Estate of Mask, In re

• Decision Date: 22 December 1997
• Docket Number: No. 92-CA-00950-SCT,92-CA-00950-SCT
• Citation: 703 So.2d 852
• Parties: In re ESTATE OF James Henry MASK, Deceased, Johnny Mask and Ricky Mask, Co-Executors. Ricky MASK and Doris Joan Mask, Administratrix C.T.A. of the Estate of Johnny Mask v. Vera ELROD, Linda Trimble, Kathy Barnett.
• Court: Mississippi Supreme Court

Page 852

703 So.2d 852

In re ESTATE OF James Henry MASK, Deceased, Johnny Mask and Ricky Mask, Co-Executors Ricky MASK and Doris Joan Mask, Administratrix C.T.A. of the Estate of Johnny Mask v. Vera ELROD, Linda Trimble, Kathy Barnett.

No. 92-CA-00950-SCT.

Supreme Court of Mississippi.

Dec. 22, 1997.

W.P. Mitchell, Stephen H. Morris, Mitchell Voge Beasley & Corban, Tupelo, for appellants.

Gene Barton, Pontotoc, for appellees.

En Banc.

ON MOTION FOR REHEARING

BANKS, Justice, for the Court:

¶1 The present case was considered by this Court in Estate of Mask v. Elrod, 1996 WL 428834, No. 92-CA-00950 (Miss. decided August 1, 1996). After full consideration, we grant the contestants' Motion for Rehearing. The original opinion is withdrawn and the following opinion substituted therefor.

¶2 This is a will contest wherein the issue to be determined is whether the testator possessed testamentary capacity at the time that the will was made. The jury found that he did not. We conclude that it was error for the chancellor to allow evidence of the factfinder's decision in a previous hearing to continue the testator's conservatorship. We cannot say with confidence that this error was harmless and, therefore, we reverse the judgment and remand for a new trial.

I.

¶3 James Henry Mask ("Mask") was born in September, 1898, and died in April, 1990. During his life he amassed a significant estate composed of real property, primarily farmland, and personal property in the form of certificates of deposit and bank accounts.

¶4 Mask suffered a stroke in March of 1985. Shortly thereafter, Vera Elrod and her husband, Junior, moved into Mask's home to take care of him. Vera Elrod and her two nieces, Linda Trimble and Kathy Barnett, sought conservatorship proceedings against Mask in June of 1985. Mask employed an attorney to contest the establishment of a conservatorship, but he evidently consented to the appointment of a conservator without a trial. The Chancellor accepted Mask's consent and established the conservatorship, appointing Vera Elrod and Johnny Mask, Mask's daughter and son, as conservators.

¶5 The record is unclear concerning the precise grounds for the conservatorship. After the conservatorship was established, disagreements developed between Vera and Johnny as to the management of their father's estate. At Mask's request, the chancellor eventually removed Vera and Johnny as conservators and appointed the Peoples Bank & Trust Company as conservator of his estate.

¶6 Almost two years later, in May of 1987, a hearing was held to terminate the conservatorship, ostensibly at the request of Mask. Testimony at the second conservatorship proceeding revealed that Mask had difficulty speaking, was confused, and had made uncharacteristically expensive purchases following his stroke in March of 1985. In the proceedings, Mask revealed that he did not know in which year he was born and that he did not know who his lawyer was. The chancellor found that there had been no change in Mask's physical or mental condition warranting removal of the conservatorship, even though Mask no longer consented to being under a conservatorship.

¶7 On April 25, 1990, Johnny Mask and Ricky Mask filed a petition seeking admission to probate the will of James Henry Mask in common form in the Chancery Court of Pontotoc County, Mississippi. Mask had executed this will on February 22, 1988, leaving property to Johnny Mask, his son, Ricky Mask and Larry Jenkins, his grandsons, and Allison Kelly and Kitty Russell, two of his granddaughters. On May 16, 1990, a contest to the will was filed by Vera Elrod, Mask's daughter, and Kathy Barnett and Linda Trimble, two granddaughters, asserting that Mask lacked the mental capacity to make a will and/or that he was unduly influenced by his son, Johnny Mask. The proponents of the contested will are Ricky Mask and Doris Joan Mask, administratrix of the estate of Johnny Mask.

¶8 The will contest was heard before a jury on May 4-6, 1992. During the course of the trial, the proponents stipulated as to Mask being under a conservatorship, but vehemently objected, via a Motion in Limine and through oral arguments, to the contestants reproducing proof from the conservatorship proceedings, including Mask's testimony by transcript. The motion was overruled.

