Jamison v. Jamison

• Decision Date: 31 January 1910
• Docket Number: 14,292
• Citation: 96 Miss. 288,51 So. 130
• Court: Mississippi Supreme Court
• Parties: ANNA D. JAMISON ET AL. v. ROBERT S. JAMISON ET AL

51 So. 130

96 Miss. 288

ANNA D. JAMISON ET AL. v. ROBERT S. JAMISON ET AL

No. 14,292

Supreme Court of Mississippi

January 31, 1910

FROM the chancery court of, first district, Chickasaw county, HON JOHN Q. ROBBINS, Chancellor.

Robert S. Jamison, and others, appellees, were complainants in the court below; Mrs. Anna D. Jamison and others, appellants were defendants there. From a decree in complainant's favor defendants appealed to the supreme court.

The complainants instituted this suit, as contestants, to have the will of A. J. Jamison declared invalid on the ground of undue influence exerted by the defendant, Mrs. Anna D Jamison, the aged testator's second wife; she and her children born of her marriage with the testator, being made defendants to the suit. The opinion states the facts. See a report of a prior decision in the case on a previous appeal Jamison v. Jamison, 92 Miss. 468, 46 So. 83, 945.

Judgment affirmed.

May, Flowers & Whitfield, and N.W. Bradford, for appellants.

The court below erred in submitting to the jury the question as to whether the will in question was made under undue influence exercised by appellants. No undue influence was shown in evidence. Undue influence sufficient to invalidate a will must amount to such a degree of restraint or coercion as destroys the free agency of the testator.

Personal and confidential relations afford a rational explanation of the generous provisions of a will made in favor of those who had the affections of the testator. See Am. Digest, par. 38, 75 N.E. 579; 165 Ind. 672.

Neither advice or consolation, however earnest and insistent, affects a will, unless it be further shown that the freedom of will was in some way impaired and destroyed. 105 N.W. 510.

In order to make a will valid it is not necessary that a testator should name all of his children and give each a portion of his estate. If he was mentally incapable of understanding the disposition which he was making of his property, and acted freely, it is immaterial as to whom he gave it, whether to his children or to strangers. If he had a disposing mind and memory, he had a right to do as he pleased with his property: 2 L. R. A. 670, par. 20.

Although the testator may perhaps have been influenced by feelings of resentment and dislike to one or more of his children, and by feelings of affection and attachment towards others, and though these feelings may have influenced him to give his whole estate to certain ones to the total exclusion of the others, this does not invalidate the will.

A will in favor of a second wife to the exclusion of children of the first one was not unnatural, although one of the children was a cripple from infancy, especially where testator had already made provisions for such children. See 53 L. R. A. 387.

Mr. Gardner in his text on "Wills," writing upon the subject of undue influence, and the relation of husband and wife, writes directly upon the case at bar, citing numerous authorities to support his position. He says "no presumption of undue influence arises from the fact that a wife is a beneficiary under husband's will, though the will may have been procured by her solicitation and importunity. See 82 N.W. 293. As to the exclusion of the children by a former marriage. Gwin v. Gwin, 48 P. 295.

Nor will the fact that children were disinherited by the influence of their step-mother invalidate a will. 179 Ill. 545. So evidence that children were kept away from the house of their step-mother, and that the testator had expressed regret at his second marriage is sufficient to go to the jury on the question of undue influence alleged to have been exercised by the wife in regard to the execution of the will. See 28 Colo. 167.

It has been held that mere persuasion which is beyond the bounds of mere suggestion, may be of such a character as not to amount to undue influence. See L. R. A. 1, 166. And again it has been held that the proper and legitimate exercise of an influence fairly and honestly acquired is not the exercise of undue influence and a deed obtained thereby will be sustained if made freely and in the exercise of the maker's judgment. Jackson et al. v. Rowell, 3 West, 542.

A just exercise of power, a discreet and proper influence directed to accomplish commendable and lawful ends is an influence to which the law will take no exception but rather encourage and uphold. Applying the law as stated above to the first instruction given for the contestants and in view of the evidence adduced we hold that this instruction should not have been given because it is not bourne out by the facts disclosed in the record.

