IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-01447-COA IN THE MATTER OF THE ESTATE OF RICHARD L. GARDNER, DECEASED: LINDA GARDNER CALLINGTON, ANDREW GARDNER AND LARRY ROSS APPELLANTS

v. MAE OTHA GARDNER APPELLEE DATE OF JUDGMENT: 08/21/2015 TRIAL JUDGE: HON. JON M. BARNW ELL COURT FROM W HICH APPEALED: TALLAHATCHIE COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANTS: JOSHUA A. TURNER ATTORNEYS FOR APPELLEE: W I LLIAM R. SANDERS JR. DARRIN JAY W ESTFAUL NATURE OF THE CASE: CIVIL - W ILLS, TRUSTS, AND ESTATES TRIAL COURT DISPOSITION: FOLLOW I NG A JURY VERDICT IN FAVOR OF THE APPELLANTS, GRANTED THE APPELLEE’S MOTION FOR JUDGMENT NOTW ITHSTANDING THE VERDICT DISPOSITION: AFFIRMED - 02/21/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE BARNES, P.J., WILSON AND GREENLEE, JJ. WILSON, J., FOR THE COURT: ¶1. Richard Gardner died l eaving a wi l l t h a t devised his e ntire estate to his wif e, Mae Otha Gardner. An estate was opened a nd l ater declared insolvent. However, a f ire destroy ed

a building owned by the estate, and insur a n c e p roceeds were suf f icient to p ay t he estate’s debts and leave a surplus f or Mae Otha. At t hat point, Richard’s children f iled a petition to
contest the w ill. A j ury returned a verdict f or the children, f

inding both that Richard did notsign the will and that he lacked testam entary c apacity

. H owever, the chancellor granted Mae

Otha’s m o ti o n f

o r judgm ent n o twithstanding the verdict. On appeal, Richard’s children
argue tha t t h e r e w a s suf f icient evidence t o sustain the verdict, but we agree with the chancellor that Mae Otha was entitled to judgm ent a s a m a tter of law. Theref ore, w e af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Richard w as born in Indianola in 1 925 and lived m ost o f h i s l i f e i n C h arleston, Mississippi. Richard and his f irst w if e had th r e e c h i l d

ren, Linda Gardner C allington, Andrew Gardner, a nd S y lvia Gardner Moore. Richard had a f ourth child, Larry R oss, by anot h er

wom an. Richard’s f

irst wif e passed away , and in February 1987 he m arried Mae Otha. At the tim e of their m arriage, Richard was s ixty -one y ears of age, and Mae Otha w as f orty -two. No children were born to their m a rriage. ¶3. Linda testif

ied that bef

o re Richard m arried Mae Otha, he told L inda t hat he wanted her to be the executor of his estate and that he wanted each of his children to receive a child’s part. L inda testif

ied t hat af

ter Richa r d ma r r i e d Mae O tha, he stated t hat Mae Otha should also receive a child’s part of his estate. ¶4. Linda testif

ied that in “the latter part of 2008” h er f ather “started being a little sick,” and i n February 2009 he had a “little light stroke.” Linda testif ied that he recovered f

rom the stroke but becam e “ sicker and weaker.” Linda testif ied that R ichard was taking Risperdal, Hy drocodone, and Plavix. Linda’s husband, Jef f Callington, c l a i me d t hat the Risperdal “would render [ Richard] helpless” and unable t o open his ey es or som etim es caused his hands to shake. Linda also testif ied that Richard had started bouncing checks, so the children

