Northcross v. Taylor

• Decision Date: 11 June 1946
• Parties: NORTHCROSS v. TAYLOR.
• Court: Tennessee Court of Appeals

197 S.W.2d 9

29 Tenn.App. 438

NORTHCROSS v. TAYLOR.

Court of Appeals of Tennessee, Western Section.

June 11, 1946

Certiorari Denied by Supreme Court October 5, 1946.

Appeal in Error from Circuit Court, Haywood County; R. A. Elkins Judge.

Proceeding by Rose Taylor for the probate of the will and two codicils of Mrs. Jennie Hewitt Harwood, deceased, wherein Josephine Northcross contested validity of one of the two codicils. From an adverse judgment, contestant appeals in error.

Judgment affirmed.

L. W. Morgan and J. T. Gray Jr., both of Brownsville, and Holmes & Holmes, of Trenton, for plaintiff in error.

Sam P Walker, of Memphis, for defendant in error.

BAPTIST Judge.

This is an appeal from a judgment of the Circuit Court of Haywood County sustaining, upon the verdict of a jury, the will of Mrs. Jennie Hewitt Harwood, deceased.

Mrs Harwood died, testate, in Haywood County in December, 1943 leaving surviving the following children and heirs at law; two daughters, Josephine Northcross, plaintiff in error, Rose Taylor, defendant in error; two sons, Thomas E. Harwood, Jr., and Robert H. Harwood. The deceased was the widow of Judge Thomas E. Harwood. Judge Harwood and a son Merion R. Harwood predeceased her.

Mrs. Harwood had lived in the home of her daughter, Rose Taylor, the defendant in error, since 1939, and was 87 years old at the time of her death.

On May 17, 1940, Mrs. Harwood executed her will, which was attested by two witnesses and on November 5, 1940, executed a codicil which was also attested by two witnesses. Neither of these two papers are in controversy in this case.

The paper writing in question is a purported second codicil to the will in the following form:

'March 22, 1943

'Codicil to My Will

'If I do not make a sale of my house & lot (206 Church St., Trenton, Gibson Co., Tennessee prior to my death, I hereby will the same to my daughter Rose Harwood Taylor to defray the expenses incident to my last illness death & burial.

'Witness my hand, Mrs. Thomas E. Harwood, Sr.'

After Mrs. Harwood's death this paper writing was found in a pasteboard box on a table by her bed, in which she was in the habit of keeping writing material, jewelry and other things she used frequently; letters which she had received from her family and copies of letters she had written to them; also an obituary notice and a list of pall bearers she desired to serve at her funeral in case of her death.

It was shown by the witnesses, T. J. Pearson, F. R. Chapman, Mrs. Eldorado Boothe and Malissa Taylor that this paper writing was entirely in the handwriting of the testatrix.

Two questions are presented by the plaintiff in error:

First. Error is assigned on the action of the Circuit Judge in disallowing the application of the plaintiff in error for a continuance.

This application was made on the ground that Thomas E. Harwood, a son of the testatrix, was a material witness in that because of his education, training and experience in the medical profession was competent to know the physical and mental condition of the testatrix at the time of the execution of the codicil in question; that Rose Northcross, a daughter of the contestant and granddaughter of the testatrix knew the physical and mental condition of the testatrix at the time of the execution of the codicil in question, and that the contestant was informed and believed that she would be able to prove by the witnesses that the physical and mental condition of the testatrix at and before the execution of the codicil was such that she was susceptible to be influenced and was not capable of executing a valid codicil at that time and that contestant knew of no other witness by whom she could prove the surer facts nor so well.

This application was supported by the affidavits of Honorable V. H. Holmes, one of the attorneys for the plaintiff in error, the material parts of which are as follows:

'He is informed and believes that Thomas E. Harwood, a son of this alleged Testatrix would testify that his mother's physical condition and mental condition at and before the date of this codicil in question was such that she was readily susceptible to influence, and that she was not mentally capable of understanding the affect of the alleged codicil. The said Thomas E. Harwood is a Colonel in the Military forces of the United States, is now and for several months past, Commanding Officer in charge of a large military Hospital in the State of Colorado. He has had many years of training and experience as a Doctor of Medicine.

'Rose Northcross, a daughter of contestant, and a grand daughter of the alleged testatrix is in the Military Service of the United States on duty in the State of California.

'Affiant is informed and believes that contestant can prove by this witness that the alleged testatrix was not mentally capable of executing this alleged codicil and that before and at the time of this alleged execution of this codicil in question, the physical and mental condition of this alleged testatrix was such that she was readily susceptible to undue influence.

'Affiant does not know of any other witnesses whose opportunities to know and judge this physical and mental condition of the alleged testatrix were equal to the opportunities and abilities of these two witnesses and knows of no others by whom she can prove the surer facts and circumstances, nor so well.

'For many years, within the knowledge of this affiant, it has been the practice not to try any civil cases at this May term of this Court.

'During the month of April of this year, Affiant inquired among the members of the Bar of this Court, if that practice would prevail of this present time, and was advised that the same practice would be followed.

'Later Affiant was informed that this contestant would insist on a trial at this present term. Immediately Affiant began making arrangements for the attendance of the witnesses, Colonel Thomas E. Harwood and Rose Northcross at the present term. Of course it was necessary that the said witnesses apply for leave, and Affiant is informed that the witnesses were making such applications.

'However, it was published in the Commercial Appeal on Thursday of last week that the entries docket, except jail cases, would be continued at this term and therefrom, affiant advised said witnesses to cancel their applications for leave so that they could be present at the next term of this Court.

'Affiant, for the contestant, can have the said witnesses present at the next term of the Court or their depositions. There was not time to arrange to take the depositions of said witnesses after Affiant learned that there would be an effort to try at this term. Neither of said witnesses is under subpoena and neither could have been subpoenaed as each and both have been absent from this State and in Military Service since the suit was begun.'

This Court cannot review the trial Court's exercise of discretion in disallowing the application for a continuance in the absence of a showing that he abused it. Chumbley v. People's Bank & Trust Co. 166 Tenn. 35, 60 S.W.2d 164.

The affidavit of Judge Holmes states that he is informed and believes that the two witnesses would testify to a certain state of facts. The source of such information is not given. There is no showing that the affiant or the plaintiff in error had talked to or corresponded with the witnesses on the subject, nor that Mrs. Northcross had any evidence to support the belief that the witnesses would testify to the state of facts related. It may be added that the contestant Mrs. Northcross, daughter of the testatrix did not testify to unsoundness of mind of her mother, nor to any facts tending to support such theory. The Judge in his charge stated that counsel for contestant in argument abandoned the issue that the testatrix was of unsound mind at the time of the execution of the second codicil.

The affidavit also sets out that it had been the custom for many years to continue the entire docket of the May term of the Circuit Court; that one of the attorneys inquired among the members of the Brownsville bar and was advised that the custom would prevail; that a notice to this effect was published in the Commercial Appeal and that relying upon these facts the witnesses were advised not to attend. We do not think the attorney was justified in relying upon the facts stated without consulting the Court or counsel on opposit side. We do not think the Court abused its discretion in denying the application for a continuance.

The second assignment of error is based upon the proposition that the will in question...