77 So. 820 | Miss. | 1917
Lead Opinion
delivered the opinion of the court.
The appellant, 'Mrs. M. T. Helm, presented for prohate a paper purporting to be the last will and testament of Miss Sarah Alice Brooks. The alleged will reads as follows:
“The State of Mississippi.
“I, Sarah Alice Brooks, do make & publish this to be my last will and testament—
“Item 1st. I give and bequeath to my sister Mary T. Helm my entire estate — real and personal which I may own at the time of my death.
“Item 2. I appoint her my sister Mary my executrix and relieve her from giving security on her bond as executrix. If I leave any debts unpaid they will be small & my sister is charged to pay them out of my estate & it will be unnecessary to file any inventory of my estate or to make any reports to the court.
“In testimony hereof I sign my name hereto on this the 23d day of February, 1897.
“S. A. Brooks.
“In our presence as witnesses:
“T. O. Burris:
“C. R. Smith.”
When the will was presented for probate there was an affidavit made by T. O. Burris, one of the subscribing witnesses, in which he interlined the usual affidavit with the following expression:
“To the best information and belief of this deponent of sound and disposing mind, memory and understanding and above the age of twenty-one years,’’ etc.
A caveat was filed by the appellees against the probate of the will, and the clerk thereupon declined to probate the alleged will. The appellees then filed a bill in the chancery court, alleging that the instrument was not the last will and testament of Miss Brooks, and that she was insane or mentally incompetent to make a will; and also
On the trial of the cause T. O. Burris was produced as a witness for the proponent of the will but his recollection of the transaction had completely vanished, and he was unable to testify as to any of the material facts, except to say that he recognized his signature to the will as being genuine, and that he must have seen the party sign the instrument or he would not have signed it; that he never signed anything without knowing what he was signing. • He was unable to recall any of the circumstances or any of the parties, and could not say from recollection whether the party S. A. Brooks who signed the will was a man or woman, or any other fact pertaining thereto.
C. R. Smith, the other subscribing witness, was not produced at the trial, the proponents claiming that he was a hostile witness, and that the contestants had made an affidavit for a continuance at a former term of court, and had secured a continuance 'because of the absence of C. R. Smith, who, it was alleged in the affidavit, was a material witness for the contestants, and in which it was stated that the contestants expected to prove by the said Smith that S, A. Brooks never executed said will, never signed the same in his presence, never published or declared the said, instrument to be her last will, and did no act to indicate- that the said will was the will of the said S. A. Brooks, and, further, that she was absolutely under the influence of Mrs. Helm, the proponent, at the time the instrument purported to be witnessed. Between the time the mQtion for a continuance was made and the same secured and the trial of the cause, the contestants propounded interrogatories to C. R. Smith, to be sent to the state of California, where Smith then was, or was
In the absence of Mr. Smith, and without a formal summons having been issued for him other than as above stated, the complainants produced Hon. J. A. Orr, an attorney of Columbus, Miss., who drafted the instrument purporting to be the will, who testified that he had known Sarah A. Brooks for a long time, and was intimately acquainted with her family; that he pre
The proponents also introduced Z. T. Dorroh, who had formerly been sheriff and chancery clerk of Noxubee county, and lived in Macon, Miss., for a long number of years as a near neighbor of Mrs. Helm, with whom Miss Brooks lived during the latter part of her life until she was sent to the insane asylum in 1911. He testifies that Miss Brooks came to him shortly before the alleged will was written, and requested him to write her will, but that he declined to do so, and suggested that she get a lawyer to prepare the will; that she asked him if Mr. Orr would” do, and that he stated to her that Mr. Orr was a suitable person to write her will; that shortly after the will was prepared she brought same to him, and stated that Mr. Orr had written her will, and requested him to keep the will in his safe or possession, which he had done. He testifies that at that time Miss Brooks was of sufficient mental capacity to make a will.
W. B. Helm, a son of the proponent of the will, was also introduced and testified that he had known Miss Brooks, who was his aunt, practically all his life, he being at the time about forty-five years of age, and that he had attended the same school with Miss Brooks when he was a small boy, and testified that the signature to the alleged will was the signature of Miss Brooks.
