Isom v. Canedy

• Decision Date: 23 May 1921
• Docket Number: 21698
• Citation: 128 Miss. 64,88 So. 485
• Court: Mississippi Supreme Court
• Parties: ISOM et al. v. CANEDY et al

88 So. 485

128 Miss. 64

ISOM et al. v. CANEDY et al

No. 21698

Supreme Court of Mississippi

May 23, 1921

1 WILLS. Evidence sufficient to make question of undue influence for jury, and to support verdict for contestants.

In a suit to establish and probate a will where a caveat is filed and where the will has not already been probated in common form, and where the court grants a peremptory instruction for the proponents as to capacity to make a will, and as to the signing and witnessing of the instrument, but submits to the jury the question as to whether the will was or was not the product of undue influence, proof that the proponents were the business partners and that they had the confidence of the testator, and that one of them married the daughter of the testator's wife, and that they had caused or encouraged an estrangement between the testator and his sons, and had kept or aided in keeping the sons from visiting the father, and that the testator was in feeble health and mentally weak from disease, and that proponents accompanied the testator to the office where the will was made, with proof of expressions by the testator prior to the estrangement that he intended to leave his property to his wife and sons, will authorize the court to submit to the jury the question of undue influence and will sustain a verdict for the contestants.

2 WILLS. Exclusion of evidence of attorney drawing held harmless in will contest where proponents granted peremptory instruction.

Where the proponents of a will tender the evidence of the attorney who drew the will as to capacity of the alleged maker of the alleged will, and such evidence is excluded, it will be harmless error where the court grants the proponents of the alleged will a peremptory instruction on said issue.

3 WILLS. Burden of proof in will contest stated.

In a will contest in solemn form, the burden of proof is on the proponents as to the capacity of the maker to make a will, and as to the formal execution, and as to an issue of undue influence, but, on making proof of the due execution of the will and the proof of mental capacity to make a will, the proponents make out a prima-facie case, and it devolves upon contestants to produce proof to rebut the proof so made; but, when the contestants produce proof which tends to disprove the proponent's case, the burden of proof is then on the proponents to establish the issue involved by a preponderance of the evidence.

4. WILLS. Jury may consider disposition of property, confidential relations, and mental and physical condition of testator in determining undue influence; jury soft judges as to undue influence.

Where the evidence supports the hypotheses, it is proper to instruct the jury for the contestants that, in determining the question of the existence of undue influence operating upon the mind of decedent at the time of the making of the alleged will, the jury may take into consideration the mental and physical condition of the said decedent at and before the alleged signing thereof, that the jury are the sole judges as to whether any undue influence was present and operated in any way upon the mind of decedent when he signed said paper, and, in determining the question of the existence of undue influence, the jury may take into consideration the naturalness or unnaturalness of the disposition of his property, the relation of trust and confidence, if any is shown by the evidence, as between testator and his nephews, the beneficiaries, the fact that a man weak and suffering from disease may be influenced easily by others who.bear to him a relation of trust and confidence, any sudden change of testamentary intent, the failure to allow communications between the decedent and his sons, if caused by undue influence of the proponents, as any or all such, facts may be shown by the evidence.

HON. G. E. WILLIAMS, Chancellor.

APPEAL from chancery court of Coahoma county, HON. G. E. WILLIAMS, Chancellor.

Proceedings by J. S. Isom and others to probate the will of D. L. Canedy, to which J. A. Canedy and others filed a caveat. Judgment for contestants, and proponents appeal. Affirmed.

Judgment affirmed.

Roberson & Yerger, Wells, Stevens & Jones, F. H. Montgomery and J. W. Crisler, for appellants.

Maynard & Fitzgerald, for appellees.

OPINION

ETHRIDGE, J.

This is an appeal from a will contest.

D. L. Canedy on the 7th day of July, 1919, signed an instrument of writing purporting to be a last will and testament which was duly witnessed on said day, and thereafter Canedy died and the instrument was propounded for probate, whereupon the appellees filed a caveat, and the issue made by the pleadings in the case was submitted to the jury. At the conclusion of the evidence the court granted a peremptory instruction as to the capacity of the decedent to make a will, but submitted to the jury the question as to whether the will was procured by undue influence.

