Moore v. Parks

Decision Date12 April 1920
Docket Number20686
Citation84 So. 230,122 Miss. 301
CourtMississippi Supreme Court
PartiesMOORE et al. v. PARKS et al

March 1920

1 WILLS. Proof of due execution and capacity makes prima facie case of validity.

In a contest as to the validity of a will, proponents make out a prima facie case by proving the due execution of the will and the testamentary capacity of the testator. From the proof of the testamentary capacity the presumption arises that the will was freely and voluntarily executed.

2 WILLS. Testator's declaration as to intentions admissible as to capacity and undue influence.

The declarations of a testator as to his testamentary intentions and as to the contents of a will are admissible on the issues of testamentary capacity and undue influence, whether made before, at the time, or after the execution of a will.

3 WILLS. Declarations of testator not evidence of truth or falsity thereof.

The declarations of a testator as to the contents of a will are not evidence of the truth or falsity of the declarations.

4 WILLS. Elements of testamentary capacity stated.

If at the time of the execution of a will testator appreciated the nature of his act, the natural objects of his bounty, and was capable of reasoning and thinking how he desired to devise and bequeath his property, he possessed sufficient testamentary capacity.

5. WILLS. Motive of testator immaterial.

One of testamentary capacity may execute a will from any motive, whether it be love, gratitude, partiality, prejudice, whim, or caprice.

6. WILLS. Occasional fits of anger not connected with will does not snow incapacity.

Testamentary capacity having been shown, evidence of fits of anger which sometimes dethroned the reason of testator is not sufficient testimony of lack of testamentary capacity at the time of execution of the will, in the absence of proof showing the will was executed during such a spell.

7. WILLS. Subsequent inconsistent will revokes former will.

A will is revoked by a subsequent will containing inconsistent devises and bequests of all the property disposed of in the prior will.

8. WILLS. Lost will cannot be proved by testator's hearsay statements.

The contents of a lost will, its execution having been shown, cannot be proved by the hearsay statements of the testator.

HON. JAS Gr. McGroWEN, Chancellor.

APPEAL from Chancery Court of Tate County, HON. JAS G. MCGOWEN, Chancellor.

Proceeding by R. R Moore and others to probate in solemn form the last will of Jane T. Prichard, deceased, opposed by Cordelia E. Parks and others. Proponents' motion for a peremptory instruction was denied, and they appeal. Reversed and remanded.

Decree reversed and cause remanded.

John Waddell and C. L. Sivley, for appellants.

We say that the motion to exclude all of this testimony and to direct a verdict in favor of the proponents of the will, should have been sustained, and the request for a peremptory instruction at the close of the testimony to direct the jury to return a verdict in favor of the proponents of the will should have been given, and it was clear error on the part of the court below under all the evidence in the case not to have sustained said motion and refusing to give said instruction.

"Mere sporadic exhibitions of temper and occasional demonstrations of anger are not evidence of any unbalanced or unsound mind. Mere physical weakness or disease, old age, eccentricities, blunted perception, weakened judgment failing memory or mind are not necessarily inconsistent with testamentary capacity." Richmond's Appeal, 21 Am. St. Rep., quotation from page 92.

"Weakness of memory, vacillation of purpose, credulity and vagueness of thought may all exist with adequate testamentary capacity under favorable circumstances." Hall v. Perry, 47 Am. St. Rep. 352 and 353; In re Gross, 14 N.Y. St., page 429, affirming 7 N.Y. St. Sup., page 739; In re White's Will, 52 Hun. 613, 5 N.Y.S. 295; Judgment affirmed, 121 N.Y. 406, 24 N.E. 935.

The above principle was confirmed at an early date by the supreme court of Mississippi in the case of Brock v. Luckett, 4 Howard, 482; Sheehan v. Kearney, 82 Miss. 688.

In proceedings to probate and establish a lost will or a will wrongfully destroyed, the policy of the law requires the contents to be established by the clearest, most conclusive and satisfactory proof and this must apply to the whole contents of the will and not merely to parts of same. The entire contents of same must be shown and established conclusively. Vining v. Hall, 40 Miss. 83.

