Ellis v. Ellis
| Decision Date | 04 May 1931 |
| Docket Number | 29356 |
| Citation | 160 Miss. 345,134 So. 150 |
| Court | Mississippi Supreme Court |
| Parties | ELLIS v. ELLIS |
Suggestion Of Error Overruled June 1, 1931.
APPEAL from chancery court of Hinds county, First district, HON. V J. STRICKER, Chancellor.
Suit by William Kirby Ellis against Mrs. Lottie Simmons Ellis to cancel the will of George B. Ellis, deceased previously admitted to probate. From an adverse decree complainant appeals. Reversed and remanded for new trial.
See, also, 152 Miss. 836, 119 So. 304, 125 So. 563.
Reversed and remanded.
G. B. Herring and F. S. Dunning, both of Canton, for appellants.
The court erred in granting to the proponent, the following instruction:
"The court instructs the jury, for Mrs. Lottie Simmons Ellis, that she was the lawful, wedded wife of George B. Ellis, on and after September 20, 1927, and that she is now the lawful widow of the deceased, George B. Ellis."
It assumes as true a material, controverted fact and is therefore prejudicial.
14 R. C. L., page 738, 38 Cyc., page 1726.
The court can treat a fact as undisputed only, when it is not only unopposed by direct evidence, but not in conflict with proper inferences from other facts in evidence.
38 Cyc., Corpus Juris 1669.
It gives undue prominence to material evidentiary matters and is, therefore, prejudicial because it segregates and isolates these facts for the jury's consideration.
Potera v. Brookhaven, 95 Miss. 774; Nyer v. Blakemore, 54 Miss. 570; Dean v. Tucker, 58 Miss. 487; R. R. Co. v. Statham, 42 Miss. 607; Odeneal et al. v. Henry, 70 Miss. 172; Hook v. Mills, 101 Miss. 91, 118 N.W. 57, 98 P. 672, 99 So. 181; 75 So. 303; 56 So. 971; 103 N.E. 45, 162 Ill.App. 108; 14 R. C. L. 780-81.
It is an instruction on the weight of the evidence and is prejudicial.
14 R. C. L. 732; Potera v. City of Brookhaven, 95 Miss. 774; Hook v. Mills. 101 Miss. 91.
It ignores and excludes competent and material evidence and the effect thereof, and is prejudicial.
Reed v. R. R. Co., 94 Miss. 639; Myer v. Blakemore, 54 Miss. 570; Dean v. Tucker, 58 Miss. 487; Knights of Pythias v. Tucker, 92 Miss. 501; R. R. Co. v. Statham, 42 Miss. 607; 38 Cyc. 1667, 1776; 14 R. C. L. 191-793-4-5; 14 R. C. L. 791, et seq.; 13 Standard Ency. Procedure 773-786.
It is not predicated on issues within the allegations of the pleadings or raised by the evidence and is not applicable to the facts in the case and is prejudicial.
R. R. v. Williams, 96 Miss. 373; Burnley v. Mullins, 86 Miss. 441; R. R. v. Hayne, 76 Miss. 538; Easley v. R. R., 96 Miss. 396; Kneale v. Dukate, 93 Miss. 201; Johnson v. State, 124 Miss. 429; Cooper v. State, 80 Miss. 175, 80 Amer. Dec. 347; 13 Stand. Ency. Proc. 777-776-892; 191 F. 34.
It is misleading, confusing and contradictory and tends to lead the minds of the jury away from the issue, and is therefore prejudicial.
Odeneal v. Henry, 70 Miss. 172.
The court erred in refusing the instructions requested by William Kirby Ellis, showing how the property of George B. Ellis, would descend in the event of the will being overruled.
In determining whether an issue should be withdrawn from the jury's consideration, our courts adhere to the rule that all the testimony in evidence, offered to support said issue, even though taken and admitted to be true, must not, in any reasonable view of same, be sufficient to establish the said issue under consideration, before the court should withdraw said issue from the jury.
Williams v. Gardner, 128 So. 111 (Miss.); Traction Co. v. Raymond, 128 So. 327 (Miss.); Fore v. R. R., 87 Miss. 211.
So, also, though the rule is recognized that the burden is on the contestants to prove insanity, it is well settled that if it be shown that insanity existed before the making of the will, it is then incumbent on those claiming under the will, to prove sanity at the time the will is executed.
The instruction given proponent on the effect of the probate of the will in common form is erroneous. By wording of same it gives undue prominence to certain evidence, to-wit, prima facie evidence, and the documentary evidence and, likewise, states the law incorrectly in this, that the jury is told that the validity of the will is established in every respect by prima facie evidence.
Odeneal v. Henry, 70 Miss. 172.
The above instruction rather than being cured by appellant's instruction, simply had the effect of making the two instructions confusing and contradictory.
