Smith v. Smith
| Decision Date | 24 April 1939 |
| Docket Number | 33673 |
| Citation | 185 Miss. 702,188 So. 305 |
| Court | Mississippi Supreme Court |
| Parties | SMITH v. SMITH et al |
APPEAL from the chancery court of Jones county HON. A. B. AMIS, SR. Chancellor.
Proceeding by W. C. Smith against Torrey Smith and others to contest alleged last will and testament of William J. Smith deceased. To review an adverse judgment, the contestant appeals. Reversed and remanded, with directions.
Reversed and remanded.
O. M Oates, of Bay Springs, for appellant.
Section 3550, Code of 1930, declares that one must be of a sound and disposing mind before he can make a will.
Gathings v. Howard, 122 Miss. 355, 84 So. 240.
Moreover he must be on the very day of the execution of the will.
Scally v. Wardlaw, 123 Miss. 857, 86 So. 625.
While we recognize that a testator may make a will from any motive, whether it be love or caprice, yet this court has held that an unjust and unnatural disposition as well as an unreasonable one is admissible as showing testamentary incapacity or undue influence and if sufficient explanation can't be made of this extravagant and unreasonableness by proponents, then it may be attributed to a disordered mind.
Our court has held that unreasonableness without explanation for it is tantamount to undue influence.
There is abounding and abundant testimony in this record in the case at bar tending to show undue influence and lack of testamentary capacity which would warrant the jury in considering the unreasonableness for which, we say, was no explanation, whatsoever, as to why Torrey Smith and his brother should receive more than the others. Proponents must make some reasonable explanation of its unnatural character.
Jamison v. Jamison, 51 So. 130, 96 Miss. 288.
Denial of relatives at the time testator makes his will is always considered a circumstance tending to prove undue influence.
It has been held in 28. R. C. L. 98 that if a will is procured by deception and fraud it is void. Evidence in this respect is largely in effect circumstantial, and the evidence required to establish need not be that direct, affirmative and positive character required to establish a tangible fact. Proponent must explain its unnatural character.
Curry v. Lucas, 180 So. 397; 28 R. C. L. 49.
The facts in each case must stand out for themselves in this respect. We respectfully submit that if there was ever a case where the facts stand out in this respect of undue influence it is in the case at bar which became a proposition of law for the court to have ruled upon under the peremptory.
I submit that the instruction given where the words "sane and insane" are used for "sound and disposing" mind is a fatal error and is highly misleading to the jury. Testamentary capacity and sanity are not equivalent terms, and there may be testamentary incapacity without actual insanity or unsoundness of mind.
28 R. C. L. 97, par. 47; Slaughter v. Heath, 127 Ga. 747, 57 S.E. 69, 27 L. R. A. (N. S.) 1; Dillman v. McDaniel, 222 Ill. 276.
Surely the instruction given proponents with reference to the form of the verdict in which they named Mrs. Mollie Smith the wife of testator as a proponent should not have been since Mrs. Smith was not a proponent having withdrawn altogether from the case. This, of course, was for the purpose of influencing the jury.
We believe the court erred in permitting D. B. Cooley, attorney for testator for many years, to have permitted him to detail at length professional transactions for over a long period of time since this was privileged. This was done over the objection of appellant, and we think it was not only privileged, and the transactions many years ago had nothing to do with the condition of the mind of Mr. Smith when the purported will was executed even if it had been competent. For this reason, it was highly prejudicial on a vital issue.
Jeff Collins, of Laurel, for appellant.
The court erred in sustaining the demurrer to the original bill, and thus ruling out the proposition of presenting a former will of the deceased which contestant claims was the last true will and testament of W. J. Smith, deceased.
This action of the court will be found in the decree sustaining the demurrer in which the chancellor stated that the bill was multifarious and held that the amended bill should not present the question or offer what contestant claimed to be the last true will and testament of W. J. Smith.
Contestant was thereby held in his amended bill only to a presentation of the one question as to whether the contested will was the last true will and testament of W. J. Smith. He was not allowed to offer what he said was the last true will and testament of the deceased for probate as a substitute for the contested will.
