Fortenberry v. Herrington

• Decision Date: 13 May 1940
• Docket Number: 34117
• Citation: 196 So. 232,188 Miss. 735
• Court: Mississippi Supreme Court
• Parties: FORTENBERRY v. HERRINGTON

196 So. 232

188 Miss. 735

FORTENBERRY v. HERRINGTON

No. 34117

Supreme Court of Mississippi, Division B

May 13, 1940

APPEAL from the chancery court of Marion county, HON. BEN STEVENS Chancellor.

Proceeding by Mrs. Cordia Wilkes Herrington to contest the will of S. A Wilkes, deceased, wherein Mrs. Pearlie Wilkes Fortenberry proponent, filed her answer, denying material allegations of the petition. Decree for contestant, and proponent appeals. Reversed and remanded.

Reversed and remanded.

Rawls & Hathorn, T. B. Davis, and Connor & Hammond, all of Columbia, for appellant.

The opinion of non expert witnesses has no evidential value unless based upon stated facts and circumstances, which, in some way must be connected with or throw light upon testator's acts and the condition of his mind at the actual time of the executing of the will.

Forberg v. Maurer, 336 Ill. 192; In re Schobers Will, 154 N.Y.S. 309; In re Estate of Collins, 174 Cal. 669; Kine v. Kine, 9 Conn. 101; Craft v. Felgenhauer, 178 N.E. 877; Wood et al. v. Hankey et al., 133 Md. 389; Berkemeier v. Reller, 37 S.W.2d 430; In re Hansen's Will, 177 P. 982; Wood v. State, 58 Miss. 741; Ward v. Ward (Miss.), 87 So. 154.

Eccentricities, miserliness, uncleanness, slovenliness, neglect of person and clothing, and offensive and disgusting personal habits do not constitute unsoundness of mind.

Forbert v. Maurer, 336 Ill. 192; In re Schobers Will, 154 N.Y.S. 309; In re Tymeson's Will, 187 N.Y.S. 330; In re Estate of Collins, 174 Cal. 669; Potts et al. v. House, 6 Ga. 324; Bennett v. Hibbert et al., 55 N.W. 93; Wood et al. v. Hankey et al., 133 Md. 389; In re Hope, 103 N. J. Eq. 11; In re Armstrong's Will, 106 N.Y.S. 671; In re Wright's Estate, 202 Pa. 395; In re Vaughn v. Malone, 211 S.W. 292; In re Hansen's Will, 177 P. 982; Stewart's Executors, 26 Wendell 255.

Extreme age and feeble health do not render a testator incapable of making a will.

Forberg v. Maurer, 336 Ill. 192; In re Whitmarsh's Estate, 234 N.Y.S. 505; In re Tymeson's Will, 187 N.Y.S. 330; Berkemeier v. Reller, 37 S.W.2d 430.

Statements made by testator, before and after the making of his will as to his intended or actual disposition of his property, when his will is made in accordance with such statements is proof of testamentary capacity.

Moore et al. v. Parks et al., 122 Miss. 301, 84 So. 230; 68 C. J. 468, par. 75 (3); Barnett v. Barnett, 155 Miss. 449, 124 So. 498.

The evidence of the two attesting witnesses has greater weight than that of any other witness.

Smith v. Young (Miss.), 99 So. 374; Maxwell v. Lake (Miss.), 88 So. 328.

H. C. Rawls, the attorney who drafted the will and who read it to testator at the time of execution, was qualified to testify in the case.

Nebhan v. Mansour et al. (Miss.), 139 So. 166.

The mental capacity of a testator must be tested as of the date of the will and the sole test as to testamentary capacity is whether or not at the time of the execution of the will testator had sufficient mental ability to know and remember who were the natural objects of his bounty, to comprehend the kind and character of his property, and to dispose of his property according to some plan formed in his mind.

Forberg v. Maurer, 336 Ill. 192; In re Whitmarsh's Estate, 234 N.Y.S. 505; Kine v. Kine, 9 Conn. 101; Craft v. Felgenhauer, 178 N.E. 877; Wood et al. v. Hankey et al., 133 Md. 389; Schneider v. Vosburgh, 143 Mich. 476; In re Hope, 103 N. J. Eq. 11; In re Armstrong's Will, 106 N.Y.S. 671; In re Vaughn v. Malone, 211 S.W. 292; Stewart's Executors (N. Y.), 26 Wendell 255; Lun et al. v. Lasch, 93 Miss. 81, 46 So. 559; Scally et al. v. Wardlaw et al., 123 Miss. 857, 86, So. 625; Ellis v. Ellis, 160 Miss. 345, 134 So. 150; Moore et al. v. Parks et al., 122 Miss. 301, 84 So. 230; Gholson et al. v. Peters et al. (Miss.), 176 So. 605.

Hall & Hall, Bernard Callender and Henry Mounger, all of Columbia, for appellee.

The issue as to mental capacity was properly submitted to the jury, and appellant was not entitled to the requested peremptory instruction.

