Sanders v. Sanders

89 So. 261, 126 Miss. 610

• Court: Mississippi Supreme Court
• Decided: March 15, 1921
• Docket: No. 21590
• Status: Published

Opinion

Anderson, J.,

delivered the opinion of the court.

This is an issue devisavit vel non. It was decided in the court below against the proponents of the will, the appellants', and from that judgment they prosecute this appeal.

The testator James T. Sanders, left a widow and three children, a daughter by his first wife, Mrs. Everson, and two sons by his second wife, George and Joe Sanders. In his alleged will he devised and bequeathed all of his property, consisting of land and personal property (except one hundred and fifty dollars which he bequeathed to his daughter, Mrs. Everson, and a like amount to his son, George Sanders), to his widow, Mrs. Florence Sanders, for her lifetime, with remainder in fee to his youngest son, Joe Sanders. When the alleged will was presented for probate by the executor named in it, his daughter, Mrs. Ever-son, and his son, George Sanders, who were bequeathed only one hundred and fifty dollars each, filed a caveat against its probate on two grounds: First, that at the time of its execution the testator was mentally incapable of making a will; second, that his widow, Mrs. Florence Sanders,' and his youngest son, Joe Sanders, the two principal beneficiaries under the alleged will, by persuasion and undue influence, induced him to execute the same. Therefore the child by his first marriage, Mrs. Everson, and his oldest son by his second marriage, George Sanders, were arrayed on one side as contestants of the will, while the widow and his youngest son by his second marriage, Joe Sanders, were arrayed on the other side as proponents; the latter being the appellants, the former the appellees.

The appellants contend that the court below erred in refusing to direct the jury to return a verdict in their favor because they say there was no evidence even tending to establish the issues in favor of the appellees. On the other hand the appellees contend there was sufficient evidence to go to the jury and therefore the verdict and judgment ought to stand.

So far as the question, of mental capacity of testator is concerned, there was no evidence introduced by either side "tending in any degree to establish that at the time of the execution of the alleged will the testator was not fully capable of comprehending the full purport and effect of what he was doing. On the contrary, all of the evidence having any bearing on the question affirmatively shows that at the time of the making of the alleged will the testator was capable of and did understand the purport and effect of what he was doing.

On the question of undue influence the evidence for the proponents was to the effect that the alleged will was made on September 11, 1919, and the testator lived until November 10,1919, two months; that at the time of the execution of the paper claimed by the proponents to be the testator’s will and for some time prior thereto he was and had been afflicted with cancer of the stomach; that on the day the alleged will was executed the,testator, under the advice of his physician, Dr. Claitor, was preparing to leave his home in Attala county to go to the Baptist Hospital in Jackson, Miss., for examination, and before going he expressed a desire to make his will; that accordingly preparations were made for that purpose, and before leaving for the hospital he executed the paper claimed to be his will by the appellants in the presence of at least four disinterested witnesses, the two subscribing witnesses, and Mr. Bailey, the executor named in the will, and Mr. Brown, who drew the will; that in addition his physician, Dr. Claitor, was present part of the time. All of these witnesses testified that the testator was sitting up all the time during the preparation and execution of the.alleged will; that he stated to Mr. Brown, the draftsman of the will, exactly what disposition he wanted to make of his property, and the will was made as he directed, and was read over to him in the presence of all four of said witnesses, and, when asked if it was what he wanted, he replied that it was; that during the preparation and execution of the alleged will the appellants, his wife, and his son Joe, the principal beneficiaries thereunder, were not present, although they were in or about the house; that on the afternoon or evening of the day the alleged will was made the testator was driven to the railroad station in a car and went to Jackson to the Baptist Hospital; that he went out and got in the car himself; that, although he was seriously ill with cancel; of the stomach, he conversed freély and intelligently and understood what he was doing and saying.

The testimony on behalf of the contestants, the appellees, tended to establish the following facts: That during the preparation of the will the testator left the room and had a conversation with his son Joe; that when he married the last time his daughter, Mrs. Everson, the only child by his first wife, was about three years old; that when she had about reached her maturity her stepmother drove her away from home; that her stepmother had always disliked her and had done everything she could to1 prejudice the minds of her husband and sons against her; that her dislike for her stepdaughter was so great that she never would permit her to return to her home even for a visit; that the wife, Mrs. Florence Sanders, had great influence over her husband.

