Blalock v. Magee , 205 Miss. 209 ( 1949 )

I concur in the conclusion that the question of capacity of testatrix to execute a will was a question for the jury under the evidence in this case. However, I am of the opinion the request of proponents for an instruction telling the jury to find for proponents on the question of undue influence should have been granted, and that the granting to contestants of the if-you-have-a-doubt instruction on testamentary capacity of testatrix was erroneous.

There was no substantial proof whatever of undue influence. It was misleading to leave that issue before the jury. What effect that had on the verdict cannot be known. Indeed, the verdict might have rested entirely on that issue so far as this record discloses. In Ward v. Ward, Miss., 33 So.2d 294, the Court pretermitted a decision of this question. The very fact the verdict is general and that no one can say on which ground it rests, or whether on both grounds, demonstrates the necessity, in the interest of justice, of eliminating from consideration by the jury of a question presenting no issue for decision by it. Leaving that question before the jury can only result in confusion and uncertainty.

The if-you-have-a-doubt instruction was justified by the old case of Brown v. Walker, Miss., 11 So. 724, but the rule announced there ought to be clarified and modified. The majority opinion, in effect, does that. The danger is that the the jurors will test whether proponents have shown testamentary capacity by whether the jurors have a doubt on that question. Few wills would be sustained if the test of mental capacity rested upon the jurors having a doubt, or being doubtful, of such capacity after hearing a parade of the pecularities, eccentricities and acts of forgetfulness of testators, although such testators might have possessed the brightest minds of their day.