King v. Rowan

• Decision Date: 04 May 1903
• Citation: 34 So. 325,82 Miss. 1
• Court: Mississippi Supreme Court
• Parties: BENJAMIN KING ET AL. v. WALTER H. ROWAN ET AL

34 So. 325

82 Miss. 1

BENJAMIN KING ET AL. v. WALTER H. ROWAN ET AL

Supreme Court of Mississippi

May 4, 1903

March 1903

FROM the chancery court of Copiah county. HON. HENRY C. CONN Chancellor.

The suit was a contest of the will of Mrs. Evaline King, deceased widow of the late Col. Benjamin King, of Copiah county. Rowan and others, appellees, grandchildren of the testator, were the contestants, and Benjamin King and Mrs. Eva King Bloom appellants, a son and a daughter, respectively, of the testatrix, were the proponents of the will. By the terms of the will one-third, approximately, of the testatrix's estate was devised and bequeathed to her son, Benjamin, and two-thirds, approximately, thereof to her daughter, Mrs Bloom; nothing whatever was given to the grandchildren, the children of deceased daughters of testatrix.

The contestants claimed, first, that Mrs. King was mentally incapacitated at the time she executed the will, and, second that its execution was procured by undue influence exercised by Benjamin King and Mrs. Bloom, the devisees and legatees under and the proponents of the will.

The issues thus presented, with a large number of instructions, were submitted to a jury, which found for contestants. The court below overruled appellants' motion for a new trial, and adjudged the will void, whereupon appellants, proponents, appealed to the supreme court.

The instructions given and refused by the court below are sufficiently stated in the opinion of the court.

A statement of the evidence is unnecessary to an understanding of the legal questions decided by the court.

Reversed and remanded.

McWillie & Thompson, for appellant Mrs. Bloom; Mayes & Harris, for appellant Benjamin King; Benjamin King pro se, and R. N. Miller, for both appellants.

The state of Mrs. King's feelings towards the contestants, for which the proponents are in no way responsible, fully accounts for their not being made the objects of her bounty and is entirely consistent with the most perfectly sound mind. There is no evidence in the record which can justly be said to indicate undue influence. The partiality which makes a testator discriminate between relatives in equal degree and which may be the result of affection or gratitude affords no foundation for the charge of undue influence. In this case we find the persons favored were in closer relationship; that one of them, her son, had been all the time in immediate association with his mother, living upon an adjoining lot, often providing her with delicacies for her table and assisting her in the management of her business, and that the daughter, who lived some thirty or forty miles distant, corresponded with her mother, exchanging gifts and visits with her, and in the great trial of her last illness was her stay and comfort; and yet between this son and daughter the testatrix discriminated, giving the daughter, who was closer to her heart, more than she did the son. In the absence of all evidence of force, fear, threats and coercion, whereby the will of another is made to take the place of that of the testator, the contestants have been forced to rely upon such trivial circumstances as that the son, Benjamin King, was the draughtsman of the will, and that he went after the subscribing witnesses. As the old lady was entitled to make a will, and had to leave the drawing of it to another, and by reason of her illness was unable to go after the witnesses herself, the import of these facts is not discernible. That Mrs. King did not intend in any case to give her property, or any part of it, to her grandchildren, is shown by Dr. Rowan's testimony that she stated that if Mrs. Bloom did not stop worrying her about it she would give it to a charitable institution. In no event were the grandchildren to get it.

The claim of undue influence being wholly unsupported, the contestants in their declaration endeavored to show by equally flimsy evidence that Mrs. King was mentally incapable of making a will at the date of the one in question.

