Weston v. Lawler's Estate

Decision Date18 November 1981
Docket NumberNo. 52933,52933
Citation406 So.2d 31
PartiesMary Ruth Henry WESTON, George F. Henry, Jr. and Horace E. Henry v. ESTATE OF Joseph A. LAWLER, Deceased, et al.
CourtMississippi Supreme Court

Mark W. Prewitt, Vicksburg, Henry Lee Rodgers, Louisville, for appellants.

Lake Tindall, Hunger & Thackston, Edwin W. Tindall, Frank S. Thackston, Jr., Greenville, for appellees.

Before ROBERTSON, P. J., and SUGG and LEE, JJ.

LEE, Justice, for the Court:

Mrs. Ruth Henry Weston, George F. Henry, Jr., and Horace E. Henry, sister and brothers by the half blood of J. A. Lawler, filed a will contest in the Chancery Court of Washington County, Honorable Nat W. Bullard, presiding, after an instrument dated November 20, 1979, purported to have been executed by J. A. Lawler, was admitted to probate. The contestants contended that the testator lacked the mental capacity to execute a will and that the instrument resulted from undue influence of the executor, Paul R. Horne, Jr., and beneficiaries under the purported will. The proponents denied the averments of the contestants' petition and the issues were tried before a jury on September 29 and 30, 1980. The proponents introduced the record of probate and rested. The contestants introduced evidence and, at the conclusion of that evidence, the trial court, on motion of the proponents, excluded same and directed a verdict in favor of the proponents. The contestants have appealed here from the judgment of the lower court.

The facts favorable to appellants indicate that in about 1974, J. A. Lawler fell twenty-five feet from a ladder while pruning a tree, suffered severe head injuries and was hospitalized for approximately two weeks. Subsequently, he experienced severe depression, memory lapses, and confusion. During 1976, Mr. Lawler was disoriented and confused. On May 24, 1976, he was examined by Dr. Robert Lee, who found that he was under stress and was suffering from reactive depression. Dr. Lee treated Mr. Lawler for hypertension and when he again saw him on July 6, 1976, his mental depression continued.

Dr. Lee examined Mr. Lawler on September 5, 1979, at the Delta Medical Center where he had been admitted for acute illnesses. Mr. Lawler was suffering from congestive heart failure, arteriosclerosis, uremia, and Parkinson's Disease. He was confused and disoriented and was placed in the intensive care unit. On September 12, 1979, Mr. Lawler suffered a cardiac arrest and was transferred to the coronary care unit. His physical condition stabilized and he was released from the hospital into the care of his primary physician on September 24, 1979. He was mentally confused at the time of his release but did have lucid intervals.

On November 20, 1979, Mr. Lawler executed the will instrument, which was filed for probate in this cause. He was admitted to the hospital again on December 14, 1979, and remained there until he died on February 7, 1980. According to Dr. Irving Feurst, a doctor of internal medicine and psychiatry, a witness for the contestants, he examined and studied the hospital records pertaining to the hospitalization and treatment of Mr. Lawler, and, in his opinion, Mr. Lawler was suffering from the mentioned illnesses, had sustained brain damage and, on November 20, 1979, was not mentally competent to understand the nature of business such as disposing of his property. He testified that, on November 20, 1979, Mr. Lawler was not competent to execute the will instrument involved here.

Mr. Lawler moved into the home of Paul R. Horne, Jr., in 1976. Residing there were the proponents, Paul R. Horne, Jr., Thyra Crosby Jackson, his mother-in-law and a first cousin of Mr. Lawler, Linda Jackson, second cousin of Mr. Lawler, and Almyra Jackson Horne, the wife of Paul R. Horne, Jr. The executor, Horne, testified that, during the first part of 1976, Mr. Lawler began living in the household with him and the persons above mentioned, and, during the latter part of 1976, Horne prepared a last will and testament, which was executed by Mr. Lawler. On November 20, 1979, the present will was executed by Mr. Lawler. Prior to that date, according to Horne, Mr. Lawler desired to change the will, and Horne contacted an attorney in Greenville, and gave him information as to how the will should be drawn. The instrument was prepared without Mr. Lawler going to the attorney and discussing the will and its contents with him. When the instrument was signed by Mr. Lawler, Horne made the arrangements for the execution of same but excused himself from the room when the instrument was actually signed. In 1976, Horne also prepared a general power of attorney which was executed by Mr. Lawler, granting Horne full power to do any and all things pertaining to the property of Mr. Lawler. Horne admitted that he attended to the business of Mr. Lawler during the years he was living in the Horne household, including writing checks and advising him concerning business matters. The November 20, 1979, instrument also named Horne a trustee for the handling and disposition of the estate property. Horne testified that he occupied a trustee relationship with Mr. Lawler.