¶9 At trial, the contestants of the will tried to establish that the will in question was inconsistent with Mask's prior stated intentions with regard to the testamentary disposition of his property. Mask's grandson, Larry Jenkins, who was a beneficiary in the will at issue in the case, testified against his interest on behalf of the contestants. The sole expert witness presented by the contestants was Dr. Kenneth Gaines. Deposition testimony of Dr. Gaines revealed that he was Mask's treating neurologist at the time of the stroke. He stated that Mask's symptoms following his stroke included loss of speech, loss of ability to understand written and spoken language, and loss of the ability to make understandable language. The deposition revealed, however, that Dr. Gaines did not treat Mask after May, 1986, which was almost two years prior to the drafting of the will in question in February, 1988. Dr. Gaines stated that he would be surprised if Mask had improved to the point that he no longer needed a conservatorship as of the date of the will, given his advanced age. Dr. Gaines declined to venture an opinion, however, concerning Mask's testamentary capacity at the time of execution of the will.

¶10 The proponents introduced a report by psychologist Dr. Mike Oliver, who stated that Mask displayed significant improvement in his cognitive skills by December, 1986, several months after Dr. Gaines' final examination of Mask. Dr. Oliver's report further stated that "the deficits that he had in the past which concerned me most in terms of his independence, primarily language and reading skills, no longer appear to be significant problems." During Dr. Gaines' transcript testimony, a hospital report from a Dr. Zurawski, who treated Mask in August, 1989, seven months prior to his death was introduced. This report stated that "this is an older white male who is rather animated for his stated age of 91. His thinking was clear and concise and appropriate."

¶11 The proponents also presented the testimony of Mask's neurologist, Dr. Luther Stumme. Dr. Stumme testified that, although a portion of a person's brain can die from a stroke, there are other neurons, or other pathways, in which communication ability can be developed so that a person can "function again in a useful capacity." Dr. Stumme testified that Mask suffered in only a small portion of his brain and was capable of making a will, although he had expressed a different opinion in 1986. Importantly, Dr. Stumme treated Mask from October, 1986 until his death in 1990.

¶12 Vicki Price, Mask's speech pathologist, testified that, while Mask had difficulty in speaking after the stroke, such difficulty should not be confused with difficulty in understanding, and that, in her opinion, Mask was mentally capable of executing a will in the year following his stroke in March, 1985.

¶13 Sue Collins, First Vice-President at Peoples Bank & Trust Company where Mask did business, testified on behalf of the proponents that she had known Mask for thirty years and continued to see him once or twice a month following the stroke. Collins testified that she noticed Mask had problems with his speech, but that once she talked with him a few minutes he would calm down and "you wouldn't really even notice this." Collins testified that she had no doubt that Mask had the mental ability to knowingly and understandingly execute a will. Cross-examination of Collins, however, disclosed that she was a close personal friend of JoAnn Mask, who was a beneficiary under the contested will. Cross-examination also revealed that W.P. Mitchell, the proponents' attorney, represented Peoples Bank and was chairman of the board of that bank.

¶14 L.F. "Sandy" Sams, Mask's attorney who was employed to draft the contested will, testified that Mask had indicated that he was improving from the stroke and wanted "out from under the conservatorship." Sams confirmed Collins' testimony that Mask had a "hesitancy" in his speech and that he would stutter if he was rushed. Sams testified that he would not have drawn the will if he had not been satisfied that Mask was capable of understanding what he wanted to do with his property. Shellaine Shappley, Sams' secretary who served as a subscribing witness, similarly testified that Mask had the mental capacity to knowingly and understandingly execute the will at the time she saw him sign it.

¶15 James Homan, a nephew of Mask who brought Mask to Sams' office to execute the will, testified for the proponents that he saw Mask fairly regularly up until his death. Homan testified that he did not believe that Mask needed a conservator and stated that Mask was "clear and concise" and "perfectly competent to execute a will."

¶16 At the close of the testimony, the Chancellor directed a verdict in favor of the proponents with regard to the issue of undue influence, but allowed the jury to consider the issue of testamentary capacity. The jury unanimously found for the contestants on the basis of lack of testamentary capacity on the part of Mask, upon which the chancellor entered a decree setting aside the will. The proponents filed a Motion for Judgment Notwithstanding the Verdict of the Jury and a Motion for a New Trial, both of which were denied. Thereafter, the proponents timely perfected this appeal.

II.

¶17 This Court has repeatedly 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 that [he is] able to determine what...