Nebhan v. Mansour

• Decision Date: 18 January 1932
• Docket Number: 29679
• Citation: 139 So. 166,162 Miss. 418
• Court: Mississippi Supreme Court
• Parties: NEBHAN v. MANSOUR et al

139 So. 166

162 Miss. 418

NEBHAN v. MANSOUR et al

No. 29679

Supreme Court of Mississippi

January 18, 1932

Division B

APPEAL from chancery court of Lauderdale county HON. A. B. AMIS SR., Chancellor.

Suit by Namie Nebhan against Joe Mansour and others, contesting and seeking to set aside a will. From a decree upholding the will, complainant appeals. Affirmed.

ON SUGGESTION OF ERROR.

Original opinion amended and suggestion of error overruled.

For original opinion, see 139 So. 166.

Affirmed.

C. M. and Russell Wright and Baskin, Wilbourn & Miller, all of Meridian, for appellant.

One acquiring a contingent title to the property of the decedent, through whom to perfect his title the will must be established, can not testify for that purpose.

Sec. 1529, Code 1930; Isom v. Canedy, 128 Miss. 64, 88 So. 485.

It is almost universally held that an attorney who drafts a will may not make any disclosure thereof in the lifetime of the testator.

28 R. C. L. 550, sec. 141.

Most courts, hold that the rule is relaxed after the death of the testator, especially in controversies between those claiming under him. But the contrary is held in Maryland.

Chew v. Farmers Bank, 2 Md. Chancery 231.

After death of the patient no one can waive the privilege of a physician.

Hunter v. Hunter, 127 Miss. 683, 90 So. 440.

There is no one to waive after death of testator.

Sec. 3693, Code of 1930.

The acts of the clerk in vacation had not been confirmed by the court in such manner as to make competent the proof of the will in common form and certainly not in such manner as to make the proof of the will in common form, prima facie evidence, shifting the burden to the appellant under all the facts and circumstances in this case.

Secs. 340, 1608, 1611, Miss. Code of 1930; Rylee v. Union & Planters Bank & Trust Company, 84 So. 247, 122 Miss. 385.

The court below erred in excluding the e testimony of the witness Mike John as heretofore outlined, with reference to the statements made by the appellees, Miss Latiffah Nebhan and Joe Monsour, as to the mental capacity of the deceased, as this will makes the interest of the proponents joint and several, not merely several.

Cash v. Dennis, 139 N.W. 920; Murphy v. Witt, 130 P. 451; McCune v. Reynolds, 123 N.E. 317.

In view of the fact that Mr. Nebhan was twice adjudicated to be of unsound mind and in view of the fact that at the time of the making of his will, and at the date of his death, he had a legal guardian, and the decree adjudging him to be of unsound mind had not been set aside, overwhelmingly established a situation such as that, as a matter of law, the said A. Nebhan, deceased, was incapacitated to make a will, and should have been so declared as a matter of law, by the court.

The issue as to undue influence is ordinarily one for the jury.

Woodville v. Pizati, 119 Miss. 442, 81 So. 127; Jamison v. Jamison, 96 Miss. 288, 51 So. 130.

The question of whether any particular act was the result of undue influence is one in part of fact, and where there is any substantial evidence on the question it must be submitted to the jury.

29 Am. & Eng. Ency. of Law (2 Ed.) 109; Hitt v. Terry, 92 Miss. 671, 46 So. 829; Isom v. Canedy, 128 Miss. 64, 88 So. 485.

A contingent fee is a disqualifying interest.

Tretheway v. Carey, 60 Minn. 457; Daily v. Monday, 42 Tex. 141.

The circumstance that other witnesses were present at the time when the codicil is alleged to have been executed and published, even though they heard all that took place, and were aware of the contents of the instrument, is wholly immaterial. Under such circumstances the other witnesses are permitted to testify to the communications which pass between client and attorney.

Butler v. Fayerweather, 91 F. 458, 33 C. C. A. 625.

An attorney, in receiving the directions of one intending to make his will, acts in his professional capacity, though he merely reduces the directions to writing, without questioning or advising, and is incompetent to testify to any information received in that way.

Loder v. Whelpley, 111 N.Y. 239, 18 N.E. 874.

The requesting of an attorney to become a witness to the amounts of an express waiver by the client of the privilege of the communication to the attorney, but, also, communications made by a client to his attorney with reference to the preparation of his will were clearly within the protection of the statute.

In re: Coleman's Will, 111 N.Y. 20, 19 N.E. 71.

After the death of the testator, there is no one to waive the privilege.

Westover v. Aetna Life Insurance Company 99 N.Y. 56, 1 N.E. 104; Reinhan v. Dennin, 103 N.Y. 573, 9 N.E. 320.

The presence of the client's confidential agent does not destroy the privilege.

Bowen v. State, 29 Ohio 542.

Dunn & Snow, Marshall W. Amis and Bozeman & Cameron, all of Meridian, for appellees.