The contestants were related to the deceased as nephews, nieces, great nieces and nephews, being the decendants of H. H. Brooks, Sr., a brother of deceased.
At the conclusion of proponent’s testimony the chancellor sustained a motion to strike out the evidence, and granted a peremptory'instruction for the contestants, and .this appeal is from the final judgment accordingly entered.
The following propositions are presented for decision in this ease: (1) Was it necessary for the proponents of the will to produce C. ft. Smith, or make a satisfactory showing for not producing him? (2) Was Mrs. Helm a competent witness to establish the will? (3) Was .there sufficient evidence to justify the submission of the cáse to the jury on the issues involved?
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 c&pacity of the testator making a will. In our opinion, it was the duty of the proponent to produce Smith if he was in the jurisdiction of the court, or to take his deposition if that could be done, as the subscribing witness Burris wholly failed to recall any of the facts and circumstances attending the execution of the will, and could not recall whether it was a man or a woman making the will. The testimony of the subscribing witnesses is the best evidence, and their testimony has been selected by the decedent to prove the essentials of the execution of the
Tbe statute requires at least one witness to prove tbe execution, of tbe will. Taking this record, however, and all that appears therein, it warrants tbe belief and finding that Smith was not at the time within tbe jurisdiction of the court. When last beard from, so far as tbe record shows, be was in California, and it does not appear that be bad returned to Mississippi, and it does, appear that an effort was made to take bis deposition, but which was unavailing. It further appears that counsel for tbe proponent was led to believe that Smith would be at tbe trial, and that be would be a hostile witness. In this state of tbe record we think it was competent tb produce other witnesses bearing-on tbe execution of tbe will, tbe sanity of tbe testatrix,, and tbe question of undue influence.
With reference to tbe exclusion of the testimony of Mrs. Helm, we think the chancellor was correct in- so-doing, under tbe doctrine of Cooper v. Bell, 114 Miss. 766, 75 So. 767, and Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, 62 So. 432, 51 L. R. A. (N. S.) 187, Ann. Cas. 1916A, 1051. In tbe Whitehead v. Kirk Case tbe decisions of this court were reviewed at some length, and tbe proposition established that a person who would be tbe heir of tbe maker of a will in tbe event of bis death without a will could not testify as to mental incapacity of a testator, tbe effect of which would be to destroy tbe will and establish her rights to bis estate. It is urged here that tbe claim of Mrs. Helm would not become effective until tbe death of Miss Brooks, and therefore that tbe testimony was not to establish a claim
As to the third proposition, we think the proof was sufficient to go to tlie jury on each of the issues made. While the testimony of Smith and Burris is the best evidence, yet if they cannot be produced, or if, on being produced, do not remember the facts, other evidence may be received to establish the will. Taking the' evidence of Judge Orr, Mr. Dorroh, and Mr. Helm, we think the issues should have been submitted to the jury, and the court committed error in refusing to do so. The judgment will be reversed, and the cause remanded for a new trial.
Reversed and remanded,
Concurrence Opinion
(specially concurring). I concur in the result reached by the court that the case must be reversed. I concur on all points discussed in the opinion of
Samuel E. Miller was first introduced by the propounders of the will, and his testimony was objected to by the petitioners, because he was the executor, of the will and principal legatee and devisee under the will, and was incompetent on the ground of interest. The objection to his testimony was overruled, and he was permitted to testify, and a bill of exceptions was taken to the ruling of the court.” *
In disposing of this objection our court, by Harris, J., said:
“The only error in law assigned, so far as we are able to ascertain from the arguments of counsel, ... is that the testimony of Miller’, the devisee, legatee, and executor under the will, was allowed over the. [objections] of appellant. On this point it is urged that, inasmuch as by our Code (page 434, art. 45) a devise or bequest to a subscribing witness to a will is declared to be void under certain circumstances, any devisee or legatee, whether a subscribing witness or not, is incompetent to testify when called to support a will in his favor. There is certainly no force in this objection.”
