BEFORE ROY NOBLE LEE, C.J., PRATHER AND BLASS, JJ.
PRATHER, JUSTICE, FOR THE COURT:
The issue presented by this appeal is the sufficiency of the evidence to establish mental incapacity in a will contest case. Robert Van Dickey, III, (Bob) brought this action in the Chancery Court of Lawrence County, Mississippi, against his sister, Helen Dickey Blanks, contesting the validity of the will of their father, R. V. Dickey. The jury found in favor of Robert Van Dickey, III, and against the will.
From this order Helen Dickey Blanks, the sole devisee under the will, appealed, assigning as error the following:
1. The court erred in failing to grant a peremptory instruction for the proponent on the issue of mental capacity.
2. The court erred in failing to grant the motion for a new trial in that the verdict of the jury was against the overwhelming weight of the evidence.
3. The verdict of the jury in finding against the will was not supported by, and was contrary to, any credible evidence under the law applicable thereto.
4. The verdict of the jury was a sympathy verdict and was a result of misapplication of the law contained in the instructions of the court and the trial court further erred in granting instruction number C-4 on behalf of the contestant after timely objection by the proponent.
R. V. Dickey executed his last will and testament on December 20, 1971, devising his entire estate to his daughter, Helen Dickey Blanks and appointing her executrix. The witnesses to the will were Joseph Dale, the attorney who prepared the will, and Mary Nell H. Patterson, the secretary of Mr. Dale. Mr. R. V. Dickey died January 19, 1981, leaving his two children as heirs-at-law, R. V. Dickey, III, and Helen Dickey Blanks.
On July 13, 1981, Helen Dickey Blanks, who resided in South Carolina, probated the will of her father, in common form and without notice to her brother. In a separate Chancery Court action filed June 16, 1983, this suit was brought by Bob Dickey against his sister Helen asserting the issue of devisavit vel non under Miss. Code Ann. 91-7-23 (1972). As grounds for setting aside the will, the complaint asserted: (1) testamentary incapacity; (2) fiduciary and confidential relationship of his sister to their father; and (3) his father's excessive use of intoxicating liquors to the
extent that it destroyed testamentary capacity.
On April 11, 1985, the chancellor appointed Special Master Judge R. I. Prichard, III, to hear the issue of devisavit vel non before a jury. At the hearing, the contestant presented evidence that the testator: drank; used profanity; cursed his son on many occasions; struck his son without apparent provocation; stated on numerous occasions before and after making his will that he planned to disinherit his son; once attempted to take his son to a house of prostitution; was strong-willed; and was a hard worker who worked from sun-up to sun-down six days a week in the management of a 504 acre farm. On the other hand, the proponent presented evidence from the subscribing witnesses that: they witnessed the will; the testator stated the will expressed his intention and desire; and the testator was not intoxicated at the time he made the will.
After hearing the evidence and the instructions of the court, and deliberating fifteen minutes, the jury rendered a verdict for the contestant. On October 9, 1985, the Special Master entered his order as a report and confirmed that the true and correct verdict of the jury was for the contestant and against the will. The chancellor entered an order on October 20, 1985, approving and accepting the report of the Special Master and judgment ...