Dabbs v. Richardson

• Decision Date: 09 February 1925
• Docket Number: 24616
• Citation: 137 Miss. 789,102 So. 769
• Court: Mississippi Supreme Court
• Parties: DABBS v. RICHARDSON et al. [*]

102 So. 769

137 Miss. 789

DABBS v. RICHARDSON et al. ^[*]

No. 24616

Supreme Court of Mississippi

February 9, 1925

Division B

Suggestion of Error Overruled Feb. 23, 1925.

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

Proceedings to probate the will of Ruffin Price, propounded by R. G Dabbs, in which Amis Richardson and others filed a caveat. From the judgment rendered, proponents appeal. Affirmed.

Judgment affirmed.

Leftwich & Tubb and Stovall & Stovall, for appellants.

Where a physician is offered as a non-expert witness, having stated he could segregate his knowledge gained in professional capacity from that based on conversations as a layman and derived from social relations, is not precluded by section 6380, Hemingway's Code from testifying. Estes v. McGehee, et al., 97 So. 530.

Section 3366, Hemingway's Code, provides, in substance, that every person of sound and disposing mind can devise property by will and that the instrument shall be signed by testator or by some other person in his or her presence, and by his or her express direction; and, moreover, if not wholly written and subscribed by himself, it shall be attested by two or more credible witnesses in the presence of the testator.

Where the testator consents to have his hand guided by another in signing his will, it is sufficient. Watson v. Pipes, 32 Miss. 451. A testator who cannot write may sign his will by his mark. Sheehan v. Keemly, 82 Miss. 688, 85 L. R. A. 102. Under the requirement, a will shall be attested by two or more witnesses in the presence of the testator, if the testator is suffering from a physical disability, but is conscious of their presence and that they sign as witnesses, the rule is satisfied. Watson v. Pipes, 32 Miss. 451; Walker v. Walker, 67 Miss. 529.

Mental capacity of the testator is to be tested as of the date of the execution of the will. In re Luckett's Estate, 4 How. 459; Lum v. Lasch, 93 Miss. 81, 46 So. 559; Moore v. Parks, 84 So. 230; Rodney v. Batson, 86 Am. Dec. (Del.) 826.

Periods of temporary incapacity do not raise a presumption of their existence at the time the will was executed. Lum v. Lasch, 93 Miss. 81; Chandler v. Barrett, 99 A. 706 (La.) ; In re Murphy's Estate, 116 P. 1004. The mental capacity of the testator to make a will is not to be determined by his condition subsequent to its execution. Gregory v. Oates, 14 S.W. 231; Harris v. Hayden, 54 N.W. 911.

To sustain an allegation of want of testamentary capacity, something more than mere physical disease and old age on the part of the testator must the shown. Garmahan v. Hamilton, 107 N.E. 210; In re Hackett's Estate, 146 N.W. (S. D.) 437; Geizer et al. v. Bardwell, 99 N.E. 582.

Neither old age nor feeble health nor both together constitutes mental incapacity though combined with a defective memory and mental sluggishness, nor raises any question of lack of testamentary capacity. Geizer et al. v. Bardwell, supra; Posy v. Donaldson, 66 So. 662; Wood v. Carpenter, 66 S.W. 172.

One has testamentary capacity if he has mind and memory sufficient to understand the business he is engaged in, to remember the property he is about to will, the object of his bounty and the manner in which he desires to dispose of it. Council v. Mayhew, 55 So. 314; In re Houston's Estate, 124 P. 852; In re Weediman's Estate, 98 N.E. 956; Sevening v. Smith, 133 N.W. 1081; Brock v. Luckett, supra; Moore v. Parks, supra.

The test of testamentary capacity is whether testator's mind was sufficiently sound to enable him to know and understand the business in which he was engaged when he executed his will, and weakness alone will not invalidate a will if there was mind and memory enough to direct the disposition of the property intelligently. In re McNitt's Estate, 78 A. 32; Stevens v. Myers, 121 P. 434 (Ore.) ; Lindsley v. Stephens, 129 S.W. 641; In re Redfield's Estate, 48 P. 794; Casarotti v. Lyons, 192 P. 1085.

The testimony of subscribing witnesses to a will is the best evidence of its due execution and of the sanity of the testator. Brock v. Luckett, supra; Helm v. Sheeks, 77 So. 820; Maxwell v. Lake, 88 So. 326; Smith v. Young, 99 So. 370.

