Scally v. Wardlaw

W. H. Cook, J., delivered the opinion of the court. This spit presents a contest over the last will and testament of Mrs. Catherine Leslie, deceased. Mrs. Leslie died at her home near Corinth, Miss., on the 15th day of January, Í91S, at the age of seventy-four years, leaving a document purporting to be her last will, which had been executed by her on the 15th day of October, 1917. In this will the deceased, after providing for the payment of her just debts, expressly stipulated that none of her relatives, nor any of the relatives of her deceased husband, except the one specifically mentioned, should take any of her property at her death; and, after making a specific bequest of five hundred dollars to the heirs of Col. E. S. Candler, her former legal adviser and friend, and á bequest of one thousand dollars to a niece of her deceased husband, she by description devised certain real estate to one Frank Scally, and certain other real estate to his brother, George Scally, and made the said George Scally the residuary legatee. The deceased left surviving her as her heirs at law two brothers, a sister, and several nephews and nieces. On January 17>, 1918, the executor named in the will presented it for probate, and it was duly probated in common form in the chancery court of Alcorn county, and on June 7,1938, all the collateral relatives, except one brother, joined in instituting this contest by filing a bill in equity, alleging, in substance, that at the time of the execution of the will Mrs. Leslie was weak, physically and mentally, and that she was not of sound and disposing mind, and that she was unduly influenced by some of the beneficiaries, under said will. Defendants answered this bill, and an issue devismit vel non was made up and submitted to a jury, resulting ifi a verdict in favor of the contestants, •and from the decree entered on this verdict proponents appeal. The testimony in this case is entirely too voluminous to undertake to set it out in detail, and we shall state — 876 — only such parts thereof as appear to be necessary to an understanding of the questions herein decided. Mrs. Leslie and her husband accumulated a considerable estate, consisting in part of a large and valuable farm about four miles from Corinth. This farm-was'their homestead, and before the death of her husband she had assumed a large share in the management of their property. After the death of her husband she continued to reside on this farm, and successfully managed her property and business affairs, and so successful was her management that she had greatly increased the value of her estate before her death. She continued in the active management of her large estate" until her death. The Scally family, who were beneficiaries under this will, owned adjoining lands, and lived as neighbors to Mrs. Leslie for many years, and the intimacy between the families was very close, but for the purposes of this decision it is unnecessary to detail the voluminous testimony in reference to the relation which existed between these families. Altogether the deceased executed six wills. The first one was executed before the death of her husband, the second after the death of her husband and before the death of her only son. The record does not disclose the contents of these two wills, but shortly after the death of her son in the year 1909' she executed a third will, by which she devised to Col. Candler the sum of five hundred dollars for services, and to Mrs. Mary Elizabeth Johnson, a niece of her deceased husband, the sum of one thousand dollars, and to her collateral relatives the sum of five dollars each, .and the remainder of her1 estate to Frank and George Scally. About 1914 Mrs. Leslie executed a fourth will which was substantially the same as the Í909 will, except" the five dollar bequests to relatives were omitted. About two years later she executed a fifth will, in which she added a bequest to a niece who at that time was living in the home with her. On October 15, 1917, the will involved in this contest was executed. — 877 — It appears from the evidence that on October 15, 1917, ■Mrs. Leslie came to Oorinth and secured her will from her private box at the bank, and went to the office of her regularly retained attorney and instructed him to prepare another will, and directed the changes which she desired, and explained in detail her reasons for making these changes. The will involved here was then prepared, and she directed her attorney to call witnesses two business men whom she had known for many years, and this will was executed in the presence of her attorney and these witnesses, and was then delivered to her. After her death it was found among her private papers in the bank. At the conclusion of the evidence introduced at the trial of the issues involved in this contest the .proponents requested a peremptory instruction upon the question of testamentary capacity, and the first assignment of error challenges the correctness of the action of the court in refusing this instruction. Upon the trial the proponents offered in evidence the will and the complete record of the proceedings probating the will and rested. Thereupon the contestants introduced a number of witnesses to meet the prbna-facie case made by proponents. We have carefully and repeatedly examined this evidence, and upon the question of testamentary capacity at the time of the execution of the will it is fragmentary and of little, if any, probative value. Only four witnesses testify upon this issue. Two of them stated, in substance, that in their opinion Mrs. Leslie was not of sound mind at times. The third testified that in his opinion her mind was not good at times, and the fourth that in his opinion her mind was flighty at times, what he would call unbalanced. Only two of these witnesses undertake to give any incident, fact, circumstance, or reason for this opinion, and the circumstances or incidents detailed are trivial; and, since these two