In re Estate of Smith

• Citation: 722 So.2d 606
• Decision Date: 22 October 1998
• Docket Number: No. 96-CA-01190-SCT.,96-CA-01190-SCT.
• Parties: In re LAST WILL AND TESTAMENT AND ESTATE OF Mrs. Elizabeth R. SMITH, Deceased. David R. Smith and Mrs. Annette Smith, Husband and Wife v. Mrs. Jeanette Averill and Oren Pickering.
• Court: United States State Supreme Court of Mississippi

722 So.2d 606

In re LAST WILL AND TESTAMENT AND ESTATE OF Mrs. Elizabeth R. SMITH, Deceased.

David R. Smith and Mrs. Annette Smith, Husband and Wife v. Mrs. Jeanette Averill and Oren Pickering.

No. 96-CA-01190-SCT.

Supreme Court of Mississippi.

October 22, 1998.

Daniel J. O'Beirne, Natchez, Attorney for Appellants.

J. Anthony Williams, Natchez, Attorney for Appellees.

Before SULLIVAN, P.J., and MILLS and WALLER, JJ.

MILLS, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. On December 16, 1994, the Last Will and Testament of Mrs. Elizabeth R. Smith was admitted to probate in Adams County, Mississippi. Jeanette Averill and Oren Pickering, the sole surviving heirs at law of the testatrix, filed their petition to contest probate of will and for accounting on February 2, 1995. They contend that the testatrix, Mrs. Elizabeth R. Smith, lacked testamentary capacity and was unduly influenced by either David R. Smith, his wife Annette Smith, or both. On August 29, 1996, a jury in Adams County, Mississippi, entered a unanimous verdict in favor of Averill and Pickering. Aggrieved, David R. Smith and his wife, Annette Smith, bring this appeal assigning the following issues as error:

I. WHETHER THE CHANCERY COURT ERRED IN RESERVING RULING ON THE SMITHS' MOTION IN LIMINE ON THE ISSUE OF WILL SUBSTITUTES AND ALLOWING AMENDMENT BY AVERILL AND PICKERING ON THIS ISSUE.

II. WHETHER THE VERDICT OF THE JURY WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW.

III. WHETHER THE CHANCERY COURT ERRED IN OVERRULING THE SMITHS' MOTIONS FOR A DIRECTED VERDICT ON THE ISSUES OF TESTAMENTARY CAPACITY AND UNDUE INFLUENCE.

IV. WHETHER THE CHANCERY COURT ERRED IN OVERRULING THE SMITHS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE MOTION FOR A NEW TRIAL.

V. WHETHER THE CHANCERY COURT ERRED IN OVERRULING THE SMITHS' MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF WILL SUBSTITUTES AND RIGHTS OF SURVIVORSHIP.

VI. WHETHER THE CHANCELLOR ERRED IN OBJECTING FROM THE

BENCH TO THE TESTIMONY OF DANIEL J. O'BEIRNE.

Jeanette Averill and Oren Pickering crossappeal raising the following issue:

WHETHER THE CHANCERY COURT ERRED IN HOLDING THAT THE JOINT BANK ACCOUNTS PASSED OUTSIDE THE ESTATE AND WERE NOT PART OF THE WILL CONTEST.

STATEMENT OF THE FACTS

¶ 2. The testatrix, Mrs. Elizabeth R. Smith lived on Springfield Road in a mobile home on the property of her daughter, Jeanette Averill, until late May or early June 1994. She moved her trailer to Morgantown Road around June 1994 and died December 11, 1994, after signing an instrument titled "Last Will and Testament" in September 1994. This instrument purported to convey the entire estate of the testatrix to David R. Smith Sr., the nephew of the testatrix by marriage, and his wife, Annette Smith. This conveyance expressly excluded Jeanette Averill and Oren Pickering, the testatrix's children by a prior marriage and the sole heirs at law of the testatrix. A residuary clause provided that if both David R. Smith Sr., and wife, Annette Smith, predeceased the testatrix the estate should go in trust to four named great nephews. This instrument recited that it revoked all prior wills, specifically providing for revocation of a will dated May 23, 1993. There were at least two prior wills including the one dated May 23, 1993, and one dated June 29, 1994. The will in contest was created by changing certain provisions in the will dated June 29, 1994.

¶ 3. The testatrix had two bank accounts at Britton and Koontz First National Bank. One account was designated a N.O.W. account and the other a M.M.A. account. The testatrix initially listed Jeanette Averill on both accounts as a joint tenant with rights of survivorship. Prior to June 1994, the testatrix took Jeanette Averill's name off these accounts and instead added David R. Smith Sr., as a joint tenant with rights of survivorship. In June 1994, the testatrix executed a power of attorney in favor of David R. Smith Sr. Averill and Pickering contested the probate of the latest will upon learning the testatrix had excluded them from inheriting and had left her entire estate to the Smiths.

I. WHETHER THE CHANCERY COURT ERRED IN RESERVING RULING ON THE SMITHS' MOTION IN LIMINE ON THE ISSUE OF WILL SUBSTITUTES AND ALLOWING AMENDMENT BY AVERILL AND PICKERING ON THIS ISSUE.

