Maxwell v. Lake

Citations

• 127 Miss. 107
• 88 So. 326

Syllabus

<p>1. WiüS. \Attested” held broader than \subscribed;” purpose of requirement of two witnesses stated; duty of attesting witnesses stated; instruction as to due execution held improper.</p> <p>The word “attested,” used in section 5078, Code of 1906 (Hemingway’s Code, section 3366), is broader in meaning than “subscribed,” and the purpose of the statute in requiring two witnesses to attest the will is to have more than the mere signatures to the will. It is the duty of the attesting witnesses under the statute to observe and see that the will was executed by the testator, and to observe his capacity to make a will; and where the testator did not sign the will in the presence of one of the witnesses, nor declare his signature, nor identify the paper or signature, nor declare, it to be his will, it was improper to instruct the jury that the will was duly and legally executed.</p> <p>2. Wins. In determining undue influence, jury may consider whether disposition of property appropriate and just.</p> <p>In a will contest in which the issue was whether the will was procured through undue influence of the proponents, it was error to instruct the jury that “the jury must not consider in this case • whether or not the disposition made by the testator is appropriate, or proper, or just, but the sole question for the jury to determine is whether the paper propounded is the true last will and testament cf W. T. Smith.” In determining whether a will is procured by undue influence, the jury may consider along with all the other evidence whether the will is appropriate, proper, or just.</p>