It is the general rule that if after the denial of a request for a directed verdict a party introduces any evidence he thereby waives any error which may have been committed in denying the request.

26 R. C. L. 1083; Hauer v. Davidson, 113 Miss. 696, 74 So. 621; Maclin v. Bloom, 54 Miss. 365; Hairston v. Montgomery, 102 Miss. 364, 59 So. 793.

Admissions made by one of two or more co-parties are not admissible unless the interests of the parties in the subject-matter is a joint interest.

Prewett v. Coopwood, 30 Miss. 369; Prewett v. Land, 36 Miss. 495; Pigott v. Pigott, 112 Miss. 873, 73 So. 800.

The interest of the proponents are several and not joint, and declaration against interest by some of them were not admissible.

Section 2113, Code of 1930; Nichols v. Denny, 37 Miss. 59; Hawkins v. Hawkins, 72 Miss. 749, 18 So. 479; Henry v. Henderson, 102 Miss. 48; Prewitt v. Coopwood, 30 Miss. 369; Prewitt v. Land, 36 Miss. 495.

Communications made by the client to his attorney in the presence of a third party are presumed not to have been intended as confidential, and are therefore not privileged.

Perkins v. Guy, 55 Miss. 153; Wigmore on Evidence, sec. 2311.; 28 R. C. L. 561; 40 Cyc. 2377.

It may be laid down as a general rule of law, gathered from all the authorities, that, unless provided otherwise by statute, communications by a client to the attorney who drafted his will, in respect to that document, and all transactions occurring between them leading up to its execution, are not, after the client's death, within the protection of the rule as to privileged communications, in a suit between the testator's devisees and heirs at law, or other parties, all of whom claim under him.

Note 64 A. L. R. 185.

Dunn was a competent witness under section 1529, Code of 1930, as his contract did not vest a present interest in him.

Knutt v. Nutt, 83 Miss. 24, 35 So. 686; Norwich Union Fire Insurance Co. v. Standard Drug Co., 121 Miss. 510; Shireman et al. v. Wildberger, et al., 125 Miss. 499, 87 So. 657; N. O. & N.E. R. R. Co. v. Tally & Mason, 109 Miss. 393, 69 So. 186; Moseley v. Jameson, 71 Miss. 456; Zerkowsky v. Zerkowsky, 131, So. 647; Cochran v. Henry, 107 Miss. 233, 65 So. 213.

An adjudication of insanity is not conclusive, but only presumptive, evidence of testamentary incapacity, whether made before or after the execution of the will.

7 A. L. R. 602; 68 A. L. R. 1318.

At least two courts have held that an adjudication of insanity made on the very day of the execution of the will is not conclusive evidence of testamentary incapacity.

Ames Will, 40, Ore. 495, 67 P. 737; Rice v. Rice, 50 Mich. 448, 15 N.W. 545; Rice v. Rice, 513 Mich. 432, 19 N.W. 132.

The material inquiry in cases of this kind is the capacity of the testator on the very day and at the very time of the execution of the will.

Lum v. Lasch, 93 Miss. 81, 46 So. 559; Scally, v. Wardlaw, 123 Miss. 857, 86 So. 625; Ellis v. Ellis, 134 So. 150; Brock v. Luckett, 4 How. 459.

One suffering from a permanent form of insanity may nevertheless, during a lucid interval, make a valid will.

Scally v. Wardlaw, 123 Miss. 857, 86 So. 625; Brock v. Luckett, 4 How. 459.

Argued orally by Russell Wright, for appellant, and by Marshall Amis, for appellee.

Anderson, J., Anderson, J., ON SUGGESTION OF ERROR.

OPINION

Anderson, J.

Appellant filed his bill in the chancery court of Lauderdale county against appellees, Joe Mansour, Latiffeh Nebhan, Mrs. Lucy Bailey, all of Lauderdale county, and Elmaz Mansour, a nonresident, native of Beyrout, Syria, and Latellah Nebhan, also a nonresident heir, of Beyrout, Syria, and J. V. McQuillan, executor of the will of A. Nebhan, deceased, contesting and seeking to set aside the said will upon the grounds (1) that the decedent did not sign the alleged will, either in person or by some other person in his presence and under his direction; (2) that he was unduly influenced to make the alleged will, and therefore it was not his will; (3) that he was mentally incapable of making a will. The cause was heard on original bill and amendment thereto, and answer of the defendants, and proofs, resulting in a verdict and decree upholding the will. From that decree appellant prosecutes this appeal.

The court instructed the jury peremptorily that they should find a verdict in favor of appellees on the issue of undue influence, and also on the issue whether or not the deceased signed the will with his own hand, or by some person in his presence by his express direction, and submitted to the jury only the issue of the mental capacity of the deceased to make the will. The chancellor was justified, from the evidence, in directing a verdict in appellee's favor on the two issues mentioned above, for there was no substantial testimony going to sustain either ground of contest.

The testator, A. Nebhan, died, leaving neither children nor...