A. Motion in Limine

¶ 4. A trial judge enjoys wide discretion with regard to the relevancy and admissibility of evidence. Fisher v. State, 690 So.2d 268, 274 (Miss.1996). The Court will not reverse the ruling of the trial judge unless the judge commits an abuse of discretion which prejudices the party bringing the motion. Fisher, 690 So.2d at 274.

¶ 5. The Smiths made a motion in limine to exclude any mention of the joint accounts of the testatrix. They claim the accounts, as will substitutes, pass outside of the will and should be no part of this will contest. On Friday, before the will contest began Monday, the chancellor discussed his decision regarding the motion in limine:

It would seem to me that I have ruled that this case today [there] will be one issue decided, the issue [of] whether this Will is good or bad. It is either good or it is bad by reason of undue influence or lack of capacity.... I think that there can be evidence ... [that] when this bank account was opened that they took her down there and they did this and they did that.... I think that is relevant and probative....

The chancellor bifurcated the will substitutes issue and reserved ruling on that issue until necessary. The chancellor ruled that in the will contest there should be no mention of rights of survivorship on the bank accounts. He limited any mention of the accounts to evidence of a confidential relationship to prove undue influence. The Smiths suffered no prejudice because of the chancellor's ruling and there was no error.

B. Amendment To Pleadings

¶ 6. While the chancellor granted the Smiths' motion in limine in this portion of the trial, one issue remains. Should the chancellor have ordered bifurcation of the trial and allowed amendment to the pleadings? The Smiths assert that the chancellor should not have allowed an amendment since Averill and Pickering made no motion seeking amendment of the pleadings. In fact, appellees made no argument that they should be allowed to amend even on the Friday the chancellor discussed his ruling.

¶ 7. Counsel for the Smiths alleged the issue of the joint bank accounts had not been specifically pled. In response, counsel for the appellees said, "Well, it's not. It says that she was without capacity to make the will and there was undue influence in the execution of the will. The cases don't make that distinction."

¶ 8. Mississippi Rule of Civil Procedure 15 governs amendment to pleadings and recites: "[L]eave shall be freely given when justice so requires." M.R.C.P. 15(a). This Court reviews the decision to allow amendment under an abuse of discretion standard. Church v. Massey, 697 So.2d 407, 413 (Miss. 1997). We have held that unless we are convinced there was an abuse of discretion by the trial judge, we have no authority to reverse. Id. Additionally, we have ruled, "The court is to be liberal in granting permission to amend when justice so requires." Shipley v. Ferguson, 638 So.2d 1295, 1300 (Miss.1994)(quoting M.R.C.P. 15(b)).

¶ 9. The trial court's decision to bifurcate the issue of will substitutes gives the Smiths additional time to prepare their case. The Smiths cite no prejudice which resulted from the chancery court's decision, and we find no error in allowing amendment.

CROSS — APPEAL: WHETHER THE CHANCERY COURT ERRED IN HOLDING THAT THE JOINT BANK ACCOUNTS PASSED OUTSIDE THE ESTATE AND WERE NOT PART OF THE WILL CONTEST.

¶ 10. In their cross-appeal, Averill and Pickering suggest the issue of will substitutes should have been included in the original will contest and not heard separately. We need not reach the validity of the chancellor's decision since the order granting a separate trial is not appealable as a final judgment. M.R.C.P. 42(b) cmt.; See 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2392 2d ed.(1995). This assignment of error is not properly before the Court.

II. WHETHER THE VERDICT OF THE JURY WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW.

III. WHETHER THE CHANCERY COURT ERRED IN OVERRULING THE SMITHS' MOTIONS FOR A DIRECTED VERDICT ON THE ISSUES OF TESTAMENTARY CAPACITY AND UNDUE INFLUENCE.

IV. WHETHER THE CHANCERY COURT ERRED IN OVERRULING THE SMITHS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE MOTION FOR A NEW TRIAL.

¶ 11. The second, third and fourth assignments of error are addressed together as the same facts are applicable to all three issues. Proof of testamentary capacity and undue influence forms the basis of the Smiths' assignments of error.

A. Testamentary Capacity

¶ 12. Did the chancery court err in allowing the jury to decide the question of testamentary capacity? A determination of testamentary capacity is based on three factors:

1. Did the testatrix have the ability at the time of the will to understand and appreciate the effects of her act?

2. Did the testatrix have the ability at the time of the will to understand the natural objects or persons to receive her bounty and their relation to her?

3. Was the testatrix capable of determining at the time of the will what disposition she desired to make of her property?

Gallaspy v. Gallaspy, 562 So.2d 74, 77 (Miss. 1990); Edwards v. Edwards, 520 So.2d 1370, 1372 (Miss.1988).

¶ 13. The proponents of the will must meet their burden of proof "by the offering and receipt into evidence of the will and the record of probate." Edwards, 520 So.2d at 1372-73 (quoting Harris v. Sellers, 446 So.2d 1012, 1014 (Miss.1984)). A prima facie case is made by the proponent solely on his proof. Id. at 1373. When this burden of proof has been met, the burden of...