84 So. 240 | Miss. | 1920
delivered the opinion of the court.
Appellants are the next of kin and the heirs of J. P. Gathings, deceased, and a,re the contestants in this proceeding instituted in the chancery court of Monroe county to contest the last will and testament of the said deceased and to annul the preliminary probate thereof. Appellees are the beneficiaries of the» will. The testator a»t the time of his death was a widower without children. The document purporting to be last will and testament is in the handwriting of W. H. Clifton, an attorney of Aberdeen, is in due form, signed by the testator and witnessed by E. P. Poe and Chas. Shappard. It bears date March 31, 1915, and was filed for probate in July, 1918». It appears that the testator died in April, 19181, a little more than three years after the execution of the will. By the will specific legacies are left to Mirs. J. M. Gathings, a niece, and J. P. and Fred Jones, grandnephews, of two hundred fifty dollars each. And, in the language of the will:
Then follows a devise to Roxie Howard of the homestead and certain personal property, live stock, and supplies, and after the legacies and devises specified are paid — “to my friend J. M. Higgason, all of the balance or residue of my estate, real, personal and mixed, in-cluding all live stock, moneys, bonds, notes and choses in action not specifically devised herein.”
Higgason was named the executor.
The bill filed by the next of kin, in substance, charges that the alleged will is the product of undue influence exerted by Roxie Howard, a negro woman, and J. M. Higgason, a bachelor, neighbor, and friend; and, by an amendment that the testator was not of sound mind and disposing memory at the time the alleged will was executed. The issues, properly joined, were submitted to a jury, who found for the proponents, and from the decree establishing the will this appeal is prosecuted.
Hpon the trial of the issue devisavit there was much testimony introduced on behalf of proponents and contestants and m'any instructions granted by the court for both sides. There are more than twenty assignments of error relied upon by appellants. A discussion of the points attempted to be raised by most of these assignments would not only lead to a detailed statement of all of the facts in the case, but would add nothing to the jurisprudence of the state. We shall therefore address our remarks to only one or two propositions that merit discussion. We must, however, advert to the facts in a general way, as a proper appreciation • of the facts will dispose of one of the main issues in the case.
The bill charges mental incapacity, and this issue was submitted to the jury. The court refused an instruction
The record shows that Roxie Howard was an elderly black negro woman, who had cooked for Mr. Gathings practically all of his married life, who lived in a little cabin in the yard, and for many years prior to testator’s death had cooked his meals, cleaned the house, attended to the live stock about the barn, and otherwise did menial service in and about the premises. She was not present at the execution of the will, had no active part in handling, preserving, or exhibiting the document, and did not testify in the case.
The will is in the handwriting of an attorney, and was necessarily carefully prepared before the day of its execution. Dr. ITansell, the physician who attended M!r. Gathings since April 4, 1915, and thereafter until testator’s death, gave evidence in support of mental soundness, maintaining that Mr. Gathings was of sound and disposing mind “absolutely in every respect.” He stated that he was in sympathy with a m)an as old and lonely as Mr. Gathings and once or twice picked him up in his car and carried him to West Point, and frequently took him around the territory as the witness went on his calls. But the physician did state that testator was in ill health, suffering from hardening of the arteries and enlargement of the prostrate gland and general physical debility.
Mr. Roberts, a white man and neighbor had known testator for thirty-five years. And Milender, a near neighbor, had cultivated land in the same field with the testator and knew him for two years. Mr. Cox, white, had known testator for twelve years; Mr. Craig, four
The evidence further shows that the next of - kin had moved away and had little communication and made few visits to Gathings’ home.
We have thus indicated the very clear showing of mental soundness because an understanding of the facts is necessary to a correct disposition of that assignment of error based upon instruction' No. 8 granted proponents. This instruction is as follows:
“The court instructs the jury for the proponent, Mrs. Tom Montgomery, J. M. Higgason, and Koxie Howard, that while it is true that the burden of proving that the alleged testator, J. P. Gathings, deceased, was of sound and disposing mind at the time of the mailing and the executing of the instrument of writing presented for probate herein is on the proponents, yet the law presumes that every man is sane until the contrary appears by evidence, and upon this legal presumption of sanity the proponents have the right to rest until it is overcome by some evidence showing the insanity of the alleged testator at the time of alleged mailing and execution of the said instrument of writing.”
It appears that the proponents not only introduced the record of the probate in common form, but went forward with their testimony inf chief before the contestants introduced any testimlony.
“All the instructions on both sides with respect to presumptions of one kind or another were wholly irrelevant in the case, since there was the fullest proof offered by both the proponent and the contestants on both the issues involved.”
