106 So. 753 | Miss. | 1926
The bill of complaint as amended, after setting forth the names and residence of all parties complainant and defendant, averred, among other things: That "in or *225 about the month of June, 1918, the said Wade Leroy Watkins duly and legally executed in writing his holographic last will and testament; it being wholly written and subscribed by him according to the statute in such cases made and provided." That by said last will and testament said Wade Leroy Watkins bequeathed and devised his estate as follows, to-wit: First, to his wife, Mrs. Josephine C. Watkins, his residence and household effects on West Commerce street in Aberdeen, Miss., and the sum of one hundred thousand dollars; second, to his namesake, Edith Leroy Watkins, his farm across Tombigbee river in Monroe county, Miss.; third, to the children of his only two brothers, W.B. Watkins and G.H. Watkins, and his only two sisters, Mrs. Susan Gibson and Mrs. Grace W. Harris, testator's nephews and nieces (naming them), and any nephews and nieces that might be thereafter born, all the rest and remainder of his estate, real or personal, including his prairie plantation near Muldon, Miss., known as the "Troup Place." That by his said last will and testament his brother W.B. Watkins, and his wife's father, W.H. Clarke, were appointed as executors of said will, and that a true or substantial copy of such will was annexed to the bill as an exhibit thereto.
The bill further averred that the said Wade Leroy Watkins, at the time of making and executing his said last will and testament, was of sound and disposing mind and memory and was not acting under duress or restraint; that, some time after the execution of said last will and testament by the said Wade Leroy Watkins, he became mentally incapacitated to revoke, annul, or cancel said last will and testament, and did not, before becoming mentally incapacitated so to do, or before his death, revoke, cancel, or annul said will; and that the said last will and testament was a valid instrument as and for his last will and testament of his real and personal property at the time of his death. *226
The bill further averred that, since the death of the said W.L. Watkins, the said W.B. Watkins and G.H. Watkins, to the end that said instrument might be presented for probate, had made and caused to be made diligent search and inquiry therefor, and had not and could not ascertain the whereabouts thereof, and, upon information and belief, charged that said instrument had been lost or destroyed, without the knowledge, consent, or procurement of said testator, W.L. Watkins, deceased. Other averments of the bill are not material to decision of the cause. The bill prayed that all proper issues be made up to determine whether the instrument attached to the bill as an exhibit was a true or substantially correct copy of the last will and testament of the deceased, and should be admitted to probate as such last will and testament.
The answer denied all the material averments of the bill of complaint, and averred upon information and belief that, if the said W.L. Watkins ever at any time executed a paper purporting to be a last will and testament, such instrument was procured by the undue influence of the complainants, or some of them, or some other person acting for them, and that such document, if any ever existed, was not and is not the last will and testament of the said W.L. Watkins. The answer admitted that in June, 1918, W.L. Watkins was of sound and disposing mind, but denied that he was not acting under duress or restraint if he ever signed the alleged will. It repeatedly denied that any such will was executed by W.L. Watkins, or that any document or instrument executed in his lifetime as his last will and testament had been lost or destroyed without the knowledge, consent, or procurement of the said W.L. Watkins, deceased, but averred that, if any such document or instrument ever existed he, the said W.L. Watkins, in his lifetime and long before his death, had, for good and sufficient reasons, become dissatisfied with the same and the disposition thus made *227 of his property, and that he voluntarily revoked the same, either by destruction or otherwise.
The answer further denied that the said W.L. Watkins ever at any time became mentally incapacitated to revoke, annul, or cancel said alleged last will and testament, denied that he did not, before becoming mentally incapacitated to revoke, annul, or cancel said alleged last will and testament, or before his death, revoke, cancel, or annul the same, and denied that said alleged will was at the time of his death a valid instrument as and for his last will and testament.
