Curry v. Bridges

• Decision Date: 28 January 1959
• Citation: 325 S.W.2d 87,45 Tenn.App. 395
• Parties: Mrs. Mary Josephine Matilda Iffland Smith CURRY et al., Plaintiffs-in-Error, v. Foster BRIDGES et al., Defendants-in-Error. 45 Tenn.App. 395, 325 S.W.2d 87
• Court: Tennessee Court of Appeals

Page 87

325 S.W.2d 87

Mrs. Mary Josephine Matilda Iffland Smith CURRY et al., Plaintiffs-in-Error, v. Foster BRIDGES et al., Defendants-in-Error.

45 Tenn.App. 395, 325 S.W.2d 87

Court of Appeals of Tennessee, Western Section.

Jan. 28, 1959.

Certiorari Denied by Supreme Court June 5, 1959.

[45 TENNAPP 397] Hughie Ragan, George L. Morrison, Jackson, for plaintiffs in error.

William P. Moss, Homer Waldrop, Melvin L. Rowland, Walter J. Key, Jackson, for defendants in error.

AVERY, Presiding Judge (W. S.).

This case comes to this Court from a judgment of the Circuit Court of Madison County, Tennessee, on an issue of devisavit vel non respecting the will of John S. Eppinger, deceased, whose age at the time of his death was approximately 58 years. The will was executed on May 29, 1957, and the testator committed suicide on or about July 16, 1957, the manner of which will be hereinafter referred to. He was a bachelor and left an estate valued at approximately $200,000, consisting of both real and personal property, all of which was left in trust to certain trustees awaiting contingencies set forth in the will for the termination of the trust and the vesting of the residuary estate, the corpus of which will upon the termination of the trust vest in and be turned over to the Trustees of Union [45 TENNAPP 398] University, Inc., an educational institution located in Jackson, Tennessee, for its use and benefit under the direction of its said trustees.

The will was preapred by lawyers of the law firm designated 'Pigford & Key', the three members thereof being W. N. Key, Walter J. Key, and Melvin L. Rowland. The First National Bank of Jackson, Tennessee, W. N. Key, Walter J. Key, and Melvin L. Rowland were designated as joint executors. After the death of the testator and on or about the 23rd day of July, 1957, the executors presented said will to the County Court of Madison County, Tennessee, the Honorable August Wilde, Judge, for probate and it was there probated in common form, the Decree of Probation being set out on page 2 of Volume 1 of the transcript and record in this case, which consists of five volumes, together with many exhibits.

When the will was presented for probate and admitted to probate in common form by said county court, the subscribing witnesses, Mary Ryan and Corinne C. Hudson, both testified relative to the execution of said will as shown by said decree, and the Judge of said county court, following the direction of the will, appointed said First National Bank of Jackson, Tennessee, W. N. Key, Walter J. Key and Melvin L. Rowland as executors. Said will also designated the said bank and said individuals as trustees of said will, and directed the executors to perform the same duties in the administration of said estate in the same way and manner as said trustees were directed to do when the administration of said estate was closed and the trust executed by said trustees. Therefore, the said county court named said bank and said individuals as trustees as well as executors, requiring a [45 TENNAPP 399] bond of $50,000 which was executed, and said executors and trustees properly qualified as provided by law.

On or about the 28th day of August, 1957, following the probate of said will, a contest was instituted by Mrs. Mary Josephine Matilda Iffland Smith Curry, who in her contest petition is said to be----

'a daughter of a sister of John S. Eppinger's grandmother and is the nearest relative on John S. Eppinger's father's side of the family.'

Therefore, she is a cousin in the second degree of the testator.

The petition alleges that the instrument so admitted to probate in common form is not the will of John S. Eppinger, deceased, because testator was----

'of unsound mind at the time said paper was executed and incompetent to make a valid will, and, moreover, was unduly influenced to make the same by the said Foster Bridges, Willie Bridges, Mary Ann Bridges and Mrs. Charles Schmuck and perhaps others named as defendants above, who are legatees and devisees thereunder.'

Among the parties made defendants were all the named devisees and legatees designated in said will, together with the executors and trustees named therein and hereinbefore set out.

