Curry v. Lucas

• Decision Date: 18 April 1938
• Docket Number: 33145
• Court: Mississippi Supreme Court
• Parties: CURRY v. LUCAS

180 So. 397

181 Miss. 720

CURRY v. LUCAS

No. 33145

Supreme Court of Mississippi

April 18, 1938

Division B

Suggestion Of Error Overruled May 30, 1938.

APPEAL from the chancery court of Adams county, HON. R. W. CUTRER Chancellor.

Will contest between Mrs. Grace E. Lucas Curry against Leslie E Lucas. From an adverse judgment, the former appeals. Affirmed.

Affirmed.

Brandon & Brandon and Engle & Laub, all of Natchez, for appellant.

The evidence upon this contest relative to the lack of testamentary capacity of the testator and the procurement of the will by alleged undue influence exerted on the part of the proponent was insufficient for submission to the jury.

Barnett v. Barnett, 155 Miss. 449, 124 So. 498; Burnett v. Smith, 93 Miss. 566, 47 So. 117; Sanders v. Sanders, 126 Miss. 610, 89 So. 261; Moore v. Parks, 122 Miss. 301, 84 So. 230; Scally v. Wardlaw, 123 Miss. 857, 86 So. 625; Estes v. McGehee, 133 Miss. 174, 97 So. 530; Gholson v. Peters, 176 So. 605; Gathings v. Howard, 122 Miss. 355, 84 So. 240.

If this court on appeal will not upon reversal enter a decree admitting the will and codicil to probate and record, then the decree appealed from should be reversed and a new trial upon the issue devisavit vel non granted unto the proponent for the reasons hereinafter urged.

Ward v. Ward, 124 Miss. 697, 87 So. 153; Ross v. Washington, 171 So. 893; Isom v. Canedy, 128 Miss. 64, 88 So. 485; Moore v. Parkes, 122 Miss. 301, 84 So. 230; Gathings v. Howard, 122 Miss. 355, 84 So. 240; Moore v. Parkes, 122 Miss. 301.

In the trial of this case all that was required of the proponent in offering evidence in chief was to prove the testamentary capacity of the testator by showing he was sane and knew what property he had and knew the natural objects of his bounty and to prove the legal execution of the instrument offered for probate. It then became the burden of the contestant to offer his evidence of alleged imposition of undue influence to overcome the prima facie case made out by the proponent. Assuming such to have been done by the contestant it was then permissible for the proponent to offer evidence in rebuttal to establish the fact that the will had not been procured by undue influence as contended by the contestant. The mere fact that the proponent had gone further than she was required to do in her offering of evidence in chief could not deprive her of the right to offer evidence in rebuttal. For the court to exclude the evidence offered in rebuttal by the proponent was reversible error.

Moore v. Parkes, 122 Miss. 301, 84 So. 230; Gathings v. Howard, 122 Miss. 355, 84 So. 240; Isom v. Canedy, 128 Miss. 64, 88 So. 485.

Luther A. Whittington, J. E. Brown, and William Braden, Jr., all of Natchez, for appellee.

The evidence of the appellant in this case directly shows what was charged against her, that the appellant was solely responsible for the estrangement that no one in this case disputes came between the father and son after the death of the wife and mother. And the jury had a right to believe the evidence offered by the witnesses and the jury by their verdict did believe such evidence, to-wit, that this estrangement was designedly brought about in the pursuance of the avowed purposes and declaration of appellant that she would rather the rankest stranger or the blackest negro get her parent's property than her brother, and that she was going to do everything in her power to keep him from getting any.

We submit to the court most respectfully that under the facts of this case as shown by the record herein the jury in this case was abundantly justified in reaching the verdict which they did reach.

The jury having found for the appellee under the facts in the case, and the record and evidence being sufficient from which the jury might have so found, it would have been error for the lower court to grant a peremptory instruction as asked for and we do not believe that this court would be justified in disturbing the verdict of that jury under all the facts in this record.

In every contest of a will the facts peculiar to that case are the controlling facts.

Proponents of a will have the burden of proof, both as to testamentary capacity and undue influence.

Sheehan v. Kearney, 21 So. 41; Hitt v. Terry, 92 Miss. 671, 46 So. 829.

We think it is universally recognized that in undertaking to prove undue influence in the execution of wills that large latitude is offered in the proving of facts and circumstances from which undue influence might be inferred for the reason as the courts have repeatedly pointed out in such cases it is most difficult to obtain direct evidence of such influences. But in this case may it please the court there is direct evidence of the exercise of such influences and of the intention to exercise such influences and then there were additional facts and circumstances from which the jury were thoroughly warranted in reaching the conclusion that such influences were exerted.

It is recognized by this court in Jamison v. Jamison, 96 Miss. 288, 51 So. 130, that even though the judge might have felt as the jury in this case the court should not set aside the verdict of the jury.

King v. Rowan, 82 Miss. 1, 34 So. 325.

The verdict of the jury was human and right. Before them and in their minds was all the evidence and the testimony of all the witnesses and before them as they heard this evidence and heard the testimony of the witnesses were the faces and countenances of the appellee and appellant. They accepted the evidence of the witnesses who established the contestant's claim as was their right to and their verdict should be left undisturbed.

Argued orally by Gerard Brandon, and S. B. Laub, for appellant, and by L. A. Whittington, for appellee.

OPINION

Anderson, J.

The questions in this case involve W. T. Lucas and his wife, Ida E. Lucas, and their two children, Grace E. Lucas Curry, the appellant, and Leslie E. Lucas, the appellee. W. T. Lucas the father, died in the spring of 1937 leaving what purported to be his last will and testament. His wife had died in March, 1936. In the will the father left all his property of every kind, except $ 100, to his daughter, the appellant; that sum he gave to appellee. Appellee contested the will upon the ground that it was brought about by undue influence of appellant on her father, in that...