But it is not claimed in the case at bar to establish this third will which was lost or destroyed because it was never seen by anyone at the time of the death of the testatrix, or since her death, and no one knows its contents, but it is merely contended by the contestants in this case that having proof that this subsequent will was executed, the effect thereof was to revoke the will propounded for probate, being a previous will. It has been held by a very high authority that the loss or destruction of a subsequent will which was shown to contain an express revoking clause of all former wills destroyed the act of revocation as well as the will, and revived the former will. We call the attention of the court to this authority as it is very interesting and full upon the proposition. Stetson v. Stetson, 61 L. R. A. 261.

In Mississippi the opposite rule has been announced from that announced in the Stetson case, and where a subsequent will is shown to have been executed and is clearly shown to have contained a revoking clause of all former wills, it will have that effect, although it be wholly inoperative as to the disposition of the estate attempted to be made. Harrison v. Harrison, 30 Miss. 276.

Under the statutes of Mississippi providing how a will may be revoked by acts of destruction, cancellation or obliteration unequivocal in their nature, or by the execution of a declaration in writing attested by witnesses, it is held revocation of a former will may also be made by implication, to wit in the execution of a subsequent will not containing any revoking clause but making an entirely inconsistent disposition of the testator's property with the disposition thereof contained in the former will. Harrison v. Harrison, supra; Hoy v. Hoy, 93 Miss. 732.

Therefore, it is required that the act of revocation either express or implied, in order to be effective must be established by the same degree of clearness and conclusiveness of proof as is necessary in the establishment of a lost or inadvertently destroyed will.

"This court has, heretofore, said, in speaking of the revocation of wills, that no declaration designed for the purpose of revocation can be efficacious for that purpose unless executed with all the formalities required in the execution of a will." Harriston v. Harriston, supra.

Where a witness was introduced to prove express declarations made by the testator in his lifetime, before and after making his will, that he had not made, and would not make, and never intended to make, a will this testimony was excluded by the lower court as incompetent; and this action of the court was affirmed by this court, following Sheehan v. Kearney, supra, holding that the declarations of a testator as to his intentions with respect to the disposition of his property, made before or after the execution of the will, or at the time of the execution of same, are competent on the issue of undue influence and the issue of insanity, yet that the same is not competent on any other issue, and affirmed the action of the lower court in excluding the same. Miller v. Miller, 96 Miss. 526; 35 Wigmore on Evidence, 1736-39, sec. 2244. This testimony was utterly incompetent on the trust theory, for another reason, viz: because a mere parol promise to make a will devising property in a certain manner would be void under the statute of frauds. Pond v. Sheehan Ex., 8 L. R. A. (O. S.) 414; Orth v. Orth, 32 L. R. A. (O. S.) 298.

An instruction upon an abstract principle of law and upon a proposition upon which there is no evidence introduced or no evidence on which to found the same is erroneous and only tends to confuse the jury. Newton v. Simmons, 69 Miss. 17.

To the same effect are the cases, of Easley v. R. R. Co., 96 Miss. 396; Honeycutt v. R. R. Co., 50 So. 697; R. R. Co. v. Williams, 96 Miss. 373. In other words, if the testimony of Mrs. Elder and all the others who testified as to the casual statements made by Mrs. Prichard in her lifetime as to what she intended to do with her property by will, is given its full significance in this case, the same does not rise to any dignity of probative force in view of all the testimony or all the witnesses in the case as to her strong mentality at the time the will was written and up to the time of her death, and in this view of that evidence, the repeated charges asked by the contestants and given by the court, unduly emphasized the same and were erroneous and, no doubt, confused the jury, and should not have been given.

Sixth proposition. This instruction was clearly erroneous in this that while it correctly stated that a will shown to have been executed by a person, but which is not found at the time of death, is presumed to have been destroyed by the maker, the instruction then proceeds to state that if the jury believed from the evidence in the case that after the date of the will, propounded for probate, Mrs. Prichard duly executed another will disposing of all her property in a different way from that provided in the will propounded and that said will was in existence at the time of her death, or that she believed it to be in existence at her death, then the will propounded for probate was not her last will and the...

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