The only other evidence on the issue of undue influence was the declarations of the testator testified to by wit-' nesses for the appellee, which was to the effect that between the time of the execution of the alleged will, to-wit, September 11,1919, and the death of the testator on November 10, 1919, thereafter, the testator stated to them that he lived happily with his first wife; that during her lifetime he was a church member and a regular attendant at church services, and lived an upright Christian life; that, on the other hand, his second wife had made his life a “hell on earth;” that the alleged will which he had signed was not his will; that he had been forced to make it by his wife and his son Joe; that the latter said to him that if he did not make it as it was made he would leave his father’s home; that the only members of the household of the testator were his wife and his son Joe; that his daughter, Mrs. Everson, lived in the north somewhere, and his son George was married and living in a home of his own; that he said he loved his daughter, Mrs. Everson, as well as his other children, and at different times stated he intended to visit her.

It was shown by the wife of the appellee George Sanders that in 1918 she was in the home of the testator and saw him count out and put away about seven thousand dollars in money.

We will first consider whether the declarations of the testator (not made at or about the time of the making of the alleged will, and therefore part of res gestae, but beginning five or six years before, and continuing from time to time up to and near the time of his death) that his life with his second and last wife had been unhappy, had been a “hell on earth,” that he loved Mrs. Everson, his daughter by his first wife as well as he did his other children, and his declarations made between the time of the execution of the alleged will and his death, but not at the time of its execution, that he had not made the will he wanted to make, but had been forced by his wife and his son Joe to make the will he did malee, were admissible in evidence on the question of undue influence for .any purpose, and, if so, for what purpose.

In the opinion of the court the great weight of authority, both as to number and as to reasoning, is to the effect that such unsworn declarations of a testator are admissible in evidence alone for the purpose of showing the state of mind of the testator at the time of making the alleged will, as throwing light on the question whether he was at that time susceptible of being duly influenced by those claimed to have exercised such influence over him, and for that purpose such declarations are primary evidence; that for any purpose they are simply hearsay evidence, and come within the rule against such evidence. To put it differently, such declarations testified to by witnesses are admitted as primary evidence to show the state of mind of the testator, but not for the purpose of showing the facts which are therein declared.

There is no good reason why such declarations should hot come within the rule against hearsay evidence; while, on the other hand, there are substantial reasons why they should. They are not declarations against interest, for at the time made the testator has no interest either one way or the other; he has the absolute power to revoke his will at any time while living. They are not accompanied with the sanctity of an oath, and may have been made by the testator to mislead, instead of to state the .truth, and the recollection of the witness or witnesses to whom made may be faulty, especially after the lapse of considerable time, and there is the inducement on their part to fabricate, for, sinpe the mouth of the declarant, the testator, has been closed by death, they run no risk of contradiction by him •on the witness stand; and, furthermore, where the issue is undue influence, as here, the beneficiaries under the alleged will charged to have exercised such undue influence are incompetent as witnesses under our statute; they must sit and hear witnesses testify to unsworn statements of the testator to the effect that they forced their will on him; they cannot go upon the witness stand and contradict such testimony.

We deem it unnecessary to again review the authorities bearing on this question, for that was very ably done by Judge Sykes, who wrote the opinion for the court in the case of Moore v. Parks, 122 Miss. 301, 84 So. 230. Among other things, the court said in that case:

“As stated elsewhere in this opinion, these declarations are held admissible upon the question of testamentary capacity by all the courts, and a majority of the courts, our own court being among the number, hold them admissible upon the question of undue influence. In both of these instances, however, these statements are admitted as testimony, not for the purpose of establishing the truth or falsity of the statements made, but merely that the jury may consider them along with other testimony and from all of the testimony arrive at a conclusion as to the mental condition of the testator at the time of making the will, viz., whether or not he was sane or unduly influenced at that time. The inquiry in those two instances is as to the mental condition of the testator. The truth or falsity of the statements is not under consideration at all. Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 35 L. R. A. 102.”