Before the trial in the court below the contestant, Mrs. Josephine Watkins, filed a motion to require the complainants to make more definite and certain the averment of the bill that "said will had been lost or destroyed, without the knowledge, consent, or procurement of said testator," by giving the time, place and circumstances referred to and relied upon, and also to make more definite the averments that "the testator became mentally incapacitated to revoke, annul, or cancel a will," by stating the time when it was claimed that the testator became so incapacitated. This petition was overruled as to the first ground, but sustained as to the second, and an order was entered requiring complainants to amend their bill so as to state when, or about the time when, the testator was claimed to have become mentally incapacitated to revoke, annul, and cancel his alleged last will and testament. To this order of the court, the complainants reserved an exception, and thereupon responded to the order by filing an amendment averring that this mental incapacity was first noticed in the year 1921, but that, on account of the nature and character of the particular mental unsoundness with which the testator was affected, it was impracticable to be more definite.
The proponents having filed a motion that an issue devisavitvel non be made up, and a jury summoned to try the issues, an order was entered propounding the following issues: *228
"First. Did Wade Leroy Watkins make, publish, and declare his last holographic will and testament in or about the month of June, 1918?
"Second. If Wade Leroy Watkins did make, publish, and declare his last holographic will and testament in or about the month of June, 1918, is Exhibit A to the original bill in this cause a true or substantially correct copy of said last holographic will?
"Third. If Wade Leroy Watkins did make, publish, and declare his last holographic will in or about the month of June, 1918, and if Exhibit A to the original bill in this cause is a true or substantially correct copy thereof, was the said holographic will executed as a result of undue influence?
"Fourth. If Wade Leroy Watkins did make, publish, and declare his last holographic will and testament in or about the month of June, 1918, and if Exhibit A to the original bill is a true or substantially correct copy thereof, was this will afterwards revoked by him at a time when he was mentally capacitated to revoke the same?
"Fifth. If Wade Leroy Watkins did make, publish, and declare his last holographic will and testament in or about the month of June, 1918, and if Exhibit A to the original bill in this cause is a true or substantially correct copy thereof, was this will lost or destroyed without the knowledge, consent, or procurement of the said Leroy Watkins?"
The first and second assignments of error assail the form of the issues submitted to the jury; the contentions being that the issues as propounded involve legal conclusions, assume as true facts which were to be established by the complainants, and that by the use of the words "holographic," and "last will and testament," the language of these issues was technical and calculated to confuse the issues and mislead the jury.
We do not think the issues propounded are subject to the criticism directed against them by counsel. It is true *229 that the issues must be made up from the pleadings and must submit issues of fact and not issues or conclusions of law, but the issues submitted seem to us to meet this requirement. The first issue, "Did Wade Leroy Watkins make, publish, and declare his last holographic will and testament in or about the month of June, 1918," presents a pure question of fact to be determined by the jury from the testimony, while the second issue is, if the jury finds as a fact that he did make, publish, and declare such a will, then the issue of fact is submitted to the jury to find whether the exhibit to the original bill is a true or substantially correct copy of such will. If the jury have found that such a will was made, published, and declared, and that the exhibit is a true or substantially correct copy thereof, then, under the third issue, it is required to find as a fact whether such will was executed as a result of undue influence. If under the first and second issues, the jury found in favor of the alleged will, then, under the fourth, it was required to find whether the will was afterwards revoked by the testator at a time when he was mentally capacitated to revoke the same, and, under the fifth, whether the will was lost or destroyed without the knowledge, consent, or procurement of the testator. These issues presented for the determination of the jury all the material controverted facts presented by proponent's bill and the denials and averments of the contestant's answer, and when these issues are all considered together, in the light of the instructions to the jury, there is nothing in the language thereof which was calculated to confuse or mislead the jury to the prejudice of contestant. If it be conceded that the word "holographic" standing alone is technical and would probably not be understood by the jury, this criticism is unavailing, in view of the third instruction granted to the proponents, which in plain language informed the jury that, under the laws of this state, a holographic will is a will wholly written and subscribed by the person writing the will. The words "last will and testament" *230 are so well understood and of such common usage that they could hardly mislead a jury of ordinary intelligence, and when the first and second issues are considered together, as they must be, they are not subject to the criticism that they do not restrict the findings of the jury to the alleged will which the pleadings attempt to establish, but the second issue specifically submits to the jury the question as to whether or not he did make, publish, and declare the paper exhibited with the bill as his last will and testament. We do not think the form of the issues propounded presents any reversible error.