Godfrey v. R. R. Co., 101 Miss. 565; Lbr. Co. v. Dickinson, 125 So. 93.
It is erroneous because it authorizes the jury to say which is competent and which is not competent evidence, the latter being the exclusive duty of the court.
The testimony of people, who have had a personal knowledge of the genuine signature, and have known the author for a long time, are entitled to more consideration than experts.
Smith v. Young, 134 Miss. 738.
Insanity of a continuous nature once shown, is presumed to continue.
The contention that the line of testimony introduced showing intention and preparation was incompetent because res adjudicata in the marriage case and therefore, the instruction excluding same was proper, is not supported by the law.
Hardy v. O'Pry, 102 Miss. 197; 15 R. C. L. 952.
Powell, Harper & Jiggitts, of Jackson, for appellants.
In determining the scope of its instructions the court must keep in mind the issues as made by the pleadings in the cause; and the general rule is that all instructions must be confined to those issues, and the evidence in support thereof, and that no instruction should be given which tenders an issue that is not supported by the pleadings or which deviates therefrom in any material respect.
It is not error for the court to refuse to give abstract propositions of law that have no relevancy to the case on trial, in instructions to the jury, even though such propositions be correct and legal.
McDaniel v. State, 8 Smedes & Marshall, 403.
Where evidence is admitted for a particularly limited purpose the court should instruct that the evidence is to be considered for such purpose only and its scope and effect be explained to the jury.
Branson, Instruction to Juries, page 80, section 45; 14 R. C. L., page 791, section 52.
The court should not grant a peremptory instruction unless assuming that all of the evidence of the party, against whom the peremptory instruction is granted, and every reasonable inference to be drawn therefrom is true, such evidence does not sustain any ground for declaring the will invalid.
New Orleans & N.E. R. Co. v. Penton, 100 So. 521, 135 Miss. 571; Lowe v. Mobile & O. R. Co., 149 Miss. 889, 116 So. 601.
On the trial of an issue devisavit vel non the burden of proof is on the proponent of the will throughout the proceeding and the giving of the following instruction was erroneous.
"The court instructs the jury for the defendant that she has established the validity of the will in every respect by prima facie evidence, by the introduction of the proceedings wherein said will was admitted to probate, and unless this complaint shall show you by clear and convincing competent evidence that said will is a forgery, then it will be your sworn duty to find for the defendant and in favor of the validity of the will."
Section 1612 of the Code 1930; Sheehan v. Kearney, 82 Miss. 688.
It is the province of the court rather than of the jury to determine the competency of evidence.
38 Cyc., page 1513; Kramer v. State, 61 Miss. 160.
Books of account regularly kept in the due course of business and the entries made therein at or about the time of the transaction are admissible in evidence to show goods sold and delivered.
22 C. J., pages 862 and 871; Bookout v. Shannon, 59 Miss. 378 at 383; Moody v. Roberts, 41 Miss. 74; Hunter v. Wilkinson, 44 Miss. 721 at 729; Chicago, etc., R. R. Co. v. Provine, 61 Miss. 288.
Where the finding of fact by a jury is contrary to the overwhelming weight of convincing evidence, a new trial will be awarded, though such reversals are rare and reluctant.
Mobile & O. R. Co. v. Bennett, 127 Miss. 413, 90 So. 113; Fore v. Railway Co., 87 Miss. 211 at 218, 39 So. 493; Columbus & G. Ry. Co. v. Buford, 150 Miss. 832, 116 So. 817.
W. H. Cox, of Jackson, for appellee.
In view of the testimony introduced by the appellant which was well calculated to controvert the fact of the validity of the marriage, but which was limited only to a specified effect, that is, "to show motive" we insist that the instruction given the appellee that she was the lawfully wedded wife was not only justified, but was proper and right.
If there is a slight showing that the testator was a normal human being discharging ordinary affairs of life it would be sufficient in the absence of contrary evidence. The object in all cases is to show that the will is the free act of a competent mind and a degree of proof as stated must largely be left to the conscience of the court in many given cases.
Gathins v. Howard, 122 Miss. 381.
The mental capacity of the testator is to be tested as of the date of the execution of the will.
1 Alexander on Wills, 327; 1 Schouler on Wills, 134; Lum. v. Lasch, 93 Miss. 81; Moore v. Parks, 84 So. 230, 122 Miss. 301.
Where periods of temporary or intermittent periods of insanity occur this does not raise a presumption that it continued to the time of the execution of the will.
Lum v. Lasch, 93 Miss. 81; 1 Alexander on Wills, 333; Chandler v. Barrett, 21 La. Ann. 58; Murphy Estate, 43 Mont. 53, Ann. Cas. 1912, 380.
The court properly excluded certain original sales slips. As the witness...
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