The proponents produced a number of witnesses to sustain their position as to the mental capacity of decedent and the execution of the will. For the contestants there was evidence showing that the decedent, Canedy, had often expressed his intention of leaving his property to his wife and two sons. His wife was a second wife, and was not the mother of the appellees, who are the contestants, and at the time she married Canedy she had children of her own, one of whom married one of the proponents of the will. It is in proof for the contestants that prior to the year 1917 D. L. Canedy lived on his place with his wife and his two sons, and that their relations were about as harmonious as those ordinarily existing among people similarly situated.

It appears that the proponents Lackey and Isom moved on the place of the decedent in the year 1917, and Lackey took charge of the business of Canedy, they operating a small store together as partners, that Lackey furnished some money to go in the business which Canedy needed at the time, and that Lackey managed the business and soon acquired great influence over Canedy in conducting the said business. There is evidence also that Canedy, the decedent, being in bad health, went to Hot Springs, Ark., for his health and while there received a letter from Lackey stating that Canedy's sons and brother were stealing things off of Canedy's premises and that thereafter the decedent ran the boys off his place and had no further relations with his brother. It was in proof for the proponents of the will that Canedy's sons were disobedient, immoral, and disrespectful to Canedy, and that they had gotten him into trouble about an automobile, and he had had to pay out some fines in court for them.

The will was drawn by Mr. Yerger, a lawyer at Clarksdale, Miss., who was offered as a witness to testify to what transpired at the time he drew the will. Mr. Yerger had been employed for the proponents who had given him a deed of trust constituting a lien on the lands owned by the decedent in his lifetime, and which had been attempted to be conveyed to the proponents by the will. When Mr. Yerger was presented objection was made to his testifying on two grounds: First, because he was the attorney of the decedent and what transpired was privileged; second, that he had a contingent interest in the property conveyed by the will and was disqualified under section 1917, Code of 1906 (section 1577, Hemingway's Code). The court sustained the objection to his testimony, and in the absence of the jury the facts he would have testified to were testified into the record. His testimony was to the effect that Canedy was of sound and disposing mind at the time and that he stated to Mr. Yerger being examined separate and apart from the proponents Lackey and Isom, who accompanied Canedy to Mr. Yerger's office, that the reason he was making the will leaving out his sons, with the exception of a small legacy which he gave them, was because they were disobedient, disrespectful, and trifling and would never amount to anything and would waste his property. Mr. Yerger also testified that he saw nothing to indicate undue influence at the time, and that he did not believe undue influence was used, but testified that he did not know the domestic conditions surrounding Canedy.

A young man who was Mr. Yerger's stenographer and who talked with Canedy prior to Mr. Yerger's talking with him, and who was present during all of the time that the proponents Lackey and Isom were present, testified that they made no statements in his presence at the time to influence Canedy in making the will, but that they came with Canedy and departed with him.

It is insisted by the appellants that there is no evidence warranting the submission of the question of undue influence, and that the appellants ought to have had a peremptory instruction of this question as well as on the question of capacity to execute and the proper execution of the will.

It was in proof that Lackey and Isom were kind to Canedy, and that they would not permit Canedy's sons to visit the place. One of the witnesses was asked:

"Q. Now, I want to know what was their relation, and what, if any, influence they exerted there. Just tell the court. A. Well, yes, sir; anything they requested Canedy to do, he was always willing to do it and did do in the church, in the lodge, and everywhere else. Q. Who, if any person, had complete charge of Canedy's business during the last four years and a half of his life? A. Oliver Lackey. Q. What, if any, chance in your observation did his two sons have to communicate with or be around him at all? A. Not any. Q. How, if at all, did you ever have any conversation with him at all about his sons? A. Yes, sit several different times. Q. Now during these conversations what, if anything, ...