Moore v. Parks, supra, is directly in point, and is decisive of this question in favor of the contention on behalf of appellants, notwithstanding the question dealt with in that case was declarations of the testator as to testamentary intentions, instead of declarations as to undue'influence, as here; for the same principles of evidence apply tp both; there can be no difference. Appellees’ counsel cite (among other cases) to sustain their contention Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 35 L. R. A. 102; Reel’s Ex’rs v. Reel, 8 N. C. 248, 9 Am. Dec. 632. We do not care to add anything to what Judge Sykes said about Sheehan v. Kearney, supra, in Moore v. Parks, supra, except to say that Judge Whitfield in Sheehan v. Kearney indorses the rule laid down by the annotator in 3 Am. Dec. 397, where the rule is stated in this language:

“The principal fact to be established is the mental condition of the testator at the timé of making his will; and for this purpose evidence of his declarations, previously and subsequently, directly bears on the question, and must be relevant and competent.”

In that same note, 3 Am. Dec. 397, the writer of the note says this with reference to Reel’s Ex’rs v. Reel, supra:

“In Reel v. Reel, 1 Hawks, 247, evidence was admitted where duress and incompetency of the testator was charged subsequent to the execution of the will. The court in this case dissented from Jackson v. Kniffen (3 Am. Dec. 390), and from Smith v. Fenner (1 Gall. 170); but on the distinction pointed by Selden, J., there was no necessity for this, for, as there was a question as to the capacity of the testator in Reel v. Reel, the evidence was properly admitted on that ground.”

Eliminating the declarations of the testator as evidence of the truth of the facts therein declared, and, on the other hand, giving them their full weight for the purpose of'showing his mental attitude at the time of the execution of the alleged will, was there sufficient evidence left to go to the jury on the issue of undue influence?

It may be conceded for argument’s sake that from the declarations of the testator the jury might reasonably have inferred that the testator was very susceptible to the influence of his wife and son Joe. Then add to this the evidence remaining that the testator consulted with Joe before making the alleged will, that his wife seemed to have great influence over him, that his wife hated his daughter, the child of his first marriage, and drove her away from home, and would not let her return even on a visit, and that his wife was violent in temper and unreasonable; and still there was no substantial evidence tending to show that the alleged will was procured by the undue influence of the testator’s wife and son Joe.

In considering this question, it must be borne in mind that every kind of influence which one person may have on another is not, in the sense of the law, undue influence. In order to set aside an alleged will on the ground that its execution was procured by the undue influence of another, the evidence must show that such will was not the will of the testator, but the will of such other person; that, in other words, the will of the testator was so dominated and controlled that it became the will of another person. It is true that undue influence may be proved by circumstantial evidence alone; but it is also true that the circumstances in evidence must be so strong as that they tend to establish the issue on behalf of the party offering such evidence. Where they are so weak that the issue is left in a state of mere conjecture and doubt, then there is not a sufficiency of such evidence to be submitted to the jury. In this case there is an entire absence of any evidence whatever (except his own unsworn declarations which as we have held were not proof of the fact) that the testator’s wife and his son Joe' so influenced him in the making of his alleged will, as that it was not Ms will, but theirs. The fact that the wife of the testator hated her stepdaughter, Mrs. Everson, is a circumstance of little, if any, force, especially in view of the evidence that under the alleged will she was provided for ,to exactly the same extent as was George Sanders, one of the sons of thé last marriage. And the same is true of the other circumstances in the case, taken either separately or all together. The fact (if it was a fact) that the testator’s wife had great influence over him, and that he consulted with her and his son Joe before making the alleged will, and that they had great influence on his mind in shaping the same, would not even tend to show undue influence —such influence as to show that their will became his will.

The statement by the testator at the time of the making of the alleged will in the presence of several witnesses, but in the absence of his wife and son, Joe, that he gave his property to,Joe because he knew he would be good to his mother, was admissible to prove that fact, because a part of the res gestae. Taking that in connection with the other evidence for the appellants as well as that for the appellees, and giving the latter its full significance, as proving every fact it tends to prove, and there was no question for the jury; the court should have directed them to return a verdict, for the appellants as'requested on their behalf.

Reversed, and judgment here for appellants.

Reversed.