Alexander's Estate v. Hatcher

*372 McGehee, J., delivered the opinion of the court. There was submitted to a jury the issue of whether or not the purported last will and testament of I. B. Alexander, deceased, was in fact executed by him, there being no issue of undue influence or mental incapacity involved. The instrument was printed throughout with a lead pencil, including the signature of the alleged testator, and was not attested by any subscribing witnesses thereto. It was probated in common form as a holographic will. The proof disclosed that the alleged testator could write within the ordinary meaning of that term, and while under the law “handwriting includes, generally, whatever the person has written with his' hand, and not merely his common and usual style of chirography” (Ballentine’s Law Dictionary), it was a question for the jury as to whether the instrument here involved was in fact printed and signed by the hand of the said I. B. Alexander in view of the fact that its alleged execution occurred only in the presence of the sole beneficiary and his son-in-law under the unusual circumstances disclosed by the - testimony, including the fact that it was printed by hand instead of being written, and that the alleged testator *373 was able to write, and was signed before a justice of tbe peace wbo was not sufficiently acquainted with the person wbo appeared before him for tbe acknowledgment to be able to identify bim except to say that be was “one of tbe Alexanders.” This is true notwithstanding tbe testimony of tbe son-in-law wbo claims to have been present at all times when tbe instrument was printed and signed and whose testimony is not contradicted by any direct evidence. In finding that tbe instrument bad not in fact been executed by tbe alleged testator tbe jury was evidently of tbe opinion that it was wholly unreasonable that a man should execute a will under such circumstances. Certain proof offered by tbe contestants and an instruction based thereon which enabled tbe jury to consider tbe alleged unnaturalness of tbe will is also complained of on appeal and the case of Moore et al. v. Parks et al., 122 Miss. 301, 84 So. 230, is cited in support of tbe contention- that tbe unnaturalness of a will cannot be considered by tbe jury except on an issue of testamentary capacity or undue influence. In that case tbe question of whether tbe instrument bad been in fact signed was not in issue and under tbe facts and circumstances there involved tbe court did say that tbe unnaturalness of tbe will was only to be considered on tbe two issues thus involved, but tbe case is not authority for tbe contention that such proof is inadmissible where tbe fact as to whether an instrument has been signed by tbe alleged testator is in issue, and we see .no good reason why proof tending to show the unnaturalness of a will should be held inadmissible where such an issue is submitted to tbe jury. Affirmed.