witnesses expressly base their opinion upon these incidents, the value — 878 — of these opinions is weakened rather than strengthened. Two of these witnesses fix the time at which Mrs. Leslie came under their- observation as being during the years, 1914 and 1915- — about two years prior to the execution of the will — and no witness undertakes to say that her mind was not sound at or near the date of the execution of the will. The mental capacity of the testatrix is to be tested as of the date of the execution of the will. Alexander on Wills, vol. 1, p. 327; Schouler on Wills, vol. 1, p. 134; Lum v. Lasch, 93 Miss. 81, 46 So. 559; Moore v. Parks, 84 So. 230. If in fact there were periods of temporary op intermittent insanity or mental incapacity, this does not raise a presumption that it continued to the date of the execution of the will. Lum v. Lasch, 93 Miss. 81, 46 So. 559; Alexander on Wills, vol. 1, par. 333; Chandler v. Barrett, 21 La. Ann. 58, 99 Am. Dec. 706; In re Murphy’s Estate, 43 Mont. 353, 116 Pac. 1004, Ann. Cas. 1912C, 380, All the circumstances- surrounding the execution of this will indicate a perfectly sound mind at the date of the execution thereof, and we do not think there is any evidence- offered by contestants which, if true, fairly tends to prove that the testatrix was of unsound mind when the will was executed. It is urged on behalf of contestants that the unnaturalness and unreasonableness of the provisions of the will, being a proper question for the jury to pass upon, was sufficient to warrant submitting to the jury the question of testamentary capacity, and the case of Jamison v. Jamison, 96 Miss. 288, 51 So. 130, is cited in support of this contention. We do not understand this case to so hold. In the Jamison Case Chief Justice Whiteield said: “Such a will, when there is other substantial evidence of undue influence and testamentary capacity, calls for explanation, and such unnatural provisions are submitted to the jury as evidence tending to show lack of testamentary capacity where that is in issue, and may be considered by the jury with all other facts and circumstances — 879 — in the case npon such issue; that is to say, an unnatural disposition of property, standing alone, may not avoid a will, but the results of such unhappy distribution may be tempered and toned down, possibly to avoidance, by allowing it to be weighed by the triers of fact, along with other facts tending to show undue influence or testamentary incapacity.” The unnaturalness or unreasonableness of a will is one of the elements which may be submitted to the jury upon the question of testamentary capacity, and should be considered by the jury, together with all the other facts and circumstances in evidence in the case, but when there is no other substantive evidence of testamentary incapacity, unreasonable or unnatural provisions of the will, standing alone, will not support a finding of testamentary incapacity. King v. Rowan, 82 Miss. 1, 34 So. 325. In the case of King v. Rowan, supra, the court says: “It should be made clear to the jury that, however unreasonable and unnatural or unjust they may think the will is, they must uphold the will if, notwithstanding, they believe the testator had testamentary capacity, and was hot unduly influenced.” The importance of the rule that harsh, unjust, unnatural, or unreasonable provisions of a will, standing alone, are insufficient to show testamentary incapacity, is strikingly illustrated in the instant case by the fact that, conceding the will in question to be harsh, unjust, and unnatural, the testatrix executed a will in 19091, at a time when the soundness of her mind was unquestioned, containing substantially the same provisions as the will here involved. We conclude, therefore, that the peremptory charge requested by proponents, withdrawing from the consideration of the jury the question of testamentary capacity, should have been granted. While the decision of this 'question of the correctness of the action of the court in refusing this peremptory charge is controlled by the evidence offered on behalf of — 880 — contestants and the necessary inference to be drawn therefrom, we might add that the testimony for proponents on this issue was made by more than forty witnesses, who testified that in their opinion the testatrix was of sound mind, and that she was a woman of splendid business ability. Included in this list of witnesses were the three men who were present when the will was executed, and also merchants, bankers, farmers, public officials, and citizens from almost every avocation and station in life, who had known Mrs. Leslie intimately for many years, and who testified that in their opinion she was of sound mind, and that she was a woman of unusual business ability. Some of these witnesses were adjoining landowners and close neighbors, who had known her intimately for many years. The physician who had served her family for more than twelve years, and who treated her shortly before the will was executed and also a few days thereafter, and who attended her in her last illness, testified positively that the testatrix was of sound mind; and in view of the overwhelming weight of this testimony we think any verdict which might be based upon testamentary incapacity should be set aside. The second assignment of error is predicated upon the refusal of the court to grant the general peremptory charge requested by proponents. A discussion of the testimony offered upon the issue of undue influence would serve no useful purpose, and it is sufficient to say that, after a careful and painstaking examination of the record, we are of the opinion that there was sufficient evidence to warrant the submission of this issue to the jury, and that the action of the court in refusing the general peremptory charge was correct. . The third assignment challenges the correctness of the action of the court in refusing an instruction, numbered C in the record, which undertook to define when influence acquired by advice, argument, persuasion, solicitation, or entreaty may be characterized as undue influence. The — 881 — proper test is announced in Burnett v. Smith, 93 Miss. 566, 47 So. 117, where it is said: “That influence exerted £by means of advice, arguments, persuasions, solicitation, suggestion, or entreaty is not undue, unless it be so importunate and persistent, or otherwise so operate, as to subdue and subordinate the will and take away its free agency.’ ” And we think the language of the refused instruction, which undertook to state this rule, was too strong, and that there was no error in its refusal. The fourth assignment of error is .predicated upon the action of the court in modifying an instruction, numbered 11, but the record does not disclose the modification complained of, and we only learn of the modification from the briefs of counsel, and this assignment will not be considered. The next assignment is based upon certain instructions granted contestants, and we shall discuss instructions numbered 5, 10, 11, 17, and 21. Instruction No. 5 reads as follows: “The court charges the jury that a will that is partial and unjust, unreasonable and unnatural, in its provisions under the law, is looked on with suspicion, and the jury should take these facts into consideration in determining whether or not Mrs. Leslie was unduly influenced to make said will, if such facts they believe to exist.” This instruction is erroneous. It assumes that the will is “partial and unjust, unreasonable and unnatural,” and this vice in the instruction is not cured by the concluding words thereof. It tells the jury that they “should take these facts into consideration in determining whether or not Mrs. Leslie was unduly influenced,” without any sort of qualification or limitation. As stated in King v. Rowan, supra: “There doubtless are many cases in which the unnaturalness or unreasonableness of a will may, under proper qualifications, be accepted by the jury as one of the elements in determining the validity of the will as one hav — 882 — ing been obtained by undue influence, or as having been made without testamentary capacity. But courts should always, in giving this principle in charge to a jury, be careful to scrupulously guard the principle, so as to inform the jury that the issue which they axe to try is whether the testator had testamentary capacity; or whether, though having it, he had been unduly influenced; and not whether, in the opinion of the jury, the will was an unnatural or an unreasonable one.” Undoubtedly, if the jury believed from the evidence that the will is unjust, unreasonable, or unnatural, they may consider that fact in connection with all the other facts and circumstances in evidence in the case, but the instruction given in this case carried no such qualification or limitation. The language of instructions numbered 10 and 11 is substantially the same, and both are subject to the same criticism. Instruction No. 10 is as follows: “The court instructs the jury that the law condemns as undue influence that influence which one person exercises over another, whether it be obtained by flattery, cajolery, threats, persuasion, deception, or any other means which may be used to influence and control another person, and is sufficient to set aside a will, although neither force nor fear was used to get Mrs. Leslie to make said will.” As stated in Burnett v. Smith, supra,, “Not every influence is undue, and undue influence cannot be predicated of any act unless free agency is destroyed,” and each of these instructions o.mits this necessary qualification, and the use of the words “influence and control another person” does not meet the requirement or supply the deficiency. The seventeenth instruction granted contestants is erroneous for the reason that it assumes as a fact that the will is unnatural and unreasonable. Instruction No. 21 is in the following language: — 883 — “It is not the means employed so much as the effect produced, which must be considered by the jury in determining whether undue influence caused Mrs. Leslie to make the will she did; for the undue influence exerted over Mrs. Leslie, if any, might be regarded as innocent, yet, if in this case it resulted in unduly influencing Mrs. Leslie to make the will giving the greataer part of her property to the Scallys, then this influence was in law undue influence, and the jury must find against the will.” The language of this instruction is misleading and erroneous. While it is true that if undue influence exists, “it is not measured by the degree or extent, but by its effect, and if the influence exerted is sufficient to destroy free agency, it is undue, even if slight,” but this instruction does not correctly announce this proposition, and in its present form it is calculated to confuse the minds of the jury, and to lead them to consider the provisions of the will alone as controlling upon the issue of undue influence. There are numerous assignments of error based upon the admission of testimony for the contestants, but we do not think there is merit in any of them, except assignment No. 6, which is based upon the action of the court in permitting certain witnesses to testify that, in their opinion, Mrs. Leslie was under the influence of the Scallys. This testimony was inadmissible. The witnesses should be required to state the facts within their knowledge, and the jury left to draw its own conclusions from these facts, uninfluenced by the mere opinion of witnesses. In 11 R. C. L. 604, the rule, which we approve, is stated as follows: “But opinions that the testator was under the influencei and control of a certain person, or was especially susceptible to such influence, are rejected.” See, also, Compher v. Browning, 219 Ill. 429, 76 N. E. 678, 109 Am. St. Rep. 356; In re Goldthorp, 94 Iowa, 336, 62 N. W. 845, 58 Am. St. Rep. 405. For the errors herein indicated, this cause is reversed and remanded. Reversed and remanded.