Watkins v. Watkins

• Decision Date: 04 January 1926
• Docket Number: 24804
• Citation: 142 Miss. 210,106 So. 753
• Court: Mississippi Supreme Court
• Parties: WATKINS et al. v. WATKINS et al. [*]

106 So. 753

142 Miss. 210

WATKINS et al. v. WATKINS et al. ^[*]

No. 24804

Supreme Court of Mississippi

January 4, 1926

Division A

Suggestion of Error Overruled Feb. 1, 1926.

APPEAL from chancery court of Monroe county, HON ALLEN COX, Chancellor.

Suit by W. B. Watkins, executor, and others, against Mrs. Josephine C. Watkins, individually and as administratrix, and others. Decree for complainants, and defendant appeals in her two capacities. Affirmed.

Judgment affirmed.

Leftwich & Tubb and McIntyre & Roberds, for appellants.

I. The lower court erred in refusing to permit Dr. J. W. Coleman to testify as a physician as to the condition of Wade Leroy Watkins' mind as he found it while attending Watkins as his patient. See section 6380, Hemingway's Code. New York was the first state to enact a statute establishing the privilege, and following New York, Missouri came next, and now a majority of the states have such statute establishing the privilege. Fox v. Union Turnp. Co. (N. Y.), 69 Supl. 551. This holding of the supreme court of New York is to the effect that the statute is not inflexible; this, too when the evidence of the physician would contradict and reflect on the credibility of the patient. See also 4 Wigmore on Evidence, 2388. "The right to waive a privilege must be as broad as the privilege itself." Blair v. Chicago & A., R. R. Co., 89 Mo. 334; Olson v. Court of Honor, 100 Minn. 117, 8 L. R. A. (N. S.) 521. If the only heir and legal representative of the deceased cannot waive the privilege while adversaries can invoke the statute to suppress the truth and defeat the rights given her as the wife of deceased, under the laws of this state, then great injustice is done her. 4 Wigmore on Evidence, 2389; Epstein v. Penn. R. R. Co. (Mo.), 48 L. R. A. (N. S.) 394.

Here the proponents go on the witness stand before a jury and crowded court room and say the deceased was insane for more than two years before his death, and say that he was being treated by physicians. Then they can cry, "secrecy, secrecy!" when there is no secrecy, and by so crying prevent from testifying the one man capable of intelligently testifying and giving the real facts when his testimony will clear the deceased of the stigma placed upon him by the proponents in this case.

We have gone over the different cases, some ten or twelve of them, in which this court has been called upon to construe or pass upon this statute, and we have been unable to find a single one of them where this identical question was presented to the court; and in this case we insist that the reason for the rule does not exist; for, as said above, this witness, who was the attending physician, is not called upon to divulge anything that would reflect in the least upon the character or standing of the deceased; but is called upon to state the facts as he found them, and these facts known by the physician would, on the contrary, reflect credit upon the deceased; and had he been permitted to testify as a physician, he would have said that, in his judgment, from a study of the patient's physical and mental condition, that he was sane. From a casual reading of the case of McCaw et al. v. Turner, et al., 126 Miss. 260, it might appear that our court has passed upon this identical question, but a study of this case will show that such is not true.

II. The issues submitted to the jury by the court's decree making up the issues: Assignments of Error 1 and 2 assail the form of the issues which were submitted to the jury in the trial of this cause. See section 1662, Hemingway's Code; section 1997, Code of 1906. As these issues submitted to the jury are the only pleading that they may consider, their verbiage is unusually important. Payne v. Banks, 32 Miss. 292.

It is said by a leading author that the issues submitted to the jury must be such as to leave the court no office but to declare for or against the will. 3 Alexander on Wills, 1332-1333. It has been further held that the issues joined should be issues of fact strictly. Comstock v. Hadlyme Ecclesiastical Society, 20 Am. Dec. 100-101. See also 40 Cyc. 1325; 11 Ency. Pl. & Pr. 662, 663, 668 and 669; Kerr v. Lunsford, 2 L. R. A. 668 and note.

