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LAVERNE WEBSTER, ET AL. v. LEE KENNEBREW AND CAMPBELL KENNEBREW

DECEMBER 14, 1983

LAVERNE WEBSTER, ET AL.
v.
LEE KENNEBREW AND CAMPBELL KENNEBREW



BEFORE WALKER, P.J., ROY NOBLE LEE AND HAWKINS, JJ.

HAWKINS, JUSTICE, FOR THE COURT:

FACTS

Sarah Kennebrew died March 23, 1979, at the age of 91. On November 24, 1976, she was 88.

 On March 5, 1980, Lillie Cooper filed for probate in the Chancery Court of the First Judicial District of Hinds County an instrument purporting to be Sarah's last will and testament, bearing date of November 24, 1976. The witnesses to the instrument were David M. McMullan, a Jackson attorney, and his secretary Dorothy T. Givens, who executed and filed affidavits that Sarah Kennebrew signed the instrument in their presence, and at her special instance and request they signed as subscribing witnesses. The affidavits complied with the statute, and the Chancellor on March 5, 1980, entered a decree admitting the will to probate. The will having been admitted to probate in common form, letters testamentary issued and Lillie Cooper was appointed executrix.

 On April 16, 1981, Lee Kennebrew and Campbell Kennebrew, grandchildren of Sarah's filed a petition contesting the validity of the will.

 The defendants were the remaining beneficiaries under the will, who appear to be nieces and nephew, and grand-nieces and grand-nephews. *fn1 The two principal beneficiaries appear to be Lillie Cooper and Laverne Webster.

 Sarah was married to Daniel Kennebrew, who died intestate in 1952, leaving surviving him Sarah, and three sons: Emanuel, Willie and Mulberry Hayes Kennebrew. Daniel owned real property in Hinds County. After his death Sarah, on December 14, 1953, executed a warranty deed to Mulberry for an undivided one-fourth (1/4) interest in certain realty, stating therein she had purchased Emanuel's and Willie's interest, and intended that she and Mulberry would each own an undivided one-half (1/2) interest therein.

 The record does not reveal what happened to Emanuel and Willie, but apparently they died without issue prior to

 Sarah's death.

 Mulberry was born in 1906. In 1924 he married Ruth Bell Bennett in Hinds County. Ruth separated from Mulberry and moved to Memphis in 1933. Mulberry obtained a marriage license and married Frances Campbell in 1935, and to this union Campbell was born in September, 1935, and Lee was born in January, 1937. Both children were born in Hinds County. The Chancery Clerk's office of Hinds County and Shelby County, Tennessee, issued certificates that they could locate no record of a divorce from Mulberry and his first wife, Ruth. Mulberry and Sarah were living together when he died intestate in 1971. Lee and Campbell were then living in Michigan, where they also lived when Sarah died.

 After the death of Mulberry, Sarah either moved into the home of Lillie Cooper or Lillie moved into her home. Following Mulberry's death, Sarah lived at 620 Erie Street in Jackson until her death.

 Laverne Webster is a school librarian in the school system in Jackson. After Mulberry's death she and Lillie assisted Sarah in running errands for her, doing grocery shopping for her, and attending to personal matters. Also, Sarah and Lillie established a joint savings account of over $12,000 in June, 1976, and Laverne and Sarah had joint accounts. Laverne wrote checks on their bank account. On August 22, 1973, Laverne and Sarah went to the Bank of Flora in Flora, at which time Mulberry's name was removed from Sarah and Mulberry's joint account, and another card issued showing showing the account to be in the name of Sarah and Laverne. Sarah signed by a mark "X" . Beside this "X" is typed "Her mark - Can't Write." At the bottom of the card beneath Laverne's signature is another "X" for Sarah's signature, and beside it in type, "Can't Write." On April 19, 1973, the name M. H. Kennebrew was struck off a joint savings account with the Bank of Flora and a new card issued in the name of Laverne and Sarah. Sarah did not sign this card, either, but Laverne did.

 Beginning in 1970, Sarah was seen and treated by Dr. Robert Smith, a family medicine specialist in Jackson. Her main problem was cerebral arteriosclerosis. The medical records show that beginning in 1973 her weight ranged from 80 to 93 pounds. Dr. Smith's medical records dated November 9, 1976, state:

 The patient was brought in by a relative requesting a letter that this patient is in good sound mental health at the time of this examination. This patient was questioned and she did appear to be fairly

 oriented for time, place and person, general fund in information appeared to be good, chest was clear to A & P, weight was stable, abdomen was soft non-tender, extremities within normal limits. Her mental status - she was very well oriented for time, place and person, impression in sight and judgment was questionable. Numerical count was poor. Broad data about usual informational facts was missing. Her mental status seems to be questionable at this time.

 Sarah was hospitalized in February, 1971, for cardiovascular disease, marked arthritic changes, chronic hiatal hernia and chronic obstructed lung. She was again hospitalized in October, 1971, following a cerebral ischemia attack secondary to acute renal damage. She broke her hip in January, 1977, and thereafter was confined to a wheelchair.

 It was the doctor's recollection that Sarah, for the most part at least, was brought to his office.

 Lay witnesses established that beginning at least in 1971 Sarah's eyesight was very poor. Some said she could not read, others that her ability to read was limited. Two testified she could not recognize them by sight.

 The known handwriting of Sarah's indicates a person of very little formal education, if any.

