Maxwell v. Lake

Decision Date09 May 1921
Docket Number21720
Citation127 Miss. 107,88 So. 326
CourtMississippi Supreme Court
PartiesMAXWELL v. LAKE et al

1 WILLS. "Attested" held broader than "subscribed;" purpose of requirement of two witnesses stated; duty of attesting witnesses stated instruction as to due execution held improper.

The word "attested," used in section 5078, Code of 1906 (Hemingway's Code, section 3366), is broader in meaning than "subscribed," and the purpose of the statute in requiring two witnesses to attest the will is to have more than the mere signatures to the will. It is the duty of the attesting witnesses under the statute to observe and see that the will was executed by the testator, and to observe his capacity to make a will; and where the testator did not sign the will in the presence of one of the witnesses, nor declare his signature, nor identify the paper or signature, nor declare it to be his will, it was improper to instruct the jury that the will was duly and legally executed.

2. WILLS. In determining undue influence, jury may consider whether disposition of property appropriate and just.

In a will contest in which the issue was whether the will was procured through undue influence of the proponents, it was error to instruct the jury that "the jury must not consider in this case whether or not the disposition made by the testator is appropriate, or proper, or just, but the sole question for the jury to determine is whether the paper propounded is the true last will and testament of W. T Smith." In determining whether a will is procured by undue influence, the jury may consider along with all the other evidence whether the will is appropriate, proper, or just.

HON. J G. MCGOWEN, Chancellor.

APPEAL from chancery court of Benton county, HON. J. G. MCGOWEN, Chancellor.

Suit by Mrs. E. A. Maxwell against Minnie Lake and others, to contest the will of W. T. Smith, deceased. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

W. A. McDoland, R. J. Gresham and Wilson & Armstrong, for appellant.

Thos. E. Pegram and Lester G. Fant, for appellees.

OPINION

ETHRIDGE, J.

The appellant, Mrs. E. A. Maxwell, filed a bill in the chancery court to contest the validity of an alleged will by W. T. Smith, in which his property, real and personal, was bequeathed and devised to the appellees. The alleged will is in the following words:

"In the name of God, amen. I, W. T. Smith, being of sound body and mind, do make this my last will and testament.

"First, to pay all my just and honest debts and the balance of my real estate and personal property to be equally divided to Mamie Lake, Lucretia Smith, Pedro Smith, and L. B. Keel. They are all to share alike and appoint Mamie Lake, and Lucretia Smith sold administrators without bond, and also guardian for L. B. Keel.

"Witness my signature, this day March 29th, 1917.

"[Signed]

W. T. SMITH.

"Witness:

"E. C. JONES.

"G. E. JOHNSON, M. D."

After the death of Smith, the will was probated before the clerk of the chancery court of Benton county on the affidavit of the witness Jones, and letters appointing the said Mamie Lake and Lucretia Smith executrixes were issued by the clerk, whereupon a caveat was filed by the appellant, and a bill to have said will declared null and void and the probation set aside was filed by the appellant. Answer was filed taking issue with the bill filed by the complainant and the chancellor, on motion, made up issues on said contest as follows:

(1) Did W. T. Smith declare and execute the instrument propounded for probate as his last will, and was it attested by two credible witnesses in his presence?

(2) At the time of the alleged execution of the alleged will, did said W. T. Smith have mental capacity to make a will and dispose of his property?

(3) Was the paper dated March 29, 1917, made and executed by the said Smith of his free will, or was it the result of undue influence exercised by Mamie Lake, Lucretia Smith, or Pedro Smith?

Upon the trial, the witness Jones testified that Smith signed the alleged will in his presence some time during the year 1917; that he thinks it was in March, 1917; that he signed as a witness at the same time; that after he signed the instrument Smith put it in his pocket, and they went to Holly springs; that in March, 1920, he carried the witness Dr. G. E. Johnson out to Smith's house, Smith being sick at the time, and after Dr. Johnson treated Smith that he (Smith) said, "Dr. Johnson, I want you to witness my will," and then told Mamie Lake to get it, and she brought it and laid it on the desk, and when Dr. Johnson got through rubbing Mr. Smith, he (Dr. Johnson) went over and sat down by the desk and wrote his name; that Mr. Smith could have seen Dr Johnson when he was signing it if he had looked at him; that when Dr. Johnson signed it, the witness blotted his signature, folded the paper up, and handed it back to Mamie Lake; that the witness does not remember where he told him to sign it, but he told him that the witness had signed, and that he wanted him to witness it; he did not think that Smith told Dr. Johnson that he (Smith) had signed it. The witness Jones further testified that this was the only paper to which he had witnessed the signature of Mr. Smith.

