Birchett v. Hundermark

^* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 715, n. 91; p. 967, n. 23; Evidence, 22CJ, p. 711; n. 78; Trial, 38Cyc, p. 1516, n. 58; Wills, 40Cyc, p. 2266, n. 82; Witnesses, 40Cyc, p. 2285, n. 93; p. 2344, n. 36. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Mrs. Mary E. Bruzelias died on the 5th day of April, 1924, leaving a last will and testament, which was probated in common form, and thereafter was contested in accordance with section 1997, Code of 1906 (section 1662, Hemingway's Code), by the appellee, who is Mrs. Bruzelias' only heir at law, and who is not a beneficiary under her will.

The ground of the contest is that Mrs. Bruzelias was not of sound and disposing mind and memory at the time the will was made.

The case was tried by a jury, which returned a verdict for the appellee, and there was a decree accordingly holding the will void, from which the appellants have brought the case to this court.

1. The peremptory instruction requested by the appellants was properly refused, for the reason that the evidence bearing on the issue tried is in conflict, and we are unable to say that the evidence introduced by the appellee, if believed by the jury, is not sufficient to sustain the verdict.

2. Each of the facts embraced in the hypothetical question propounded by the appellee to the experts on insanity who testified in his behalf have some support in the evidence, except as hereinafter noted, and that is sufficient to justify its being propounded to the witnesses. Two of the facts embraced in this question rest on evidence of declarations made by Mrs Bruzelias during her lifetime, and, assuming that these declarations of Mrs. Bruzelias cannot be accepted as evidence of the facts embraced in them they are not of sufficient importance when viewed in connection with the other facts contained in the question, to justify the setting aside of the verdict therefor. The error, if such it was, must be held harmless.

3. Mrs. Eaton, a legatee under the will, testified on behalf of the appellee over the objection of the appellants, to facts which tended to show that Mrs. Bruzelias was not of sound and disposing mind and memory when the will was executed. Section 1917, Code of 1906 (section 1577, Hemingway's Code), provides that:

"A person shall not testify as a witness to establish his own claim or defense against the estate of a deceased person which originated during the lifetime of such deceased person, or any claim he has transferred since the death of such decedent."

The purpose for which Mrs. Eaton was offered was not to establish the validity of the will and consequently of her claim thereunder against the estate of the decedent, but, on the contrary, it was offered for the purpose of showing that the will is void, and, if the will is void, it follows that she has no claim against the estate; consequently her evidence is not within the prohibition of the statute. Moreover, the prohibition of the statute is for the protection of a party against whom a claim against the estate of a decedent is or may be asserted, may be waived by him, and is waived as to a particular witness having such a claim when he himself introduces and examines the witness. 4 Jones on Evidence, sections 780, 781.

4. The will was drawn by the appellant Birchett, an attorney at law, who is one of the beneficiaries under the will. Before the contest of this will was begun by the appellee, he and Birchett entered into a written contract by which Birchett agreed to waive his rights under the will, and to execute to the appellee bills of sale and conveyances to the property therein bequeathed and devised to him. Birchett was offered as a witness by the appellants in support of the will, but, on objection by the appellee, was not permitted to testify.

The contention of the appellants is that Birchett does not come within the prohibition of section 1917, Code of 1906 (section 1577, Hemingway's Code), hereinbefore set out, for the reason that by his contract with the appellee he has renounced the will, refused to accept the legacies and devises therein made to him, and consequently has no claim under the will against the estate of Mrs. Bruzelias. Assuming, for the purpose of the argument, but expressing no opinion thereon, that a beneficiary under a will who has refused to accept the benefits therein conferred on him in such manner as to thereafter prevent him from asserting any right thereto, is a competent witness in support of the will, such is not the case here. Birchett testified that he had by this contract relinquished any interest he might have under the will in the estate of Mrs. Bruzelias, but it does not appear whether the bills of sale and conveyances referred to in the contract have been executed. The manner in which the contract obligates Birchett to dispose of his interest in the estate of Mrs. Bruzelias is by conveying the same to the appellee, whose title, when this is done, must be traced through these conveyances to, and would depend on, the will. What Birchett then agreed to do was simply to transfer to the appellee his claim under the will against the estate of Mrs. Bruzelias; consequently he is within the prohibition of the statute.

5. The appellee's instruction No. 4 should not have been given, but the error therein could not have misled the jury, in view of the issue tried and the other instructions granted. The appellee's instruction No. 6 is unobjectionable.

6. Over the objection of the appellants, the appellee was given the right to open and close the argument of the case to the jury. The appellee admits that the burden of proof was on the appellants, and that ordinarily they would have been entitled to open and close the argument; his contention, in which we concur, being that the appellants cannot be heard to complain of the denial to them of this right, for the reason that the court below, in compliance with their request so to do, instructed the jury, in effect, that the burden of proof was on the appellee. Perkins v. Guy, 55 Miss. 181, 30 Am. Rep. 510.

Affirmed.