King v. Rowan , 82 Miss. 1 ( 1903 )

Whitfield, C. J.,

delivered the opinion of the court.

The court below properly refused instruction No. 2, asked by the proponents. It is not the law that the testimony of subscribing witnesses is entitled to any greater weight than that of other witnesses with equal opportunities for observation. The charge proceeds upon the idea that the mere fact of being subscribing witnesses entitled their testimony 'to' such greater weight. It does not proceed upon the theory that the value of the testimony of such witnesses is due to the fact simply that they do actually improve the opportunity given them for the more accurate and careful observation of the testator’s capacity to make a will, and all the circumstances surrounding the execution of the will. The value of the testimony of any witness depends upon his opportunity for • observing the fact or facts about which he testifies, and, since subscribing witnesses are called on to witness the execution of the will and all attendant, circumstances illustrative of the capacity of the testator to make a will, and to observe whether or not, though capable, he has been unduly influenced, their testimony on these points, if they did fully improve the opportunity given them for observation, is, of course, more valuable than that of witnesses who did not'enjoy like opportunity for observation. But this value is based upon the fact that the subscribing witnesses have both enjoyed and improved such opportunity for observation denied to other witnesses, and not upon the simple fact that they are subscribing witnesses. Subscribing witnesses, in the varying cases, may be persons of greatly differing intelligence, and of very vastly different capacity for observing, and making proper deductions from such obervation; andi, besides, the opportunities which may be afforded at the time of execution of a will for such observation may differ very widely according to what may occur at the time. The chancellor, therefore, properly refused an instruction which declared- the rule that the testimony of subscribing witnesses was to have greater weight than the testimony of other witnesses simply because the law required subscribing witnesses “to perform a certain duty.” ' It is not a question of what the law required, but of whether the facts showed that the subscribing witness' was afforded the opportunity of observation, and improved that opportunity. The best statement of the law on this subject that we have been able to find is contained in Crandall's Appeal, 63 Conn., at page 368; 28 Atl., 531; 38 Am. St. Rep., 375, where the court said: “The second request is: ‘The jury should give special prominence to the testimony of the three attesting witnesses, both upon the question of capacity and of undue influence, because they were present at the time and place of the execution of the will, and had the means and' the opportunity of judging of the testator’s capacity, and are regarded in the law as placed around the testator in order that no fraud may be practiced upon him in the execution of the will, and to judge of his capacity.’ The effect of a compliance with this request would have been to place the attesting witnesses upon a higher plane, in the estimation of the jury, on the question of capacity and of undue influence, than other witnesses, although the latter may have had equal, or even superior, means of knowledge. That was, in effect, the claim of the appellees. And they now claim that the refusal of the court to comply with his request ■was an error, which entitled them to a new trial. We are aware of no principle of law or of any adjudged case which will justify this claim as broadly as it is here made. In the eye of the law, all witnesses of equal intelligence and with equal means of knowledge are equally credible. Had there been three other witnesses present, and their attention had been called to the condition of the testator precisely as was that of the attesting witnesses, we know not why their testimony would not have been entitled to the same consideration on the question of capacity and of undue influence. As the case stood, the attesting witnesses were present when the will was executed, and had an opportunity to observe the condition of the testator at the precise time. The other witnesses were not present, and had no such opportunity. So far as the matter was concerned, the appellees had the full benefit of it; for the jury were fully and clearly told that the question was as to the condition of the testator at that time, and that the nearer to that time the witnesses observed him the more important was their testimony. We know of no other advantage that those witnesses had in respect to the questions in issue.” In Burney v. Torrey, 100 Ala., at page 172; 14 South, 690; 46 Am. St. Rep., 33, the court says on this subject: “The testimony of a witness who attested the will should be weighed and considered as that of any other witness. The fact that he was an attesting witness of itself does not entitle his evidence upon a question of testamentary capacity to greater weight than he would otherwise be entitled to, except, perhaps, that by reason of his being an attesting witness the law authorizes him to give his opinion of the mental capacity of the testator.” The same doctrine is laid down in Underhill on Law of Wills, vol. 1, sec. 102; Am. & Eng. Enc. of Law (1st ed.), vol. 25, p. 1016.

We note the fact that the instruction is taken almost literally from the opinion of the court in Brock v. Luckett's Executors, 4 How. (Miss.), 482. But it is not always safe to take the language of a court arguendo, and use it literally in an instruction. Instructions must be suited to the facts of the particular case.

