Sanders v. Sanders

• Decision Date: 11 July 1921
• Docket Number: 21590
• Citation: 126 Miss. 610,89 So. 261
• Court: Mississippi Supreme Court
• Parties: SANDERS et al. v. SANDERS et al

89 So. 261

126 Miss. 610

SANDERS et al. v. SANDERS et al

No. 21590

Supreme Court of Mississippi

July 11, 1921

1. WILLS. As to undue influence testator's declarations at time of execution of will admissible as res gestæ....

On an issue devisavit vel non, where the ground of contest is undue influence brought to bear on the testator in the making of his alleged will, the declarations of the testator made at or about the time of the execution of the alleged will are a part of the res gestæ, and are admissible as primary evidence---that is, evidence of the truth of such declarations.

2 WILLS. "Undue influence" sufficient to set aside a will must be so strong that testator's will has been overcome by the will of another.

It is not every influence which may be exercised over a testator in the making of his will which is undue influence. Such influence, in the meaning of the law, as will have the effect of setting aside the alleged will must be so strong that the will of the testator has been overcome by the will of another; that the alleged will is not in fact the will of the testator, but the will of another.

3 WILLS. Testator's declarations held admissible to show whether testator was suspectible of being unduly influenced.

The declarations of the testator, not made at or about the time of making the alleged will, to the effect that his wife and one of his sons, who were the principal beneficiaries under his alleged will, and who, it is charged, brought about such a will by undue influence over the testator, that the alleged will was not his will, that his said wife and son had forced him to make it, that his life with his second wife had been unhappy, that she had driven his only child by his first wife away from home, and other like declarations, were admissible in evidence alone for the purpose of showing the state of mind of the testator at the time of the making of his alleged will, as throwing light on the question whether or not he was susceptible of being unduly influenced by his wife and son and for that purpose such declarations were primary evidence.

4 WILLS. Testator's declarations held inadmissible to establish their own truth or falsity.

Such declarations by a testator are not admissible for the purpose of establishing the truth or falsity of the statement made as to which such unsworn statements are hearsay evidence, and come within the rule against the same.

HON. T. P. GUYTON, Chancellor.

APPEAL from chancery court of Attala county, HON. T. P. GUYTON, Chancellor.

Proceedings by Florence Sanders and others to probate the will of James T. Sanders, deceased, opposed by George T. Sanders and others. From a judgment against proponents, they appeal. Reversed and rendered.

See, also, 86 So. 898.

Reversed.

Dew & Guyton, and Teat & Potter, for appellants.

The first six grounds of the assignment of error, being similar, may all be discussed together. We know that the rules of evidence permit a wide range when the issue is fraud, duress, or undue influence. 40 Cyc. 1155. But, in this case, we contend that all the evidence concerning the state of feeling between the contestant, Mrs. Everson, and the proponents, Mrs. Florence Sanders and Joe Sanders, throws no light whatever on the question whether fraud or undue influence was exerted, and that all such testimony is therefore immaterial and irrelevant. 40 Cyc. 1155B.

The rule given in 40 Cyc. 1162 (g), note 71, and text of this note, and also in 40 Cyc. 1166, note 90, and text to this note, seems to refer to a state of feeling of hostility between the proponents on one side and the contestants on the other side. When such is the case it would seem that the evidence is admissible. But such is not the case here.

