Gholson v. Peters

Citation176 So. 605,180 Miss. 256
Decision Date01 November 1937
Docket Number32830
CourtUnited States State Supreme Court of Mississippi
PartiesGHOLSON et al. v. PETERS et al

Division B

Suggestion Of Error Overruled December 13, 1937.

APPEAL from chancery court of Marshall county HON. HERBERT M HOLMES, Special Chancellor.

Proceedings to contest the will of Mrs. Mamie Peel Crawford, brought by Marion C. Peters and another against Harris Gholson and others. From a judgment on a verdict for contestants defendants appeal. Reversed and judgment rendered.

Reversed and decree here for appellants.

Lester G. Fant, Sr. and Jr., of Holly Springs, for appellants.

We have carefully abstracted the evidence of contestants. We have searched the transcript painstakingly, and we submit the considered statement that ali of the testimony for the contestants, with its inferences, can be placed in three statements of fact concerning Mrs. Crawford: (1) She became estranged from her daughters and their husbands. (2) She was devoted to Mary Ann Peters, her grandchild. (3) On occasions she was angry, and at times spoke bitterly.

We measure the assertion. And as a matter of fact rather than of argument, we make it. Every syllable of evidence touching her capacity can be placed within one of these propositions.

That such evidence is no proof of testamentary incapacity requires no argument. Displeasure, anger, change of affections; these are qualities of sound minds. Every witness for the contestant, we submit, shows that Mrs. Crawford had testamentary capacity.

Moore v. Parks, 122 Miss. 301, 84 So. 230; Mullins v. Cottrell, 41 Miss. 291; Scally v. Wardlaw, 123 Miss. 860, 86 So. 625; Lum v. Lasch, 93 Miss. 81, 46 So. 559; Barnett v. Barnett, 155 Miss. 449, 124 So. 498; Gathin v. Howard 122 Miss. 355, 84 So. 240; Burnett v. Smith, 93 Miss. 566, 47 So. 117; Nebhan v. Mansour, 162 Miss. 418, 139 So. 166; 28 R. C. L. 90, 102.

The fact that, a testator feels an aversion for relatives is no evidence of either a delusion or an insane delusion.

Schneider v. Manning, 121 Ill. 370, 12 N.E. 267, Ann. Cas. 1916C 9; Carpenter's Estate, 94 Cal. 419, 29 P. 1101, Ann. Cas. 1916C 9; Carter v. Dixon, 69 Ga. 82, Ann. Cas. 1916C 9; Mullins v. Cottrell, 41 Miss. 291; Coffey v. Miller, 160 Ky. 415, 169 S.W. 852, Ann. Cas. 1916C 30; In re Alexander's Estate, 240 Pa. St. 58, 91 A. 1042, Ann. Cas. 1916C 33.

Taking the contestant's theory, acceding all their evidence, drawing all inferences, and giving it fullest weight, the principle of law still controls: prejudices and estrangements do not deprive a person of the right to make a will.

Burnett v. Smith, 93 Miss. 566; Mullins v. Cottrell, 41 Miss. 291; Moore v. Parks, 122 Miss. 301.

The will was natural and "reasonable."

68 C. J. 477; Barnett v. Barnett, 155 Miss. 453.

The court should have sustained the motion for a new trial.

Scally v. Wardlaw, 123 Miss. 879.

The court erred in admitting the will of Alice Maud Peel. The will of Alice Maud Peel, discovered arid probated one year after the death of Mrs. Crawford was put in evidence by contestants. Its admission was highly prejudicial.

Section 1609, Code of 1930; Cameron v. Watson, 40 Miss. 191; Kinard v. White, 175 Miss. 480, 167 So. 636.

In the first place, it was fatally confusing. It is difficult to imagine anything more confusing than in the progress of trial of an issue devisavit vel non to have produced in evidence another will of a third person, the terms of which conflict with the will at issue. It is then impossible to confine the question to the execution of the will. Every time "the will" is mentioned it must be specified. And how can the jury he told which will is questioned, and whether they can sustain one without invalidating the other? We submit that this of necessity destroys the issue to be tried.

Masonite v. Dennis, 168 So. 613; Brown v. Mitchell, 75 Tex. 9; Havens v. Mason, 78 Conn. 410, 3 L. R. A. (N. S.) 172, 62 A. 615.

Hindman Doxey, of Holly Springs, for appellants.

One of sound mind and over the age of twenty-one years may execute a will from any motive, whether that be love, gratitude, partiality, prejudice, whim or caprice.

Burnette v. Smith, 93 Miss. 566; Barnett v. Barnett, 155 Miss. 456, 124 So. 498; King v. Rowan, 82 Miss. 1.

Although the law presumes the testatrix to be of sound mind, it is unquestionably the responsibility of the proponents to make a prima facie case that the testatrix was of sound and disposing mind and over the age of twenty-one years at the time of the execution of the will. The burden then shifts to contestants to prove their defense by preponderance of the evidence on the whole case and the contestants must overcome the prima facie case by testimony, with the privilege of proponents to offer rebuttal testimony.

Gathings v. Howard, 122 Miss. 375, 84 So. 240; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41; Moore v. Parks, 122 Miss. 301, 84 So. 230.

