Helm v. Sheeks

Ethridge, J., delivered the opinion of the court. The appellant, 'Mrs. M. T. Helm, presented for prohate a paper purporting to be the last will and testament of Miss Sarah Alice Brooks. The alleged will reads as follows: “The State of Mississippi. “I, Sarah Alice Brooks, do make & publish this to be my last will and testament— “Item 1st. I give and bequeath to my sister Mary T. Helm my entire estate — real and personal which I may own at the time of my death. “Item 2. I appoint her my sister Mary my executrix and relieve her from giving security on her bond as executrix. If I leave any debts unpaid they will be small & my sister is charged to pay them out of my estate & it will be unnecessary to file any inventory of my estate or to make any reports to the court. “In testimony hereof I sign my name hereto on this the 23d day of February, 1897. “S. A. Brooks. “In our presence as witnesses: “T. O. Burris: “C. R. Smith.” When the will was presented for probate there was an affidavit made by T. O. Burris, one of the subscribing witnesses, in which he interlined the usual affidavit with the following expression: “To the best information and belief of this deponent of sound and disposing mind, memory and understanding and above the age of twenty-one years,’’ etc. A caveat was filed by the appellees against the probate of the will, and the clerk thereupon declined to probate the alleged will. The appellees then filed a bill in the chancery court, alleging that the instrument was not the last will and testament of Miss Brooks, and that she was insane or mentally incompetent to make a will; and also — 728 — that she was under the control and influence of Mrs'. Helm, and that the alleged instrument in writing was obtained by undue influence. A' motion was made to strike the' bill from the files, which was overruled, and thereupon the appellant answered the bill, denying the material allegations of the bill. On the trial of the cause T. O. Burris was produced as a witness for the proponent of the will but his recollection of the transaction had completely vanished, and he was unable to testify as to any of the material facts, except to say that he recognized his signature to the will as being genuine, and that he must have seen the party sign the instrument or he would not have signed it; that he never signed anything without knowing what he was signing. • He was unable to recall any of the circumstances or any of the parties, and could not say from recollection whether the party S. A. Brooks who signed the will was a man or woman, or any other fact pertaining thereto. C. R. Smith, the other subscribing witness, was not produced at the trial, the proponents claiming that he was a hostile witness, and that the contestants had made an affidavit for a continuance at a former term of court, and had secured a continuance 'because of the absence of C. R. Smith, who, it was alleged in the affidavit, was a material witness for the contestants, and in which it was stated that the contestants expected to prove by the said Smith that S, A. Brooks never executed said will, never signed the same in his presence, never published or declared the said, instrument to be her last will, and did no act to indicate- that the said will was the will of the said S. A. Brooks, and, further, that she was absolutely under the influence of Mrs. Helm, the proponent, at the time the instrument purported to be witnessed. Between the time the mQtion for a continuance was made and the same secured and the trial of the cause, the contestants propounded interrogatories to C. R. Smith, to be sent to the state of California, where Smith then was, or was — 729 — supposed to Tbe. The interrogatories, however, were returned unanswered; Smith not being at the place to which they were sent. There was no effort on the part of the proponent of the will to secure the deposition of Smith, other than to cross the deposition above mentioned proposed to be taken by the contestants, nor was there any summons or effort to secure Smith’s attendance at court, until the day preceding the trial, when a subpoena was issued to Noxubee county for Smith-and returned “not found.” The attorneys for the proponent say, however, that they had a conversation with one of the attorneys for the contestants two or three days- before the ' trial, in which they asked if Smith would be present, and claim that the said attorney informed them to be ready for trial; that Smith would be at the trial. They further testify that they received a report that Smith was in the county on Sunday preceding the trial, in company with one of the contestants, and that on Monday following they issued the subpoena and fully expected Smith to be present, and that they were expecting him to be produced or appear at the trial when they answered ready for trial. It appears that Smith had been confined at the insane asylum at Meridian, and that after he was released from said insane asylum, or some thirty days thereafter, he went to California in search of health. It appears that his permanent residence was in Lowndes county, but it does not appear that he had been at his residence since going to the state of California, and it does <not appear that he had returned to the state of Mississippi after going to the state of California. In the absence of Mr. Smith, and without a formal summons having been issued for him other than as above stated, the complainants produced Hon. J. A. Orr, an attorney of Columbus, Miss., who drafted the instrument purporting to be the will, who testified that he had known Sarah A. Brooks for a long time, and was intimately acquainted with her family; that he pre — 730 — pared the will at her request, out of the presence of Mrs. Helm, who came with Miss Brooks to his office, and that he procured Burris and Smith to sign the will as witnesses after it had been prepared; and that the will was signed by them in the presence of Miss Brooks and himself. He further testifies that he saw nothing to indicate nnsoundness of mind on the part of Miss Brooks; that he regarded her as competent to make a will at the time; and that there was nothing to indicate to his mind that any undue influence was exerted by Mrs. Helm. The proponents also introduced Z. T. Dorroh, who had formerly been sheriff and chancery clerk of Noxubee county, and lived in Macon, Miss., for a long number of years as a near neighbor of Mrs. Helm, with whom Miss Brooks lived during the latter part of her life until she was sent to the insane asylum in 1911. He testifies