Hillman v. Clayton

Nov 17, 1958
No. 40916
Versions:106 So. 2d 678
234 Miss. 490
1958 Miss. LEXIS 522
Ethridge, J.

This is a contest over the authenticity of a holographic will. Mrs. Emma C. Rumley died at her home in Meridian on April 18,1957. Her husband had predeceased her and they had no children. Her heirs were two sisters and a brother, the parties to this litigation.

After Mrs. Rumley’s death, appellant, Mrs. Lena Hill-man, allegedly found on the deceased’s desk a will written cross-wise on a small, ruled sheet of notebook paper, as follows:

“To Lena
Mrs. H Hillman
I leave my house etc on 2 lots Emma C Rumley
4/17/57”

This instrument was dated the day before the death of Mrs. Rumley. Appellant, Hillman, filed her petition for probate of it. Her brother and sister, appellees, filed a caveat contesting the petition, asserting that this handwritten document was not written by their sister, Mrs. Rumley.

The chancery court empaneled a jury to try the issue. Miss. Code 1942, Sec. 503. It found “against the will,” and the final decree denied prohate. The issue tried was whether the instrument was in the handwriting of Mrs. Burnley. For proponent, several friends and neighbors and an officer of the bank where deceased had a checking account testified that in their opinions the instrument was written by Mrs. Burnley. On the other hand, for contestants a handwriting expert testified at considerable length concerning the characteristics of the writing in the document, compared that handwriting with the characteristics of other standard and recognized writings of deceased, and concluded with his opinion as to why he did not think Mrs. Burnley wrote it. This controversy presented a direct conflict on the facts for determination by the jury. It found against proponent, and there is ample evidence to warrant that conclusion. The chancellor’s decree upheld the jury’s verdict. "We would not be justified in disturbing it.

A handwriting expert as a witness may properly be asked to compare standard and genuine writings of a deceased with a disputed writing or signature of such party, and may state his opinion whether both were written by the same person, along with the reasons for such opinion. Of course, the value of the opinion of experts on handwriting depends largely upon the grounds upon which they base their opinions. The reasons for such opinion are submitted to the jury along with the other evidence, for its own determination. 20 Am. Jur., Evidence, Secs. 840, 842, 843. The probative force of the evidence is a question for the jury or other trier of fact. 32 C. J. S., Evidence, Secs. 611-622. These principles are in accord with the long-established rule in Mississippi and with the authorities in general. Moye v. Herndon, 30 Miss. 110 (1855); Wilson v. Beauchamp, 50 Miss. 24 (1874) ; Garvin v. State, 52 Miss. 207 (1876); Coleman v. Adair, 75 Miss. 660, 23 So. 369 (1898); Roy v. First National of Aberdeen, 33 So. 494, (Miss. 1903); Harrison v. Eagle Lumber and Supply Co., 152 Miss. 466, 119 So. 203 (1928). See also Hilliard v. State, 92 Ga. App. 294, 88 S. E. 2d 425 (1955).

Appellant complains of tbe granting to appellees of the following instruction: “Tbe court instructs tbe jury for tbe contestants, Miss Gladys Clayton and James Clayton, that tbe burden is upon the proponents of tbe will to show by tbe preponderance of tbe evidence that tbe alleged will was wholly written and signed by Mrs. Emma C. Rumley and if, upon tbe consideration of all tbe evidence in tbis case, you find that tbis burden has not been met and that it is uncertain and doubtful in your minds, whether tbe said Mrs. Emma C. Rumley did wholly write and sign tbe instrument in question, then it is your sworn duty to find for tbe contestants and against tbe will. ’ ’

In Brown v. Walker, 11 So. 724, (Miss. 1892), tbe instruction in a will contest advised tbe jury that, if there was a doubt left in its mind as to whether tbe instrument was signed by deceased, it must find for contestant. Tbis was reversible error, since any doubt was thereby declared to be fatal to tbe instrument. However, tbe Court said that, if tbe evidence left it doubtful whether tbe instrument was tbe true last will of deceased, tbe jury should find against its validity, because it was incumbent upon proponents by a preponderance of tbe evidence to reasonably satisfy tbe mind of tbe jury that tbe instrument was in truth tbe last will of deceased.

In Blalock v. Magee, 205 Miss. 209, 250-253, 38 So. 2d 708 (1949), an instruction very similar to tbe instant one was criticized but held not to be error. Its terminology, including tbe word “and” before “uncertain and doubtful”, was said to mean that it must be left uncertain and doubtful in their minds, because tbe burden bad not been met of showing by a preponderance of tbe evidence tbe fact contended for by proponent. Of course if “or” had been used in place of “and”, the instruction would be clearly erroneous. In both Blalock and Wallace v. Harrison, 218 Miss. 153, 164; 65 So. 2d 456 (1953), it was observed that this form of instruction is “not desirable”. However, since it was held in Blalock not to be reversible error, and when so construed by the Court, it narrowly complies with a proper standard of the burden of proof, we do not think it is reversible error in this case. See 2 Alexander, Mississippi Jury Instructions (1953), Sec. 4898.

Affirmed.

McGehee, C. J., and Hall, Arrington, and Gillespie, JJ., concur.