The court also properly refused instruction No. 3, asked for proponents. It is not the law that insanity of a testator at the time of executing a will is to be proved, where the issue is a purely civil one, beyond all reasonable doubt. The rule to the contrary is too well settled to require citation of authorities, and we disapprove of the ill-advised statement to the contrary in Mullins v. Cottrell, 41 Miss., 291, cited from an old English case in 3 Haggard’s Ecclesiastical Reports.

We think, however, that fatal error was committed by the court in the twelfth instruction for the contestants in telling the jury that they might, in determining whether undue influence had been used, consider “the reasonableness or the unreasonableness of the will,” without qualification or limitation. Here was a will which gave two-thirds of the estate to the only living daughter, one-third to the only living son, and nothing to two sets of grandchildren by two deceased daughters. The jury may well have been misled by the unqualified manner in which this clause in this instruction authorized them to consider -the reasonableness or unreasonableness of the will as showing undue influence. The largely prevalent popular opinion that a will is unreasonable which discriminates as this will did may very likely have operated with this jury under this instruction. There doubtless are many cases in which the unnaturalness or unreasonableness of a will may, under proper qualifications, be accepted by the jury as one of the elements in determining the validity of the will as one having been obtained by undue influence, or as having been made without testamentary capacity. But courts should always, in giving this principle in charge to a jury, be careful to scrupulously guard the principle, so as to inform the jury that the issue which they are to try is whether the testator had testamentary capacity, or whether, though having it, he had been unduly influenced; and not whether, in the opinion of the jury, the will was an unnatural or an unreasonable one. It should be made clear to the jury that, however unreasonable and unnatural or unjust they may think the will is, they must uphold the will if, notwithstanding, they believe the testator had testamentary capacity, and was not unduly influenced. Underhill, in his work on Wills, vol. 1, sec. 105, thus expresses the rule: “It is, therefore, reversible error for the court to single out an unequal distribution from all facts in evidence, and' to give a special instruction as to the effect that would have in determining that the testator was insane.- The most that should be told the jury is that they may consider unnatural and unreasonable provisions, not alone, but in connection with all the evidence; and that, though they may believe the testator was not prompted by natural affection when he made the will, or although they may think its provisions are grossly unjust, still if, upon all the evidence, they believe the testator possessed capacity, his will miist be sustained.” The supreme court of California very' accurately states our idea in McDevitt's Case, 95. Cal., 17, 30 Pac., 101, where the court said': “The right to dispose of one’s property by will is most solemnly assured by law, and is a most valuable incident to ownership, and does not depend upon its judicious use. The beneficiaries of a will,are as much entitled to protection as any other property owners; and courts abdicate their functions when they permit the prejudices of a jury to set aside a will merely upon suspicion, or because it does not conform to their ideas of what is just and proper.” The instruction in this case is put far too broadly. It should have been carefully limited as stated. The jury may well have based their verdict on this instruction. And what makes it especially singular that this principle, thus unqualified, should have been stated in this charge, is that the court in the sixth charge for the proponents told the jury that the following was the law: “A will can never be held invalid because anybody, or even the jury, may think it unreasonable and unjust. That is the question that the law commits alone to the testator for his or her decision. Juries have no right, and courts have no right, to sit in judgment upon the justness and reasonableness of the provisions of a will.” This sixth charge, itself too broad, is in direct and irreconcilable conflict -with the clause quoted in the twelfth charge given to the contestants. And we are at a loss to understand how the very accomplished chancellor of the court below should have- fallen into this error ■ — ■ a fatal one, upon the peculiar facts of this case — except it be for the reason that counsel on both sides had wearied him out with a wholly unnecessary number of requests for instructions. Counsel for proponents obtained twenty-six instructions and were refused five; thirty-one in all. Counsel for contestants obtained thirteen instructions, and were refused three; sixteen in all. In other words,-the chancellor was actually inflicted with requests for forty-seven instructions in this case--a most unwise policy for counsel on both sides.

.We have been very earnestly' urged to hold that the court should have given a peremptory instruction for the proponents. The facts in this case are so voluminous, and the value of the different facts testified to varies so greatly, that we prefer resting the 'reversal on the ground stated. Possibly no member of this court, if on the jury, would have found as the jury did; but that fact furnishes no true test for determining whether the verdict of the jury is manifestly wrong. Railroad Co. v. Cantrell, 70 Miss., 329; 12 South, 344. We are not authorized to exercise the delicate and difficult function of declaring the verdict of a jury manifestly wrong, except in those very rare cases where the evidence shows it to be so most convincingly and indubitably. As yet we feel better satisfied in remanding the case for a new trial. It may be that both sides may be able to introduce further testimony, which may malee the matter more clear one way or the other.

Reversed and remanded.