But inasmuch as this instruction was approved by the learned chancellor, usually so accurate in his rulings, and in order that any error of this kind may hereafter be avoided, we shall make some observations as to the burden of pjroof resting upon the proponents to establish his prima facie case by proof of testamentary capacity. The general legal proposition that every human being is presumed to be of sound mind cannot successfully be denied, and it may be stated, on the other hand, that testamentary incapacity! should not be presumed. But the existence of this general legal presumption of sanity does not, in our judgment, relieve the proponents of the necessity of making out a primafacie case by proof of the testamentary capacity of the testator. To be more accurate, the'legal presumption of sanity, generally existing, is not of itself sufficient to relieve proponent of the necessity of satisfying the conscience of the court that the document offered is the free act of a sound and disposing mind. The briefs of counsel on this point do not advert to the effect which the record of the probate in common form should have on the point under discussion, and we merely direct attention to the fact that the proponents might well have
“One line of decisions relies upon the presumption that all human beings, in the absence of evidence to the contrary, are of sound mind, and accepts the presumption as proof of testamentary capacity. Such authorities hold that it is only necessary for the proponent to prove the due execution of the will and to show that all statutory requirements other than testamentary capacity have been fulfilled. The presumption then completes the proof and establishes a prima-facie case.”
But in paragraph 400 he states: “The weight of authority, however, and the better reasoning are that the proponent of a will must, in the first instance, establish his prima-facie case by proof of’ the testamentary' capacity of the testator. Although, in the absence of evidence to the contrary, all persons are presumed to be of sound mind, and although this presumption may be accepted as a wise and profound rule of testamentary common law1, yet it is not sufficient in itself to absolve the proponent from the necessity of proving the testamentary capacity of the testator. ’ ’
“But it is contended that, when the subscribing witnesses had proved the due execution of the paper, it was not incumbent on the proponent to go further, and make positive proof of mental capacity, but he might rely on the presumption of law in favor of the sanity of all persons.
“Perhaps the better opinion, on a collation and comparison of the several provisions of our statute, is, that some direct testimony of a sound and disposing mind should be given, on proof of the will in common form.”
And in the much older case of Evans v. Evans, 10 Smedes & M. 400, Mr. Justice Thacheb. for the court quoted with approval’ from Chase et al. v. Lincoln, 3 Mass. 236: “These witnesses (subscribing witnesses) are placed around the testator to ascertain and judge of his capacity, and the heir has a right to insist on the testimony of all the three witnesses to be given to the jury.”
In the recent case of Helm v. Sheeks, 116 Miss. 726, 77 So. 820, our court, by Judge Ethridge, observed: “The statute requires two witnesses to- witness the execution' of a valid will, and the purpose of the statute in requiring witnesses is not only to establish the writing or signing of the instrument, but to have witnesses whose business it is to. determine the. capacity of the testator making a will.”
In Sheehan v. Kearney, supra, our court (82 Miss, on page 699 of the opinion, 21 So. on page 45, 35 L. R. A. 102) said:
These cases beyond question hold that the burden of proof is upon the proponents to make some showing of testamentary capacity. The question is discussed with much learning of Delafield v. Parish, 25 N. Y. 9:
“The party producing the paper or the proponent of a will makes the allegation that it is the will or the wish of a free and competent testator, and the onus prohandi is upon the party propounding the alleged testamentary paper. The conscience of the court is to be satisfied by the party setting up the will, that- it is the will of a free and capable testator. This clearly recognized rule is well expressed by Pared, B., in delivering the judgment of the Judicial Committee of the Privy Council in Barry v. Bultin, 1 Curt. 637; 2 Moore, P. C. 480, where he says: “The rules of law, according to which cases of this nature are to be decided, do not admit of anv dispute, and they have been acquiesced in on both sides. These rules are two: The first, the onus prohandi, lies in every case upon the party propounding the will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and cambie testator.’ Again: ‘In all cases, this onus 'prohandi is imposed on the party propounding a will. ’ In the late case of Browning v. Budd, 6 Moore, P. C. 430, the same learned judge said: ‘Their
And further: “The same rule is distinctly recognized and enunciated by the supreme court of Massachusetts in Crowningshield v. Crowningshield, 2 Gray, 526. It was there held, in accordance with the universal rule, that the burden of proving the sanity of the testator is upon him who offers the will for probate, and this burden does not shift upon evidence of his sanity being given by the subscribing witnesses. Thomas, J., in an able and learned opinion, says: ‘When one dies owning real and personal estate, the law fixes its descent and distribution. Under certain conditions, however, it gives to such owner the power to make a disposition of his property, to take effect after his death. This] is done by a last will and testament. To make such will, certain capacities are requisite in the maker, and certain formalities for its due execution. . . . When, therefore, a will is offered for probate, to establish it, to entitle it to such probate, it must be shown that the supposed testator had the requisite legal capacities to make the will; to-wit, that he was of full age and of sound mind, and that in making it the requisite formalities have been observed. The heirs at law rest securely upon the statutes of descent and distributions until some legal act has been done, by which their rights under the statutes have been lost or impaired. . . . Upon whom, then, is the affirmative? The party offering the will for probate says in effect, This instrument was executed with the
In Gerrish v. Nason, 22 Me. 438, 39 Am. Dec. 589, the point is discussed and the conclusion reached that:
In Comstock v. Hadlyme Society, 8 Conn. 254, 20 Am. Dec. 100, cited by Mr. Redfield in his Law of Wills as one of the leading, cases, the court said: “Those who claim under the will must, therefore, take upon themselves the burden of proof; and' they must not only prove that the will was formally executed, but that the testator was of sound and disposing mind.”
