BEFORE ROY NOBLE LEE, C.J., SULLIVAN & GRIFFIN, JJ.
SULLIVAN, JUSTICE, FOR THE COURT:
The Chancery Court of Jackson County, the Honorable Glenn Barlow Presiding, entered an order that the proffered
" Last Will and Testament "of Carvel Adams dated November 9, 1984, was null and of no effect and that Adams' prior holographic will dated June 22, 1983, should be and was admitted to probate to be administered according to the terms therein. Simm, named executrix and sole beneficiary under the terms of the November 9, 1984 will, appeals that ruling to this Court, assigning as error the following:
I. That the court erred in refusing to allow the executrix and proponent to the will, Lucille Simm, to testify fully during the trial on the merits; and
II. That the court erred in its finding and ruling that the proponent failed to overcome the presumption of undue influence by clear and convincing evidence.
This case involves a dispute over the validity of the November 9, 1984, will of Carvel Adams, deceased, April 25, 1985. On July 18, 1985, the" Last Will and Testament "of Adams dated November 9, 1984, was offered into probate by Lucille Simm, named executrix and sole beneficiary therein. Drew Adams and Denise Adams, grandchildren of the testator, filed caveats to the petition and their petition for contest of the will.
In support of their petition, Denise and Drew alleged that at the time the November 9, 1984 will was executed, the testator did not possess the mental capacity necessary to effect such an instrument, and further, that the testator executed the will by reason of the undue influence exercised upon him by Lucille Simm.
William Terry Adams, the testator's son, and only heir at law, filed a petition for probate of Adams' prior holographic will dated June 22, 1983, in which he was named executor. Denise and Drew Adams are beneficiaries under the holographic will; Terry Adams is not a beneficiary under either will. Simm has admitted the validity of the June 22, 1983, will should the November 9, 1984, will be found invalid.
Lucille Simm was the testator's housekeeper for approximately five years. Simm was originally hired to care for the testator's wife who at the time was ill with cancer. After the death of Mrs. Adams in 1983, Simm continued working for the testator. It is undisputed that the testator relied on Simm to take care of his physical needs and to assist him in paying his bills and meeting financial obligations. Prior to trial the parties stipulated that a confidential and fiduciary relationship existed between the testator and Simm.
The issues were heard, by agreement, by the chancellor without a jury. After hearing the evidence and testimony presented by the parties, the chancellor found the following:
1. That the evidence clearly established that" at all times preceding and during the events of the will Mr. Carvel Adams was of sound disposing mind and memory, "and
2. Simm failed to overcome the presumption of undue influence by clear and convincing evidence offering Murray v. Laird, 446 So. 2d 575 (Miss. 1984); Hendricks v. James, 421 So. 2d 1031 (Miss. 1982); and Croft v. Alder, 237 Miss. 713, 115 So. 2d 683 (1959), in support thereof.
THAT THE TRIAL COURT ERRED IN REFUSING TO ALLOW THE EXECUTRIX AND PROPONENT OF THE WILL, LUCILLE SIMM, TO TESTIFY FULLY DURING TRIAL.
The trial court limited the testimony of Lucille Simm based upon the Mississippi" Deadman Statute "Mississippi Code Annotated, 13-1-7 (1972), * ...