that Miss Brooks came to him shortly before the alleged will was written, and requested him to write her will, but that he declined to do so, and suggested that she get a lawyer to prepare the will; that she asked him if Mr. Orr would” do, and that he stated to her that Mr. Orr was a suitable person to write her will; that shortly after the will was prepared she brought same to him, and stated that Mr. Orr had written her will, and requested him to keep the will in his safe or possession, which he had done. He testifies that at that time Miss Brooks was of sufficient mental capacity to make a will. W. B. Helm, a son of the proponent of the will, was also introduced and testified that he had known Miss Brooks, who was his aunt, practically all his life, he being at the time about forty-five years of age, and that he had attended the same school with Miss Brooks when he was a small boy, and testified that the signature to the alleged will was the signature of Miss Brooks. — 731 — The proponent, Mrs. Helm, tendered herself as a witness to establish the will and to testify to all necessary elements involved in the contest. The chancellor excluded her evidence on the theory that she was incompetent to establish the will, as to do so would be to establish her claim against the estate of said Sarah A. Brooks. The contestants were related to the deceased as nephews, nieces, great nieces and nephews, being the decendants of H. H. Brooks, Sr., a brother of deceased. At the conclusion of proponent’s testimony the chancellor sustained a motion to strike out the evidence, and granted a peremptory'instruction for the contestants, and .this appeal is from the final judgment accordingly entered. The following propositions are presented for decision in this ease: (1) Was it necessary for the proponents of the will to produce C. ft. Smith, or make a satisfactory showing for not producing him? (2) Was Mrs. Helm a competent witness to establish the will? (3) Was .there sufficient evidence to justify the submission of the cáse to the jury on the issues involved? The statute requires two witnesses to witness the execution of a valid will, and the purpose of the statute in requiring witnesses is not only to establish the writing or signing of the instrument, but to have witnesses whose business it is to determine the c&pacity of the testator making a will. In our opinion, it was the duty of the proponent to produce Smith if he was in the jurisdiction of the court, or to take his deposition if that could be done, as the subscribing witness Burris wholly failed to recall any of the facts and circumstances attending the execution of the will, and could not recall whether it was a man or a woman making the will. The testimony of the subscribing witnesses is the best evidence, and their testimony has been selected by the decedent to prove the essentials of the execution of the — 732 — will. If the subscribing witness cannot be produced, or, if produced, will not testify to tbe execution of tbe will, or are not able to recall the facts, then other evidence may be offered, but, secondary evidence cannot be used if any of tbe subscribing witnesses will and can prove the facts until they have been called or produced. Tbe statute requires at least one witness to prove tbe execution, of tbe will. Taking this record, however, and all that appears therein, it warrants tbe belief and finding that Smith was not at the time within tbe jurisdiction of the court. When last beard from, so far as tbe record shows, be was in California, and it does not appear that be bad returned to Mississippi, and it does, appear that an effort was made to take bis deposition, but which was unavailing. It further appears that counsel for tbe proponent was led to believe that Smith would be at tbe trial, and that be would be a hostile witness. In this state of tbe record we think it was competent tb produce other witnesses bearing-on tbe execution of tbe will, tbe sanity of tbe testatrix,, and tbe question of undue influence. With reference to tbe exclusion of the testimony of Mrs. Helm, we think the chancellor was correct in- so-doing, under tbe doctrine of Cooper v. Bell, 114 Miss. 766, 75 So. 767, and Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, 62 So. 432, 51 L. R. A. (N. S.) 187, Ann. Cas. 1916A, 1051. In tbe Whitehead v. Kirk Case tbe decisions of this court were reviewed at some length, and tbe proposition established that a person who would be tbe heir of tbe maker of a will in tbe event of bis death without a will could not testify as to mental incapacity of a testator, tbe effect of which would be to destroy tbe will and establish her rights to bis estate. It is urged here that tbe claim of Mrs. Helm would not become effective until tbe death of Miss Brooks, and therefore that tbe testimony was not to establish a claim — 733 — against the estate originating in the lifetime of the decedent. The claim or right to the estate does not become vested until death, but its foundation is the will, and the will, of course, must be made during the lifetime of the testator. To establish a will is to establish an instrument made in the lifetime of a person by which the estate of such person will be vested at his death. The claim flowing from the will necessarily originates with the will. It is true it may be destroyed and rendered ineffectual, possibly, and it is true, further, that it will not take effect until death, but it is an instrument of title which, in the nature of things, must be made during the lifetime of the testator, and must be signed and witnessed in the manner prescribed by statute during the testator’s lifetime. We think these two cases fully establish the doctrine that the testimony of a person cannot be received to establish or to destroy a will where the party testifying would become the recipient of the property of the decedent or some portion thereof. Therefore the chancellor did not err in excluding Mrs. Helm’s testimony. As to the third proposition, we think the proof was sufficient to go to tlie jury on each of the issues made. While the testimony of Smith and Burris is the best evidence, yet if they cannot be produced, or if, on being produced, do not remember the facts, other evidence may be received to establish the will. Taking the' evidence of Judge Orr, Mr. Dorroh, and Mr. Helm, we think the issues should have been submitted to the jury, and the court committed error in refusing to do so. The judgment will be reversed, and the cause remanded for a new trial. Reversed and remanded,