2encouraged him to execute a power of

attorney in f avor of Mae Otha. ¶5. Mae Otha testif

i ed that she and Andrew took Richard to the h ospital in F ebruary 2009 because s he thought he had a stroke. However, the doctors told her that they could not f ind
any thing wrong with Richard and that, if any t hing, he had a “m ini-stroke” that did not show up on his MRI or other tests. Richard was released f rom the hospital on March 1, 2009. ¶6. On March 2 , 2009, Richard went to see a tto r n e y Wi l l i a m Sanders of Charleston. According to Sy lvia, she and Richard f irst went to the m ay or’s of f i ce because Richard had decided to withdraw f

rom an election f

or c i ty com m issioner, a position he previously held f or a pproxim ately twenty y ears. 1 S y lvia testif ied t hat at the m ay or’s of

f ice, Richard “started f um bling with s om e . . . m aterial that was on [ a wom an’s] desk,” a nd she had to tell him to stop. Richard and Sy l via t hen m e t Mae Ot h a a t Sanders’s of f ice. Sy lvia testif

ied that all three of them m et with Sanders, that they discussed the c o ntents of a power of a t torney , and that Richard signed t he p o wer o f attorney

. Sy lvia testif ied that she never lef

t her f a ther’s side while a t S anders’s of

f ice and that a will w as never m entioned or discussed. S y lvia testif ied that Richard’s “m ental capacity ” “was okay , but he wasn’t real talkative.

. . . [ H]e was okay at that particular tim e. But he was real weak still, kinda like wasn’t able to f unction.” ¶7. Sy lvia’s t estim ony about the visit to Sanders’s of f ice conf licted w i th that of

every one else present. Mae Otha testif ied t hat Sy lvia told Richard t hat m orning that he n eeded to get

a will a nd a power of attorney

. A c c o r d ing t o M ae Otha, S y lvia drove her and Richard directly to Sanders’s of

f ice, and R i c h a r d withdrew f rom the c om m issioner’s race on a

1 C h arlesto n is g o v ern e d b y a m ay o r an d a b o a r d o f c o m m issio n ers p u rsu an t t o a “sp ecial” o r “p riv ate” ch arter. 3dif

f erent day

. Mae Otha testif ied that she s tay ed in the w a iting room , while Richard and Sy lvia went into Sanders’s of f ice. She testif

ied that at som e point, som eone cam e out and asked her “about an old will or som ething,” so she went hom e to look f or one, but by the t im e she returned to Sanders’s of f ice, they h ad f

i nished preparing the power of attorney and will. 2
Mae Otha subsequently f i led the power of attorney with the c h a n c e r y clerk. Mae Otha testif i ed that h er husband’s m ental condition was f ine on March 2 , 2 0 0 9 , and that he understood what he was doing. ¶8. Sanders t estif

ied that he knew Richard well because he had been t he c ity attorney f or

m any y ears while Richard served as a com m issioner. Richard did n ot h ave an appointm ent

on M arch 2, 2009, but Sanders a greed t o m e e t w i th Richard and Sy lvia. According to Sanders, both Richard a nd Sy lvia wanted Sanders to prepare a power of attorney and a will f or Richard. S anders testif ied that he asked S y lvia t o leave the room so that he could talk to Richard alone. Sanders testif ied that he asked R ichard several q u e stions to ensure that Richard knew where he w as, who and where his f am ily m e m

bers were, and that he desired

to m ake out a will. Sanders t estif ied that R ichard stated several tim es what he wanted in his will. According to Sanders, Richard stated t hat h e had a lready “given m ost o f [ his] m oney away ” to h is children and o ther relatives, so h e “want[ ed] ever y thing [ he had] lef

t to go to

. . . Mae Otha.” Sanders then prepared the will and power of attorney and asked f or Sy lvia and his s ecretary , Mary R oussel, to c o me i n t o his of f ice. Richard signed both docum ents, and Sanders and Roussel also signed both docum ents as witnesses.

2 L in d a testif

ied th at sh e recalled M ae O th a retu rn in g h o m e to lo o k f o r an o ld w ill. 4¶9. Roussel testif ied that she had known R ichard f or over twenty y ears. She conf irm ed that she witnessed him sign both the will a n d power of attorney and that she signed as a witness. Roussel t estif

ied that she had a “norm al conversation” with Richard that day , they

t alked about his children, and he seem ed to be f ine. Roussel also testif

ied that Mae Otha stay ed in the waiting room while Richard and Sy l via went back to see Sanders. ¶10. Linda t e stif