We submit also that the court erred in permitting several witnesses to testify, over objection, as shown by the record, as to declaration of the testator concerning the fall of his daughter, Mrs. Everson. There is so much of this that we will make no attempt to set it out or to refer to the many places in the record where it will be found. It is all through the record. These declarations on the part of the testator, in no way concerned this will offered for probate, nor does it shed any light on the execution of that will, its validity or invalidity. It was highly prejudicial to the proponents of the will, and furnished the very gist of the contestants to pray on the sympathies of the jury in a high degree. It was a touching story, and all this is hearsay evidence, and goes before the jury as an established fact. The very fundamental reason for admitting any declarations on the part of the testator is for the purpose of showing what was brought to his mind and how it acted on his mind. But all these declarations, so far as we can find authority for, must relate to the will, its contents, or its execution. In Winston v. Elliott, 53 So. 750, the court held that declarations of the testator as to where he got the money to purchase certain land was inadmissible, it not tending to show either mental incapacity or duress, and had nothing to do with the execution of the will. Furthermore, these declarations of the testator regarding his daughter were made some five or six years before the execution of this will and are therefore too remote in point of time, and are inadmissible on this ground. In Sheehan v. Kearny, 21 So. 41, this court admitted declarations of the testator before, at the time and subsequent to, the execution, of the will; but these declarations concern the will, its contents, or its validity, and are not too remote. We find no authority holding such stories as these in this case shown as admissible.

The court also erred in permitting the witness, Wilburn Fowler, to testify, over objection, that the testator was a wealthy man. The amount of decedent's estate is not a question that has any bearing either on the question of mental capacity or that of undue influence, and evidence of the amount of his estate or tending to show the amount thereof is not admissible. 40 Cyc. 1155, note 39, on page 1156.

The court likewise erred in permitting the witness Mrs. Edna Sanders to testify, over objection, that she saw the testator count out seven thousand dollars in money at his home. 40 Cyc. 1155, note 39, p. 1156.

The peremptory instruction requested by the proponents should have been granted. The evidence submitted at the trial was insufficient to warrant the court in letting this case go to the jury at all on any issue. As to the issue of mental capacity, the two subscribing witnesses, Taylor and Sims, the family physician, Dr. Claitor, the draftsman of the will, Brown, the named executor, Bailey, and every other witness called for either the proponents or the contestants who gave evidence concerning this issue testified directly or to facts that would show that the testator was of that sound mind and memory and understanding sufficient to make a will, and there was no issue on this question for a jury to determine presented by the evidence. No witness testified to any fact; when such is the case, it is the duty of the court to take the case from the jury by peremptory instruction. 40 Cyc. 1320.

On the question of undue influence, we submit that there was not sufficient evidence to justify the verdict of the jury, and that such a verdict in view of the evidence cannot be allowed to stand. All the witnesses present at the execution of the will, without exception, give in evidence no fact that has any tendency to show that the testator was unduly influenced. On the contrary their testimony shows that no outside influence was in any way brought to bear on the testator.

The vice of instrument No. 8 given for the contestants is that it is at least misleading, and puts upon the proponents a higher burden of proof than the law requires. This instruction not only requires the prononents to show by a fair preponderance of the evidence the absence of undue influence and that the testator had sufficient mental capacity, but it goes further and requires the proponents to show by a preponderance of the evidence, that the instrument offered was the free and voluntary act of James Thomas Sanders.

It is not every influence that is undue. From this instruction the jury might well infer that if anybody talked with the testator about making a will, suggested to him the propriety of making a will, advised him in regard thereto, and especially if his wife talked with him about the will and her necessities and discussed the matter generally with him or in any way, then the will was not freely and voluntarily made, of course, it must, in a sense, be the free and voluntary act of the testator; but the law does not require that there shall be no influence whatever brought to bear on the testator. Gillis v. Smith, 114 Miss. 665, 75 So. 451; Burnett v. Smith, 93 Miss. 566, 47 So. 117.

It was error to grant instruction No. 11 for the contestants. This instruction is too long and tedious to understand. It is one that relates to the mental capacity of the testator, and raises no question of undue influence. This instruction has no place in this record for the lack of proof on which to base it.

The testator is not required to have the mentality of a "Philadelphia lawyer" or a "Saint of old" in order to be able to make a will. He is not required by law to "understand fully the business in which he is engaged and all of the elements thereof." The vice of this instruction is that (1) it requires too high a degree of mentality on the part of the testator; (2) it has no application to the facts of this case, there being no facts shown by the evidence upon which such an instruction can be predicated; and (3) it requires the proponents to establish the will by...