Estes v. McGehee, 97 So. 530

97 So. 530 | Miss. | 1923

Sykes, P. J.,

delivered the opinion of the court.

The appellant, R. W. Estes,, by his bill seeks to have set aside and canceled of record the probate of the purported last will and testament of Mrs. Cornelia Wallace Estes. This alleged will is a holographic one, on two separate sheets of paper; the one of date. April 17, 1915, disposed of her property in Mississippi, that of April 23, 1915, of her property in Memphis. These two instruments were probated in common form. The beneficiaries were the daughters, the appellees in this case. The appellant, contestant, was only left a very small sum of money in each of these instruments. It is unnecessary to set out in full these two papers. Suffice it to say that the testimony shows overwhelmingly that they were wholly written and signed by the testatrix, and were not materially altered, and were in no Avise inconsistent one with the other, and both constituted and comprised her disposition of her property. Upon the issue of devisavit vel non the jury returned a verdict in favor of the proponents of the will, and decree Avas accordingly entered establishing the will, from Ávhich decree this appeal is prosecuted.

Upon the question of undue influence the learned chancellor gave a peremptory instruction in favor of the proponents. The appellant insists that this Avas error, and that under the testimony this question should have been submitted to the jury. Mrs, Estes, the testatrix, Avas about sixty-nine or seventy years old at the time she executed this will. She was the owner of both real and personal property. The testimony sIioavs that for awhile she looked after the management of the property herself, for awhile her son, the appellant, looked after it, and for aAvhile previous to and after the execution of this Avill her daughter, Miss Caroline Wallace Estes, looked after it; that testatrix Avas rather a nervous delicate woman, and had suffered some years with, a goiter. When Mrs. Estes was managing her business, she had rented a plantation for some years to some merchants for. a rental annually of ten bales of cotton. One of these merchants testified that it had been his custom, acquiesced in by Mrs. Estes, to sell this cotton and credit her account therewith; that upon the occasion in question Miss Caroline told him not to sell the cotton, but deliver it to her. He talked with Mrs. Estes about it, and she bold him:

“Carrie Avant-s to take charge of it, and I can’t help it. It has been all right Avith me, the Avay you have been doing.”

And he further stated that it looked like Miss Carrie wanted to take charge of the business, and would do it, whether Mrs. Estes Avanted her to do it or not. This witness also stated that it appeared to him Mrs. Estes was under the influence of her daughter.

Assuming that in this business transaction Mrs. Estes was influenced by her daughter, and permitted her daughter to manage it as she wished, this is no evidence of undue influence, and especially of any undue influence exercised upon the testatrix in the making of the will. It is unnecessary to distinguish between what might be termed a proper influence and an undue influence. .There is no testimony to show that the testatrix in the preparation of this will was in any wise or in any manner influenced by this daughter. In order for this question to have been submitted to the jury, there must have been some testimony from which the jury would have been justified in believing that this will of testatrix did not speak her real mind or intentions, but rather was the will of her daughter, Miss Caroline. Sanders v. Sanders, 126 Miss. 610, 89 So. 261; Scally v. Wardlaw, 123 Miss. 857, 86 So. 625. In this case the uncontradicted testimony shows that the testatrix had for some time intended to execute her will as it was subsequently executed.

The testimony for testamentary capacity was submitted to the jury. Upon- this issue the jury found in favor of the proponents, viz.' that Mrs. Estes ivas of sound and disposing mind and memory when she executed the will. The jury could have found no other ivay. Without reviewing in detail the testimony, the chancellor would have been warranted in giving a peremptory instruction on this question, .also-, in favor of proponents. None of the testimony introduced by the contestant showed that before or about the time of the execution of this will the executrix was insane. Some witnesses expressed the opinion that in their judgment she was insane at certain times, but, when the facts upon Avhich their opinions are based are examined, it is manifest that this conclusion should not have been drawn by them. On the other hand, the sanity of the testatrix at the time of the execution of the will was overwhelmingly proven by the proponents.

It is insisted by appellant that the chancellor erred in allowing the testimony of Dr. Alexander to go to the jury. For some years before the death of testatrix Dr. Alexander was her family physician. As such he had probably made professional calls upon her before the will was written. He had also before that time treated pro*-fessionally the husband of testatrix. He and testatrix were members of the same church. They served on a committee which built the church and borrowed money and mortgaged the church property. He also was in the habit of mailing social visits to the home of testatrix. When Dr. Alexander ivas offered as a witness by the proponents, the contestant objected to his testifying, because of section 3695, Oode of 1906 (Hemingway’s Code, section 6380), which read as follows:

“All communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice, are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding, except at the instance of the patient.”

He was examined in the absence of the jury, and testified about his professional relations, as well as his business and socal relation. He stated in this examination that he thought he could segregate the knowledge obtained as a physician from that obtained socially and in church work. . He was then* offered to the jury as a nonexpert, basing his opinion upon his observation of Mrs. Estes from their association in church work and social visits. He was expressly enjoined to state this opinion thus formed not rofessionally, but from social and business observation. He distinctly stated that this opinion was not formed from his professional visits. He did not testify as an expert; neither did he testify as to the opinion he formed of her mental condition because of his professional visits. This statute only malees privileged communications made to a physician or surgeon by a patient under his charge. The facts testified to by Dr. Alexander as a nonexpert, upon which he based his opinion that Mrs. Estes was sane, were carefully limited to those obtained from his observations and conversations with her during' their business for the church and social visits, disconnected from professional visits, and therefore these facts and this information were in no wise formed or based upon any information received or obtained while the relation of physician and patient existed. The chancellor was correct in admitting this testimony.

Affirmed.