BEFORE HAWKINS, P.J., ANDERSON AND BLASS, JJ.
HAWKINS, PRESIDING JUSTICE FOR THE COURT:
This is an appeal by one of the proponents of the Will of Mrs. Lois M. Vick following a jury verdict and decree of the chancery court of the Second Judicial District of Panola County setting aside the Will because of undue influence. The record reveals there was a misrepresentation of an extrinsic fact which undoubtedly caused Mrs. Vick to execute the Will she did. We find there was ample evidence to support the jury verdict, and although there was an erroneous instruction given, it was harmless error. We accordingly affirm.
Samuel B. Vick and Lois Monteith Vick married in 1919. She was a graduate of the University of Mississippi. The two lived in the second judicial district of Panola County in the Pope community. Mr. Vick accumulated considerable real and personal property over the years, at one time owning 1,500 acres near the Enid Reservoir, but approximately one-half of this acreage had been conveyed at the time of his death.
Mr. and Mrs. Vick had seven children: (1) Sam Vick, Jr., (2) Hugh Monteith (Montie) Vick, (3) Marvin E. Vick, (4) Lois Ann Vick Wallace, (5) C. Conner Vick, (6) Jane Ellen Vick Nicholas, and (7) Willola Vick Sullivant.
When the children became adult, with the exception of Conner, all moved away. Sam, Jr., lived in Jackson, Mississippi, Montie in Monroe, Louisiana, Marvin and Lois Ann in Memphis, Jane Ellen in Wichita Falls, Texas, and Willola in Germantown, Tennessee.
In the 1970s Mr. Vick owned approximately 750 acres of land, all of it in his name only. Conner, living nearby, looked after his parents' needs. Mrs. Vick suffered a stroke in the `60s or early `70s and was confined to a wheelchair. She also developed active diabetes requiring regular insulin injections. Until 1981 Conner administered Mrs. Vick's insulin shots. Mr. Vick's health likewise deteriorated, and by 1980 he was almost completely blind. Conner gradually took over his father's entire farming operations, such as were carried on.
Whether justified or not, the children became suspicious that Conner was attempting to get all or a part of Mr. Vick's land for himself. Mrs. Vick had written one of the girls complaining that Conner's family did nothing to help them, and again wrote that Conner was demanding to buy part of the" Monteith place. "Also, Jane's daughter Lois Ellen Nicholas moved into the Vick home in 1972 and lived with her grandparents until 1983. She testified that she had heard Conner upon many occasions screaming at Mrs. Vick to deed him the property, and Mrs. Vick begging him to give her the insulin shot and leave her alone. This background distrust precipitated a letter to Conner dated August 7, 1978, signed by all the other children, informing him that their parents were not able to negotiate with him about their property, and hoping he would not put pressure on them. They also stated their feeling that any business transaction should be made with" the full knowledge of all their children, "and expressing doubt that any" major transactions that they would conduct at this point and under the circumstances would have any legal validity. "Finally, they told him they did not want to
work against him, but believed that all the children should be involved in any negotiations he proposed, and" thought you would like to know how we feel about this. "
Following this letter the relations between the children deteriorated to open hostility and animosity, especially on the part of the two girls Jane and Willola, towards the boys. It was their feeling that Mr. Vick had favored the boys and short-changed the girls.
On June 9, 1980, Mrs. Vick wrote one of the children that Willola had come by and" then balled me out - I mean cursed me for everything, I never even heard of. "Further in this chatty, two-page letter, Mrs. Vick, in apparent reference to Willola, wrote," She needs help badly - and talk to Mr. Sam about land. I keep out of that. She really wants to move in house and I'm afraid my nerves can't take it. "
On September 11, 1980, Mrs. Vick wrote Lois telling her that Conner had come by that morning and told her that" the Vick Bros. (4) have turned the whole mess over to you. "She also wrote that Willola called her many times a day and yelled at her. She would hang up, and Willola would call again. Further in this letter she wrote as to Willola:
She's pressing me to see Cliff and sign some papers. I can't find out what it is I must sign. She wants to move in down here. How could I put up with her yelling, etc. - but I may - I think it unwise for her to leave her husband in Memphis.
She wants to get down here and fight with Conner - that I don't want. She would have to depend on him for his pick-up - machinery of all kinds to do what she plans to do - and that is quite a bit - she is a troublemaker. I want peace from here on out.
In her letters Mrs. Vick wrote that she would tell Willola that she was sweet and she loved her, and that pacified her.
On September 12, 1980, in a letter to all the other children, Lois wrote acknowledging the receipt of letters from Montie and Sam, Jr., and their desire to make arrangements to help their parents. She also wrote them of Mrs. Vick's telling her that Willola wanted to move in with Mr. and Mrs. Vick, and that Willola was coming with Cliff Finch to get her to sign some papers, but Mrs. Vick did not know what they wanted her to sign. Lois wrote that Mrs. Vick wanted things to settle down before a
meeting in which she, Mrs. Vick, would be present, and that while her parents were doing all right, they did need relief. She did not think Mrs. Vick felt up to a meeting with her children herself, but perhaps the children could do something by getting together. Lois suggested a meeting among the children in Batesville on September 27 at a room in some restaurant. She suggested they discuss a trust for their parents, how to finance the cost of relief without dipping into their parents' savings, and finding some good help.
