Dabbs v. Richardson

102 So. 769, 137 Miss. 789, 1925 Miss. LEXIS 20

Opinion

Ethridge, J.,

delivered the opinion of the court.

This suit grows out of a will contest. The appellants presented the alleged will of Ruffin Price in which the property of the decedent was said to have-been devised and bequeathed to Ida Wagner, Allen Price, Peach Adams, and Wesley Price. The said instrument reads as follows:

“I hereby bequeath to the following as outlined below: To my niece Ida.Wagner I bequeath my home place'which contains about twenty acres. The rest of my real estate I want to be divided equally between Wesley Price, Allen Price, Peach Adams.

“All of my personal property and personal effects I want to be divided equally between the aforesaid Ida Wagner, Wesley Price, Allen Price, and Peach Adams.

“I hereby appoint Dr. R. G. Dabbs as executor of my estate.

“Witness my hand this the 12th day of June, 1923.

his

“[Signed] Rueein X Price.

mark

“Witnesses:

“[Signed] J. P. De Ford,

“J. D. Springer.”

“We, the undersigned witnesses hereby make oath that the foregoing instrument was signed in our presence, and same was written up at his request, and no pressure was brought to bear in any way, and that the testator was of sound mind to the best of our knowledge and belief.

“Witness our signatures this the 12th day of June, 1923.

“[Signed] J. W. Fields.

“Brag Jackson.”

A caveat was filed by the appellee after the will was presented and probated by the clerk, and an issue was made up by the chancellor, as' follows:

First: As to whether or not the alleged will or the execution thereon was procured by undue influence wrongfully exerted.

Second. As to whether or not at the time of the execution of the said alleged will the said Ruffin Price was of sound and disposing mind and memory, and capable of making a last will and testament.

Third. As to whether or not the paper propounded as the alleged will of Ruffin Price was and is in fact and law the true and genuine last will and testament of said Ruffin Price, deceased.

• The proponents introduced the witnesses to the alleged will and others, including Dr. R. G-. Dabbs, the executor, to prove the execution of .the will and the capacity of the deceased to make a will, and the witnesses for the proponents testified that the will was prepared by them for the deceased, read over to him, approved by him, and that he touched the pen, signing by mark. They testified that the deceased was blind, and that he was an aged negro man, and had been sick for some weeks; that on thevmorning of the day the will was executed in the afternoon they were sent for to go to. the residence of the deceased, Ruffin Price, and prepare the will, and that when they reached the place there was a large crowd of negroes present: that they went in and spoke to Ruffin Price, the deceased, and told him they had come at his request to prepare his will, and asked him if he desired the negroes assembled in his room to remain and hear the will made and read to him and he said no; that he desired the crowd of negroes in his room to go out. The draftsman of the will was Mr. De Ford; lie procured the paper, pen, etc., and asked the deceased as to the disposition of his property; that Ruffin Price first stated that he desired Ida. Wagner to have the home place and twenty acres of land; that he desired, Wesley Price, Allen Price, and Peach Adams each to- have twenty acres of his land; that this was written down, and he was then asked what else, and he said he wanted his plows and other personal .property to he equally divided between each of the four named persons mentioned; that this was written down, and he was asked what else, and he said he had some money in the Bank of Shannon but he did not want to divide that as he would need that to live on; and this was not written in the will; that he was then asked what else, and he said he would need an administrator and stated he wante'd Dr. Dabbs to be his administrator,- and a provision was written in the will appointing him as executor of his estate; that the will was then read over to Ruffin Price, the deceased, and approved by'him, and the draftsman, Mr. De Ford, took his hand and asked him to touch the pen and make a cross-mark between his given name and surname. The will was witnessed by J. P. De Ford ánd J. D. Springer, two white men. It was then suggested that it would look better to have some negroes to witness the will, and then J. W. Fields and Brag Jackson were called in, and they signed as appears on the will.

When Dr; Dabbs was offered as a witness the testimony was objected to, which objection was overruled, and he was examined with reference thereto. Dr: Dabbs testified that he was a practicing physician; that he waited upon the deceased as his physician during the last days of his illness; that he went down there the day the will was written; that he was sent for by Wesley Price, and left home about twelve-thirty p. m., and went with Mr. De Ford and Mr. Springer; that they went about half way in a car and the balance of the way in a wagon with Wesley Price and Peach Adams; that they found Ruffin Price a sick man, and the house was full of negroes. That they said to Ruffin, “We are here; what did you want with us?/’ He says:

“Doctor, I decided to make my will, and I want you to write my will for me, I says, ‘All right;’ and there was several colored people in the house. I says, ‘You want all these people to stay in the house while this is going on,’ and he says, ‘No; I want them to go out.’ I asked them to go out and I closed the door.”

