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ESTATE OF JOSEPH A. LAWLER, Deceased, et al. v. MARY RUTH HENRY WESTON

MAY 23, 1984

ESTATE OF JOSEPH A. LAWLER, Deceased, et al.
v.
MARY RUTH HENRY WESTON, et al.



BEFORE PATTERSON, PRATHER AND SULLIVAN:

SULLIVAN, JUSTICE, FOR THE COURT:

This case comes on appeal from the Chancery Court of Washington County, Mississippi, from a final judgment on a jury verdict in favor of the contestants and against the proponents of the Will of Joseph A. Lawler, Deceased. When this case was tried the first time the chancellor entered a directed verdict in favor of the proponents. On November 18, 1981, this Court reversed in the case of Weston v. Estate of Joseph A. Lawler, 406 So.2d 31 (Miss. 1981). The case was tried again before a jury and after five days of testimony that jury returned a general verdict in favor of the contestants, setting aside the November 20, 1979, will of Joseph Lawler. Appellants assign eight errors and appellees cross-appeal and assign as cross-assignments of error that the lower court erred in refusing to direct a verdict for the appellees and that the lower court erred in refusing to instruct the jury to return a verdict for the contestants of the will.

Appellees sought to set a will aside with both barrels of their shotgun - undue influence and lack of

 testamentary capacity. Where a will is subject to this dual attack and the jury returns a general verdict, the principles announced by this Court in Blalock v. Magee, 205 Miss. 209, 38 So.2d 708 (1949), are dispositive.

 In Blalock, the will was also attacked because of undue influence and lack of testamentary capacity. Citing Sheehan v. Kearney, 82 Miss. 688, 21 So. 41 (1896), one of the leading cases in this country on the issue, the Blalock Court said that in a will contest on the grounds of undue influence and lack of testamentary capacity the" issue is single, - will or no will. "Id. at 246, 38 So.2d at 712. The Court then concluded that, where a declaration contains two counts which both lead to the same liability, a general verdict is sufficient if sustained under either count. 205 Miss. at 247, 38 So.2d 712.

 In these circumstances, it is incumbent upon the proponents of the will to prove both the lack of undue influence as well as the requisite testamentary capacity. Should they fail in either one, then they have lost their case, notwithstanding error in the other.

 Most of appellants' assignments of error here concern the charge of undue influence. After meeting their initial burden of proof, the proponents admitted the existence of a confidential relationship. Under the case law of our state, the existence of a confidential or fiduciary relationship, coupled with a showing of" suspicious circumstances "such as the fact that a beneficiary or person who benefits by the will took part in the execution or preparation of the will, gives rise to a presumption of undue influence. Croft v. Alder, 237 Miss. 713, 723, 115 So.2d 683, 686 (1959). In the area of wills, this entire question has been addressed in the scholarly opinion of Justice Prather in Harris v. Sellers, 446 So.2d 1012 (Miss. 1984), and as it affects deeds, Justice Prather has elaborated on the doctrine in Murray v. Laird, 446 So. 2d 575 (Miss. 1984). We first discuss the assignments of error directed to the issue of lack of testamentary capacity.

 In assignment four, appellants urge that the chancellor erred in refusing their instruction P-13 and alternate instruction P-13A, and in assignment 5, they urge error by the chancellor in refusing appellants' instruction P-14. Instruction 13 is a" boiler plate "instruction purporting to set forth the law on who might make a will. It is well settled that jury instructions

 which are mere abstract principles of law and which are not applied to the specific facts of the case should not be given. Harkins v. Paschall, 348 So.2d 1019, 1023 (Miss. 1977), Freeze v. Taylor, 257 So. 2d 509, 511 (Miss. 1972). Not only is instruction 13 an abstract principle of law but it is also erroneous in that it fails to take into account Mississippi Code Annotated 91-5-1 (Supp. 1983), which provides that in addition to being over 18 years of age the testator must also be of sound and disposing mind. Therefore, the instruction was properly refused.

 Instruction P-13A is an effort to correct the oversight cited above in instruction P-13. It is a correct recitation of the law but is not, however, applied to the specific facts of the case and as such is also merely an abstract principle of law. Harkins v. Paschall, supra; Freeze v. Taylor, supra. This instruction was properly refused.

 It is urged that the chancellor's refusal to give requested instruction P-14 which sought to inform the jury that they did not have the authority to decide how and to whom the testator should have left his property was error because it left the jury uninstructed that it was their duty to decide the case on the evidence, applying the law as given by the trial court, and not to rewrite the will of Joseph Lawler. To adopt this position would be to ignore jury instruction C-1 which amply instructed the jury that it was their duty to determine the facts and determine them from the evidence produced in open court, and further to ignore the granting of instruction C-6, which required the jury to uphold the will should they find that deceased was of disposing mind and was not unduly influenced. Instructions are meant to be read together. If that is done in this case then the conclusion is inescapable that the jury was fully and adequately instructed on this point and the court was not in error in refusing to grant instruction P-14.

 In their eighth assignment, appellants contend that the granting of instruction R-24 which instructed the jury as to the effect of the Dead Man's Statute was erroneously given. First they contend that the instruction should not have been given because the appellants could have waived the disability under the statute and because appellees never called any of the contestants to testify. Second, appellants contend that since one of the proponents testified by interrogatories this instruction left the inference that she was not truly a

 beneficiary under the will. Appellees do not argue that the instruction is not a mere abstract principle of law, though under Harkins v. Paschall, supra, and Freeze v. Taylor, supra, it clearly is. However, assuming but not deciding that both points raised by appellants are true, and accepting that the instruction is not a mere abstract principle of law, the question remains: Does the error require reversal? We hold that it does not. If error it be it is harmless error and under Supreme Court Rule 11 reversal is not required. This is true because the instruction" cuts both ways "and applies equally to both sides. Moreover, it has little or no effect on the two issues at trial, the question of undue influence and lack of testamentary capacity, nor does it substantially prejudice the rights of the appellants. As we cannot say that this instruction misled the jury as to the real issues on which they had to pass, reversal is not required. Danner v. Mid-State Paving Co., 252 Miss. 776, 173 So.2d 608 (1965).

 The last assignment of error which deals with testamentary capacity is that part of appellant's seventh assignment of error dealing with jury instruction R-16. It is argued that instruction R-16 was erroneously given because it is contrary to the weight of the evidence. We point out that both appellants and appellees in their brief on this point misquote instruction R-16 as R-15. However, instruction R-15 deals with undue influence and not testamentary capacity and was in fact refused. We therefore assume that appellants meant to discuss R-16 which instructs the jury on the question of testamentary capacity. That being so, the record in this case amply supports the giving of instruction R-16, and also supports a finding by the jury that the testator lacked testamentary capacity on November 20, 1979. On this record, the evidence on this issue was hopelessly conflicting and we have held many times that ...


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