Cowart v. Cowart, 37923

• Decision Date: 16 April 1951
• Docket Number: No. 37923,37923
• Citation: 51 So.2d 775,211 Miss. 459
• Parties: COWART v. COWART.
• Court: Mississippi Supreme Court

Page 775

51 So.2d 775

211 Miss. 459

COWART v. COWART.

No. 37923.

Supreme Court of Mississippi, Division A.

April 16, 1951.

Jesse M. Coleman, Aberdeen, for appellant.

Fred P. Wright, Amory, for appellee.

LEE, Justice.

W. J. Cowart died on April 29, 1948. Thereafter a written instrument dated February 6, 1948, purporting to be his last will and testament, was offered for, and admitted to, probate in common form on May 20, 1948. By the terms thereof, the property was devised and bequeathed to seven of his children. The other two, Willie Cowart and another, were excluded except for the payment of $1 to each. In due course Willie Cowart filed his caveat. His objections were that his father did not have testamentary capacity to make the will and that he was unduly influenced to do so. The issue of devisavit vel non was made up, and, by agreement of the parties, was tried before the chancellor without the intervention of a jury. The court upheld the will, and Willie Cowart appeals.

Mr. Cowart owned a home and farm of substantial acreage, which he had shared with appellant and family for a number of years. In August preceding his death he suffered a partial paralytic stroke. On January 11 following, he was moved to the home of Mrs. Towrey, a daughter, where he subsequently died at the age of 86 years.

The appellant, to sustain the charge of insufficient testamentary capacity, introduced a large number of witnesses. Some of these witnesses could testify only to the condition of Mr. Cowart while he was at his home, inasmuch as they never saw him again after he had been moved to Mrs. Towrey's. Others saw him in both places. There was substantial agreement that, at times, he was better. However, the opinion of most of these witnesses was to the effect that, at no time, was he mentally capable of making a will.

For the proponents, there were also a number of witnesses. The doctor, who attended Mr. Cowart over the whole period from the beginning of the illness in August until death, expressed the opinion that, at times, he had sufficient capacity to make a will, while at others he did not. The testimony of the other witnesses was confined to the period after he had been moved to Mrs. Towrey's and until death. With one accord, they all agreed that he could carry on a satisfactory conversation; that he discussed the scriptures; that he knew what he was doing; and was mentally capable of making a will. One of the subscribing witnesses testified that he spent more than an hour with Mr. Cowart at the time of witnessing the will--he talked with good sense--explained what he was doing--said that he was giving some of his children more than others--some had treated him better. He further testified that Mr. Cowart took the will, placed it on a book, and said that he could sign all right, though his eyesight was not too good. This witness deemed him of sufficient mental capacity to know what he was doing and to make a will. Other witnesses who had made numerous visits concurred that he was mentally able to make a will.

Thus the evidence presented a sharp dispute.

Of course, a person of sound mind may execute a will from such motive as may be satisfactory to him. Gathings v. Howard, 122 Miss. 355, 85 So. 240.

One of the purposes of having witnesses to the execution of a will is to determine the capacity of the testator to make the will. Helm v. Sheeks, 116 Miss. 726, 77 So. 820; Gathings v. Howard, supra. One of the subscribing witnesses offered the...