Farmers Union Bank of Henning v. Johnson

• Decision Date: 02 July 1943
• Citation: 181 S.W.2d 369
• Parties: FARMERS UNION BANK OF HENNING et al. v. JOHNSON et al.
• Court: Tennessee Supreme Court

181 S.W.2d 369

FARMERS UNION BANK OF HENNING et al. v. JOHNSON et al.

Court of Appeals of Tennessee, Western Section at Jackson.

July 2, 1943.

Certiorari Denied by Supreme Court December 17, 1943.

Appeal in Error from Circuit Court, Lauderdale County; Lamar Spragins, Judge.

Proceeding by Joe E. Johnson, Jr., against the Farmers Union Bank of Henning, as administrator with the will annexed of the estate of E. J. Jones, deceased, and others, to contest the will. Judgment for contestant, and proponents appeal in error.

Reversed, and new trial granted.

Steele & Steele, of Ripley and W. C. Patton, of Halls, for plaintiffs in error.

C. S. Carney and Craig & Durham, all of Ripley, for defendants in error.

KETCHUM, Judge.

This is a proceeding to contest the will of E. J. Jones who died a resident of Lauderdale County on February 11, 1941. A paper writing of date May 13, 1915, purporting to be his last will and testament was admitted to probate in common form in the county court of said county on February 19, 1941. No executor having been named therein the Farmers Union Bank of Henning was appointed administrator of his estate with the will annexed. Thereafter on the petition of Joe E. Johnson, a grandson (the son of a deceased daughter who had been disinherited in said will), the said will and the record of the probate thereof were duly certified to the circuit court of said county for contest.

In that court, upon appropriate pleadings, the said instrument was offered for probate in solemn form and there was a trial before a jury upon an issue of devisavit vel non which resulted in a verdict and judgment that said instrument was not the valid will of the testator. After an unsuccessful motion for a new trial the proponents of said will prayed and were granted an appeal in error to this court. The only assignment of error that presents an issue for the determination of this court is that there is no material evidence to support the verdict.

In the consideration of this assignment of error we shall consider only the evidence that supports the theory and contention of the contestants, and disregard all countervailing evidence.

Bearing this in mind the following facts are undisputed or are stated according to the theory and contention of the contestants.

The said E. J. Jones was approximately 85 years of age at the time of his death and was therefore about 59 years of age at the time of the execution of said will. The will was prepared by Messrs. Baptist & Baptist, a firm of lawyers composed of the Col. N. W. Baptist and R. B. Baptist, now a member of this court, who were at that time engaged in the practice of law at Covington. It was written in the handwriting of Judge R. B. Baptist and was duly executed in the presence of C. E. Cockrill and J. R. Flowers as subscribing witnesses, and no question is made as to the formal execution of it. Judge Baptist who was present at the time it was executed testified that Mr. Jones was a client and personal friend of his father, Col. N. W. Baptist, that he consulted with them at some length about the preparation and execution of his will, and that in the opinion of the witness he was of sound mind at the time.

Mr. Jones was married three times. By his first wife he had one son, Isaac E. Jones, commonly known as Lige, who was 62 or 63 years of age at the time of his father's death, and who is or has been non compos mentis, but there is no evidence of his ever having been in any institution for treatment.

By his second wife the testator had seven children, to-wit: (1) James, who married Dolly Balderson (now Mrs. Dolly Poe), in 1907. James died about 1920 and left surviving him two daughters, both of whom are now married; (2) Mattie, who married Joe E. Johnson in 1912, and who died about 1919 leaving surviving her four children, one of them being the contestant, Joe E. Johnson, Jr.; (3) Charles N.; (4) Henry S.; (5) Laura, who married one Waller. She died in 1915 leaving seven children surviving her; (6) William; and (7) J. A. or Albert, generally known as Babe.

By his third wife he had two children, Minnie Lee Jones and Frances E. Jones. He was divorced by his third wife about 1910 or 1911, and by the terms of the divorce decree he was required to pay her the sum of $1,000 as alimony, and $1,000 each for the support and maintenance of her two children, Minnie Lee and Frances E. Jones, who were at that time four or five years of age.

