Hitt v. Terry

Whitfield, C. J., delivered the opinion of the court. The appellant is a physician, who was and has been continu — 698 — ously, for the past ten or twelve years an active practitioner at Dubbs, in Tunica county. One of his patients during practically all of that time was R. W. Terry, the testator in this ease. Terry lived at Walnut Lake, near Dubbs. Terry’s father, W. E. Terry, a number of years ago bought a valuable plantation property on Walnut Lake, and Terry, a few years afterwards, moved on the-property. This property was developed by the father, who devoted practically all of his time to the work, and who invested in. these delta lands all the outside property which he owned (except his old home place in Panola county, which he retained), and practically all of the available means which he had acquired and possessed. Having made the Walnut Lake plantation quite a valuable estate, he took his son, the said B. W. Terry, into copartnership with him, and the firm conducted a planting and mercantile business on Walnut Lake. During this while Terry, the son, purchased in his own name and improved outside and adjoining lands, and paid for them out of the revenue derived from the original W. E. Terry lands. The father-died some years ago, and at the instance of the brothers and immediate family of Terry, the son, the copartnership business was wound up by the son, and the property divided and all-leased out. This was done without trouble between R. W. Terry and his brothers and sisters. In the,latter years of the life of R. W. Terry, the testator here, he became a confirmed and hope-loss invalid. During all of this time the appellant was his physician, and his close friend and confidential adviser. The malady from which said Terry was suffering was incurable, as testified to by Dr. Howard A. Kelly, of Baltimore, a very eminent specialist, who operated on Terry a short while before he died. According to the testimony of Dr. Kelly, the patient was in a profoundly anaemic condition, his blood registering only fifty-six per cent, of coloring matter, whereas the normal shows one hundred; was in an extremely bad condition, which was-chronic and of several years’ duration; was suffering from a malady which was accompanied by pain and which had an ex — 699 — tremely depressing effect upon the entire nervous condition, and it appears that at times lie would, by bis malady, be made extremely nervous, and at times irrational; that be was in need of constant medical attention for tbe rest of bis days, and was in tbe advanced stages of this incurable malady, “Tuberculosis of tbe bowels and rectum, witb all tbe accompanying cachetic symptoms, such as weakness, emaciation, amemia, and helplessness; that tbe constant drain upon bis system, together witb tbe absorption of tbe tuberculous’ toxins, bad caused a marked depletion in tbe physical condition of tbe patient, resulting in weakness, loss of appetite, emaciation, lack of will power, and general malaise.” In short, it is perfectly clear from this testimony that tbe testator was in a very profoundly helpless condition as to body, which necessarily seriously affected bis will power and bis mental balance. Some little while after returning from Baltimore, be went back to bis home and spent a while witb bis brother, E. M. Terry, and some little later died at bis old home in Panola county. Tbe will in this case was made on tbe 19th of March, 1906, and is as follows: “Enow all persons by these presents, that I, E. "W. Terry, being of sound mind and free to act as I will and desire, do hereby make my last will and testament, to-wit: “Eirst. I desire that all my burial expenses be paid and all other debts that I may owe at the time of my death. “I next bequeath all of my possessions, including money, accounts, personal property and real estate, to my dear friend, Dr. J. P. Hitt, to bold, have and own as bis own property, provided that be, tbe said J. P. Hitt, shall and does comply witb requests and conditions hereinafter mentioned, to-wit: That- tbe said J. P. Hitt shall, within two years after date of my death, pay to my brother, E. M. Terry, twenty-five hundred dollars ($2,500.00) in cash; to my brother Crenshaw Terry, five hundred dollars ($500.00) in cash; to my sister, Mrs. Clara McClure, five hundred dollars ($500.00) in cash; to my step — 700 — mother, Mrs. Ida G. Terry, one thousand dollars ($1,000.00) in cash; to my friend, Benj. Matthews, twenty-five hundred dollars ($2,500.00) in cash; to my niece, Lillie Hart, two thousand dollars ($2,000.00) in cash. The bequest to Lillie Hart is on the condition that, if she lives to be fifteen years old, then this money is to be delivered to her by the party acting as her guardian at that time; her guardian to take charge of her money at the time the other beneficiaries of this will receive their money. If said Lillie Hart does not live to-be fifteen years old, then I bequeath that this two thousand dollars be divided equally between my brother, E. M. Terry, and my sister, Mrs. Clara McClure. “I further desire that if W. C. Gann be owing me anything at the time of my death that the account be canceled and that the said W. C. Gann receive full benefit of the account. “I hereby appoint Hr. J. P. Hitt executor of this will, and desire that he be required to give good and sufficient bond to insure the faithful performance of his obligation as set forth in former clause of this will. “Witness my signature this the 19th day of March, A. L). 