 Paragraph III of the petition to contest the will makes the following charge: "That the signature reflected on the Last Will and Testament admitted to probate herein is not the signature of Sarah Kennebrew, deceased."

 Paragraph IV of the petition alleges the signature was not properly executed, witnessed, and attested as required by law. Paragraph V charges lack of mental capacity to execute the instrument, and Paragraph VI charges the Will was a result of the undue influence of Lillie Cooper and persons associated with her.

 The petition requested an issue of devisavit vel non be tried by a jury on the questions of whether Sarah executed the Will, whether it was executed, witnessed and attested according to law, whether she had the testamentary capacity to make a will, and whether it was executed as a result of undue influence from Lillie Cooper and others.

 Lillie Cooper, Laverne Webster and other defendants filed a sworn answer on September 17, 1981, in which each made an affidavit denying Paragraph III, as well as Paragraphs IV, V

 and VI. They also affirmatively charged,

 [T]hat the said will was executed by the Decedent, Sarah Kennebrew, and was witnessed by two fully competent and qualified persons: David M. McMullan, attorney at law, and his secretary, Mrs. Dorothy Givens.

 They also alleged that while she suffered from physical infirmity, her mind was sound.

 On October 2, 1981, Frank Kelley, on behalf of the heirs of the Estate of Edd Kelley, filed a sworn answer, specifically denying Paragraph III, as well as Paragraphs IV, V and VI. In his Seventh Defense, Kelley specifically alleged:

 The answering respondent would affirmatively show by way of defense that the signature affixed to the Last Will and Testament of Sarah Kennebrew, a true and correct copy of which is attached hereto as Exhibit 2 and incorporated herein by reference, is the bona fide signature of Sarah Kennebrew . . .

 On September 17, 1981, shortly before trial, the defendants Lillie Cooper, Laverne Webster, and other defendants (excluding Kelley), filed an amended sworn answer. This answer likewise specifically denied the allegations of Paragraph III, as well as IV, V and VI, insofar as it charged the will was a result of undue influence.

 These defendants' amended answer likewise affirmatively charged that the will was executed by Sarah Kennebrew, and duly witnessed.

 On October 1, 1981, Kelley filed an amended answer, again denying Paragraph III, as well as Paragraphs IV, V and VI, insofar as it charged the will was a result of undue influence. It also affirmatively alleged the will was executed by Sarah Kennebrew, and witnessed. The Thirteenth Defense affirmatively alleged that the signature to the will, "is the bona fide signature of Sarah Kennebrew."

 On June 23, 1981, the petitioner contestants filed the following request for admission to each of the defendant proponents to the will:

 1. Please admit that the signature found on Exhibit "A" attached hereto is not the signature of Sarah Kennebrew, deceased.

 NOTE: If your answer to the above request for admission is admitted, you are stating that the signature on Exhibit "A" is not the signature of Sarah Kennebrew.

 The defendants Lillie Cooper, Laverne Webster, Frank Kelley, as well as the other defendants, each filed the following response to the request for admissions:

 RESPONSE. It is denied that the signature found on Exhibit "A" is not the signature of Sarah Kennebrew, deceased.

 REQUEST NO. 2. PLEASE EXPLAIN IN DETAIL HOW YOU KNOW THAT THE ALLEGED SIGNATURE OF SARAH KENNEBREW, DECEASED, ATTACHED HERETO AS EXHIBIT "A" IS THE ACTUAL SIGNATURE OF SARAH KENNEBREW.

 The sworn answer of Laverne Webster to this interrogatory is, "I saw her sign the will."

 The sworn answer of Lillie Cooper to this interrogatory is, "It was her signature because it is her handwriting."

 Trial began October 5, 1981. A cousin of the contestants, Tommy Campbell, testified Sarah's eyesight in 1976 was too poor to read, and she could not write in a straight line. Ruth Bell Kennebrew, Mulberry's first wife, testified Sarah's eyesight was very poor in 1971, that Sarah could not recognize her in 1972. She also testified the signature to the will was not Sarah's. She was vigorously cross-examined by counsel for the proponents on her ability to tell Sarah's handwriting.

 Thomas L. Packer, a Jackson police officer, and an expert in handwriting, testified as an expert witness for the petitioners. From an examination of the signature to the will and known handwriting, including signatures of Sarah's, he testified the signature to the will was not Sarah's, that it was a forgery. He was first vigorously challenged by a voir dire examination on whether he should be permitted to testify as an expert, and after his testimony before the jury, defense counsel vigorously and at length cross-examined him about his opinion that the signature to the will was not in the same handwriting of known signatures of Sarah's

 A. Frank Hicks, of the Mississippi Crime Laboratory, also an expert in handwriting, testified as a witness for the petitioners. He likewise gave an opinion that the writer of the signatures known to be Sarah's was not the same as the one who signed the will. He likewise was thoroughly cross-examined

 by defense counsel about his opinion. Both experts testified the quality of the handwriting of the signature to the will was very good, and showed no hesitation of motion.

 Each of these expert witnesses also gave detailed testimony of their examination of the handwriting specimens, the reasons for their conclusions, and each was vigorously challenged on cross-examination.

 Throughout the presentation of the contestants' case in chief, defense counsel objected first to any lay or expert witness expressing an opinion on the handwriting, and thereafter made every effort on cross-examination to show the witness was mistaken in his or her testimony ...


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