Birchett v. Hundermark

110 So. 237, 145 Miss. 683, 1926 Miss. LEXIS 4

• Court: Mississippi Supreme Court
• Decided: October 18, 1926
• Docket: No. 25686.
• Status: Published

Opinion

Smith, C. J.,

delivered tlie opinion of tbe court.

Mrs. Mary E. Bruzelias died on tbe 5tb day of April, 1924, leaving a. last will and testament, which was probated in common form, and thereafter was contested in accordance with section 1997, Code of 1906 (section 1662, Hemingway’s Code), by tbe appellee, who is Mrs. Bru-zelias ’ only heir at law, and who is not a beneficiary under her will.

Tbe ground of tbe contest is that Mrs. Bruzelias was not of sound and disposing mind and memory at tbe time the will was made.

Tbe case was tried by a jury, which returned a verdict for tbe appellee, and there was a decree accordingly bolding tbe will void, from which tbe appellants have brought tbe casé to this court.

1. The peremptory instruction requested by tbe appellants was properly refused, for tbe reason that tbe evidence bearing on tbe issue tried is in conflict, and we are unable to say that tbe evidence introduced by the appel-lee, if believed by tbe jury, is not sufficient to sustain tbe verdict.

2. Each of tbe facts embraced in tbe hypothetical question propounded by the appellee to tbe experts on insanity who testified in bis behalf have some support in the evidence, except as hereinafter noted, and that is sufficient to justify its being propounded to tbe witnesses. Two of tbe facts embraced in this question rest on evidence of declarations made by Mrs Bruzelias during her lifetime, and, assuming that these declarations of Mrs. Bruzelias cannot be accepted as evidence of tbe facts embraced in them they are not of sufficient importance when viewed in connection with the other facts contained in the question, to justify the setting aside of the verdict therefor. The error, if such it was, must he held harmless.

3. Mrs. 'Eaton, a legatee under the will, testified on behalf of the appellee over the objection of the appellants, to facts which tended to show that Mrs. Bruzelias was not of sound and disposing mind and memory when the will was executed. Section 1917, Code of 1906 (section 1577, Hemingway’s Code), provides that:

“A person shall not testify as a witness to establish his own claim or defense against the estate of a deceased person which originated during the lifetime of such deceased person, or any claim he has transferred since the death of such decedent.”

. The purpose for which Mrs. Eaton was offered was not to establish the validity of the will and consequently of her claim thereunder against the estate of the decedent, but, on the contrary, it was offered for the purpose of showing that the will is void, and, if the will is void, it follows that she has no claim against the estate; consequently her evidence is not within the prohibition of the statute. Mqreover, the prohibition of the statute is for the protection of a party against whom a claim against the estate of a decedent is or may be asserted, may be waived by him, and is waived as to a particular witness having such a claim when he himself introduces anti examines the witness. 4 Jones on Evidence, sections 780, 781.

4. The will was drawn by the appellant Birchett, an attorney at law, who is one of the beneficiaries under the will. Before the contest of this will was begun by the appellee, he and Birchett entered into a written contract by which Birchett agreed to waive his rights under the will, and to execute to the appellee bills of sale and conveyances to the property therein bequeathed and devised to him. Birchett was offered as a witness by the appei- lants in support of the will, but, on objection by the ap-pellee, was not permitted to testify.

The contention of the appellants is that Birchett does not come within the prohibition of section 1917, Code of 1906 (section 1577, Hemingway’s Code), hereinbefore set out, for the reason that by his contract with the appellee he has renounced the will, refused to accept the legacies and devises therein made to him, and consequently has no claim under the will against the estate of Mrs. Bru-zelias. Assuming, for the purpose of the argument, but expressing no opinion thereon, that a beneficiary under a will who has refused to accept the benefits therein conferred on him in such manner as to thereafter prevent him from asserting any right thereto, is a competent witness in support of the will, such is not the case here. Birchett testified that ho had by this contract relinquished any interest he might have under the will in the estate of Mrs. Bruzelias, but it does not appear whether the hills of sale and conveyances referred to in the contract have been executed. The manner in which the contract obligates Birchett to dispose of his interest in the estate of Mrs. Bruzelias is by conveying the same to the ap-pellee, whose title, when this is done, must be traced through these conveyances to, and would depend on, the will. What Birchett then agreed to do was simply to transfer to the appellee his claim under the will against the estate of Mrs. Bruzélias; consequently he is within the prohibition of the statute.

5. The appellee’s instruction. No. 4 should not have been given, but the error therein could not have misled the jury, in view of the issue tried and the other instructions granted. The appellee’s instruction No. 6 is unobjectionable.

6. Over the objection of the appellants, the appellee was given the right to open and close the argument of the case to the jury. The appellee admits that the burden of proof was on the appellants, and that ordinarily they would-have been entitled to open and close the ar gument; Ms contention, in wMcli we concur, being that tlie appellants cannot be beard to complain of tbe denial to them of this right, for the reason that the court below, in compliance with their request so to do, instructed the jury, in effect, that the burden of proof was on the appellee. Perkins v. Guy, 55 Miss. 181, 30 Am. Rep. 510.

Affirmed.