1906. “[Signed] R. W. Terry. “Witness: E. P. Mangum. “L. E. Heath. “C. R. Pollard.” This will was written by testator’s family physician, confidential friend, and adviser, the appellant, in the appellant’s own res idence, whilst testator was at his house as his patient, on the way to Baltimore, and whilst testator had gone to his house to be treated preparatory to going to Baltimore. The will was not ■signed when it was written by Hitt in his house. Appellant retained the will and a schedule of the property of Terry, and Terry went home to make ready for his final departure, and returned the next day to Hitt’s home, from which place he left on his journey to Baltimore. Hitt retained the will and schedule, •and followed on the early train the next morning, overtaking — 701 — Terry at Memphis. The will was executed in the office of the Peabody Hotel, Memphis, Tenn., being there signed by Terry and witnessed by three witnesses — Heath, whom Mr. Terry got at Sledge & Norfleet’s as one of the witnesses, and Mangum and Pollard, two other witnesses; these last two witnesses having been secured, Pollard by Heath, and Mangum by some one else; these witnesses being apparently strangers to each other. No member of the family of the testator had any information whatever that this will had been made until after his death. So much for the circumstances under which the will was made and executed; it remaining to be said that Hitt retained possession of the will and of the schedule. Now, it may be further remarked that the testator had stated to E. M. Terry, according to the record, some four or five months before the will was written, that he desired to make a will and provide for the disposition of his property, and that they talked together about the matter and agreed upon the terms of a will, and that the terms were, practically, that all of his brothers and sisters and their descendents were to share equally in the estate, with the further proviso that as to their stepmother, Mrs. Ida Gr. Terry, she should share as a child in the estate under the will. Matthews-testifies that Terry said a good deal about the will, and stated that “he was mighty sorry he was going to have to- make the will as he did, and that it was going to be a shame the way he would have to make his will,” and he further testifies that he had told E. M. Terry that he knew enough to break the will. It is true that there is testimony in the record, also, to the effect that the testator had told some one that he desired to make the will just-as it is here made. A most remarkable statement is made by appellant with respect to his compensation for medical services and attention to Terry on his trip to Baltimore. Appellant testifies that Terry proposed to him that he would bear his (appellant’s) expenses and pay him a reasonable compensation for the time he was gone, and that, as to any future charge, Terry said that if he702 (Terry) came back and got well Hitt was to charge him what he thought was right, and if he (Terry) did not get well he had enough to pay it, or, as Hitt puts it, the will in that event spoke for itself. In other words, as we understand it from the record, from the testimony of the ajopellant himself, the understanding as to compensation was that appellant was to be paid his expenses and a reasonable compensation if the patient survived, and, he was to have the estate, less the charges as set forth in the will, if the patient died, which estate, over and above all legacies, is clearly shown to have been worth about $15,000 to $20,000. Certainly a most extraordinary arrangement; one according to the terms of which it would, manifestly, be to the interest of the physician that the patient should die. Another fact about the contents of the will is that the testator omitted a large part of his personal property from a list of his personal property1 which he prepared, and that he also omitted from the will his undivided interest in the estate of his deceased father. On the appellant’s attention being called to this last fact, he seems not to have known whether that interest in the father’s estate* passed to him under the will or not. Both this schedule of property and the will were written by the appellant. Looking to the contents of the will, it is seen that the testator excluded from all participation in his estate persons who would naturally have been the objects of his affection and bounty, and .gave to others of that class only meager portions thereof, and had made what would ordinarily be esteemed a most unnatural will. He gave to Matthews the sum of $2,500, and devised and bequeathed all his real estate and personal property, with the exception of a few legacies appearing in the will, to the appellant, his physician. He' had three sisters, two of whom were then dead, having left children, and one living. One of his sisters, Mrs. Clara