Ward v. Ward

• Decision Date: 28 February 1921
• Docket Number: 21320
• Citation: 124 Miss. 697,87 So. 153
• Court: Mississippi Supreme Court
• Parties: WARD v. WARD

87 So. 153

124 Miss. 697

WARD v. WARD

No. 21320

Supreme Court of Mississippi

February 28, 1921

1. WILLS. When secondary evidence of execution proper on issue of devisavit vel non stated.

In an issue of devisavit vel non, the proponents must prove the execution of the will by one of the subscribing witnesses thereto, if within the jurisdiction of the court. If either or both attesting witnesses deny its execution or fail to testify to its due execution, then secondary evidence of its execution may be introduced by the proponents.

2 WILLS. Contestant introduces attesting witness, error of proponents is corrected.

Where the proponent fails to introduce the attesting witnesses to a will and they are introduced by the contestant, then the error of proponents is corrected.

3 EVIDENCE. Attesting witness may testify as to testamentary capacity, but other nonexperts must state basis of opinion.

The attesting witnesses to a will may express an opinion as an expert upon the testamentary capacity of the testator; other nonexpert witnesses are confined to a narrative of facts and the conduct of the testator, upon which they base their opinion as to his testamentary capacity.

4 WILLS. Evidence insufficient to show undue influence on part of testator's brother.

The fact that a brother of testator procured the attorney to write the will, procured the attesting witnesses, and excluded all persons from the room while the will was being written is not alone sufficient testimony of undue influence fraud, or coercion on the part of the brother of the testator.

5. WILLS Instruction authorizing invalidation of will if testator in any manner guided as to execution held erroneous.

An instruction is erroneous which authorizes the jury to invalidate a will if the decedent was wholly uninfluenced or in any manner guided or directed about the execution of the will or in procuring attesting witnesses. It is undue influence that vitiates a will.

6 WILLS. Unreasonableness of will admissible only as showing testamentary incapacity or undue influence.

Upon an issue devisavit vel non, an instruction for contestants is erroneous in authorizing the jury without qualification that they may alone consider he reasonableness or the unreasonableness of the will. This may only be considered when there is testimony tending to show either lack of testamentary capacity or undue influence, and then to be considered together with this testimony.

HON. J. A. BRANTLEY, Chancellor.

APPEAL from chancery court of Attala county, HON. J. A. BRANTLEY, Chancellor.

Proceedings by R. S. Ward for the probate of the will of Ben L. Ward, deceased, in which Mrs. Sallie Ward filed a caveat. Decree for contestant, and proponent appeals. Reversed and remanded.

See, also, 85 So. 181.

Reversed and remanded.

M. L. Dew and Teat & Teat, for appellant.

Upon the conclusion of the evidence the proponents asked for a peremptory instruction, which was refused. The proponents then asked a peremptory instruction upon undue influence, which was also refused. The proponents asked a peremptory instruction on the issue of insanity or lack of capacity to make a will, which was likewise refused, all of which was assigned as error. In the recent case of Moore v. Parks, 84 So. 230, the court defines the elements of testamentary capacity, in the following words:

"Wills--elements of testamentary capacity stated. If at the time of the execution of a will testator appreciated the nature of his act, the natural objects of his bounty, and was capable of reasoning and thinking how he desired to devise and bequeath his property, he possessed sufficient testamentary capacity. "

And in the case of Moore v. Parks, also in the case of Gathings v. Howard, 84 So. 240, the court defining undue influence, says: "Wills--motive of testator immaterial. A person of sound mind may execute a will from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice or even a whim or caprice.

"Wills--'undue influence' defined. Influence in a legal sense is undue only when it introduces a transaction which injures some one materially, or which is intrinsically unfair and unconscientious."

Certainly it cannot be said that this was any evidence of insanity. The fact that some of her friends were willing to condone her conduct and to excuse her, did not in any measure change the matter with the sick man, whose wife was torturing him with her adulterous conduct. There is no evidence in the record to show any acts of insanity or in any specific instance where his mind was deranged. Gillis v. Smith, 114 Miss. 165.