In addition to article 45 of the Code of 1857 referred
About twenty-two years after the decision in Kelly et al. v. Miller, supra, our court expressly decided the point again in Tucker v. Whitehead, 59 Miss. 594. The court by Chalmers, J., said:
“First, there was no error in permitting the proponent, who was the principal legatee under the will, to testify in support of it. Kelly v. Miller, 39 Miss. 17. The point is decided the same way, though under statutes the phraseology of which is not identical with ours, in Massachusetts and Missouri. Shailer v. Bumstead, 99 Mass. 112; Garvin’s Adm’r v. Williams, 50 Mo. 206 . . . The contestant was admitted to testify without objection in Mullins v. Cottrell, 41 Miss. 291; and, though we find the point expressly decided in very few cases, yet an examination shows that it has been quite generally done without objection, both in this country and in England.”
In Covington v. Frank, 77 Miss. 606, 27 So. 1000, our court had for consideration the question whether persons whose heirship is denied are competent persons to prove their relationship. In the reasoning of the court on' this point, ou.r court adopted as a correct premise for argument the admitted fact that a legatee or devisee could testify to establish a will, and cited for the argument the two eases above mentioned. The language of the court by Terral, J., is significant. Our court there said:
*736 “In Tucker v. Whitehead, 59 Miss. 594, and in Kelly v. Miller, 39 Miss. 17, it is held -that a person claiming title or right under a will may testify to establish the will by which their title to the estate of the testator is established; a like construction authorizes a person to establish his title to the intestate’s property by his own oath. They are parallel cases in every respect. If section 1740 did not exclude Mary Whitehead from testifying in Tucker v. Whitehead, or Miller from testifying in Kelly v. Miller, it ought not to exclude Mary Covington and Cornelia Miller from testifying in this case. The title of Mary Whitehead accrued upon the death of Covington. In neither case did the title originate in the lifetime,of the testator or of the intestate, and both are competent witnesses.”
There is a further significant statement in the opinion of the court in the Covington Frank Case that our present statute, at that time section 1740, Code of 1892, is in the nature of an exception to the' statute removing the disabilities of parties to a suit existing at common law, and that our present statute “excepts from that right or benefit the persons therein named; and it is a rule in the construction of statutes that exceptions must be .strictly construed.” And again the court says:
“Neither wife nor child has any interest in the property of the husband and father during his lifetime; dying intestate they would be his heirs, and to prove their i’elationship to him is to prove their title to his property by descent when cast; but it is not to prove a claim that originated in his lifetime. At the death of a person, dying intestate, eo instanti the title of the heirs accrues.”
And so I assert with confidence here that Mrs. Helm, the legatee or devisee under the will propounded, had , no claim which, in the language of the statute, “originated during the lifetime of such deceased person,” the testatrix. Her title and claim is based upon
“The mere presence of a beneficiary under a will at its execution is not improper, suspicious, or objectionable, where no proof appears that he actively instigated the business.” Schouler on Wills, Executors, and Administrators (5 Ed.), par. 245.
In many instances the testimony of the legatee would be pertinent and important in identifying the document as a last will. To illustrate: A father might execute a holographic will naming his eldest son testator and one of the chief beneficiaries. In the execution of such a will witnesses are not required. May not the eldest son produce the document and identify
The Whitehead-Kirk Case, 104 Miss. 776, 61 So. 737, 62 So. 432, 51 L. R. A. (N. S.) 187, Ann. Cas. 1916A, 1051, is not controlling here. The testimony there condemned was held to be against the spirit, if not the letter, of the statute. The Whitehead-Kirk Case did not expressly overrule, and did not undertake to overrule, either one of the other eases which has expressly decided the point here at issue. On the contrary, the opinion (104 Miss., bottom of page 823 and top of page 824, 62 So. 432, 433 [51 L. R. A. (N. S.) 187, Ann. Cas., 1916A, 1051]) expressly said:
“It is also contended that former decisions of this court, are in conflict with our decision of the present*740 case; but no such decision has been. cited, and it is believed that none can be found.”