Upon the first and third issues, the court granted the proponents peremptory charges to the effect that Wade Leroy Watkins did make, publish, and declare his last holographic will in or about the month of June, 1918, and the same was made, published, and declared without and not as a result of undue influence, and appellant complains of these two instructions. We do not understand that appellant seriously contends that it was error to grant peremptory instructions upon these issues, but the argument of counsel is directed principally to the form of the instructions.
To establish the due and legal execution of the alleged will, the proponents offered five witnesses, but we shall not undertake to state the substance of all their lengthy testimony. W.B. Watkins, a brother of W.L. Watkins, testified that in June, 1918, W.L. Watkins informed him that he desired to make a will and how he desired his property to go, and requested him to draft a will for him in accordance with his desire and purpose; that he prepared a rough draft of the will, in accordance with the directions given him by his brother, and delivered this copy to his brother to be executed in holographic form; that a few days thereafter W.L. Watkins informed him that the form of the will was satisfactory; and that he had written it out, signed it up, and put it away. This witness gave the contents of the will which he drafted *231 and turned over to his brother, which was substantially the same as the exhibit attached to complainant's bill.
Jeff Lee, who was a partner of W.L. Watkins in the grocery business from January, 1916, to January 1, 1921, testified that about June 1, 1918, the testator discussed with him his plan to make a will, and the disposition he expected to make of his property, and that about two weeks thereafter the testator came to his desk in the store and stated to him that he had made his will; that he thereupon handed to the witness a will and asked him to read it, and he did read it; that he was perfectly familiar with the handwriting of the testator, and the will and signature was wholly in his handwriting; that it was written with an indelible pencil on two pages of unlined typewriter paper, filling one page and probably two-thirds of the other; that testator asked him to put it in a private drawer of their iron safe, where their private papers were kept; that he read the will twice thereafter when he came across it in going through some private papers in this drawer; and that the will was in the same drawer when he sold his interest in the business January 1, 1921. This witness testified that he did not tell any one about the will, except his wife, to whom he told its contents the same night that he first read it, and, when asked to tell the contents of the will, he gave them practically and substantially the same as the exhibit to the bill of complaint.
Mrs. Jeff Lee testified that she was familiar with the handwriting of the testator; that while he and her husband were partners from January, 1916, to January, 1921, she worked in the store frequently; that one night in June or July, 1918, when she and her husband were at the store working on the books, in getting some papers out of the private drawer of the safe, her husband came across this will and handed it to her to read; that it was wholly in the testator's handwriting, and signed "Wade Leroy Watkins;" that it was written with an indelible lead pencil, on two pages of plain white typewriter paper, letter size, and she gave the contents of the will *232 substantially as they appear in the copy filed as an exhibit to the bill.
W.B. McCluney, a brother-in-law of W.B. Watkins, and cashier of the Bank of Aberdeen, during the year 1921 and prior thereto, testified that he was familiar with testator's handwriting; that the testator frequently forgot and left papers out of his box in the bank vault, and on August, 1921, he found a wallet on his desk at the bank, and, desiring to ascertain whose it was, he opened and found therein the will of W.L. Watkins, which he read; that he then telephoned to Mr. Watkins and he came down and put the will back in a tin box, which he kept locked in the vault of the bank; that the will was written with pencil on two sheets of plain white paper, letter size and unruled, and was wholly in the handwriting of the testator, and signed "Wade Leroy Watkins;" and that it bore a date in the year 1918, and, according to his best recollection, June, 1918. This witness gave the contents of the will substantially as they appear in the copy filed as an exhibit to the bill of complaint.