Dr. Johnson testified:

"In March, 1920, I was called over the telephone at Holly Springs, Miss., by Mamie Lake, to see W. T. Smith, who was sick. After examining and prescribing for Mr. Smith, as I was getting ready to leave, Mamie Lake said to Mr. Smith. 'Don't you want Doctor to witness that paper?' He said, 'Yes, you had better get it, and let him sign as a witness.' She brought me a piece of paper folded in such a way that I could not see anything visible except the word 'Witness,' and the name of E. E. Jones beneath this word. I signed the same as a witness. Told Mr. Smith I hoped he would feel better, and bade him goodbye." That Mamie Lake brought in the paper direct and did not take it to Mr. Smith and that it was not shown to Mr. Smith to his (Dr. Johnson's) knowledge. That Mr. Smith did not sign the will in his (Dr. Johnson's) presence and that Mr. Smith did not say anything about this being his (Mr. Smith's) signature to the will. That Mr. Smith could not see the paper while he was signing it as he was between Mr. Smith and the paper. That Mr. Smith's physical condition was not good and that he was suffering from auto-intoxication which produced fever, making his mental condition like that of a person naturally with fever.

Dr. Johnson further testified that he visited Mr. Smith on March 29, 1917, morning and evening; that he was a very sick man, suffering from obstinate constipation, or a form of locked bowels; that his mental condition was somewhat impaired. As to making a will, of course he could make a will, but he thought a man should be normal when he made his will, and Mr. Smith's condition was below normal, but not to the extent of being insane. Dr. Johnson also testified that he did not see Jones sign the paper; that Jones was present when he (Dr. Johnson) signed a paper in 1920.

Subsequent to the making of this alleged will, Mr. Smith was removed to Memphis, Tenn., to a hospital, and while in the hospital, it is testified by a witness named Cocke that Mr. Smith told him to go to Mamie Lake and get his will, and carry it to Holly Springs, and have it put in his strong box; and then said it would be no use to go without a written order, as he had instructed Mamie Lake not to let any one have his papers without a written order, and that he thereupon wrote and signed an order to Mamie Luke to deliver to the witness Cocke his will, which he said had been witnessed by Dr. Johnson and Earl Jones, and to carry it to Mr. Fant, at Holly Springs, and tell Mr. Fant to look after it in case he Smith) died, and to see it was given effect. That said witness Cocke took the order to Mamie Lake, and got what purported to be the alleged will, and carried it to Holly Springs as requested.

There was evidence to show that Mr. Smith lived in the house with Mamie Lake and that she had great influence over him, bought goods on his credit, signed checks with his name by her, and wrote orders for him in his business; that she kept his accounts and stayed at the house and looked after his home. There was also evidence that Mr. Smith was the reputed father of Lucretia and Pedro Smith, and evidence that he had expressed his intention of leaving his property to his negroes, as they had stayed with him and helped him to make the money; that he did not have any people that cared anything for him, and he did not care anything for his people; that he had made his will as he wanted it. Some of the witnesses for the contestant testified that Mr, Smith was crazy about negroes.

Mr. Smith had accumulated some sixty or seventy thousand dollars worth of property, and his nearest relation was the contestant, who was an aunt of Mr. Smith.

On the evidence the chancellor gave a peremptory instruction that the will was legally and duly executed, and that Mr. Smith had testamentary capacity, and submitted the case to the jury on the question of undue influence. The jury returned a verdict for the proponents of the will, upon which judgment was entered, from which this appeal is prosecuted.

The main contention relied on by the appellant is that it was error for the court to grant a peremptory instruction on the due and legal execution of the will, and the appellant also complains of certain instructions given proponents on the question of undue influence.

The first question presented for determination is: Did the chancellor err in instructing the jury that the will was legally executed? The statute upon which the...

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