By the terms of his will he left his entire estate to six of his children, or to the descendants of any of them who might be dead at the time of his death; but he disinherited four of his children, to-wit; James, Mattie, Minnie Lee and Frances. The fifth item of his will is as follows:

"I love all of my children, but for reasons satisfactory to myself I have excluded from the benefits of this will my four children, to-wit: Jimmie Jones, Mattie E. Johnson, Frances E. Jones and Minnie Lee Jones".

The sole ground relied upon to set aside the will is that he was of unsound mind and lacked the mental capacity to make a will at the time it was executed.

The testator appears to have been a man of rather positive character, strong in his prejudices, his likes and dislikes, uncompromising in his attitude and unforgiving in his nature; and there is evidence from which it is argued that his reason for disinheriting his son James and his daughter Mattie was his great dislike for James' wife, Dolly, and for Mattie's husband, Joe E. Johnson; and that his reason for disinheriting the two children of his third wife was the bitterness engendered by the divorce proceedings, and his intense dislike for their mother. It is also shown that James' wife Dolly, and Joe Johnson's mother testified for his wife in the divorce proceeding and this is also assigned as another reason for his disinheriting James and Mattie. But it is also shown without dispute that he did not contest the divorce suit.

It is undisputed that he was a thrifty and successful farmer, attentive to his farming interests and capable of handling all of his business affairs. There is no hint or suggestion in the proof that he lacked the mental capacity to manage his business affairs up to the time of his death. He accumulated a personal estate of $26,523.08, consisting of cash, certificates of deposits and United States bonds; and his real estate was sold in the county court for $10,041 shortly after his death.

In addition to this accumulation of property he gave to each of his children of his second marriage, except James and Mattie, a tract of land when they became of age or married. To Charles and Albert he gave 50 acres each; to William 40 acres, and to Henry 30 acres, and to his daughter Laura Waller he gave ___ acres. He did not give any to his son James or to his daughter Mattie. James and his wife lived at home with him for two years after their marriage and he loaned James the money to buy a place and they then moved away. James' wife, now Mrs. Poe, repaid this loan after James' death. James was a dutiful son and the relationship between him and his father was cordial and affectionate, but Mrs. Poe testified that Mr. Jones disliked her and said that she objected to James' visiting him after they moved away. She denied that she objected to James' visiting his father but says she did object to his going to visit him on Sunday instead of going to Sunday School and church. She says James wanted to go and visit his father every Sunday morning, and because she objected to this Mr. Jones formed a great dislike for her. She also says she noticed a decided change in his attitude towards her after she testified against him in the divorce suit, that he seemed to dislike her intensely, and that she did not go to see him and that he did not come to see her after that.

Mattie was the oldest daughter and lived with him up to the time she married Joe E. Johnson. She had always been a dutiful and affectionate daughter, helped on the farm and in the bringing up of the younger children. She married in 1912 at the age of 18, and died in 1919. Joe Johnson, her husband, testified that he and Mr. Jones never got along after he married Mattie; that his mother testified against Mr. Jones in the divorce suit and that Mr. Jones never forgave her. He said John McIntyre and Bill Lackey also testified against him, and that he was never on good terms with them after that. He said he and Mr. Jones had "a falling out" in the spring after he married Mattie in December and that he never went about him after that. Mr. Jones did not go to Mattie's funeral.

Three physicians testified in the case but no one of them expressed the opinion that the testator was of unsound mind or that he lacked the mental capacity to make a will. Dr. Lackey had known him for 35 or 40 years and had been his regular physician for the last ten years of his life and had attended him during his last illness. He testified that in his long acquaintance with him he had never observed any indication of insanity in his conduct, and gave it as his opinion that he was not of unsound mind. This was the only witness who expressed an opinion as to his mental capacity to make a will. The other medical testimony was in response to hypothetical questions, such as to the effect that a man might be insane upon some particular subject and not manifest any indication of his insanity until he got on that particular subject; or that a man's hates, prejudices and dislikes might be so great as to unbalance his mind; or that he might be of unsound mind and yet exhibit no manifestation of it until he committed some act of violence; or that he might so brood over his hates and dislikes, and be so influenced by delusions that he would turn against those he loved the most. But these witnesses do not venture the opinion based upon the facts stated in these hypothetical questions that Mr. Jones suffered from any such delusions, or that his prejudices, hates and...