McClure, had a large family, was very poor, ■and yet was to receive under this will only $500. To Lillie Hart, the child of another sister, he left only $2,000; and to the ¡six children of his oldest sister, Mrs. Taylor, said by some of — 703 — the evidence to have been his favorite sister, and who were in extremely necessitous circumstances, he left not even the mention of their names or the name of their mother. Matthews shows that, when the will 'was read, E. M. Terry was told by Hitt that he (Hitt) expected him to get the old home place, and that when Hitt was asked about the Taylor children getting nothing, and not being mentioned even, he said, “I forgot it,” or “We-forgot it,” or something to that effect. Dr. Hitt also testified that no mention was made whatever at the time of the writing of the will about the interest of the testator in his father’s real estate; and he states that on Monday morning following Mr. Will Terry’s death he said to Elisha Terry, on Walnut Lake, in answer to the question, “You don’t claim Will’s interest in my father’s estate do you ? ” “I have never considered that.” The record further shows various transactions and dealings running through several years with respect to mules, oxen, and other personal property, ete., between the testator and Hitt. The will was never probated, for the reason that the probate was intercepted by caveat filed by the contestants. The record also shows that Hitt had paid all the bills and looked generally after the business of the testator as though it was his own after the will was made, although at that very time Terry was in fine financial condition, had the 'very best of credit, and his drafts -would have been paid by his commission houses for any reasonable amounts drawn. Appellant, when asked why this was so, said that Terry had asked him to do that for him; and that he did not know whether the request was made because he was not able to attend to his own business; that he (Terry) was certainly able to sign drafts, and that he thought Terry was in condition physically and mentally, to attend to business if he had desired to do so; but that, as a matter of fact, Terry attended to no business whatever, except the execution of that will, after he left his (appellant’s) house preparing to go to Baltimore. The issue devistavit vel non was made up and tried by a jury in the chancery ■court. The questions were first, whether the testator was of sound and disposing mind at the time he made the will, and, second, — 704 — whether he was unduly influenced by appellant to mate the will. A great volume of testimony was introduced on both sides, a summary of which even ft would be impossible to set out within the limits of this opinion. Suffice it to say that the testimony in the record in support of the finding of the jury is, in our judgment, most abundantly sufficient. That finding was that the instrument was not the will of the testator, and the decree of the chancellor was in conformity with this verdict; and Dr. Hitt appeals. Since the testimony in support of the verdict is, as stated, most ample on either issue submitted to the jury, and no reversible error is shown as to rulings on evidence, we shall confine our examination to the criticisms made of the instructions given for the contestants. The reporter is directed to set out all the instructions in this case, on both sides, in full. These criticisms are exceedingly ingenious and display great critical ability; but, in the main, the criticisms must fairly be said to be too technical — to be, in effect, hypercritical, let us note some of them now in detail: The second instruction for the contestants is criticised with respect to its statement as to the burden of proof on these issues; but, besides the fact that there was no formal order of probate in this case, it is sufficient to say that all the instructions on both sides with respect to presumptions of one kind or another were wholly irrelevant in the case, since there was the fullest proof offered by both the proponent and the contestants on both the issues involved. That being so, presumptions were of no value to one side or the other, and we could not reverse for any error in instructions on either side as to mere presumptions, when the record discloses full proof on both issues. The suggestion that this instruction directly and inevitably excluded the idea that this will would still be good, though made during a lucid interval, is too far-fetched as to this case as tried by the evidence in this record. The fourth instruction is criticised because of the use of the. — 705 — language that: “If the jury believe from the evidence that the testator had in any degree lost any of his mental powers, or that his mind was then in any way impaired, it is the duty of the proponent to prove,” etc. Of course, abstractly considered, this is an incorrect statement of the law; but whatever error there may be in it is.fully cured by the most careful and complete instructions given for the proponent, drawn in the most positive and emphatic language, on this very point. Another criticism of this instruction is that it states that the testator should have