J.H. Hill testified that he was employed by the testator at frequent intervals from 1913 to 1922; that in 1919, and on a later occasion, the testator told him that he had made a will by which he had provided that his wife would receive one hundred thousand dollars and his house, and that the balance of his property would go back to his people; that in July, 1922, on the streets of Aberdeen, just after one of the testator's nieces had affectionately greeted him, he told the witness that he had provided liberally for this little girl and would show him that he had done so; that he thereupon took from his pocket and showed to him a written instrument, which was headed "Last Will and Testament of W.L. Watkins;" that the entire instrument was in the testator's handwriting, and was written on two sheets of unruled paper, letter size, and was signed Wade Leroy Watkins, bore date of June, 1918, and contained a provision for testator's *233 wife of one hundred thousand dollars and the house and contents located on Commerce street.
The testimony of these several witnesses as to the due and legal execution of the will about June, 1918, is clear and explicit, and is not controverted by any fact or circumstance in evidence. There was no testimony whatever tending to establish the issue of undue influence, and, consequently, the proponents were entitled to peremptory instructions upon these, the first and third, issues.
What has herein been said in reference to the form of the issues propounded applies to the criticism of counsel of the form of these two instructions. Although couched in language similar to that in which the issues were propounded, these charges do not purport to cover the entire scope of the controversy and leave nothing for the jury to decide, as contended by counsel. They are limited to the issues as to whether Mr. Watkins did, in the month of June, 1918, make, publish, and declare his last holographic will and testament, and, if so, whether it was executed as a result of undue influence, and there were left for decision by the jury issues as to whether the alleged copy of the will, which was filed as an exhibit to the bill, was a true or substantially correct copy of such will, and, if so, whether this will was revoked by the testator at a time when he was mentally capacitated to revoke the same, the real issue around which the trial in the court below revolved. The contention of counsel that the use in these charges of the word "last" in connection with the words "will and testament" tended to foreclose the other issues and to mislead the jury is hypercritical, and, in view of the many charges granted which covered every phase of the law applicable to the other issues, is without merit.
The court below granted the contestant a peremptory charge on the issue as to whether the will was lost or destroyed without the knowledge, consent, or procurement of the testator, but refused a general peremptory charge requested by her, and, upon the action of the *234 court in refusing this charge, the principal reliance for a reversal is based.
The court correctly held it to be established by the evidence that Mr. Watkins did, about June, 1918, duly execute a will, and there was abundant testimony from which the jury might find that the alleged copy of this will, filed as an exhibit to the bill of complaint, was a true or substantially correct copy of such will. There then remains for consideration the question as to whether the issue of revocation of the will at a time when the testator was mentally capacitated to revoke the same was properly submitted to the jury.
The evidence discloses that a very diligent search for this will was made, and that it could not be found, and, where a will is traced to the possession of the testator and cannot be found after his death, the presumption arises that he destroyed itanimo revocandi, but this presumption may be overcome by proof that the will was in existence at a time when the testator was mentally incapacitated to revoke the same and that he never thereafter became mentally capacitated to revoke it. 3 Alexander on Wills, p. 2012; Tucker v. Whitehead,
The evidence on this issue, comprising as it does many hundreds of pages, is entirely too lengthy to undertake, within the limits of this opinion, to set out even the substance thereof, and, since each case must rest upon *235 its own facts, to undertake to do so would serve no useful purpose. The proponents offered one witness, J.H. Hill, whose testimony would warrant a finding by the jury that the 1918 will was in existence and in the possession of the testator in July, 1922. Counsel for the appellants very earnestly contends that the testimony of this witness does not support the conclusion that the will shown to this witness in July, 1922, was the same will that was executed by the testator in 1918, and they base this contention largely upon the fact that the witness in one place referred to the will shown to him as being on two typewritten pages of paper, at least it is so transcribed in the record before us. We have already referred to and set out certain portions of the testimony of this witness, and when his entire testimony is considered together, it seems manifest that the construction placed upon it by counsel is not warranted, and that the witness did not intend to testify that the will shown to him by the testator was a typewritten document. When asked the direct question, he testified that he was familiar with the testator's handwriting, and that all of the will was written by Mr. Watkins and signed by him; the signature being "Wade Leroy Watkins." He further testified that the will was dated in June, 1918, was written on two sheets of unruled, letter size paper, and on cross-examination he testified as follows:
"You saw his signature at the bottom? A. Yes, sir.