ied that she saw Richard on March 2 , 2009, af ter he r eturned hom e f

rom Sanders’s of

f ice. According to Linda, she a sked to see the will because Richard had told her previously that he h ad written out h i s w i l l a n d that he wanted her to review it. Mae Otha responded, “ It’s at the lawy er’s of f ice.” Her f

ather nodded in agreem ent and told her that she could read it later. Apparently there was no f

urther discussion of

the will. ¶11. Linda testif

i ed that o n March 2 , 2009, her f a t h e r ’ s “ p h y s i c a l state was t errible --

m entally and phy s ically .” According to Linda, he was too weak to get in and out of the car without phy sical assistance. Linda also testif ied that Richard h ad agreed to withdraw f rom

a political race; according to Linda, Sy lvia h ad p ersuaded him to w ithdraw because his “m ind [ was] not good enough to run f or” of f ice. ¶12. Mae Otha t estif

ied that Richard’s m e ntal condition was f ine on March 2, 2009, and continuing until his death. Mae Otha t estif ied that Richard decided to close a l aundrom at that he owned on or about March 12, 2009, because he was losing m oney o n the business. ¶13. Richard passed away in C harleston on A pril 20, 2009, at the age of eighty -f our. On May 11, 2009, Mae Otha f iled a petition to probate the will and f or letters testam entary , and in May and June 2009, notice to creditors o f the estate was d u l y p u b l i s h ed in the Sun5Sentinel , a newspaper published in Tallahatchie County

.

¶14. On July 2 9, 2 009, Mae Otha f iled a m otion to declare Richard’s estate insolvent and

to perm it t he sale of certain estate a ssets. The m otion showed the estate’s assets as consisting prim arily o f a com m ercial b uilding and lot (the f orm er laundrom at); c om m ercial w ashers and dry e r s and other f

ixtures f ound inside the building; various vaca nt lots in Charleston; Richard’s hom e, in which Mae Otha continued to r eside; and a riding lawnm ower. R ichard’s debts included, am ong others, $44,977 plus interest owed to the Tallahatchie C ounty Bank, which was s ecured b y t he com m ercial property , his hom e, and a vacant lot; $9,936.23 plus interest owed to the Tallahatchie County Bank and secured by t he lawnm o wer; and several
y ears o f unpaid property taxes. The estate’s m otion represented that these assets could not be sold or their value estim ated easily and requested perm ission to begin attem pting to sell

assets in order to pay

debts. The court subsequently approved requests by the estate to sell the riding lawn m ower and one vacant lot, and the proceeds of those sales were used to m ake partial pay

m ent to the bank and to pay som e of the unpaid property

taxes. ¶15. On Decem

ber 28, 2009, the old laundrom at was destroy ed in a f ire. The property was insured, a nd the insurer paid $237,108.27 f or the loss. The insurance proceeds were used to
pay t h e e s t ate’s r e m a ining debts, which totaled $89,687.21. The court then granted Mae Otha’s m otion to close t he e state and to allow her to distribute the rem aining assets to herself ,

as t he s ole benef

iciary o f the will. The court’s order, which w as entered o n March 9, 2010,
approve d a t t o r ney s’ f

ees and expenses of $23,899.05, which lef t a surplus o f $123,522.01 f rom the insurance proceeds.

6¶16. On April 15, 2011, Richard’s f our children f

iled a petition to contest and to set aside

t h e i r f a t her’s will. The c hildren alleged that the will should be set aside because Ri c h a r d lacked testam entary capacity , because Mae Otha e x er t e d u n d u e inf luence over him , and because the will was a f

orgery and was not duly executed. ¶17. In March 2015, a j ury trial was held on t he petition. Bef ore subm itting t he case to the jury , t he chancellor granted a directed verdict on t he issues of undue inf luence and f

orgery . By a 10–2 vote, the jury

returned a verdict f

o r the children. The verdict specif ically f ound both that Richard lacked testam entary capacity and that he did not sign the will. ¶18. On April 7, 2015, Mae Otha f iled a m otion f

or JNOV or, in t he a lternative, a new trial. On August 24, 2015, t he c hancellor entered an order granting Mae Otha’s m otion f or JNOV. The chancellor reasoned that he should not have subm itted the case to the jury because the children presented no evidence that Richard l acked t estam entary c apacity