On September 17 Willola responded with a seven-page typed letter to all the children expressing outrage at the accusation that she wanted to move in with her parents, and that she was taking Cliff Finch to get Mrs. Vick to sign papers. She wrote that Mr. Finch would see Mrs. Vick alone, and only at Mrs. Vick's request. The letter accused Lois of trying to influence Mrs. Vick, and stated that there had been a will written by Mr. Vick which was missing. She complained of having been excluded from a Jackson meeting among the children. When, and who was present at such a meeting is not disclosed, although the boys apparently met somewhere. Willola wrote of the things she had done for her parents, making repairs in the house, and getting them to medical specialists in Memphis. She also wrote that Mrs. Vick should be permitted to discuss with an attorney alone her wishes. She complained that Mr. Vick's papers had been taken from his vault.
A meeting was held among the children on October 11, at a Sardis motel, at which time Conner, when told that Willola believed Mr. Vick had written a will leaving his property to his sons, responded that Mr. Vick had told him his will was a" share and share alike will. "Apparently nothing fruitful was agreed upon among the children at this meeting.
On October 15 Mrs. Vick wrote Mr. Finch requesting that he represent her and for him to get all papers relating to Mr. Vick's property" such as deeds and wills. "
On November 3 Mr. Finch addressed a common letter to all the children except Conner, informing them that Mrs. Vick had employed his firm. He told them Mrs. Vick loved them all, and had been hesitant, but she now wanted to bring everything out in the open so that she would know what was going on in reference to the property Mr. and Mrs. Vick had accumulated.
The letter continued that he wanted records pertaining to wills, testamentary writings, as well as any other information concerning this couple's property. He expressed a desire to bring everything out in the open so that everybody would know what was going on and that no one was trying to do anything except bring them all together, so that everyone would be treated
equally. He warned that unless the children cooperated, he could take the matter to court, but which he hoped to avoid. He asked to hear from them within ten days, and to send him copies of wills, deeds, and such information.
Such proposed meeting by Mr. Finch did not transpire. Instead, on February 9, 1981, Conner, joined by Montie and Sam, Jr., filed a petition in the chancery court for Conner to be appointed conservator of Mr. Vick. Neither the girls nor Mrs. Vick were notified of this petition. Mr. Vick apparently signed a waiver or joinder. When Mrs. Vick and Jane and Willola learned of this, the girls, represented by Dwight Ball of Oxford, and Mrs. Vick, represented by Mr. Finch, filed a petition to remove Conner as conservator, and revoke his letters of conservatorship. An amended petition to remove, filed June 18, alleged that Mr. Vick had a severe hearing loss, was totally blind, totally disabled, and unable to comprehend or understand what he had signed.
After the removal petition was filed, Conner typed a letter," Dear Mother and Dad, "but directed mainly to Mrs. Vick. He wrote that he was relinquishing the conservatorship and was terminating the close relationship between himself and his parents which had existed over the years. He said he would keep the farm the 1981 year and pay rent. He told Mrs. Vick he knew both she and Mr. Vick desperately needed him, and recounted close calls and injuries which they, because of their physical disabilities and age, had encountered. He wrote he could no longer give Mrs. Vick her insulin shots.
A local nurse showed Mrs. Vick how to give insulin shots to herself, and thereafter Mrs. Vick gave herself the shots.
The conservatorship was set aside by the chancery court, apparently because of failure to give Mr. Vick statutory notice.
While the controversy over Mr. Vick's conservatorship was stirring, Mrs. Vick became active herself. On May 1, 1981, Mr. Vick executed a warranty deed, prepared by Mr. Finch, conveying an undivided one-half interest in his realty unto Mrs. Vick. On June 24 Mrs. Vick wrote a two-page letter to Mr. Finch to prepare the necessary papers as soon as possible, and telling him that if she became incapacitated she wanted her three daughters to make decisions for her. She wrote that in regard to her medical problems, under no circumstances" are my legs to be amputated -no tubes in my nose and no surgery of any kind. "She wrote where she wanted to be buried, the name of the officiating preacher, and for an appropriate fence to be erected around her burial site. She did not want an expensive funeral, no flowers, only a family wreath.
As to her will, she concluded with what in effect was a holographic will leaving all her worldly possession to Mrs. Lois Ann Wallace, Mrs. Jane Nicholas and Mrs. Willola Sullivant. If necessary for her burial expenses, she directed that her wedding ring and engagement ring be sold at fair market value to cover the cost. If not necessary, then" I hereby will my rings to my granddaughter, Lois Ellen Nicholas. "
For some unaccountable reason, Mrs. Vick's will as prepared by Mr. Finch was not executed until April 5, 1982. It was no doubt prepared by Mr. Finch in 1981, because the year typed on the instrument is" 1981. "On April 5, 1982, Mr. Finch, accompanied by a secretary, also a notary public from his office, Mrs. Martha M. Still, went to Mr. and Mrs. Vick's home, where Mr. Vick executed a correction warranty deed to an undivided one-half interest in his realty unto Mrs. Vick, and Mrs. Vick executed her will, which had been drafted quite accurately according to the instructions of her June 24, 1981, letter to Mr. Finch. The will bequeathed her rings to Lois Ellen, her granddaughter, and devised all the remainder of her estate unto the three girls Willola Vick Sullivant, Jane Vick Nicholas, and Lois Ann Vick Wallace. The will was witnessed by Mr. Finch and Mrs. Still. Previous to this occasion, Mrs. Still had talked two or three times over the telephone to Mrs. Vick.
Jane learned that Sam, Jr., had gone to Mrs. Vick upset because she had wanted Conner removed as conservator. On August 3, 1981, she wrote the three boys an angry two-page, single-spaced letter about how they had acted regarding the girls and Mrs. Vick, and warning ...