known the contents of his will, and yet the proponent himself uses language practically identical in instruction No. 6, in which the court instructed, for him, that the testator should know the provisions of his will, and in various others instructions that the testato'r should understand his will. Both sides asked the court to instruct the law the same way, therefore, on this proposition. Another criticism of this instruction is that it uses the language that the proponent was required to prove to the jury “by a clear preponderance of the evidence,” etc.; and certain authorities are cited which do criticise this expression, for example, French v. Day, 89 Me., 441, 36 Atl., 909, which styles such an expression as “equivocal and mischievous.” But this court, in Chambers v. Meant, 66 Miss., 625, 6 South., 465, holds that the phrase is unobjectionable. In any view it seems to us that the use of this phrase could have had no applicable effect upon the jury in reaching their verdict. The plain men who occupy the jury box do not deal in metaphysical subtleties in weighing instructions, nor do they trouble themselves in balancing nicely differing phrases which may be used by those who draw the instructions for them; and it is fortunate for the practical administration of justice that they do not lose • ■themselves in a metaphysical fog about terms and phrases, but apply the instructions given them by the court in a commonsense fashion to the case as made by the facts. The fifth instruction for the contestants is criticised because it tells the jury that they may take into consideration the un — 706 — naturalness of the will; but the proponent himself secured an instruction using exactly the same words, to-wit, No. 11, in which the court told the jury: “That even though it may appear from the evidence that the alleged last will and testament of the said E. W. Terry, deceased, is unreasonable, unnatural, and unjust to his family, or some of them, or however unreasonable, unnatural, or unjust they may think the will to be, still they must uphold the will, if notwithstanding they believe from the evidence that the said E. W. Terry had testamentary capacity and was not unduly influenced at the time of the execution of the will.” Here, again, both sides use the same word and indulge in the same assumption that the will in its terms is, in ordinary acceptation, an unnatural will. There is no rule of law that a will, which, as counsel say, “on its face otherwise indicates intelligence and clarity of mind, is to be condemned as either unnatural or unreasonable, for the reason solely that the property of the testator is left to persons other than the brothers, sisters,” etc. That may be perfectly true; but that is not this case, and the instruction deals with the case in hand. There is much more here than merely such a provision in the will. There is evidence showing that the terms of it are unnatural, in view of the relationship of the parties and the state of feeling between the testator and the relations that theretofore existed; that is, before the execution of this will and up to its execution. The jury had a right to determine the unnaturalness or unreasonableness of the provisions of the will from the provisions looked at in the light of the testimony in the case — not from the provisions alone. Counsel say the court “badged the will as being unnatural” ; but, if it badged it so in 'the charge for the contestants, it certainly so badged it in the charge, above referred to, for the proponent. Counsel feel the stress of this answer, because they say that the serious objection to this instruction, on this point, was that the court undertook to tell the jury that it was unnatural, and did not commit to the jury the determination as to whether it was or was not in — 707 — the light of the evidence; bnt it is to be noted that in the very same instruction the court adds, “if such they believe to be the fact from the evidence in the case,” and this phrase relates, we think, to the whole charge, and not merely to that part of it to which counsel seek to limit it. And, in addition to that, as stated, if the unnaturalness of it was .assumed in this charge, equally was it to be assumed in the charge, above referred to, given for the proponent, to all of which it may be added that if the charge was in any way erroneous for speaking of the unnaturalness of the will, we would certainly not hold it reversible error on the facts of this record. The remaining criticisms of this charge, we think, are too technical and not practically well founded. They are hypercritiogl. The sixth charge for the contestants is vigorously assailed for several reasons. One of these is that the court told the jury therein that, “where such physician occupies also in respect to his patient a position of personal friendship and confidence, bestowed upon him by the patient, the presumption of law is that such physician has exerted over his patient an undue influence; and such presumption of law also exists, whether the relation of friendship and confidence exists or not, and such presumptions are of evidential value.” Counsel say that this is a charge on the weight