The only witness relied on to show mental incapacity was Dr. J. A. Rowan, the father of several of the contestants, who was also the attending physician of Mrs. King in her last illness. This gentleman's idea of the state of Mrs. King's mind was quite different from that of everyone else who saw her, and there are some features of his testimony which it may be profitable to note. His classification of her mental disturbance was "moral civil insanity," something new in medical jurisprudence. Moral insanity may be a question with reference to acts of the subject whether civil or criminal, but "moral civil insanity" as a technical term is not found in any authority within our reading. The reasons he gives for her moral insanity, that morbid state indicating a perversion of the moral feelings, have no relation whatever to morals, but merely to intellectual capacity. There was absolutely nothing in the case upon which the charge of moral insanity could be founded. Even the resentment at the coldness and indifference of her grandchildren which Mrs. King evidently entertained could not be exaggerated into the vindictive and causeless hatred which sometimes indicates moral insanity. Moreover, it was not a part of the campaign to put forward her feeling toward her grandchildren as the indication of her insanity, for that did not consist with the idea that the testatrix had no such feeling and would have provided for them in her will but for undue influence. The indications of "moral civil insanity" mentioned by Dr. Rowan as characterizing the case, were jumping from one subject to another, irrational sayings, and loss of memory, but as the Doctor could not recall an instance of her jumping from one subject to another, nor a single irrational speech, his memory would seem to have been the worse of the two. He could refer to but one circumstance to show her loss of memory, and we find that in the statement that on one occasion when she called for ice water she seemed to have forgotten that she had already had some not long before. The Doctor's estimate of Mrs. King's mental condition can best be judged from the fact that, although he says it kept getting worse and worse all the time, he thinks what she said some time after the date of the will worthy of being embodied in his testimony as the language of a person of sound mind. She was sufficiently sane to be quoted when her language might be prejudicial to the proponents, but not at other times. He says that after the date of the will, she told him she had been tricked and wanted to get well in order to right a wrong. Conceding that this conversation took place as stated, it does not necessarily relate to the will, which she could easily alter without getting well, but it does show that Dr. Rowan regarded her as then capable of judging of the nature and quality of her own acts, and as well the conduct of others. If she could detect a trick, she was not an imbecile; and if she wished to correct a wrong, she was not a moral pervert. The proponents moved to exclude this statement of the witness, because it referred to a conversation after the execution of the will, and the action of the lower court in admitting it is assigned for error; but it strikes us that the case of the contestants is rather hurt than helped by it, for it shows that even the Doctor credited Mrs. King with lucid intervals after the date of the will.

The court will observe that Dr. Rowan did not pretend to know the state of Mrs. King's mind at the time she made the will, and the subscribing witnesses, old acquaintances, say her mind was as clear as it had ever been in her life. Leaving out the testimony of Ben King and Mrs. Bloom, when we consider the weight given to the testimony of subscribing witnesses in Brock v. Luckett's Exrs., 4 How. (Miss.), 459, and the degree of proof required to show mental incapacity as decided in Mullins v. Cottrell, 41 Miss. 291, it cannot be doubted that in this case the appellees were entitled to have the jury directed to return a verdict in their favor.

What is undue influence? Every case of influence exerted is not "undue influence." "Undue influence" must be influence obtained by fraud or fear, and must be of that degree which amounts to force or fraud, which destroys the free agency of the testator and compels him to do what is against his will, and which he is absolutely unable to refuse and too weak to resist.

"If the testator is too weak to exercise his will, and his judgment has been overcome by force or fear or importunities carried to that degree which amounts to the overthrow of his free agency, then such influence is undue." Knox v. Knox, 36 Am. St. Rep., 235; Waddington v. Busby, 14 Am. St. Rep., 706; In re Hess Will, 31 Am. St. Rep., 206.

In other words, any influence which is so great and unfair as to substitute the will of another for that of the testatrix is "undue." But it has never been held that the influence which grows out of affection and kindly services of children, husband, wife, parents, or kindred was "undue."

The influence of Benjamin King, with his mother, or any son with a mother, has never been denounced as "undue" by any court in the world, and on the contrary, it is universally held not to be "undue influence." Thompson v. Ish, 17 Am. St. Rep., 552; Goodbar v. Lidikey, 43 Am. St. Rep., 296; In re Hess Will, 31 Am. St. Rep., 665; Burney v. Torrey, 46 Am. St. Rep., 33; Henry v. Hall, 54 Am. St. Rep., 22.

"The presumption in favor of the validity of a will is not overcome by the fact of unjust discrimination in favor of a son, who is both a devisee and executor under the will and is shown to have had a great influence over the testator in her business affairs, nor do these facts cast...