Tucker v. Whitehead

• Decision Date: 10 May 1882
• Citation: 59 Miss. 594
• Court: Mississippi Supreme Court
• Parties: THOMAS M. TUCKER et al. v. MARY M. WHITEHEAD

59 Miss. 594

THOMAS M. TUCKER et al. v. MARY M. WHITEHEAD

Supreme Court of Mississippi

May 10, 1882

Appeal from the Chancery Court of Clay County Hon. F. A. Critz Chancellor, having been of counsel in this case, Hon. T. B Graham presided by interchange.

Upon the evidence stated in the opinion, the Chancellor, over the appellants' objection, gave the following instructions for the appellee: "(1) The issue to be determined by the jury is the validity of a will which has heretofore been duly admitted to probate as the last will and testament of P. W Tucker, deceased, by this court. Such probate is prima facie evidence of the validity of the will, and the contestants are compelled, in order to sustain their claim that the will so admitted to probate is not the last will and testament of the deceased, to prove by legitimate evidence to the satisfaction of the jury that such will is not in truth and in fact the last will of said P. W. Tucker, deceased. It is not enough for the contestants by their proof to render it doubtful or uncertain whether this will is the last will of said P. W Tucker, but they must go further, and by their proof satisfy the minds of the jury by a preponderance of evidence that it is in fact and in truth not the last will of P. W Tucker." "(2) It devolves on the contestants to satisfy the minds of the jury by a preponderance of evidence that the will heretofore admitted to probate by this court as the last will of P. W. Tucker is not the last will of said Tucker, and, unless the contestants have done so, the law is for the proponent of the will, Mary M. Whitehead, and the jury will so find." "(3) The court charges the jury that if they believe from the evidence that there is ground for a reasonable inference that the will which has been probated as the will of P. W. Tucker was in existence at the time of the death of said P. W. Tucker, and was then subscribed with his name, the presumption that P. W. Tucker tore his name off will not arise, and the verdict of the jury should be for Miss Whitehead." "(4) If the jury believe from the evidence that Thomas M. Tucker, or any one else, had access to the writing admitted to probate as the will of P. W. Tucker, after his death and before its existence was known to others, and that it was presumably destroyed by said Thomas M. Tucker, or any other person who may have so had access to said writing, the law will not presume that P. W. Tucker tore his name off the writing, and the jury will find for the proponent, Miss Whitehead, unless the jury are satisfied by other evidence that P. W. Tucker did, in his lifetime, tear his name off the will."

The appellants asked and the court refused the following charges: "(1) The burden of proof in this case is on the proponent, Miss Mary M. Whitehead, and she must establish that the writing in controversy is the last will and testament of P. W. Tucker, and was not revoked or cancelled by him; and unless this is proved from the evidence in this case to the satisfaction of the jury they will find for the contestants." "(2) The will and probate thereof are not prima facie evidence in this cause, as said will was probated and proceedings in this case commenced before the Code of 1880 went into effect." "(4) If Mrs. Mildred Whitehead, the proponent's mother, took the keys of P. W. Tucker immediately after his death, and kept them, and she and Thomas M. Tucker hunted for the will together, and it was found first by Mrs. Whitehead among the private papers of the deceased, in his private desk, and she was and is desirous that her daughter should come in under the will, then the presumption is that P. W. Tucker tore off his own name." "(7) A nuncupative or verbal will can only be made while the person is on his death-bed; all other wills must be in writing, and no declarations of the deceased that he had made a will, or intended to give his property to a particular person, will have any effect, unless the testator did in fact have a written will, and left the same uncancelled at his death." "(11) The proponent in this suit, Mary M. Whitehead, is endeavoring to prove that the paper in controversy is the last will and testament of P. W. Tucker, and it devolves on her to prove it, clearly to the satisfaction of the jury, and unless she has done so the jury will find for the contestants." "(12) If from all the evidence in this case it is left doubtful in the minds of the jury whether the paper in controversy is the last will of P. W. Tucker, they will give the doubt against the will, as they must be satisfied that the paper is in truth and fact the last will of said Tucker." "(13) The proponent, Miss Whitehead, alleges that the paper in controversy is the last will of P. W. Tucker, and this is denied by the contestants who are resisting this claim, and if the jury believe from the evidence that Miss Whitehead has not made out her claim, they will simply say, 'We, the jury, find for the contestants.'" "(14) Declarations of an alleged testator about making or destroying or mutilating a will, unless made at the time of the making, destruction, or mutilation of the will, so as to form part of the res gestae, are not admissible to establish or to invalidate the alleged will, and are only admissible to show the sanity of the testator or characterize an act of destruction or mutilation." "(15) The declarations of P. W. Tucker, deceased, introduced in this case, as to his intentions about the disposition of his property or his making, or destroying or mutilating a will, cannot be considered by the jury as establishing the making or tearing of a will; that can only be considered by them as showing his sanity or insanity, unless made at the time of the making, destruction or tearing." "(16) The proponent, Miss Mary M. Whitehead, must prove in this case, to the satisfaction of the jury, that P. W. Tucker was of a sane mind, and capacitated to make a valid will, at the time of the alleged making of the will in this case."

