Hayward v. Hayward, 47600

• Decision Date: 26 August 1974
• Docket Number: No. 47600,47600
• Parties: Herbert HAYWARD v. Mrs. Clara Clark HAYWARD et al.
• Court: Mississippi Supreme Court

Page 207

299 So.2d 207

Herbert HAYWARD v. Mrs. Clara Clark HAYWARD et al.

No. 47600.

Supreme Court of Mississippi.

Aug. 26, 1974.

John S. Throop, Jr., Water Valley, for appellant.

John T. Keeton, Jr., Grenada, for appellees.

SMITH, Justice:

This appeal is from a decree of the Chancery Court of Grenada County entered in the contest of the purported will of the late Thomas Taylor Hayward, pursuant to a jury verdict, denying probate.

The testator was quite old and, according to all witnesses, almost totally blind and deaf. He suffered also in some degree from arteriosclerosis and was in poor physical condition. Notwithstanding his disabilities, it was not disputed that, throughout the period in which the will was executed, Hayward was able to attend to his own business affairs personally, and did so attend to them.

Following his death on November 18, 1971, there was offered for probate as Hayward's last will and testament a written instrument dated May 15, 1970, executed by him and purporting to be his last will and testament, which had been drafted by an experienced and reputable member of the Grenada County Bar and witnessed by him and by a young lady who served that attorney as his secretary. Probate was intercepted by the filing of caveat by the 78 year old widow of the testator and 7 of his 8 children. It was alleged by the contestants that the purported will (1) was not the will of the testator but had been the product of undue influence brought to bear upon him by appellant, one of his sons, and (2) that the alleged testator had lacked testamentary capacity at the time of its execution.

Under the terms of the document offered for probate, all of testator's property, real and personal, was devised and bequeathed to appellant and another of testator's sons as trustees, to be devoted to the care, support and benefit of his widow during her lifetime, apparently with the right to consume the corpus for those purposes, although construction of the document is not before us in this case.

It was provided that upon the death of the widow, appellant was to have the house and lot formerly occupied by the testator, and that the remainder of testator's property should be divided equally among testator's 8 children. Two other of testator's sons were named as executors of this will.

Upon the conclusion of the trial, after all of the evidence was in, the chancellor declined to submit to the jury the issue tendered by contestants that the will had been the product of undue influence brought to bear by appellant upon his father, since there was not a syllable of proof to support that charge. The correctness of the chancellor's action in this regard is expressly recognized in their brief on this appeal by appellees.

The issue of testamentary capacity, however, was submitted to the jury by the chancellor and, upon that issue the jury returned a verdict against the will. A decree was entered accordingly. Careful study of the record convinces us that the chancellor erred in submitting this issue to the jury.

The essence of the testimony of the several lay witnesses who testified for the contestants upon the issue of testamentary capacity is that at various times the testator failed to recognize persons whom he knew until they were very close to him, and that often the testator did not understand what was said to him because of his almost total deafness. A fair construction of this testimony is that testator's failure to recognize persons whom he knew until they were 'very close' was due, not to mental impairment, but to his blindness. Also, his deafness, which all concede, made it quite difficult (as it was said) to 'communicate' with him.

Two doctors were offered by contestants as witnesses. One of these, Doctor Eason, was an internist, practicing in Memphis, Tennessee. This doctor stated quite frankly that he had no special training or experience in psychiatric practice. He had treated the testator in 1966 in Memphis for peptic ulcers. This doctor saw him again in a Memphis hospital some 3 years later, where he was again treated for peptic ulcers. There is nothing in the testimony of this physician of any incident, or of any behavior on the part of the testator, indicative of impairment or loss of his mental faculties, unless his statement that testator had seemed lethargic and had no appetite can be so considered. It is clear from the doctor's testimony that the only basis for his assumption that it was unlikely that Hayward would have had 'testamentary capacity' on the date of the execution of the will was based upon the fact that Hayward had been suffering from arteriosclerosis. For that reason, and that reason alone, Doctor Eason said that he wouldn't 'expect' Hayward to have had 'testamentary capacity.' The doctor said also that a person suffering from this condition could have lucid intervals although he would not have 'expected' Hayward to do so. He conceded that if Hayward's wife and children came into the room that Hayward would know them. The only contact this witness had with the testator was upon the brief occasions when he treated him in Memphis for peptic ulcers.

The other doctor offered by contestants on the issue of testamentary capacity was a Doctor James. This doctor said that he had been Hayward's 'family physician' for some 25 years. He also said that he had seen Hayward some 4 or 5 times in the period 1968-1970. He said that, 'I have an opinion, but this is not a fact. I do not think he was mentally competent at that time.' However, Doctor James did not see Hayward on the date of the execution of the will, and when asked if Hayward 'was mentally competent on that day or had lucid intervals' answered, 'It's possible but improbable.' As with Doctor Eason, Doctor James also based his ideas upon the fact that Hayward had been suffering from arteriosclerosis and not upon incidents, or acts on the part of Hayward, which would indicate unsoudness of mind or lack of mental capacity. Doctor James concluded his testimony by admitting, however, that on the times when he had seen...