Estate of Edwards, Matter of

• Decision Date: 02 March 1988
• Docket Number: No. 57512,57512
• Citation: 520 So.2d 1370
• Parties: In the Matter of the ESTATE OF Jimmie D. EDWARDS, Deceased. Jerry William EDWARDS, Executor of the Last Will and Testament of Jimmie D. Edwards, Deceased; Jerry William Edwards, Individually; and Jimmie Davis Edwards v. Mrs. Loree EDWARDS.
• Court: Mississippi Supreme Court

Page 1370

520 So.2d 1370

In the Matter of the ESTATE OF Jimmie D. EDWARDS, Deceased Jerry William EDWARDS, Executor of the Last Will and Testament of Jimmie D. Edwards, Deceased; Jerry William Edwards, Individually; and Jimmie Davis Edwards v. Mrs. Loree EDWARDS.

No. 57512.

Supreme Court of Mississippi.

March 2, 1988.

Morris C. Phillips, Jr., Wright & Phillips, Carthage, for appellant.

James E. Smith, Jr., Smith & Smith, Carthage, for appellee.

Before DAN M. LEE, P.J., and PRATHER and GRIFFIN, JJ.

GRIFFIN, Justice, for the court:

This case, involving testamentary capacity, comes to the Court from the Chancery Court of Leake County, which found against a will executed by Jimmie D. Edwards on September 30, 1982. We reverse.

On September 30, 1982, Jimmie D. Edwards drove to his son Jerry's house, asking Jerry to accompany him to the office of an attorney in order to draw a new will. When Jerry suggested Ed Smith, a longtime Leake County practitioner, Jimmie declined, stating that Smith was his wife Loree's attorney; instead, Jimmie drove to the office of another attorney, Harold Davidson, Jimmie's lifelong friend.

Davidson testified that Jimmie "talked like he knew what he was doing and what he wanted," fully aware of his home, vehicle, money and children. Nevertheless, Jimmie's terms for the new will gave Davidson "considerable apprehension," since they excluded Loree, Jimmie's second wife. Though Davidson warned Jimmie of the "possible repercussion," resulting from Loree's exclusion, Jimmie was insistent, telling Davidson that Loree already owned a place of her own as well as other property. In fact, the record indicates that at the time of Jimmie's death, Loree owned a house, eleven and one-half acres of land, plus two certificates of deposit from Unifirst Federal Savings & Loan Associaiton for $23,869, payable to herself or her daughter by a previous marriage, the proceeds of which had come from her first husband.

The new will read in part:

1. I hereby will, devise and bequeath all of the property of every kind, real, personal, or mixed, which I own or own any interest in at the time of my death, to my two children, Jerry William Edwards and Jimmie Davis Edwards, Jr., share and share alike.

2. I am married to Loree M. Edwards, but make no provision for her, because she owns property in her own name which is of greater value than mine.

3. I hereby appoint my son, Jerry William Edwards, as Executor of my will and estate.

This will also expressly revoked a previous will, dated January 17, 1979, which stated in part:

ITEM TWO: I will, devise and bequeath unto my son, Jerry Edwards, my living room suite, and one of my bed-room suites, and two thousand dollars ($2,000.00) in money.

ITEM THREE: I will, devise and bequeath unto my son, Jimmie D. Edwards, Jr., one of my bed room suites (they are both about alike and he and Jerry can agree on which each will take), and two thousand dollars ($2,000.00) in money.

ITEM FOUR: I will, devise and bequeath unto my wife, Letha Loree Edwards, all other property which I own, or own any interest in at the time of my death, except that which I have willed and devised to my two sons, wheresoever and howsoever it may be located, situated and evidenced, and I appoint her as Executrix of my will and estate, and direct that she shall not be required to make bond or other surety in connection therewith, or to make court reports or accounts.