Temporary or intermittent insanity or mental incapacity does not raise a presumption that it continued to the execution of the will.

Scally v. Wardlaw, 123 Miss. 857, 86 So. 625; Nebhan v. Mansour, 162 Miss. 418, 139 So. 878.

In passing upon the mental capacity of a testatrix the testimony of the subscribing witnesses is entitled to greater weight than the testimony of those who had no such duty to perform, and especially is entitled to greater weight than the testimony of witnesses who were not; present at the time of executing the will, and who did not see the testator on the day of its execution.

Gillis v. Smith, 114 Miss. 684, 75 So. 451; Tyson v. Utterback, 154 Miss. 392, 122 So. 496.

Testatrix's mental capacity is to be tested as of date of execution of the will.

Scally v. Wardlaw, 86 So. 625.

A will executed by testator in a lucid interval is valid.

Lum v. Lasch, 93 Miss. 81, 46 So. 559; Mullins v. Cottrell, 41 Miss. 291; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41; Barnett v. Barnett, 155 Miss. 449, 124 So. 498.

The court erred in refusing a peremptory instruction to find for the proponents. Appellants respectfully submit that this was reversible error on the part of the trial court and that upon a review of the whole testimony in this case it will be seen there was nothing sufficiently strong in the way of competent evidence to legally justify the court in letting the case go to the jury.

Lum v. Lasch, 93 Miss. 86, 46 So. 559; Moore v. Parks, 122 Miss. 313, 84 So. 230; Nebhan v. Mansour, 162 Miss. 418, 139 So. 166; Ellis v. Ellis, 160 Miss. 345, 134 So. 150; Scally v. Wardlaw, 123 Miss. 857; Whitehead v. Kirk, 104 Miss. 776; Ward v. Ward, 124 Miss. 697; Hitt v. Terry, 92 Miss. 671; Gathings v. Howard, 122 Miss. 355.

Intestacy will be avoided if avoidance is in reason possible.

Hale v. Neilson, 112 Miss. 291.

Hindman Doxey and Lester G. Fant, Jr., both of Holly Springs, for appellants.

Opinions of lay witnesses, unless supported by proper narrative facts, are of no evidentiary value.

Ward v. Ward, 124 Miss. 697, 87 So. 153; Scally v. Wardlaw, 123 Miss. 360, 86 So. 625.

The will is no evidence of mental incapacity.

Jamison v. Jamison, 96 Miss. 288, 51 So. 130; Mullins v. Cottrell, 41 Miss. 291; Newman v. Smith, 77 Fla. 663, 82 So. 326.

L. A. Smith, Sr., of Holly Springs, for appellees.

After all this was a case of conflicting testimony, and was submitted to a jury as triers of thee fact, and they found she was of unsound mind, and had no testamentary capacity. The rule in Mississippi is that the jury is the sole judge of the facts where there is a conflict.

King v. King, 134 So. 827, 161 Miss. 51; Loper v. Y. & M. V. R. R. Co., 145 So. 743, 166 Miss. 79.

A new trial on an issue of devisavit vel non will not be granted on the ground that the verdict is against the overwhelming weight of the evidence, though the court be of the opinion that the evidence against such a verdict is strong, while the evidence in its favor is not unbelievable but substantial.

Cox v. Tucker, 97 So. 721, 133 Miss. 378.

The jury's finding on conflicting evidence as to testamentary capacity will not be disturbed on appeal.

Dabb v. Richardson, 102 So. 769, 137 Miss. 789; Watkins v. Watkins, 106 So. 753, 142 Miss. 210.

The right to execute a will is statutory, and it is a condition precedent under our statute that the testator be of sound mind.

Gathings v. Howard, 84 So. 240, 122 Miss. 355.

We contended, as we did and do, that the will is of itself evidence for the jury to consider, in its unnaturalness and unreasonableness, which we think its perusal amply reveals it to be, both unnatural and unreasonable, when considered in connection with Mrs. Crawford's family and the moral equities and obligations arising therefrom. We think our position in this record is sustained by authority. Unnatural or unreasonable provisions, standing alone, will not support a finding of testamentary incapacity, but in passing on that question, the unreasonableness or unnaturalness of the will is an element to be considered by the jury in connection with all the other evidence.

Scally v. Wardlaw, 86 So. 625, 123 Miss. 857; Jamison v. Jamison, 51 So. 130, 96 Miss. 288.

Rule in giving peremptory instruction for plaintiff is that, conceding all facts to be true which the evidence tends to establish and drawing all logical inferences favorable to the other party from the testimony, there is no defense made, or nothing to be submitted to the jury.

G. & S. I. R. Co. v. Prine, 118 Miss. 90, 79 So. 62; Gravette v. Golden Sawmill Trust, 154 So. 274, 170 Miss. 15; Lee Co. Gin Co. v. Middlebrooks, 137 So. 108, 161 Miss. 422.

Where plaintiff requests a peremptory instruction the evidence is to be taken most strongly against him.

Am Trad. Co. v. Ingrain Day Lbr. Co., 110 Miss. 31, 69...

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