It should be remembered that not only was the deceased a man of sound mind, a man of sufficient capacity to legally execute a will, but he was a man, it appears, above the average in capacity. He held the position of postmaster up to the time of his death in the town of Houston; he was vice-president of a bank in Houston. The president of the bank and his fellow directors testified that they considered him a man of sound business judgment. Several business men of the town were put on the stand and they all testified that his business judgment was sound and that they had confidence in him. The testimony does not create even a suspicion that deceased did not have testamentary capacity at the time of the execution of the will. In fact, while this charge was made in the petition, there was no effort made to prove it.

There are many cases to be found in the text-books in each of which it appeared that an old man left his property to his last wife, who cared for him in his declining years, and left nothing to the older children who had established homes for themselves and fastened their affections upon their own families, to the exclusion of their father, and where the will, in such cases, were held valid. See Kneisel v. Kneisel, 106 N.W. 1114.

The legal presumption is in favor of the validity of a will, when the person, who is provided for therein, is one with whom the testator had maintained intimate and affectionate relations during his life. McFadin v. Catron, 138 Mo. 197; Harp v. Parr, 168 Ill. 459, 48 N.E. 113; Monroe v. Barclay, 93 Am. Dec. 626; Waters v. Waters, 78 N.E. 1, 5; In re Thorne's Estate, 7 N.Y.S. 198; Woodward v. James (S. C.), 51 Am. Dec. 649.

In the case at bar, there is not a scintilla of evidence tending to show that Mrs. Jamison, the second wife of deceased, asked him to make a will in her favor; nor that she used her influence in any way upon the subject of disposing of the property; nor that the disposition of the property was ever discussed between the husband and wife. The incidents described occurred many years ago. Proof of them tends to show that she influenced him, but it does not show improper influence. Besides, the proof is directed at occurrences fifteen or twenty years before the will was executed. It is true the witnesses say they think her influence over him increased as he grew older. This conclusion of the contestants can have no weight whatever, since they do not give the facts upon which their conclusion is based, and it may, for aught we know, be based solely upon the fact that he gave his property to Mrs. Jamison and left them out. This one fact is doubtless sufficient for their purpose. We say therefore (1) That the proof tends to show only a general influence over the testator possessed by Mrs. Jamison; (2) that this general influence is attempted to be shown to have existed fifteen or twenty years before the will was executed; (3) that no sort of proof is offered to show that even this general influence lasted until the date of the execution of the will; (4) that no proof is offered which tends in the most distant way to show that Mrs. Jamison exerted even her general influence over him to have his will executed in her favor; (5) that no proof is offered which in any way connects her influence with the execution of the will; (6) that no proof is offered which tends in the most remote way to show that she exercised an improper or unlawful influence over him for any purpose whatever; (7) that the proof not only fails to show that she had anything more than a general influence over the deceased, the kind which a wife naturally has over the husband, but it also fails to show in the remotest way that even the influence she used, was used for the purpose of becoming the sole beneficiary under his will; (8) that the proof not only fails to show the existence of any improper or unlawful influence or the use of any general influence in the procurement of the will; but it goes further and accounts reasonably and satisfactorily for the provisions of the instrument offered for probate by showing that the deceased was devoted to his wife and that she was kind and faithful to him; (9) that the proof not only fails utterly to make out a case of undue influence, but overwhelmingly shows the probability of its entire absence.

In further support of our conclusions as to the insufficiency of the evidence offered to make an issue for the jury, we call the court's attention especially to Remsen on the preparation and contest of wills, 382, 384.

The proponents made out their prima facie case. This was recognized by court and counsel. There was no motion to exclude; when the proponents rested, the contestants offered their evidence. By proceeding to support their side of the case, they conceded the fact that the proponents had met the burden resting upon them in the beginning. If the contestants had offered no testimony at all, the court would necessarily have instructed the jury for the proponents.

R. V. Fletcher and R. H. Knox, for appellees.

This case, on the former appeal, Jamison v. Jamison, 92 Miss. 468, was remanded upon a...