Haddock v. JacobsHaddock v. Jacobs
- Reporters:
- Before:
- Preston
1. The estate of deceased amounted to from $2,500 to $3,000. Deceased had had some misunderstanding with her sister Genevieve Jacobs, one of the contestants, over the will of a deceased sister; but the jury could have found from the evidence that there had been a complete reconciliation, and that nothing had occurred to disturb the friendly relations with her mute brother, or two nieces, daughters of a deceased sister, and contestants, or with another niece of her •husband‘s, of whom deceased *1059seemed to have been, very fond. It was the expressed desire of deceased that the last-named niece should have a collection of solid silver pieces, which deceased and her daughter had collected, each piece of which was engraved with the Kersey name. The two principal beneficiaries in the will were neighbors of deceased’s, who had been kind to her.’ The provisions of the will, stated as briefly as may be, are that, after the payment of debts and funeral expenses, she gives flOO to the Cemetery Association, to be invested, and the interest applied in keeping up the Kersey lot, and provides for a monument, to cost about $500; that her books be given to the Benefit Library Association, such donation to be known as the Isaac and Margaret Kersey Donation; that the dresser and bedstead in a certain room be given to Mrs. Josephine Ray; and that all the rest and residue of the property be sold, and the proceeds be divided between Mrs. Josephine Ray and Mrs. Ella Keith, G. B. Haddock to act as executor. It was signed by her mark, Sunday, January 28, 1917. She died a few hours after the will was executed. She was 81 years of age. She had sustained a fractured femur, about 12 weeks prior to her death, during which time she suffered intense pain, according to some of the testimony, and took opiates to alleviate the pain; and contestants’ evidence tended to show that she had hallucinations. Proponents placed two witnesses on the stand, in the first instance, who testified to the execution of the will and to what was said and done at that time, and that she was of sound mind. At the close of contestants’ evidence, proponent moved for a directed verdict, which was overruled. Thereupon, proponents put in their rebutting evidence, without renewing the motion for a- verdict.
*1060
*1061“Mr. Haddock would ask Mrs. Kersey questions, and it took her some time to answer them, and then he suggested some things to her, and he says, ‘Now I want you to just tell your own opinion, — I merely suggest these things to you;’ and she would say, ‘Uh huh.’ Some things she would tell in her own way, what she wanted, hut it took quite a whijle. She wanted all her hooks left to the public library, and then she wanted some expenses set aside to the Cemetery Association, and for a monument. She did not say anything about the bedroom furniture, what she wanted to do with that. I heard that read in the will.”
When asked to tell how that came to be in the will, she says:
“Well, Mrs. Ray had it written down on a slip of paper, and she handed it to Mr. Haddock, and he read it. On the slip of paper was, ‘I give Mrs. Josephine Ray the bed and dresser and its contents.’ Before this was said, Mr. Haddock asked Mrs. Kersey if she had any relatives or friends that she would like to have her property go to. She hesitated for a while, and then she said, ‘Mrs. Ray and Mrs. Keith have been good to me.’ Then, at that time, Mrs. Ray handed Mrs. Kersey the slip of paper. Well, that was all that was said. They just jumped to the conclusion she wanted it left to those two ladies. I think that, if she had been given time, she would have said other people were good to her. Mrs. Kersey did not say she wanted to leave it to these two ladies. She said they had been good to her. As to the balance of the property, the home and that sort of thing, Mr. Haddock asked her what she wanted to do with these. She said, ‘I don’t know.’ Mr. Haddock says, ‘Mrs. Kersey, you will have to sign this. If you are unable to write your name, just make your cross.’ He said, ‘There will have to be two witnesses;’ and he turned to Dr. Sollis and said, ‘You will be one,’ and he said Miss Iva Larison would be the other. I did not hear Mrs. Kersey say any*1062thing to that. Q. State how she appeared. Tell the jury what she looked like, and that sort of thing. A. She was just lying there, and seemed to be very nervous, physically weak. Q. Now, basing your opinion on what you saw, or what you have detailed to the jury, what would you say, whether 01» not Mrs. Kersey was of sound or unsound mind at the time this will was executed? (Mr. Haddock: Objected to because there are not sufficient facts testified to to base au opinion on. The Court: Witness may answer. Proponent excepts.) A. Well, 1 think she was of unsound mind.”
Error is predicated upon the ruling of the court just stated, and this will be referred to later.
Another witness testifies thfft she was at the home of deceased, one evening after deceased had been hurt, at which time deceased contended that there was a black cat on the foot of her bed.
“I thought that was queer, and said, ‘What is the matter?’ Mrs. Keith was there, and she says, ‘Oh, she has been that way frequently since she was hurt.’ There was no black oat there. She thought there was a coat or something else on her bed, and there was nothing there at all.”
Dr. Paschal was the family physician for deceased and her family for years, but was himself sick at the time of her last sickness; was well acquainted^with her. He testifies that the tendency of the mind is to weaken, along with the body; that the tendency of administering opiates and anodynes to patients of that age is always to affect the mental condition, if continued for any length of time. It is weakened. In answer to a hypothetical question, he gave his opinion that she was weak-minded, and that, knowing her as he did, all his life before that, she wouldn’t be of a competent mind, — wasn’t at that time, — from the effect partly of the suffering and pain, and perhaps as much from the drugs. Other witnesses testify to her appearance and *1063physical condition, and there may be some circumstances in cross-examination of proponent’s witnesses tending to support contestants’ theory, and circumstances in cross-examination of contestants’ witnesses tending • to show mental capacity. There is some impeaching testimony as to proponent’s witnesses, more particularly, perhaps, as to Dr. Sollis, tending to show that he.said to several others that deceased was not in a fit condition to make a will at the time it was made, or during that day. There was other such evidence as to her being in a stupor, for some hours before the will was made. Witnesses were called for proponents in rebuttal, some of whom testify that, in their opinion, deceased was of sound mind. We shall not take the space to set out proponent’s evidence. It is enough to say that it is in conflict with the contestants’ testimony. Appellees so concede. After an examination of the entire’ record, we think the evidence is sufficient, and that it was for the jury to say whether deceased possessed testamentary capacity, and understood, in a general way, the nature of the instrument she was executing, the natural objects of her bounty, the nature and extent of her property, and the manner in Which she wished to dispose of her estate.