[For subsequent opinion see Tucker v. Donald, 60 Miss. 460, 45 Am. Rep. 416.]

Reversed.

Barry & Beckett, for the appellants.

1. Ruling that the probate of the will in common form according to Code 1871 was admissible as proof was erroneous, and charging the jury that it was prima facie evidence in this controversy was an injustice to the appellants, who had no opportunity to contest it. Code 1880, § 1970, provides for objection to the probate, but this privilege was not accorded by the former statute. Under Code 1880, § 1969, the probate has no force which it did not possess originally. This statute is not retroactive. It does not purport to be so, and in view of the injustice which would result, should not be so construed.

2. The proponent of the will who was the legatee was not a competent witness. Code 1871, § 758. A legatee, if a subscribing witness, cannot testify without forfeiting the legacy. Code 1871, § 1101; Code 1880, § 1973. The claim of an heir originates after his ancestor's death, but that of a legatee during his lifetime; and the latter, under the statute, cannot testify to establish such claim. It cannot be held that the legatee is competent because not a subscribing witness, for if she were, this fact would add to her credibility rather than detract from it.

3. Declarations of the testator were improperly admitted. If these declarations were admissible at all, it was only on the ground that they were contemporaneous with the act complained of, or testified about, and were so connected with it as to form part of the res gestae, or were declarations evidencing the workings of a sane or an insane mind. In other words they could only be introduced as part of the res gestae, or as showing the sanity or insanity of the testator, and not to prove the making of the will itself. The court was asked in the contestants' fourteenth and fifteenth charges to confine the jury in the consideration of these declarations to these two points, and refused to do so. Waterman v. Whitney, 11 N.Y. 157; Jackson v. Betts, 6 Cowen, 377; Bibb v. Thomas, 2 W. Black. 1043; Doe v. Perkes, 3 B. & Ald. 489; Dan v. Brown, 4 Cowen, 483; Boylan v. Meeker, 28 N. J. L. 274; Bates v. Bates, 27 Iowa 110.

4. The court erred in its action on the instructions. Rejecting the seventh asked by the contestants gave force to the former error. Refusal of the eleventh, twelfth, thirteenth, and sixteenth, was also error. Even conceding that the probate of the will was prima facie evidence, the proponent had only introduced in evidence this probate and rested. Under Thomas M. Tucker's testimony, every shadow of the prima facie case vanished. The fourth for the contestants should have been given. The first and second charges for the contestants denying the prima facie character of the probate were improperly refused, and the first and second of the proponent affirming it were erroneously given. The proponent's third and fourth charges do not enunciate the law correctly. They are so framed as to mystify and mislead the jury, and should have been refused. Mangum v. Finucane, 38 Miss. 354.

J. E. Leigh, on the same side.

1. The Chancellor erred in admitting the probate of the will in common form as prima facie evidence of its validity. The proceeding was inaugurated under the Code of 1871, in June 1880, before the Code of 1880 went into operation. Under both Codes the burden of proof is on the proponent of the will. Code 1871, § 1099; Code 1880, § 1971. This court decided in Edwards v. Gaulding, 38 Miss. 118, that the record of the probate of a will in common form, being ex parte and made without notice to the heirs, is not admissible in evidence, on the part of the executor, in a trial of an issue devisavit vel non. Has this rule been changed by Code 1880,...