. T he chancellor also reasoned that because he had already granted a directed verdict o n the i ssue o f f orgery , the question whether R i c h a r d s igned the will should not have been subm itted to the jury

e i t h er. On appeal, the children argue that the verdict should be reinstated and t h e c a s e

rem anded f

or f urther proceedings. DISCUSSION ¶19. “Our standard of review f o r a trial court’s grant of a m o tion f or [ JNOV] i s d e novo.”
W atts v. Radiator Specialty C o. , 990 So. 2d 1 43, 150 ( ¶21) (Miss. 2008). W e “ consider the evidence in the light m ost f avorable to the non-m o vant, giving that party . . . the benef

it of all f avorable inf

e rences that m ay

be reasonably drawn f

r om the evidence.” Forbes v. Gen.

7Motors Corp. , 935 So. 2d 8 69, 8 72 (¶3) (Miss. 2006). “[ I]f the f acts so considered point so overwhelm ingly in f

avor of the m ovant that r easonable jurors co u l d n o t h a v e arrived at a contrary verdict,” then the m ovant is entitled to JNOV. Id. H owever, “if there is s u bstantial evidence, that i s, evidence of such quality and weight that reasonable and f air-m inded jurors in the exercise of

im partial judgm ent m ight have reached dif f erent conclusions, we cannot af f irm the grant of

a [ m otion f

or JNOV].” I

d. ¶20. The children argue that the c hancellor erred by granting Mae Otha’s m o tion f or JNOV b e c a u s e there was “evidence of s uch quality a nd weight that reasonable and f air-m inde d jurors i n t h e e xercise of i m p a rtial judgm e nt” ( i d. ) could have f ound that Richard lacked

testam entary

capacity or did not sign the will. W e address these issues in turn.
I. Testam entary Capacity ¶21. “For a will to be valid, the testator mu s t p ossess testam entary capacity .” Noblin v. Burgess , 54 So. 3d 282, 291 (¶32) (Miss. Ct. App. 2010). To have testam e ntary capacity , an individual m

ust be of “sound and disposing m i nd.” Miss. Code Ann. § 91-5-1 (Rev. 2013). “Testam entary capacity i s determ ined based on three f actors: ( 1) whether t he testator had the ability a t the tim e of the will to understand a nd appreciate the ef f ects of his act; (2) whether the testator h ad the ability a t the tim e of the will to understand t he natural objects or persons
to receive his bounty and t heir relation to him ; and (3) whether the testator w as capable of determ ining at the tim e of the will what disposition he desired t o m a ke of his property

. ” In

re Estate of

Laughter , 23 So. 3d 1055, 1 061 ( ¶20) (Miss. 2009). I n a ddition, “[ r]ecognizing that a testator m ay not alway s possess testam entary capacity , [ the Suprem e Court has] held

8that he m ay nevertheless execute a valid will d uring a lucid interval.” In re Estate of Edwards , 520 So. 2d 1370, 1373 ( Miss. 1988). “The k ey to testam entary capacity is m ental

com petency at the tim e the will is m ade.” Lee v. Lee , 337 So. 2d 713, 715 (Miss. 1976). ¶22. “The burden of proving testam entary capacity is on t he proponents of the will, who

can present a prim a f

acie case sim

ply by o f f ering into evidence the will and t h e r e c o r d of probate.” Laughter , 2 3 So. 3d at 1061 (¶18). “Once a prim a f a cie case h as been established, the burden of going f

orward shif

ts to the contestants t o overcom e the prim a f acie case.” Id. The u ltim ate burden o f proof r em a ins on t he proponent, who “m ay . . . present rebuttal proof if necessary . ” Edwards , 520 So. 2d at 1 373. The Suprem e “Court has held that the testim ony of subs c ribing witnesses is entitled to greater weight than the testim ony of witnesses who were not present at the tim e of the will’s execution or did not see the testator on the day of the will’s execution.” Id. “ In f act, the subscribing witnesses to a will m ay testif y as experts on the question of

