Lum v. Lasch

46 So. 559 | Miss. | 1908

Calhoon, T.,

delivered the opinion of the court.

The will of Phillip Lasch was proponded for probate. The probate was contested, and the caveat is based on the following grounds: First, because it was inspired by prejudice and hate of the testator against his only child, the contestant herein, which prejudice and hate were inspired by Daphne Goza, the beneficiary herein; second, because the execution of the wlil was obtained by improper and undue influence exerted on him by the beneficiary therein; third, because the same was not properly executed; fourth, because the decedent was not of testamentary capacity when he executed the will; fifth, because the will is void for reasons of public policy; sixth, for many other reasons to be presented on the hearing.

The first and fourth clauses of the will provide for the payment of his debts and funeral expenses. The second clause is as follows: “I give, devise and bequeath my real and personal estate to Daphne Goza, who has been keeping house for me for over 30 years” — and then describing the real and personal estate. The testator, who had been many years separated from bis wife by divorce, appears to have repudiated the child on the ground that he did not believe he was the father of it. All of the grounds on which the caveat is based seem to have been abandoned, as well they might be, except the second and fourth. Without going into a discussion of the testimony, we think it abundantly proved that the testator was of testamentary capacity when he executed the will. This is clearly established by competent, legal, disinterested testimony of gentlemen there present, who had every opportunity to _know, and the mere fact that some weeks before and some weeks after the execution of the will he was not in proper mental condition to execute one does not, in our opinion, militate against the proof of his actual capacity at the very time he executed the will. All the circumstances of preparation just before it was executed indicate a perfectly sound mind, and the fact that he gave property to one who had been his faithful servant for thirty years is to us no sort of indication of unsound mind, particularly when we consider that he seems to have had no relation on earth, because he did not believe that the child of his divorced wife owed its paternity to him.

After the most careful and painstaking examination of this record, we do not find any competent and satisfactory evidence of undue influence exerted upon him by the beneficiary in the will. At any rate, suffice it to say that we think the overwhelming preponderance of the evidence is opposed to any such conclusion. We are constrained, therefore, to reverse the ruling of the chancery court on the facts, and the decree is ordered to be entered here establishing the will as propounded as the true and proper last will and testament of Philip Lasch.

Reversed and decree here.