This statement makes it clear that the court did not intend to overrule any previous decision of this court, but on the contrary, the court intended to say, and I think did say, that the decision in the Whitehead-Kirk Case was based upon a state of facts never before considered by this court. The previous decisions of the court- were reviewed ydth the express purpose of demonstrating that the opinion then being delivered was in harmony with previous deliverances of our court. The only case that could possibly be held in conflict with the present opinion is that of Cooper v. Bell, 114 Miss. 766, 75 So. 767. A close examination of the opinion in Cooper v. Bell will show that a decision on the point now presented was expressly pretermitted. In the Cooper-Bell Case Mrs. Rutland occupied the same position which Mrs. Helm here occupies. She was a legatee, and was offered as a witness .to prove that the -testator was mentally sound at the time of the execution of the codicil. Under the issues there presented our court said that the rejection of her testimony “cannot be complained of by appellant for the reason that, whether right or wrong, it was in her favor and against appellee.” In reference to Whitehead v. Kirk, supra, I make this further observation, that the primary object and result of the testimony there condemned tended to create" a state of facts which would irrevocably fix the claim of the witness, a state of facts existing during the lifetime of. the deceased. In this regard the opinion falls within the statutes enacted in many of the states and the decisions of many of the courts condemning the personal conversations or transactions of the witness with the deceased. In addition to the decisions of our court holding that a legatee is competent, many decisions of other courts are listed • in the editor’s note to Whit
“So far as the form and phraseology of the statute are concerned, none of the other statutes appear so unfavorable as the Mississippi statute to the view adopted in Whitehead v. Kirk. ....There seems to be no authority, outside of Mississippi, for the view that the right to succeed to a decedent’s estate, as widow or heir, amounts to 'a claim’ against the estate; much less that it amounts to a claim against the estate originating in the lifetime of the decedent.”
I quote from these notes to emphasize the fact that our court went a long ways in Whitehead v. Kirk, and I for one am not in favor of enlarging or extending the force and effect of that opinion. To do so would class wills and the effort of legatees to uphold wills as something' unlawful. It tends to characterize a will as malum prohibitum and to say to the beneficiary, “Touch not, handle not, the unclean thing.” The innocent objects of many a bounty provided in wills frequently know nothing whatever about even the existence of the will until after the testator’s death. .The beneficiaries are frequently widows, children, and other relatives, who are not consulted by the testator and who naturally resent imputations of fraud or improper influence, and who ought not be slandered in court without an opportunity to be heard.
In addition to the almost unbroken line of decisions listed in the L. R. A. notes, supra, it is stated in 40 Cyc. p. 2266:
*742 “The statutes excluding evidence in actions by or against representatives or relating to transactions' with a decedent are usually held not applicable in proceedings for the probate or contest of a will” and also in Borland on Wills, p. 69:
‘ ‘ The rule of the common law excluding devisees and other parties in interest and the modern statutes making them competent upon condition of relinquishing their claim under the will apply to attesting witnesses only, and not to devisees or legatees who might be called generally as witnesses in a will contest.”
I think Mrs. Helm is a competent witness, that her testimony should .not have been excluded, and that this is simply an additional reason why the case should be reversed and remanded for a new trial.
Concurrence Opinion
(concurring). The facts sought to be proven by Mrs. Helm existed, if at all, prior to the death of the testatrix, and,' if proven, will establish the validity of the will and consequently of the claim thereunder of the witness to the estate of the testatrix, so that the question here presented comes squarely within the rule announced in Whitehead v. Kirk, 104 Miss., at page 822, 61 So. 737, 62 So. 432, 51 L. R. A. (N. S.) 187 Ann. Cas. 1916A, 1051, and followed in Cooper v. Bell, 114 Miss. 766, 75 So. 767, which is that:
“Whenever a witness is offered for the purpose of proving any transaction, act, contract, admission, license, condition, etc. (whatever may be its exact nature), as ‘a fact to be proven,’ and proven as a fact existing or occurring prior to the death, and the proof of such fact as then existing or occurring is determinative of a claim or right of such witness to or in property of the deceased, and establishes, such claim or right directly and finally, there the witness is testifying to establish his claim which originated during the lifetime of such deceased.”