As stated in the last text cited and the other authorities, these issues should be in language not technical, not obscure, but in plain language easily understood by laymen and easy to be read and comprehended. In view of these principles we bring the attention of the court to the issues framed by the court below and submitted to the jury. Take the first issue: "Did Wade Leroy Watkins make, publish and declare his last holographic will and testament in or about the month of June, 1918?" We submit that the language here is technical, especially in the use of the word "holographic." It asks the jury to find a conclusion of law rather than one of fact and its language is not easily understood by the plain men who form the jury. On the other hand, the language is calculated to cloud and confuse the issue to be decided.

Each and every one of the issues propounded is improper and assumes as an ultimate fact already established what was charged in the bill and definitely denied in the answer, that the paper propounded was not executed as and for the last will and testament of Mr. Watkins and never existed as such and that if it did exist as such it was by him revoked when competent to do so. This court in Kell v. Rogers, 28 Miss. 83, has held that the duty rested upon the court himself to make up the issues to be submitted to the jury. These issues must be made up from the pleadings and they must be issues of fact and not issues or conclusions of law and the authorities we have cited are all to the effect that courts in framing them are admonished to use plain, untechnical language and language that doesn't beg the question and language that doesn't anticipate by its suggestive qualities the result that should be attained in the investigation.

III. The peremptory charges asked and given the proponents on the first and second issues submitted to the jury: Assuming for argument's sake that these charges were justified by the proved facts, then they are altogether improper; for by their very terms and implications they foreclose the whole case and in the minds of a jury of laymen leave them nothing to decide. A will is ambulatory, subject to change and revocation until the last breath of a sane man. Many things are involved affecting its validity in this large record and yet the court characterizes the document as "the last holographic will and testament" of Mr. Watkins, assuming all the preliminary facts to be proved and the presumption that he revoked it not to exist. This charge, taken in connection with the first issue, and almost in the same language, was calculated to mislead and, no doubt, did mislead the jury and was destructive of the contestant's case before the jury, leaving a jury of laymen to understand that the court had terminated all questions and left nothing for them to pass upon.

In all jurisdictions, both in civil and criminal cases, the rule is that instructions which assume the existence of material facts in dispute are erroneous as invading the province of the jury and such instructions are always properly refused. 1 Randall's Instructions to Juries, 127, sec. 74; Reed v. Yazoo & M. V. R. R. Co., 94 Miss. 639, 47 So. 670; Griffin v. Griffin, 93 Miss. 651; Coleman v. Adair, 75 Miss. 660, 23 So. 369; Scally v. Wardlaw, 123 Miss. 857; 11 Ency. Pl. & Pr. 116, and cases cited therein.

Of course, the rule of law we are invoking will not be disputed and the only matter is its application, and its application, it seems to us, is undoubted. These two charges were theoretically intended to apply only to issues one and three submitted to the jury, but the language employed is so comprehensive that no jury of laymen unaccustomed to making discriminating distinctions could have done less than conclude that the court had made up his mind on these issues. In stating his opinion on those two issues and instructing the jury as to them to find favorable to the proponents he used language broad enough to take in the whole case.

IV. Revocation of the alleged will. We submit such fragmentary and contradictory testimony as that of witness Hill is not sufficient to validate and establish the will; but let us assume for argument's sake that all of what Hill says is true and that the jury believes him, then the most that can be established by his testimony is that the alleged paper sought by proponents to be established as the will of Wade Leroy Watkins, written by him in his own handwriting about June, 1918, was in the pocket of Wade Leroy Watkins and was taken out of his pocket on the street in Aberdeen, in front of the Western Union Telegraph office, and shown to J. H. Hill. If Hill's statement is taken in its entirety and in its integrity, it not only proves the existence of the will at that time and for the last time in its history, but the very statements and observations made to him by the testator at the time he exhibited the will show all the capacity necessary to be possessed by him to revoke it.

That the alleged will was lost is shown by very diligent search made for it by all the parties interested and is beyond question and must be admitted. The burden of the proof accordingly rests upon the proponents throughout not only to prove by clear, satisfactory and convincing proof the proper execution of the will, but they must account for its absence and overcome the presumption that the testator destroyed the will animo revocandi. 28 R. C. L. 384-385; In re Colbert, 31 Minn. 461, 107 Am. St. Rep. 439, 3 Ann. Cas 952. The same authorities put the proposition in this form, if the...