Contestant executed a statutory bond as required by law and thereafter, on or about the 28th day of September, 1957, Union University, as the residuary legatee designated in said will, filed a sworn answer, denying the averments in said petition alleging mental incapacity [45 TENNAPP 400] of testator, and undue influence upon him as averred in the petition, and on the 30th day of September, 1957 the executors, as hereinbefore set out, as such, filed their joint sworn answer denying the material allegations of the petition, and Union University executed the statutory bond required by law in said proceeding, whereupon a hearing was had before said County Judge relative to the relationship of the petitioning contestant to the testator, and it was there adjudged that she was related to the testator as the nearest of kin on his father's side of the family, and ordered the clerk of said court to make a transcript of the proceedings in that court, and together with the original will, certify same to the circuit court of Madison County for hearing there as provided by law.

The named Executors then filed their declaration averring that the paper writing so certified constituted the last will and testament of John S. Eppinger. Contestant filed a plea to the declaration that it was not the last will and testament of John S. Eppinger, deceased, and demanded a jury to try the case. Thereafter, Elizabeth L. Elliott, a minor nine years of age, acting by and through her next friend, Mrs. Frances Martin, filed a petition setting forth her relationship to the deceased testator requesting to be and was named a contestant. Her petition showed her to be a cousin of testator in the third degree.

On December 12, 1957, the trial of the case was begun to a jury and the court, Honorable Mark A. Walker, Judge, and after about five days, the evidence having been concluded, the plaintiffs, hereinafter referred to as proponents, moved the court for a directed verdict sustaining the will, upon the grounds that no competent, [45 TENNAPP 401] relevant and sufficient evidence had been introduced whereby the jury could find against the will or in favor of the defendants, who are hereinafter referred to as contestants. Contestants moved the court for a verdict against the will and in their favor. These motions will be referred to more specifically hereinafter. These motions were overruled and after the arguments of counsel for all parties were concluded, the court proceeded to deliver his charge to the jury, and the jury failing to agree was discharged; whereupon, the proponents, as well as certain of the named legatees and devisees, who were plaintiffs, moved the court to grant a new trial, assigning as their reason therefor the following:

'The Court erred in overruling and disallowing the Plaintiffs' motion for a directed verdict in their favor, which was made at the close of all the evidence introduced upon the trial of the cause, upon the ground and for the reason that there was no evidence before the Court and Jury upon which as verdict in favor of the Defendants could be based.'

They also prayed that the court direct a verdict in their favor and dismiss the suit. That motion was sustained by the court, the order of mistrial set aside, new trial granted as prayed, and a verdict directed in favor of the proponents. The court entered proper judgment sustaining the paper writing as the last will and testament of John S. Eppinger, deceased, taxed the costs against the original contestant, Mary Josephine Matilda Iffland Smith Curry, and her sureties on the cost bond, accruing to the ___ day of December, 1957, (which was the date on which the sureties sought and were by order of the court released as such, and contestant Curry [45 TENNAPP 402] filed her oath in pauperis), and all the costs accruing thereafter against the said Curry, and directed the clerk to certify a copy of the judgment of the court, together with the original will, to the county court of Madison County, to be there recorded as required by law, to which action of the court the contestants saved their exceptions, were allowed 30 days in which to file motion for new trial, which they did, and which was overruled by the court, exceptions to that action saved, and appeal prayed, granted and perfected to this court, where contestants have assigned errors.

It should be stated here that when the case was called for trial in the circuit court, the contestants moved that the rule be applied to all the witnesses with the exception of the executors, whereupon the proponents, together with the devisees and legatees in said will, Foster Bridges, Clara L. Jaekel, Mrs. Charles Schmuck, and Union University, Inc. moved the court that they be made parties plaintiff to the declaration, which the proponents had filed. This was excepted to by the contestants on the theory that they were not parties to the suit five days before the case was called for trial, and made no bond. The court allowed the motion making the said parties joint proponents with the executors. Thereupon, the contestants moved the court for a continuance on the theory that they were not prepared to try the case with these new parties in it, but assigned no reason therefor, and the court overruled the motion for continuance and the case went to trial.

The will in question is of considerable length, consisting of fourteen (14) pages, each page being signed by the testator, and it serves no good purpose to set forth [45 TENNAPP 403] that lengthy will in this opinion. The will is also signed at the end with the signature of the testator and is witnessed by Mary Ryan and Corinne C. Hudson. The last paragraph with the signature of testator, and the attestation clause...