Where the verdict is not sustained by the evidence, the court will remand the cause for a new trial; and, too, where the issue is not met by the evidence, a peremptory instruction is proper. Crockett v. Young, 1 So. 241; Stackhouse v. Horton, 15 N.J.Eq. 208; In re Redfield's Estate, supra; Moore v. Parks, supra.

Where in a will contest case the subscribing witnesses testified that testator was of sound mind, as well as to the due execution of the will, such evidence established a prima-facie case for proponents, and shifted the burden to contestants of establishing testator's incapacity. Holton v. Cochran, 105 S.W. 1035; Bottom v. Bottom, 106 S.W. 216; Moore v. Parks, supra.

If there be several issues submitted to the jury and the verdict be general, not specifying on which issue it was found, and if there be one of the issues in respect to which the verdict is unsupported by the evidence and the verdict might have been on that issue, it will be set aside, if in respect to that issue there was an erroneous charge to the jury. Gay v. Lerule, 32 Miss. 309.

Mr. Justice LAMM of the supreme court of Missouri in Toomer v. Anderson, 130 S.W. 185, in his inimitable way condemns the growing tendency of courts' juries to set aside last will and testaments and to substitute in lieu thereof their own notions as to what a testator should do with his own property, he said: "A testator in writing his will need not write it as a supplication to the jury, viz: 'I wish my property to go to so and so, and hope that a jury will think upon the subject as I do and confirm my act.'" Our own court in King v. Rowan, 34 So. 327, quoting with approval McDevitt's case, 30 P. 101, said: "The right to dispose of one's property by will is most solemnly assured by the law, and it is a most valuable incident to ownership, and does not depend upon its judicial use. The beneficiaries of a will are as much entitled to protection as any other property owners; and courts abdicate their function when they permit the prejudices of a jury to set aside a will merely upon suspicion, or because it does not conform to their ideas of what is right and proper."

Appellants complain of the ruling of the trial court after admitting the testimony of Dr. Dabbs, the attending physician of testator, as to his mental condition at the time of executing the will and later excluding said testimony from the consideration of the jury. After Dr. Dabbs had stated he could separate his opinion gained of Ruffin Price in a business and social way from that gained in a professional way, the ruling of the trial court was prejudicial error.

Dr. Dabbs was offered as a non-expert witness and was so cautioned by appellants that only his opinion as a layman was wanted and in that capacity he testified.

Assignment of error numbers two and seven complains of the action of the trial court in failing to instruct the jury to disregard the argument of counsel for contestants as shown by special bill of exceptions and, also, in giving instruction number ten for contestants. By counsel's argument for contestants, the jury was led to believe, and, with the sanction of the court since they were not advised otherwise, that the proponents of the will and Dr. Dabbs, the executor, who was present at its execution, and Mr. DeFord and Mr. Springer, who attested the will, confederated together to unlawfully get testator's property. The jury had been instructed to find for the proponents on the issue of undue influence. The peremptory instruction to the jury that there was no evidence of undue influence became a nullity when contestant's counsel were permitted to make the foregoing arguments without its effect being corrected. This error of the trial court became emphasized by instruction number ten for contestants and which is excepted to in assignment of error number seven of appellants. In said instruction, the court charged the jury "that it was their duty to consider all the facts and circumstances in the case as shown by the evidence, the charges of the court and the argument of counsel, etc." Surely it will not be contended for a moment that the argument of counsel in a case is of probative value. But this instruction leads the jury to believe that what contestants' counsel says, even outside the record, is to be considered by them in determining their verdict.

The Michigan court in Rickhaus v. Galtz, 16 N.W. 384, said: "The duty of the trial judge to repress needless scandal and gratuitous attacks on character is a very plain one and good care should be taken to discharge it fully and faithfully. . . . whatever may be the abstract justice of proponents' case--a point we are not dealing with--the fact is patent that the trial was unfair," and accordingly the case was remanded.

Assignment of errors numbers three and four raise the question whether the will was properly signed and executed by Ruffin Price and properly attested in accordance with our statutes.

Assignment of error number five challenges the action of the trial court in refusing to instruct the jury that on the issue of the soundness of mind of the testator they must find for the proponents. All the evidence shows that Ruffin Price was a negro between seventy and eighty years of age; that he had been blind for nearly two years and his eyes being treated by Dr. Lilly of Tupelo, Mississippi, and that Dr. Dabbs, his physician, testified on cross-examination by contestants' counsel that he was suffering at this particular time from heart trouble. The record shows indisputably and without contradiction or...