Mims v. Johnson, 92 So. 577; Williams v. Morehead, 116 Miss. 653, 77 So. 658; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41; Ellis v. Ellis, 134 So. 150.
The circumstances as set out in the statement of facts as "undisputed facts" are sufficient within themselves to warrant the court in giving a peremptory instruction for the contestant, and this point is that the court erred in refusing a peremptory instruction at the close of the testimony as requested by the contestant.
In attesting a will the attesting witnesses must not only witness the signing and publishing of the will by the testator but it is also their duty to satisfy themselves that he is of sound and disposing mind and memory and capable of executing the will.
Smith v. Young, 99 So. 374; Green v. Pearson, 110 So. 826; Maxwell v. Lake, 127 Miss. 107, 88 So. 326; Brock v. Luckett, 4 How. 459; Helm v. Sheek, 116 Miss. 726; Sheehan v. Kearney, 21 So. 41; Wall v. Wall, 30 Miss. 91; Sartor v. Sartor, 39 Miss. 760.
Not only was the testimony of Dr. Kittrell incompetent because it was privileged but the testimony of D. B. Cooley, attorney, was also privileged and incompetent. His testimony was also objected to by counsel for contestant, on the ground that it was privileged, yet the court permitted him to testify with reference to the things that occurred in the business transactions, and this was over the objection of the contestant. It was error.
Estes v. Magee, 97 So. 530; Dabbs v. Richardson, 102 So. 769.
The instruction at the bottom of the page 141, given the proponents of the will, places its basis for testamentary capacity upon the word "sane." The statute basis testamentary capacity upon "sound and disposing mine."
The weight of the testimony is clearly with the contestants, and therefore the court erred in overruling the motion for a new trial. The verdict was contrary to the law and the testimony. And the testimony was so strong and convincing for the contestants that we think it warranted a peremptory instruction.
Deavours & Hilbun, of Laurel, for appellees.
The objection raised by appellees to the original bill of complaint by the special demurrer was not that the appellant alleged that there was a prior will, but to the prayer of the bill wherein the appellant sought to establish the prior will and have the same admitted to probate in the proceedings.
There are entirely different statutes governing the probating of a will and the contest of a will. The former is an ex parte proceeding in effect and governed by Sections 1599 through 1607 of the Mississippi Code of 1930, annotated, while the latter is governed by Sections 1608 through 1612, inclusive, and must be tried before a jury, being the only instance in which a jury is required by law to try cases coming within the jurisdiction of the chancery court.
It is readily seen that the two questions could not be brought in one proceeding before the chancery court, as the appellant tried to do here, but each matter must be disposed of in regular order and in compliance with the statutes governing each separate proceeding.
It will also be noted that the court did not preclude the appellant from referring to the prior will, but only sustained the demurrer to so much of the prayer of the bill of complaint as sought to probate the prior will referred to in the original bill.
We seriously doubt if the original bill of complaint or any amended bill of complaint filed in the cause, alleged the existence of undue influence at the time of the execution of the will with enough particularity or in a manner sufficient to even raise that issue in the trial of the cause.
Such allegations of undue influence as there are in the bill and the amended bill, are general and are at most conclusions of the pleader, and fail to set out the manner in which such undue influence was exercised or that it was exercised for the purpose of procuring the particular will in question. Nor is there any allegation to the effect that the testator was influenced for the purpose of defrauding this contestant. The pleader concludes the existence of undue influence upon the testator at the time he signed the will from the mere fact that he was old, ill and away from his home, and therefore probably easily influenced. We do not think this is proper.
Corpus Juris, sec. 436, page 743.
Another error assigned by appellant is that the court permitted the Hon. D. B. Cooley, who was the testator's attorney, to testify concerning the execution of the will. He further objects that Mr. Cooley was allowed to testify concerning anything, because it so happened that Mr. Cooley was the testator's attorney. As we understand the law of privilege existing between the attorney and his client, it is this: That an attorney cannot reveal any matter of a confidential nature communicated to him by his client, not in the presence of third parties,...
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