Liles v. May

Smith, O. J., delivered the opinion of the. court. On April 12, 1907, Mrs. Nancy Liles died, leaving surviving her a husband, J. W. Liles, appellant; and several children of a former marriage, appellees herein. On the 1st day of August following an instrument, alleged to be the will of Mrs. Liles, attested by two subscribing witnesses, and proven by their affidavits, was by appellant propounded for, and afterwards admitted to, probate. On the 13th day of November following, appellees filed a petition in the court below, alleged that the will was a forgery and praying that the probate thereof be set aside. Upon the coming in of appellant’s answer to this petition, an issue devisavit vel non was made up, and the case submitted to a jury, which rendered a verdict in favor of contestants, on which a deeree.was entered setting aside the probate of the will. From this decree an appeal is prosecuted to this court. ■This will, which is a joint will of appellant and his wife, is in the following language: “Nancy Liles J. W. Liles one lot 6 Sqr. 9 East Me-Comb this day we make our will to each other if Nancy Liles dies first lot fauls to J. W. Liles he cand sell or do wat he pleas with it also Nancy Liles can do the same if she should out live J. W. Liles. This day April 20. 1904. [814] her “Nahcy X Liles J. W. Liles. Joseph Beaed, Wit-mark ness. James C. Oweh.” The execution of the above will was proven, without objection, by the testimony of appellant and the subscribing witness Beard. According to them, the will was written by .appellant at Mrs. Liles’ dictation, she signing her name by mark. Appellees were all adults, and at the time of their mother’s marriage to appellant she was not living with any of them, but seemed to be supporting herself by her own labor. On the part of appellees it was shown: That Mrs. Liles, a short time before her death, stated to several parties that after her death she wanted her property to go to her children. “That Mr. Liles had his property for his children, and that she wanted her children to have her property.” That in February, prior'to the death of Mrs. Liles, Mr. Liles said that “she [referring to his wife] had her own property in her name, and he had his own property, and that her property belonged to her children at her death, and that he had a lot apiece for each one of his children.” That after the death of Mrs. Liles he said nothing to any of her children about a will until some time after it was probated. That on the day after Mrs. Liles was buried he told two‘of her children, who had come from their home in Louisiana to attend her funeral, that he and Mrs. Liles had “agreed that whichever one died first the other is to stay on the old home until his death, and keep everything'until the other’s death;” and upon their telling him, “All right,” that he could stay there if he wanted to, he-further said: “I have seven lots for my children. . . . What I made I put it to my own benefit for my children.” That when they returend home he accompanied them to the railroad station. That he showed them the line between his own and his wife’s property, pointed out that which belonged [815] to Ms wife, and said: “There is the property which belongs to yonr mother, and all that big patch over there is mine. . . . This is yon all’s, and all that big field there is mine. . . . This is for you children, . . . and that over there was for his children.” It was also shown that some time after that will was probated the witness Beard was asked when he signed the will, and he replied in 1907. Beard, in answer to this, testified that he meant he signed the affidavits in 1907. The witness maHng the first statement, however, said that the affidavit was not mentioned, and all of the conversation with Owen related to the will itself, and not to an affidavit. The subscribing witness, Owen, did not testify. He seems not to have been a resident of Mc-Comb City in 1904, and one witness testified that he was intimately acquainted with Liles’ family, lived in April, 1904, within a few doors of the Liles residence, and was a frequent visitor therein; that he was personally acquainted with Owen, and did not see him in McOomb City during that year. Owen is a grandson of appellant, being the son of his daughter by a former marriage. One witness testified in behalf of appellant that he saw Owen in McOomb City, the place where the Liles lived, in April 1904, and that Mrs. Liles told him about that time that they (meaning herself and husband) had made their will, and .that “if one dies the other will have the property.” Evidence was also introduced showing that appellant had the reputation of being a man of good moral character. The decree entered in the court below contained the,following’ recital: “There came a jury,” etc., “who,” etc., “after hearing all of the evidence and the argument of counsel and receiving the instructions of the court, retired to consider of their verdict, and after due consideration of the same returned into open court upon their oaths the following verdict: ‘We, the jury, find for the contestants.' We believe that Mrs. Nancy Liles was misled in signing the will.’ And the counsel for the propo [816] nent and contestants having agTeed before the verdict of the jury between themselves that if the verdict of the jury was not in proper form the same could be pnt in proper form by them after verdict, and counsel for proponent and contestants being in court when the jury returned their verdict, and which was read in open court, and no objection made to the form of the verdict, and before the jury was discharged in said case counsel for proponent and contestants announced to the court that they had agreed between themselves that the verdict of the jury may be put in proper form, and upon this agreement the jury was not returned to the jury room to further consider of their verdict, and the above verdict was accepted, and the jury discharged, and the said verdict was put in the following form by agreement: 'We, the-jury, find for the contestants, Mrs. W. J. May and Henry,. Thomas, Oscar, Edgar, Louise, Rena, Monroe, Mattie,. Lillie, and Lizzie Walker that the instrument offered as the last will and testament of Mrs. Nancy Liles, deceased,, is not her genuine last will and testament.’ It is therefore ordered, adjudged, and decreed,” etc. Appellant’s contentions are: (1) That the court erred in.-admitting in evidence statements,'made by Mrs. Liles after the alleged execution of the will, that she wanted her property to go to her children after her death; (2) that the court erred in admitting in evidence statements made by Mr. Liles after the alleged execution of the will,, tending to show that no will had then been made; (3) that on the verdict rendered by the jury the decree should have been for the proponent, appellant; (4) that the evidence is insufficient to support the verdict. The statements of Mr. and Mrs. Liles, made after the alleged execution of the will, that she wanted her children to have her property after her death, are objected to as being incompetent under the hearsay rule, where the issue is solely whether or not the will was forged, and we are referred in support thereof, among other an817 thorities, to Wigmore on Evidence, vol. 3, section 1736, and Miller v. Miller, 96 Miss. 526, 51 South. 210. The question of the competency of the statements made hy Mrs. Liles does not arise for the reason that we have failed to find any objection thereto in the record. The objection referred to by counsel as being on pages 42 and 54 of the record relate to statements made by appellant, and not by Mrs. Liles. The declarations of appellant introduced in evidence were competent. He is not only the sole beneficiary under the will, but was introduced as a witness in his own behalf, and testified that he wrote the will himself. These declarations, if made, tend to contradict him on this point, for the reason that- they are inconsistent with knowledge on his part at the time they were made that a will was then in existence. Prior to the rendition by the jury of its verdict, counsel for all parties hereto seem to have entered into an agreement that, if the verdict as rendered should not be in proper form, they would themselves put it in proper form. The verdict actually rendered was in the following language: “We, the jury, find for the contestants. We believe that Mrs. Nancy Liles was misled in signing the will.” The second sentence of this verdict counsel for appellant contend negatives the finding for contestants, and shows conclusively that the jury found as a matter of fact that the will was not forged, but was signed by the testatrix, and, since forgery was the only issue submitted to them, the decree should have been entered on the verdict as rendered for appellant, the proponent of the will. We are relieved from deciding this point, for the reason that the record recites, as hereinbefore set out, that counsel agreed that the verdict should be put into the following language: “We, the jury, find for the contestants, Mrs. W. J. May, and Henry, Thomas, Oscar, Edgar, Louise, Eena, Monroe, Mattie, Lillie, and Lizzie [818] Walker, that the instrument offered as the last will and testament of Mrs. Nancy Liles, deceased, is not her genuine last will and testament. ’ ’ This agreed verdict must be accepted as the one which the jury intended to render, and would have rendered, had the matter been resubmitted to them, and the chancellor properly entered a decree accordingly. Counsel for appellant in their briefs say that by this agreement they simply meant to submit to the court that, if the verdict as rendered should be construed as one for contestants, then they would agree that its form should be as stated. The trouble with this contention is that the record does not so state, and the cause must, of course, be decided by the record, and not by the statements in the briefs of counsel. On the evidence we think the cause was a proper one for submission to the jury. Affirmed.