testam entary capacity .” Id. ¶23. “Furtherm ore, . . . opinions of lay witnesses regarding testam entary capacity [ m ust] be s upported b y ‘ f

a cts a s a b asis f

or the witne s s e s ’ c o n c l u sion.’” Estate of Rutland v. Rutland , 24 So. 3d 347, 353 (¶20) ( Miss. Ct. App. 2009) (quoting In re Estate of B riscoe , 293 So. 2 d 6 , 8 (Miss. 1974)). “Overly broad or generalized testim o ny indicating a lack of capacity will b e deem ed insuf f icient where it is contradicted by com petent evidence and is ‘obviously based upon t he inf ir mi t i e s of advancing a ge rather than upon any a bnorm al conduct indicative of

m ental aberration.’” Id. (quoting Briscoe , 293 So. 3d at 8). ¶24. In the p r esent case, we co n c l u d e t hat the chancellor correctly granted Mae Otha’s

9m otion f

o r JNOV because the children f ailed to com e f

orward w ith evidence “to overcom e the prim a f

acie case” o f testam entary capacity

. Laughter , 23 So. 3 d at 1061 (¶1 8 )

. A s discussed above, Sy lvia, who accom panied Richard to Sanders’s of f i ce and claim s to have been present at the p ower of attorney ’s execution, testif i ed that Richard’s “m ental capacity ” “was okay , but he wasn’t real talkative.

. . . [ H ]e was okay at that particular tim e. But he was real weak still, kinda l ike wasn’t able to f unction.” Linda testif

i ed, without specif

icity , that l ater in t he day on M arch 2, 2 009, Richard’s “phy sical state was terrible -- m en t a l l y a n d phy sically .” S h e a l s o testif ied that he w as too weak to get in and o ut of a car without assistance. However, phy sical w eakness d oes n o t p r e c l u de one f rom m aking a will, and a bare and unexplained assertion that a testator’s m ental state was “terrible” does not raise a jury issue as to his m ental capacity

. ¶25. The children also point to Richard’s decision t o withdraw f rom a local election, they
say because of concerns that his m ind w as n ot up to t he t ask. However, Richard’s agreem ent that he was no longer up to the task of cam paigning f

or elected of

f i ce does not am ount to an adm ission or even e vidence that he lacked the m e ntal capacity t o s i g n a will. Finally , the children rely o n testim ony f rom Linda and Jef

f about the ef

f ects of m edication on Richard.
Howev e r , n e ither Linda nor Jef f was present w hen R ichard executed his will, and none of those who were present testif ied that Richard was under the inf luence of m edication to the extent that he appeared incapable of understanding what he was doing. ¶26. The subscribing witnesses to t he w i l l

— S a n d e r s a n d R o u s s e l

— had both known Richard f or m any y ears, and both testif i e d t h a t h e w as m entally alert and capable of

1 0understanding what he was d oing when he executed his will. Sanders f u rther testif

ied that Richard was clear and specif ic regarding his wishes. Moreover, in addition to the absence of a ny evidence that R ichard lacked testam entary capacity , we n ote that the m ental capacity required to execute a g e neral power of attorney is essentially the same as the capacity required to execute a will. See D owdy v. Smith , 818 So. 2d 1255, 1258-59 (¶16) (Miss. Ct. App. 2002). W ith Linda’s encouragem ent, Sy lvia took Richard to Sanders’s of f ice f or the specif ic purpose of s igning a g eneral power of attorney , and Sy l via testif ied specif i cally that she believed that her f

ather had t he m ental capacity t o sign t he p ower of attorney

. Yet neither Sy lvia nor Linda w as a b l e t o e x p l a in at trial why they thought Richard had the capacity to sign the power of

attorney but not the will. ¶27. In short, the children presented n o e v i d e n ce that Richard lacked testam entary capacity at the tim e he executed his will. All testim ony relevant to his m ental capacity on March 2, 2009, i n d i c a t e s that he had suf f icient capacity to execute both a general power of attorney and a will. Accordingly , the chancellor’s ruling granting Mae Otha’s m otion f or JNOV was
correct as it relates to the issue of t estam entary c apacity