It is, of course, the position of appellee that under the sharply conflicting evidence as to the mental capacity of the testator the question was not one for the court but for the jury, under proper instructions, and that, consequently, appellant's request for a peremptory charge was properly and correctly refused.

We would not be so bold as to assert that appellant had no testimony whatever supporting her contention that S. A. Wilkes was of sound mind at the time of the execution of the purported will, because there was, in fact, testimony tending to support her position. Likewise, as we shall hereinafter point out, there was evidence, and an abundance of it, we say, supporting appellee in her position. Who are we to contend that appellant's proof had no probative value and amounted to nothing? This decision was neither for the court, learned counsel on the other side of the table, nor for us. It was a question for the jury to decide.

The law in Mississippi, though not in some jurisdictions, has long since been settled, that the proponent of a will probated in common form has the burden of proof on the question of mental capacity of the testator.

Curry v. Lucas, 181 Miss. 720, 180 So. 397; King v. Rowan, 82 Miss. 81, 34 So. 325.

The question as to the mental capacity of S. A. Wilkes to make the will in question was peculiarly one for the jury, under the sharply conflicting testimony in the case. The jury had an abundance of testimony authorizing it to find, as it did, that Wilkes was not sane at the time of the execution of the will, and we confidently submit that the court properly submitted the issue to the jury for decision. The verdict of the jury being well supported by evidence, it cannot be disturbed on this appeal.

Kansas City, M. & B. R. R. Co. v. Cantrell, 70 Miss. 329, 12 So. 344; King v. Rowan, 82 Miss. 81, 34 So. 325; Cox v. Tucker, 133 Miss. 378, 97 So. 721; Rena v. Wells, 175 Miss. 458, 167 Miss. 620; Jamison v. Jamison, 96 Miss. 288, 51 So. 130; Meier v. Buchter, 197 Mo. 68, 94 S.W. 883, 6 L. R. A. (N. S.) 202.

The question as to whether the court erred in excluding the testimony of H. C. Rawls is not before the supreme court.

It has long been the rule in Mississippi that an appellant on an appeal to this court is precluded from assigning and arguing as error the exclusion of testimony in the lower court when he failed to have a record made of the excluded testimony.

Lizana v. Edward Motor Sales Co., 163 Miss. 266, 141 So. 295; G. M. & N. R. R. Co. v. Willis, 171 Miss. 732, 157 So. 899, 158 So. 551.

The court did not err in the giving of instructions to the jury.

OPINION

McGowen, J.

S. A. Wilkes died testate on November 20, 1937, and his will was promptly probated in the common form. Later the appellee, Mrs. Cordia Wilkes Herrington, a daughter of decedent, filed her petition to contest the will, alleging that it was the product of (1) undue influence, and (2) of the mental incapacity of the decedent to execute a will. Mrs. Pearlie Wilkes Fortenberry, proponent of the will, a half-sister of the decedent, filed her answer, denying the material allegations of the petition. The issue devisavit vel non was made up, and the two issues were submitted on the evidence.

The court gave a peremptory instruction in favor of the proponent on the issue of undue influence; and submitted to the jury the question of mental capacity. The jury found a verdict against the will, and the court entered a decree accordingly.

The main contentions of the appellant, the proponent of the will, are (1) that the court erred in not granting her a peremptory instruction on the issue of mental capacity; and (2) that the court erred in overruling the appellant's motion for a new trial, particularly in that the verdict of the jury was against the overwhelming weight of the evidence.

Considering these assignments of error together, a statement of the material facts adduced on the trial is necessary.

The proponent did not rest upon a prima facie case made by offering all the record of the probate of the will in common; but as a part of her evidence in chief offered twenty-two witnesses to establish the mental capacity of the decedent on the day of the execution of the will.

On the day that he executed the will he conveyed by deed his real property to the proponent, Mrs. Fortenberry, and acknowledged it before a notary public.

By the terms of his will he provided for the payment of his debts and a monument at his grave. He bequeathed to his daughter, the contestant, $ 25, stating that he had made advancements to her, and incurred expenses in her behalf. And he then bequeathed the rest of his estate to the proponent, Mrs. Fortenberry.

On the date of the execution of the will there were present in the room his physician, Dr. Conner; Mr. Rawls, the lawyer who prepared the will; Mr. Aultman and Reverend Edward Yawn, the attesting witnesses; Tom Hartage, a notary public; and Mrs. Fortenberry, her husband, Ed Fortenberry, and their daughter, Eddie Rue.

Dr. Conner was not offered as a witness; the decedent's attorney, Rawls, offered, but the court sustained an objection to him as a witness.

The decedent was about eighty years of age when, on October 2, 1937, Mrs. Fortenberry brought him to her home, where he remained until his death; during which time Mrs. Fortenberry and her husband nursed and cared for him.

Aultman testified that he had known the decedent since 1915; that they were good friends; that he visited decedent upon his sending for him, and talked with him two or three hours decedent telling him that he intended to make his home with the Fortenberrys, and wanted them to have his...