administration of said estate, the sum of five thousand ($ 5,000) dollars, and no more. It shall be a lien on the assets of the estate, and be allowed in due time by the chancery court.

"Sixth. In the event the will is not sustained W. A. Hundermark agrees to pay to the said T. G. Birchett the sum of five thousand ($ 5,000) dollars, and no more, which will cover his fees as executor and attorney and his attorney, both in the administration of the estate under the will and the administration of the estate as if she had died intestate. In the event the said T. G. Birchett shall employ counsel to represent him as such executor in the administration of said estate, he shall arrange the compensation of said additional counsel at his own expense; said sum of five thousand ($ 5,000) dollars to be a lien on the assets of said estate and to be allowed in due time by said chancery court."

Affirmed.

Hirsh, Dent & Landau, Vollor & Kelly and E. O. Sykes, for appellants.

I. The court erred in refusing the peremptory instruction requested by the proponents at the conclusion of all of the testimony, and in not rendering a decree in their favor. This court has repeatedly announced that the question is, Did the testatrix possess sufficient mental capacity to execute the will on the day of its execution? On this issue of testamentary capacity the acts, statements and conduct of the testatrix both before and after the execution of the will are admissible in evidence, not as to the truthfulness or falsity of these statements, but as primary evidence bearing upon her state of mind; that is to say, whether or not on that particular day she was mentally capable of making a will. The test to be applied in this case is stated in Brook v. Luckett, 4 How. 483 at 459; Gillis v. Smith, 114 Miss. 684-86; Lum v. Leach, 93 Miss. 81; Scally v. Wardlaw, 123 Miss. 877-79. The case of Sharp v. Sanders, So. , a recent case, is very much in point.

There is a striking similarity in the cases of Moore, Wardlaw, Sharp, and Smith, supra; and this case, in that in all of them the wills or deeds of old ladies were involved. Furthermore, in all of the above-cited cases there was a judgment or decree in the lower court in favor of the contestants which was reversed in this court and a decree entered establishing the wills. The same rule adopted by this court is generally adopted in most of the other states. Winn v. Greer, 217 Mo. 420; Sayre v. Princeton University, 192 Mo. 95; Slaughter v. Heath, 127 Ga. 747, 27 L. R. A. (N. S.) 1 and note.

The facts testified to by witnesses for the contestant are not sufficient to sustain an opinion that she was not capable of making a will at the time the will was made. In fact, the conclusion of these witnesses in no wise negatives her testamentary capacity on that particular date.

II. The hypothetical question propounded to the expert witnesses by counsel for the contestant magnifies and exaggerates the testimony as we understand it. This question is erroneous for assuming as proved facts that testatrix abused and villified her best and most intimate friends and that she had an erroneous idea about the treatment she received at their hands. Moore v. Parks, and Sanders v. Sanders, 126 Miss. 622.

This hypothetical question erroneously assumes that these statements of the testatrix were false. They may have been false, but it required some substantive proof of their falsity before they could be embodied in this question.

III. The court erred in allowing the contestants the right to open and close the argument. Sheenon v. Kearney, 82 Miss. 688; Moore v. Parks, supra; Scally v. Wardlaw, supra; Sanders v. Sanders, supra, all expressly decide that in a trial devisavit vel non the issue is single:--will or no will and that the burden of proof rests on the proponents of the will; that it never shifts. True it is that the proponents make out a prima-facie case when they introduce the probate of the will in common form but the burden of proof, properly speaking, never shifts.

Since this is true complainants are always required to first prove their case. From this it follows that they likewise under our practice have the right to open and close the argument.

IV. The court erred in permitting Mrs. E. C. Eaton, a devisee under the will, to testify for the contestants over the objections of the proponents. The case made by the contestants is really founded on the testimony of Mrs. Eaton.

The exact question here presented to the court does not seem to have been decided heretofore, though the language used in Helm v. Sheeks, 116 Miss. 726, would seem to indicate that this testimony is inadmissible. In Cooper v. Bell, 114 Miss. 766, this exact question was presented to the lower court and the chancellor in that case of his own accord held the witness incompetent to testify. In this court, however, the question was not presented and the court declined to pass upon it.

From a careful consideration of the opinion of the court in Whitehead v. Kirk, 104 Miss. 776, we submit that the mouth of the devisee is closed; that he can neither testify to establish or destroy the will, and that the fact that his testimony is against his interest does not make him competent.

V. The court erred in sustaining the objections of the contestant to the testimony of Judge T. G. Birchett, a legatee under the will.

Section 1577, Hemingway's Code (section 1917, Code of 1906) makes a legatee incompetent to testify to establish his claim against the estate. It further makes him incompetent to testify even though he has transferred his claim since the death of the decedent.

In this case the memorandum agreement shows that Judge Birchett made a settlement with this contestant and his lawyers, whereby for a consideration he settled and relinquished his claim as a legatee. It was not transferred or assigned to any one, but was settled. By this settlement it is absolutely wiped out of existence. No one now living has this claim of Judge Birchett's against the estate. Therefore, neither the letter nor the spirit of the statute now renders him incompetent to testify.

Henry, Canizar & Henry and Brunini & Hirsch, for appellee.

I. This will was not executed according to law; hence, the peremptory instructions sought by appellee should have been granted. Brock v. Luckett, 4 How. 459-82; Dunkeson v. Williams, 242 S.W. 653-58; Evans v. Evans, 10 S. & M. 402; Scribner v. Crane, 2 Paige Chancery 147; Helm v. Sheeks, 116 Miss. 726; 40 Cyc. 1108.

II. Of course, appellants take exception to the verdict of the jury, confirmed by the chancellor. That is quite natural. Hardly, do we find a case where there is a conflict on the facts, that the losing party does not feel that he has been done an injustice. Appellee made out a case to go to the jury.

Appellee subscribes to what is said in the cases cited by appellants in their brief on the question of testamentary capacity, and we submit, applying those rules to particular facts in this case, the preponderance of the testimony on this point, as found by the jury, was in favor of appellee. In particular support of our position, see Clingenpeel v. Citizens Trust Co. (Mo.), 240 S.W. 177; 1 Wharton & Stille's Med. Juris. (5th Ed.), 82 40 Cyc. 1013b; Holton v Cochran, 208 Mo. 314, 106 S.W. 1035; Knapp v. Trust Co., 199 Mo. 640, 660, 98 S.W. 70, 76; Laughlin v. K. C. S. Ry. Co., 275 Mo. 459, 205 S.W. 3; Bishop v. Hunt, 24 Mo.App. 373, 376; Brock v. Luckett, 4 How. 459; Dabbs v. Richardson, 137 Miss. 789; Cox v. Tucker, 133 Miss. 378, 97 So. 721; Aetna Ins. Co. et al....