of evidence, because it says that such presumptions are of evidential value; that the court did not content itself with saying that the jury should consider such presumptions, but that they were valuable as evidence. Now, curiously enough, the identical phrase is asked and given for the proponent, with respect to his presumptions, in charge No. 9, wherein the court told the jury that “the law presumes, in the absence of confidential relations, that the act of the alleged testator in the making and executing of the said will was free and voluntary, and that the presumption is of evidential value.” Another instance of both sides asking the same principles of law, and in identically the same language; and yet counsel for the proponent complain of the contestants for asking the court — 708 — to charge the jury in. the very same language in which they asked the court to charge the jury, and about the very same thing, or a similar thing. Again, the ninth instruction is criticised because it tells the jury that the testator must have been wholly uninfluenced, when it should have told the jury that the testator must have been unduly influenced, etc. Now, the proponent got from the court charges Nos. 4, 6, and 11, in which the court expressly told the jury that the proof must show that the testator had been unduly influenced in order to set aside the will, and this same principle is repeated over and over in the charges for the proponent. The omission in charge No. 9, for the contestants, is therefore fully cured. The instructions, on any point, must be taken as a whole, and the law deduced from all instructions on the same point, so construed, taken as a unit. It will not do to pick out, with the pincers of a sharp and keen criticism, minor errors and omissions here and there in instructions, and hold them up in bold relief, and, shutting our eyes to all else, look at those defects, and so determine whether a case should be reversed or not. Possibly not one case in a thousand, tried by an appellate court, could stand the test of such acute analysis; and certainly not one jury in a thousand is ever controlled, in reaching its verdict, by any of these errors occurring here and there in instructions on one side or the other, where they can gather satisfactorily from the whole body of instructions a correct view of the law on any particular point; and an appellate court, in determining whether cases should be reversed on account of errors sought to be pointed out in instructions, should be governed by this practical consideration, rather than by mere fact that here and there some errors may be pointed out. It is never a question of error j but the question is whether, on all the instructions, there stands out, clearly and manifestly, reversible error. Justice is the object of all judicial determinations, and all tho course of the trial, below and above, should be addressed to securing justice. — 709 — So, again, the tenth instruction for the contestants is criticised in the same way, because the court tells the jury that if Hitt was the medical adviser and physician of Terry at the time the will was drawn, and that the fact that he was Terry’s physician in any way influenced Terry, etc. All this, as shown, is abundantly cured by the instructions for the proponent, which were clear, full, and explicit on this particular point. See instructions Nos. 4, 6, and 11, especially No. 6, last part, for proponent. Counsel most earnestly insists that this instruction does not inform the jury that relationship raises a presumption which must be rebutted, but, according to the plain language of it, that the bare existence of the relationship and the bare fact that such .relationship moved the testator to give the legacy are the “Alpha and Omega of the argument.” Once more we reply that we do not think this instruction means that, and that, if it did, it is cured by proper instructions, clear and full, for the proponent on the precise point. See instructions Nos. 7 and 9 for proponent. So the eleventh instruction for the contestant is, we think, hypereritically assailed. Of course, Hitt’s writing the document on his own typewriter had nothing on earth to do with the validity of the will, and yet that is dealt with as if it was literally what was meant. What was meant was that Hitt’s writing it on his own typewriter showed that it was done in his house, and not at the home of Terry. The reference to the typewriter as being Hitt’s own surely meant nothing more than to point out that fact as one of the elements showing the circumstances under which the will was written. This sort of hyper-criticism will not do for the practical administration of justice. If learned counsel representing appellants in this court, and seeking reversal because of instructions alleged to have been fatally erroneous, would take the instructions on both sides as a unit and apply the magnifying glass to their virtues, rather than the microscope to their defects, it is very likely there would be far less complaint of merely technical errors. — 710 — We have already replied to the criticisms of the seventeenth instruction with respect, to the knowledge of the contents