. See H ayward v. Hayward , 299 So. 2d 207, 209-11 (Miss. 1 974); Noblin , 54 So. 3 d 291-95 (¶¶34-45); Rutland , 24 So. 3d at 351- 53 (¶¶10-22); In re E

s tate of Pigg , 877 So. 2d 406, 410-11 (¶¶12-23) (Miss. Ct. App. 2003).
II. Richard’s Signature ¶28. As di s c u s s e d above, Sy lvia claim ed t hat she witnessed her f ather sign the power of attorney but that a will was n ever m entioned or discussed. W h en asked at trial whether the signature on the will appeared to b e her f ather’s, she testif

ied, “It don’t seem to be.” W hen

1 1asked on cross-exam ination whether the signature o n the power of attorney was her f ather’s, she testif ied, “It’s not m y f

a ther’s -- well, this is my f a ther’s, looks like it’s m y f ather’s writing.” And when asked to explain the dif f e rence between the two signatures—which, to the lay ey e, look the sa me

— S y lvia testif ied that the signature on the will dipped ever so slightly below the signature l ine, whereas the signature on the power of attorney did not. J ef f and Linda also testif

ied that t h e s i g n a t u r e on the will d oes not appear to be Richard’s, although L inda testif

ied that it “describes” her f a t h e r ’ s signature “a little bit.” No other

exam ples of Richard’s signature were of f ered or adm itted into evidence. ¶29. In c ontrast, t he two subscribing w i t n e sses to the will—Sanders and Roussel—both

t e s t i f i ed unequivocally that they personally observed Richard sign the will and that th e signature on the will was his. ¶30. W h en counsel f

or t he parties began disc u s s i n g j u r y i n s t r u c tions, counsel f or the children essentially conceded that there w a s n o e vidence of “f orgery ” b ut nonetheless contended that the question whether Richard signed the will should be subm i tted to the jury

. Counsel f or Mae Otha argued that he had proven a s a ma t ter o f law that the signature was Richard’s and that any suggestion to the contrary was f rivolous. The chancellor u ltim ately agreed to subm i t the issue to the jury without any

m ention of

“f orgery .” ¶31. W e agree w ith the chancellor’s post-trial ruling that there w as n o e vidence f rom which

a rational juro r could have f ound that Richard did n ot sign the will. Logically , if the signature o n the will were not Richard’s, someone m u st h ave f orged it, and Sanders and his secretary m ust have been com

plicit in the f

orgery . But the children do not even argue that

1 2there is any evidence of f orgery . Furtherm ore, the testim ony of Linda, Jef f , and Sy lvia that the signature d oes not a

ppear to be or does not look like Richard’s is i n s u f f icient to create

a j ury issue in t he f

ace of the testim ony of two subscribing witnesses that it i s his signature. This is particularly true given t hat the signature on the will i s virtually indistinguishable f rom the concededly authentic signature on the power of attorney , w hich was executed o n the sam e day

. Compare Culbreath v
. Johnson , 427 S o . 2 d 7 0 5, 708-09 (Miss. 1983) ( af f irm ing chancellor’s f

inding th a t a d e ed w as f

orged b ased on not only lay testim ony but also the “trem e ndous variance” between t he challenged signature and adm itted true sam ples of the grantor’s signature, expert testim o ny , a n d t h e f act that the only p urported witnesses to the deed’s execution were the g rantees and their m inor children). Accordingly , the chancellor’s ruling granting M ae Otha’s m otion f o r JNOV was also correct as it relates to the question whether Richard signed the will. CONCLUSION ¶32. For the f

oregoing reasons, there was n o e vidence f rom which a rational juror could have f o und that Richard lacked t estam entary capacity or did not s i gn the will. Accordingly , we af f irm the ruling of

the chancery

court granting Mae Otha’s m otion f or JNOV. ¶33. T H E J U D G M E N T O F THE TAL L A H A T C H I E C O U N T Y C H A N C E R Y COURT, FIRST JUDICIAL DISTRICT, IS AFFIRMED. AL L C O S T S OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., NOT PARTICIPATING.

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