"Q. How was it signed? A. Wade Leroy Watkins.
"Q. How was it written? A. Written with an indelible pencil.
"Q. Wasn't written with a lead pencil? A. What I call indelible pencil.
"Q. What was the color of it? A. Blue pencil; dark blue."
Other parts of the testimony of this witness clearly indicate that he did not say, or intend to say, that the will was a typewritten document, and when all his testimony is considered together we think it sufficient to warrant the *236 jury in finding that the will shown to the witness by the testator was the will executed in 1918.
Upon the issue as to the mental capacity of the testator to revoke this will, the proponents offered a large number of witnesses, including intimate friends and former business associates of the testator, his brothers and sisters and two experts. The lay witnesses testified as to their association with the testator during the several years preceding his death, and gave in detail symptoms, facts, circumstances, and incidents from which they reached the conclusion that the testator's mind became unsound, and from these facts and circumstances testified that in their opinion, from the summer and fall of 1921, the testator was mentally incapacitated to revoke a will.
Upon hypothetical questions based upon the symptoms, facts, circumstances testified to by the lay witnesses, the two expert witnesses testified that in their opinion the testator was suffering from a form of insanity known as general paresis; that this is a form of insanity caused by the deterioration or destruction of the nerve cells of the brain; and that it is a progressive disease which gradually grows worse after it first develops, and after the disease first develops the person affected is thereafter totally incapacitated to revoke a will or intelligently transact ordinary business; and, after a very careful and repeated examination of all the testimony, we have reached the conclusion that the court below was correct in refusing the general peremptory instruction requested by the contestant, and in submitting the issue to the jury.
As opposed to this testimony for the proponents, the contestant offered many responsible witnesses, who had been intimately associated with the testator in a social and business way, who testified that they did not observe in the testator any of the peculiarities or symptoms testified to by the proponent's witnesses until the summer of 1923, and that prior to that time he was, in their opinion, of perfectly sound mind. The conflicts in *237 the testimony, however, were for the jury to pass upon, and, although we may not be entirely satisfied with their findings, we cannot invade their province by setting aside this verdict which has been approved by the chancellor.
Dr. J.W. Coleman was offered by contestant as a witness to testify as to his knowledge of the mental condition of the testator, including such knowledge as he acquired while treating the testator as his patient from 1918 up to the time of his death; such testimony being offered on the theory that the contestant, as the sole heir at law of the deceased, and as the administratrix and personal representative of the deceased and the estate, could waive the privilege extended under section 3695, Code of 1906 (section 6380, Hemingway's Code), which provides that:
"All communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice, are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding, except at the instance of the patient."
The court below refused to permit this testimony to be introduced, and the appellant assigns as error the refusal so to do, and in support of this assignment cites numerous cases from other courts, practically all of which have been cited in prior cases before this court, but we think this question has been settled adversely to appellant's contention by prior decision of this court. Railroad Co. v. Messina,
In the Hood case, supra, the court, after discussing various reasons that might have prompted the enactment *238 of this statute, concludes with the observation that —
"Whatever may have been the reason for the enactment of the statute, the statute expressly prohibits a physician from testifying without the consent of the patient."
In the McCaw-Turner case, supra, the court said:
"The statute in plain and unambiguous language limits the right to waive the privilege to the physician's patient, and the right must be so limited by the courts, unless the manifest reason and obvious purpose of the statute would be sacrificed by adhering to a literal interpretation of its language [citing authorities].
"The manifest reason and obvious purpose of the statute is to enable a patient to disclose his infirmities to his physician in order that the physician may prescribe for his disease without fear that his feelings will be shocked or his reputation tarnished by their disclosure by the physician without his consent, which purpose will not only not be sacrificed by giving the words of the statute their usual and ordinary meaning, but, on the contrary, will be sacrificed, unless its words are given that meaning. The statute does not limit the privilege to the life of the patient, neither does it confer upon his heirs or devisees who may quarrel over his property the right to tarnish his reputation by causing his physician to disclose his infirmities."
