Cooper v. Bell

Smith, C. J., delivered the opinion of the court. J. G. Bell, Sr., who died on the 7th day of December, 1913, left surviving him four children, to wit, James G. Bell, Jr., Mrs. Sallie Rutland, Mrs. Sallie Cooper, and R. R. Bell. On the 28th day of September, 1912, he executed a last will and testament by which he left the major portion of his property to Mrs. Ruthland, Mrs. Cooper, and R. R. Bell, bequeathing to J. G. Bell, Jr., a nominal legacy of $1. On the 13th day of June, 1913, according to the verdict of the jury in the court below, he executed a codicil by which J. G. Bell, Jr., was admitted to an equal share in the estate with his brother and sisters; that is, to each he devised a one-fourth interest therein. After the death of Bell, Sr., this will and codicil were duly admitted to probate, whereupon Mrs. Cooper exhibited her bill in the court below against her sister and two brothers praying- that the codicil be declared • void for two re’asons: First, its execution was the result of undue influence exerted upon the testator by J. [773] G. Bell, Jr., Mrs. Rutland and others; and, second, that at the time of its execution the testator was mentally incompetent. In due course the cause came on to be heard on an issue of divisavit vel non. On the first issue the court granted a peremptory instruction, of which no complaint is here made, and the second was submitted to the jury which returned' a verdict sustaining the codicil, and there was' a decree accordingly. Complainant offered herself as a witness to prove the alleged mental incompetency of her father at the time of the execution of the codicil, but on objection by defendant this evidence was excluded, and this ruling of the court is presented to us by appellants’ principal assignment of error. In Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, 62 So. 432, 51 L. R. A. (N. S.) 187, Ann. Cas. 1916A, 1051, the testator had executed a will by which one-half of his property only was left to his widow who was his sole statutory heir and entitled to the whole of the testator’s property in event the will was invalid. The will was assailed on the ground of the testator’s insanity, and the widow, who offered herself as a witness to establish that fact was not permitted to testify for the reason that she was seeking to establish her own claim against the estate of a deceased person which originated in the lifetime of such person. We see no reason why the rule announced in that case should not govern here. True it is that the witness here offered was not the widow, but was a daughter. True it is also that the nullification of the codicil assailed operated to advance the interest of the witness after a different method, viz. in the one case by her restoration to a pre-existing right as inchoate legatee under a previous will, and in the other, to a pre-existing right as inchoate statutory heir still the effect of a successful attack on the will by the witness offered was in either case essentially the same and the thing sought was the same. In Whitehead v. Kirk, Mrs. Kirk was offered in order to nullify her husband’s will, which being done, the property interest which that will carried to the White [774] heads would, by her statutory heirship, devolve on her. In the ease at bar Mrs. Cooper was offered in order to nullify the codicil alleged to. have been executed by her father, which being done, the original will would thereby be reinstated and the property which the codicil carried to J. G-. Bell, Jr., would come to herself, R. R. Bell, and Mrs. Rutland. In other words, the direct effect of her evidence, as would have been the direct effect of the evidence of Mrs. Kirk in Whitehead. v. Kirk, would be to establish her own claim to a larger portion of the testator’s estate. In each case that result was sought to be reached by an effort to prove exactly the same fact; that is, the testator’s mental incapacity at the time of the preparation and execution of the will. It follows, therefore, that the court below committed no error in excluding this evidence. Appellees offered to prove by Mrs. Rutland that the testator was mentally sound at the time of the execution of the codicil, and her evidence was not objected to by appellant, but was excluded by the court of its own motion, and when the witness was tendered to counsel for appellant he was not permitted to examine her relative to that fact. This evidence was offered by appellees upon the theory that the witness was not seeking to establish any claim of her own against the testator’s estate, but on the contrary testifying adversely to any claim she might have under the original will. This ruling of the court cannot be complained of by appellant for the reason that whether right or wrong it was in her favor and against appellee. We find no reversible error in the other matters complained of. Affirmed.