I.

Did the lower court err by applying the two-witnesses rule?

The appellants originated this action by filing a petition for will contest. The affidavits to the petition set forth that the matters stated therein were true and correct and that all other matters stated were true and correct to the best of their knowledge, information and belief. Answer under oath was not waived. The proponents answered the petition and made oath that the matters and things set forth in the answer were true and correct as therein stated and were based on personal knowledge and information. The basis of the chancellor's ruling, in the directed verdict for proponents was that the appellants did not waive answer under oath and failed to overcome the sworn answer. He applied the "two-witnesses rule" relying upon Fant v. Fant, 173 Miss. 472, 162 So. 159 (1935), which stated:

Was the bill here sworn to within the meaning of this statute? The oath required by the statute must be positive and on knowledge, not mere information and belief. "The object of that section is to entitle complainant to swear to his bill, and thus by putting his oath against that of defendant, to get clear of the rule requiring two witnesses, or one witness and corroborating circumstances, to overthrow an answer denying the allegations of the bill." Jacks v. Bridewell, 51 Miss. 881. The defendant must swear to his answer on knowledge and not on information and belief in order to obtain the benefit of the rule. Carpenter v. Edwards, 64 Miss. 595, 1 So. 764; Snell v. Fewell, 64 Miss. 655, 1 So. 908; Toulme v. Clark, 64 Miss. 471, 1 So. 624; Purvis v. Woodward, 78 Miss. 922, 29 So. 917; Stewart v. Coleman & Co., 120 Miss. 28, 81 So. 653. The same rule, of course, must apply to a complainant; there being nothing in the statute showing a contrary intention. (173 Miss. at 485-486, 162 So. at 161).

The Fant case may be distinguished from the case sub judice. There, the action was initiated by an original bill of complaint to cancel a deed and the case was heard on bill and answer. The controversy here involved matters testamentary and of administration. In Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790 (1940), the Court said:

Hence, even if Section 383 of the Code of 1930 (Section 11-5-33 Miss. Code 1972) had any application, the answers were entitled to be given "only such weight and credit as in view of the interest of the party making the same, and the other circumstances of the case, it may be fairly entitled to." However, in matters testamentary and of administration no answers under oath were required, whether waived or not. Section 370 of the Code of 1930. The chancery court in the matter of estates administered may hear and determine...

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7 cases
  • Costello v. Hall, 56571
    • United States
    • United States State Supreme Court of Mississippi
    • April 29, 1987
    ...by Mrs. Hall of a power of attorney in favor of her brother, Marion Costello. That holding relied on the case of Weston v. Estate of Lawler, 406 So.2d 31 (Miss.1981), aff'd, 451 So.2d 739 (Ms.1984), where the of the contested will held a power of attorney from the testator, and was a truste......
  • Will and Estate of Varvaris, In re, 54889
    • United States
    • United States State Supreme Court of Mississippi
    • September 25, 1985
    ...this section, its findings are not merely advisory, but binding just the same as the circuit court trial jury. See: Weston v. Lawler's Estate, 406 So.2d 31 (Miss.1981); Fowler v. Fisher, 353 So.2d 497 (Miss.1977); and Sheehan v. Kearney, 82 Miss. 688, 21 So. 41 (1896). This again does chang......
  • Kimbrough v. Estate of Kimbrough, 2012–CA–02029–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • March 20, 2014
    ...while not exercised by a beneficiary under the will, may be done so through an agency or a third person.” Weston v. Lawler's Estate, 406 So.2d 31, 34 (Miss.1981) (citations omitted); see also Wasson, 562 So.2d at 79. ¶ 17. In Weston, the testator moved into the home of Horne, who subsequent......
  • Aron v. Panola-Quitman Grain Corp., PANOLA-QUITMAN
    • United States
    • United States State Supreme Court of Mississippi
    • June 4, 1986
    ...Life Ins. Co. v. McGee, 444 So.2d 803 (Miss.1983); Pittman v. Home Indemnity Co., 411 So.2d 87, 90 n. 3 (Miss.1982); Weston v. Estate of Lawler, 406 So.2d 31 (Miss.1981); Jordan v. First National Bank of Jackson, 402 So.2d 845 (Miss.1981); Claiborne v. Greer, 354 So.2d 1109 ...
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