On the theory that the testimony of this witness would not have tended to tarnish the reputation or discredit the testator, but, on the contrary, would have been to his credit, the appellant seeks to bring this testimony within the reservation or supposed qualification found in the language of the court in the McCaw case to the effect that the right to waive the privilege must be limited to the patient, unless the manifest reason and obvious purpose of the statute would be sacrificed by adhering to a literal interpretation of its language. In view of the later decisions of the court, it is doubtful whether any such qualification is now recognized, but, whatever *239 may have been in mind of the court as justifying a departure from a literal interpretation of the language of the statute, it was not the circumstance that the proffered testimony does not tend to discredit the deceased. If this is made the basis for a qualification of the language of the statute, to determine the admissibility of the proposed testimony would usually involve a judicial inquiry into the nature and character thereof, and in the Hood case, supra, it was expressly held:
That the "evidence of a physician ought not to be received before the court, and it is error for the court to proceed upon the idea that the judge and the public may hear the statement of the physician in such case, though it be excluded from the jury."
In the Hunter case, supra, it was expressly held that a privileged communication of a patient to his physician could not be disclosed, except at the instance of the patient; the court there using the following language:
"The court erred in admitting the testimony of Dr. Rush; it was a privileged communication of the patient under his charge, which could not be disclosed, except at the instance of the patient. Section 3695, Code of 1906 (section 6380, Hemingway's Code);Yazoo M.V.R. Co. v. Messina,
"We think the McCaw case, supra, has entirely and finally settled the question as to the admissibility of testimony which discloses privileged communications between physician and patient; that is, so far as the privileged communication statute, supra, is concerned."
From these authorities, it is clear that no error was committed in excluding this testimony.
After this witness had testified that he could segregate in his mind the knowledge which he acquired about the condition of the testator from having been his physician from that acquired from social contact with him, he was permitted to testify to what he had learned about the testator from this social contact, and to give his opinion, based thereon, that he was of sound mind. *240
The appellant also complains of the admission of the testimony of Dr. J.M. Acker, who was, at a time when the testator's mind was admittedly perfectly sound, the physician of testator, on the ground that his testimony was privileged under the statute. The witness did not testify either as a physician or from knowledge acquired from social contact with the testator, but after having testified that he could segregate in his mind all knowledge he had obtained about the testator from having been his physician, and base his testimony solely on hypothetical questions to be propounded to him, he was permitted to testify solely, as an expert, in answer to hypothetical question based upon the testimony of the lay witnesses, and the admission of this testimony was not error.
There are numerous other assignments of error based upon the form of questions to witnesses, and upon the admission and exclusion of testimony, all of which have been carefully examined and considered, and we do not think any of them present reversible error. Other assignments of error complain of certain instructions granted to proponents, and, while there may be technical inaccuracies in some of these instructions, these errors were cured by instructions granted the contestant. The contestant secured twenty-four instructions, which were drawn with consummate skill, and covered fully and completely every phase of the law applicable to the issues submitted to the jury, and when all these instructions are considered together, as they must be, one as limiting, modifying or supplementing another, they fairly and accurately announce the law which should guide the jury in passing upon the issues.
In the case of Cox v. Tucker,
"In a case where the evidence is conflicting and the verdict depends upon the weight to be given the testimony of the witnesses, and upon inferences to be drawn from facts proven and the conduct of the parties in interest, a new trial will not be granted, except for clear and manifest error in the rulings of the court, or where the verdict is against the overwhelming weight of the evidence."
Again, in the case of Ætna Insurance Co. et al. v.Robertson,
That "on appeal to this court, on all questions of fact, the inquiry is not whether the chancellor's decision was right, or whether, on the facts, this court would have reached a different conclusion, but whether from all the facts, and the reasonable inferences to be drawn therefrom, the decree is manifestly wrong."
In this case, we are unable to say with confidence that the verdict of the jury is against the overwhelming weight of the evidence, or that the decree of the chancellor, based upon the jury verdict, is manifestly wrong, and consequently the decree of the court below will be affirmed.
Affirmed.