Interestingly, the first and second accountings show the estate possessed of no cash, even leaving the funeral expenses unpaid, though Loree held a certificate of deposit from the Carthage Bank for $20,892.54, payable to herself or her daughter, the proceeds of which had come from Jimmie's retirement plan. There was then no cash for distribution under either will.

Due to the provisions of the new will, and Jimmie's expressed wish that it remain a secret, Davidson refused to act as a witness "in case something did come up."

Leaving Davidson's office, Jimmie and Jerry proceeded to the Carthage Bank where Chris Bilbro and Jimmy Woitt witnessed the will's execution. Parenthetically, Jimmie's efforts to change his will may have been linked to conversations between Jimmie, Jerry and Bilbro, assistant vice president of the bank, concerning problems between Jimmie and Loree during this time. At trial, Bilbro testified that he found Jimmie "sane and sober," while Woitt stated that he noticed nothing unusual about the testator. Consistent with the witnesses, Jerry testified that Jimmie's state of mind was "fine." Indeed, the extent of Jimmie's activities on September 30, 1982, are akin to Loree's testimony that Jimmie continued to drive until the latter part of 1983, visiting friends at Mud's Station, and the White Gables Restaurant as well as Harold Davidson at his office.

On December 28, 1983, Jimmie D. Edwards, age sixty-nine, died of cancer. When Jerry Edwards then sought probate, Loree Edwards, previously unaware of the new will's existence, filed suit to contest it, alleging undue influence and a lack of testamentary capacity.

At trial, Loree relied primarily upon the testimony of Jimmie's doctors, who, though not present on September 30, 1982, testified that, based on their previous examinations, Jimmie's mental capacity would have been substantially impaired by that date. For example, in February, 1981, Dr. Richard Naef diagnosed organic brain syndrome characterized by atrophy of the brain's cortex affecting Jimmie's ability to "reason, make judgments." On June 8, 1982, Dr. Thomas Stevens, noting Jimmie's "chronic mental problems" diagnosed presenile dementia, or Alzheimer's disease. Dr. Clinton Wallace, similarly noting the "progressive deterioration of this type of disease," stated that by September 1982, Jimmie's "judgment would have been poor...." Concurring, Dr. Naef testified that at the time of the will's execution, Jimmie would have been "significantly impaired," lacking testamentary capacity. In addition, Loree stated that by late 1981, Jimmie at times wouldn't know her, his house, where he was, or the time of day.

Based on these facts, the chancellor found no evidence of undue influence, though he invalidated the September 30, 1982 will due to a lack of testamentary capacity, especially noting Dr. Naef's testimony concerning Jimmie's mental condition the previous year and the progressive nature of his illness.

Consistently, this Court has held that the test of one's capacity to execute a will "is the ability of the testator at the time to understand and appreciate the nature and effect of his act, the natural objects or persons to receive his bounty, and their relation to him, and is capable of determining what disposition he desires to make of his property." Humes v. Krauss, 221 Miss. 301, 310, 72 So.2d 737, 739 (1954). See also, Young v. Martin, 239 Miss. 861, 871-2, 125 So.2d 734, 738 (1961); Wallace v. Harrison, 218 Miss. 153, 164, 65 So.2d 456, 459-60 (1953); Cowart v. Cowart, 211 Miss. 459, 462, 51 So.2d 775, 776 (1951); Fortenberry v. Herrington, 188 Miss. 735, 746-7, 196 So. 232, 236 (1940); Moore v. Parks, 122 Miss. 301, 334, 84 So. 230, 238 (1920). ¹ Such capacity "is to be tested as of the date of the execution of the will." Scally v. Wardlaw, 123 Miss. 857, 878, 86 So. 625, 626 (1920). See also, Lee v. Lee, 337 So.2d 713, 714 (Miss.1976); In Re Will of McGough, 222 So.2d 673, 675 (Miss.1969).

At trial, the will's proponents carry the burden of proof, which they meet "by the offering and receipt into evidence of the will and the record of probate. A prima facie...