Undue Influence. There is no undue influence shown in this suit. Every act of R. S. Ward, brother of the decedent, is consistent with devotion, fidelity and integrity. There is not a substantive fact nor circumstance in contradiction in this evidence and the peremptory instruction upon undue influence should have been granted.

It was argued in the court below and will be argued here, we presume, that in no much as the will devised part of the estate to the nieces of the decedent that such provision of itself is unnatural and unreasonable and is therefore evidence of undue influence. This is not true. The fact that the decedent shared his estate with his nieces, having been a bachelor and having no children of his own, is neither unnatural nor unreasonable even though his wife had been a virtuous woman, but especially in view of the fact that his wife was an adultress, the provision of this will indicates a high degree of integrity, intelligence and decency. Certainly it should not be contended that this court should countenance an argument upon this premise.

There was no issue left to the jury to be decided. There was neither proof of undue influence or want of testamentary capacity as tested by the decisions in the case of Moore v. Parks, 84 So. 230; Gathings v. Howard, 84 So. 240, and authorities cited therein. Upon reading the instructions given for the proponents it will be seen that there is an interminable conflict; no harmony whatever exists in the instructions and the jury was left without a guide to determine the facts in issue.

The subscribing witnesses became hostile to the proponents as shown by the record, but under the case of Helm v. Sheeks, 116 Miss. 726, 77 So. 820, where the subscribing witnesses refused to testify for the proponents, it was competent to produce other witnesses, bearing on the execution of the will, the sanity of the testator and the question of undue influence.

Upon the whole record the proponents, appellants here, show to the court that upon all of the proof in this case the proponents were clearly entitled to a peremptory instruction and are now entitled to a judgment final in their favor. They therefore ask that such judgment be rendered here in the supreme court as should have been rendered in the trial court and that judgment final be entered for the proponents in establishing the will of the said Ben L. Ward, decedent.

J. A. Smythe, S. L. Dodd, Fulton Thompson and R. H. & J. H. Thompson, for appellees.

The court will see from the record that the witnesses who negatived the decedent's mental capacity to execute a will had just as good opportunity to form correct conceptions as did those who affirmed it. Mrs. Ward, the widow on objection by contestants was not permitted to testify on the subject. Remember, too, that the burden of proof was on the contestants and that the jury passed upon the credibility of witnesses and their opportunities to know the matters about which they testified; and do not fail to observe that both of the subscribing witnesses to the writing in question, the alleged will, testified to the decedent's mental incapacity. These subscribing witnesses are erroneously called hostile by proponent's solicitors, meaning only that their testimony was unfavorable to proponents. A witness who speaks the truth and who does not depart therefrom and who does not violate the oath propounded to him is not a hostile witness; to be hostile a witness must, at least intentionally, give his testimony a false coloring favorable to the adversary of the party to whom he is hostile.

Two attesting or subscribing witnesses to a will devising lands are required by statute; they must be examined in a proceeding to probate the will, and are the only competent witnesses by whom the signing, publishing and attestation of the writing can be established. Martin v. Perkins, 50 Miss. 204. While the law formerly required proof by the attesting witnesses of the alleged testator's sanity, it now appears that his mental capacity may be proved, as held by recent decisions, by other witnesses and some present day courts go so far as to hold that the sanity of a testator may be shown by other witnesses even when all the subscribing witnesses affirm his insanity. All courts seem to agree that the law regards, the testimony of attesting witnesses as the best evidence and it has been decided by this court in Martin v. Perkins, supra, that they, with or without stating the facts, may express their opinions as to the mental condition of a testator at the time of the execution of the writing while other witnesses are confined to a narrative of facts. If this be the law the only competent opinions offered in evidence to show decedent's state of mind were those of Prevost and Skelton who attested the writing in question. That the contestants were required to prove at least prima facie the decedent's mental capacity is shown, not only by Martin v. Perkins, supra, but by a recent decision of this court. Gathings v. Howard, 84 So. 240. In the case at bar the alleged will was not probated even in common form. A...