of the will, etc., in our remarks as to other instructions above. The observations already made apply, also, to the nineteenth instruction for the contestants. The word “conclusive” is not used in that instruction, nor is it meant that the presumption referred to was conclusive. In respect to the twentieth instruction it is sufficient to say that there is certain evidence in the record with respect to delusions under which the testator is supposed to have labored. The instruction is of no value one way or the other in the case, and could have in no possible way influenced the jury. The jury could not have been led, by any consideration of this trifling incident in the progress of the case, so as thereby to have lost sight of the real issues presented on nineteen-twentieths of the testimony in the case. We have so far omitted to refer to the only serious criticism of any of these instructions, so far as we understand the criticism and the instructions to which it applies; and that criticism may be dealt with by referring to the sixth instruction for the contestants, which was assailed in the first place, as other instructions for the contestants are assailed, upon the ground that it announced an incorrect proposition of law with respect to the relations between physician and patient. The principle announced in respect to this matter by the instructions for the contestants was, in substance, that the law presumes that, where a will or deed is made by a patient to his physician, to the exclusion of those to whom, ordinarily, his property would go, no reason existing why such exclusion of relations should occur, the law raises the prima facie presumption that the will is void on grounds of public policy; in other words, that in those condiN tions in life in which confidential relations exist between parties, such as attorney and client, physician and patient, etc., the law presumes deeds or wills made by the client to the attorney, or the patient to the physician, to be prima facie void, — 711 — and therefore requires such beneficiary under the will to show the absence of undue influence and the like, and this doctrine, in its application both to wills and deeds, is laid down in the most positive and emphatic fashion in Meek and Thorton, Ex’rs, v. Perry and Wife, 36 Miss., 190. Counsel confesses this, but contends that it was decided forty-nine years ago by a divided court, and has never been reaffirmed in this state. On this proposition we have merely to say that we do not feel warranted in overruling this decision, if we doubted the soundness of the conclusion, by which we do not mean to say that we do doubt the soundness of the conclusion; inded, we think it is correct. Besides it is to be observed, further, so far as the dissent of Mr. Justice Handy is concerned, he agreed entirely with the general rule announced by the majority of the court, and from which counsel for defendant dissent, and rested his dissent exclusively on the ground that the rule should only be applied in those cases in which there had been prior dealings between the beneficiary and the devisor, or the grantor and the grantee. At page 266 Judge Handy says: “But when we attempt to apply the rule to cases where the parties have not dealt together, where no transaction has taken place between them, or where the beneficiary has not been active in procuring the act which conferred the benefit, it appears to be evident that the force of the rule fails. It cannot apply, because, not being a party to the transaction which conferred the benefit, it cannot with reason be expected that with any precaution he could be prepared to explain the circumstances attending it. He cannot be required to explain a matter in which he had no participation, and which may have been done wholly without his knowledge. To apply the rule to such a case would be almost inevitably to condemn the act absolutely, and that upon the unjust reason that he acted unfairly in a matter to which he was not a party.” In the case we have in hand there had been many years’ dealings, prior to the execution of this will, between Dr. Hitt and R. W. Terry, so that Judge Handy’s opinion sustains our view — 712 — of this case on its particular facts. Counsels’ position is this: That the law raises no such presumption from the mere fact that such a deed or such a will has been made. Suppose that proposition be granted, and suppose the principle announced in Meek v. Perry is, in its strictness, unsound; how could that in any possible way affect this case, in which the testimony overwhelmingly demonstrates that not only is there such a will in this case, but that the will was procured by the active influence of the appellant over the testator, who was, at the time, not of disposing mind ? The trouble with the case for the appellant is that it fails wretchedly on the factá. It falls below any possibility of securing a reversal, because there could not have been any other verdict properly rendered on the testimony in this record. • It follows, from these views, without further protracting this opinion, that the verdict of the jury was correct; and the decree of the court below is affirmed. Affirmed.