Our court, in Shehean v. Kearney, supra, referred to the ease note in 17 L. R. A. 494, where many of the acthorities are collated. Others are referred to in the footnotes of paragraphs 400 and 401, Alexander on Wills, vol. 1, some of which we have examined.
There is only one Mississippi case which has come under our observation that might appear to be in conflict with the authorities above mentioned. Headnote 2 to Payne v. Banks, 32 Miss. 292, states the contrary rule, but the syllabus is based upon the general observation of Judge Fisher contained in the opinion that “the law presumes sanity, and hence this legal presumption must be rebutted.” ' This remark was made in a case where there was testimony pro and con as to testamentary capacity, and we do not think the attention of the court was addressed to the narrow question now under discussion.
It follows from the authorities to which we have referred and the conclusion which we have reached that instruction No. 8, as given, the proponents in the case at bar, is erroneous. We do not indicate the measure or degree of proof required. This necessarily depends upon the peculiar facts and circumstances of the given case. Much depends uponj whether the will is wholly written and prepared by the testator himself, or whether there is anything on the face of the writing that casts
The only other justiciable issue, that of undue influence, was submitted to the jury under elaborate instructions1 for both sides and any conflict in the testimony has been settled' by the jury. The showing made by the contestant’s is weak.
The mlost damaging circumstance in evidence is the fact that Mr. Higgason, the residuary legatee, was present when the will was executed and took charge of the document and preserved and produced it for| probate. Counsel intimate that Higgason should have explained and shown affirmatively his good faith. If he had taken the witness stand, doubtless an objection that he was an incompetent witness would have been promptly interposed. At any rate all the facts in reference to the execution of the wall were fairly developed, and it was for the jury to determine from all the facts and circum
It is suggested that the provisions of the will are unnatural; ' that the relatives are poor and needy and there was no estrangement. The court has repeatedly emphasized the rule of law that — “A man of sound mind may execute a will or a deed from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even a whimi or caprice.” Burnett et al. v. Smith, 93 Miss. 566, 47 So. 117; Gillis v. Smith, 114 Miss. 665, 75 So. 451; Moore et al. v. Parks et al., 84 So. — (decided April 12, 1920].
The proof not only shows that Roxie Howard was a “faithful servant,” as stated in the will, but that-Mr. Higgason was a beloved friend and neighbor. The testimony is uncontradicted that Mr. Gathings welcomed and appreciated the company of Higgason and in his sickness would send for him for help. Mr. Higgason never failed to minister to his wants. The record emphasizes the need which this aged and lonely man certainly must have felt for his faithful friend and companion in his declining and suffering days. Higgason would visit himl at nights. When the evening shades appear, “when the day is done, and the darkness falls from the wings of night,” then many a time “a feeling of sadness comes o’er” one situated as Gathings certainly was; and what is more natural than that he should welcome
The day has not come when self-sacrifice shall he condemned and virtue no longer rewarded. The provisions of the will under review are entirely consistent with the feelings of gratitude which evidently animated the testator. There can he no merit then in any contention on this appeal that the will is unnatural, especially since all inferences of fact have been settled and passed upon by the jury.
In considering the facts of the case we have not overlooked the testimony for the contestants that in the opinion of some of the witnesses Mr. Gathings was an exceedingly quiet man; that he talked very little; that he was close or stingy in his business transactions, a recluse, and for several years in had or failing health. We have given all the assignments our consideration, and, while some of the instructions might have been more appropriately worded, we -find no reversible error in any of them1 when applied to the facts of this case. The witnesses who undertook to state their conclusion that the testator was\ of sound mind were all in a position to know and observe and pass an opinion upon facts.
On all points argued the decree should he affirmed.
Affirmed.