The doctor then was asked with reference to the making of the will, and made statements in substance as above set out. That he saw Ruffin Price sign the will and saw the other witnesses sign it. That he was the one who suggested that two colored men be brought in to witness the will. That the deceased recognized their voices. The doctor was then asked with reference to the deceased’s acts and habits compared on that occasion with his acts and habits of previous years, as he had known him in a business way, not as he had known him in a professional way, but in a social way. Objected to; overruled; exception. To which the doctor replied, “Seemed to be all right, couldn’t tell any difference.” He stated that he had treated Ruffin Price, the deceased, professionally, and that sometimes he would see Ruffin Price over at Shannon in his lifetime; that he saw him often and talked with him. Dr. Dabbs stated that he could separate his opinion of this old negro gained in a business and social way from that gained in a professional way. That his acts and habits on the day in question when the will was written were similar to those on former days when he knew him in a business and social way. Dr. Dabbs further stated that he did not carry his medicine case on this occasion, but that he carried his stethoscope; that deceased had a leakage of the heart; “that he raised up in bed and I was through with him.” That he did this act as a physician. That he did not charge for this visit as a doctor, but that he did charge the estate of Ruffin Price after the old negro’s death two dollars and fifty cents for making this trip to his residence on the day the will was written, and probated Ms account therefor.

The witnesses for the contestants testified that Ruffin Price had been ill for some weeks, that he was very old, and that he had no mind with which to transact business. One witness who sat up with him the night before his death testified that Ruffin Price did not have any intelligent idea about anything; that he would just answer, ££TJh, huh,” when he was asked anything. That the old man asked what children were singing on the gallery, when in fact there was no one singing there; that he was very feeble. Another witness visited him on the morning before he died that night, and sat with him until a few minutes before the white men came to Ruffin Price’s house to write his will. This witness stated that the old man, Ruffin Price, did not have any mind and he thought he was dying at that time; that the witness went home to do some errands and came back to Ruffin’s house about seven o’clock that night, and stayed until the old man died at about nine o’clock that night. Another witness testified that he was present during the writing of -the will; that these white men writing the will would suggest to Ruffin Price what he wanted done and that he would answer, ££Uh, huh.” This witness also said that Ruffin Price had the appearance of being a dying man, and that he thought death was upon him then. There were some six or seven witnesses who testified along this line, there being a fairly even number of witnesses for the proponents and the contestants. After admitting Dr. Dabbs’ testimony the court, before the trial ended, excluded that part of Dr. Dabbs’ testimony pertaining to the mental condition of the decedent, but left his testimony with reference to all other facts and circumstances remain in evidence. The court in ruling made the following statement:

££I have, since yesterday, spent considerable thought about this matter, and I now hereby instruct you gentle men 'that in considering the testimony in this case of Dr. Dabbs you will exclude from your consideration of this case the. testimony of Dr. Dabbs relative to the mental condition of this man at the time he was there and wrote this will; this is not intended to cover anything; other than his testimony relative to his mental condition, and you will not consider the testimony touching his mental condition.”

To which the proponents excepted. During the argument the attorney for the contestants addressing the jury, said:

“Gentlemen of the Jury, these negroes, Peach Adams, Wesley Price, and Allen Price maneuvered this scheme to send for these white men to fix. up this will to get for them this old negro’s property, as they had contrived it.”

To which the proponents objected as infringing upon the issue of undue influence, upon which issue the court had instructed the jury to find for the proponents. Whereupon the court directed counsel to refrain from such argument.

On the facts we think the evidence was conflicting, and that it was the jury’s province, by their verdict, to say which side the jury believed was telling the truth. As to the testimony of Dr. Dabbs, excluded, as to the mental condition of Ruffin Price, we think that under the facts of this case, necessarily a part of the witness’ knowledge of the decedent’s mental condition was obtained by his visit to and treatment of the deceased during’ the days of his last illness.

Where there is a clear distinction between knowledge derived in a business and social way and knowledge derived in a professional way, the testimony of a physician is competent so far as it is gained from his business and social relation with the person whose sanity is the subject of inquiry. However, where a-physician is attending a patient constantly, and dealing with him in a professional capacity, during which and. by which he must necessarily acquire information as to what his mental status is, it is within the discretion of the trial judge who has the opportunity to judge of the witness and observe him while he is testifying and during the course of examination to say whether a witness can in fact separate his knowledge acquired in business and in a social way from his knowledge acquired professionally. The witness is not the final and conclusive judge as to whether he can and does separate knowledge acquired professionally or in a business or social way or both.

It is apparent from the whole examination that most of the knowledge of the deceased’s condition was derived from association during the doctor’s professional visits, and naturally, a physician would note more attentively during the period of professional treatment the acts and conduct of his patient. Of course there is much that can be observed in business and social intercourse bearing-on a person’s sanity and the fact that such observations are made by a physician does not disqualify him, provided that his lmowledge is not obtained during professional employment. The lines in many cases will be exceedingly difficult to draw, and we are satisfied in the case before us that the Chancellor noted attentively the evidence and observed the parties during the bourse of the trial, and we are unable to say that he erred ip excluding this part of the doctor’s testimony.

We do not think the remarks of counsel during the argument above set forth constitute reversible error when the court directed him to desist, and there is nothing to show that the admonitions of the court were not complied with, 'nor that the jury were improperly influenced thereby. It is to be presumed that the jury understood that the trial court disapproved of the argument, and that the jury would not let such argument operate in opposition to the ruling of the court-.

The judgment will therefore be affirmed.

Affirmed.