Ward v. Ward

Citations

• 124 Miss. 697
• 87 So. 153

Syllabus

<p>1. Wills. When secondary evidence of execution proper on issue of devisavit vel non stated.</p> <p>In an issue of devisavit vel non, the proponents must prove the execution of the will hy one of the subscribing witnesses thereto, if within the jurisdiction of the court. If either or both attesting witnesses deny its execution or fail to testify, to its due execution, then secondary evidence of its execution may he introduced hy the proponents.</p> <p>2. Wills. Contestant introduces attesting loitness, error of proponents is corrected.</p> <p>Where the proponent fails to introduce the attesting witnesses to a will and they are introduced by the contestant, then the error of proponents is corrected.</p> <p>3.Evidence. Attesting witness may testify as to testamentary capacity, but other nonexperts must state basis of opinion.</p> <p>The attesting witnesses to a will may express an opinion as an expert upon the testamentary capacity of the testator; other non-expert witnesses are confined to a narrative of facts and the conduct of the testator, upon which they base their opinion as to his testamentary capacity.</p> <p>4. Wnxs. Evidence insufficient to show undue influence on part of testator's brother.</p> <p>The fact that a brother of testator procured the attorney to write the will, procured ithe attesting witnesses, and excluded all persons from the room while the will was being written is not alone sufficient testimony of undue influence, fraud, or coercion on the part of the brother of the testator.</p> <p>5. Wnxs Instruction authorizing invalidation of will if testator in any manner guided as to execution. held erroneous.</p> <p>An instruction is erroneous which authorizes the jury to .invalidate a will if the decedent was wholly uninfluenced or in any manner guided or directed about the execution of the will or in procuring attesting witnesses. It is undue influence that vitiates a will.</p> <p>6. Wnxs. Unreasonableness of will admissible only as showing testa