
    Gloria Lynn ARD and Melinda Sue Ard, Minors by and through Mrs. Alvin Ard, Paternal Grandmother and Next Friend v. Catherine R. ARD, Executrix, In the Matter of the Last Will and Testament of Virgil A. Ard, Deceased.
    No. 53927.
    Supreme Court of Mississippi.
    Oct. 12, 1983.
    
      Stanford Young, David Slaughter, Waynesboro, for appellants.
    Louis M. Bishop, Waynesboro, for appel-lee.
    Before WALKER, P.J., and ROY NOBLE LEE and HAWKINS, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Chancery Court of Wayne County, Mississippi wherein that Court dismissed appellants’ challenges to the last will and testament of Virgil A. Ard. We affirm.

The appellants have assigned as error that the trial court erred in finding the testator was competent when the will was executed. We have carefully considered this assignment and find it to be without merit. The chancellor’s ruling was based on conflicting testimony and there was more than ample testimony upon which he could base his finding that Virgil Ard was competent at the time of the execution of the will.

The appellants also contend the trial court erred in not finding that the will was procured through fraud and undue influence. The sole beneficiary under the last will and testament of Virgil Ard is his wife of approximately four years, Catherine Ard, to the exclusion of his two teenage daughters, Gloria Lynn Ard and Melinda Sue Ard. In Genna v. Harrington, 254 So.2d 525 (Miss.1971), this Court held:

It is undoubtedly true that a husband or a wife may exercise undue influence upon the other spouse, but the mere fact that there is a close relationship between the parties in a marriage does not mean that one’s influence upon another is undue influence.
In order to set a will aside upon the grounds of undue influence on the part of a spouse, it must be shown that the devi-see spouse used undue methods for the purpose of overcoming the free and unrestrained will of the testator so as to control his acts and to prevent him from being a free agent.

254 So.2d at 528-29.

After a careful reading of this record, we are of the opinion the chancellor did not err in not finding that the will was procured as a result of fraud or undue influence.

Therefore, the judgment of the chancery court is hereby affirmed.

AFFIRMED.

PATTERSON, C.J., BROOM, P.J., and ROY NOBLE LEE, BOWLING, PRATHER and ROBERTSON, JJ., concur.

HAWKINS and DAN M. LEE, JJ., specially concur.

HAWKINS, Justice,

specially concurring.

This case leaves a gnawing doubt, which could have been averted.

Mr. Ard was desperately, indeed terminally ill. His doctor had prescribed demer-ol, a highly addictive drug, for the relief of acute pain, and vistaril, a drug given to patients under severe emotional stress or in a state of extreme agitation. Vistaril is also prescribed for patients who are mentally disturbed.

Mr. Ard, in this extreme condition, was totally dependent on his wife, the stepmother of Gloria Lynn and Melinda Sue Ard. Under these circumstances, counsel was called upon to prepare Mr. Ard’s will. The attorney may not have known just how sick Mr. Ard was, but he certainly knew, or should have known, he was a gravely ill man. The occasion called for the utmost in privacy and a quiet conference restricted to counsel and Mr. Ard. Thus, counsel could have best assured himself the wishes expressed by Mr. Ard were genuine and under no extraneous influence.

Yes, counsel did not talk to Mr. Ard in private about the will. The only discussion he had with Mr. Ard in the will’s preparation was over the telephone. Counsel could not have known who was present at the other end of the line where Mr. Ard was speaking.

Finally, counsel had other matters to attend to at the time the will was executed and was not present. The persons present when the will was executed were: the attorney’s son, a layman who perhaps had some acquaintance with Mr. Ard, another person of no previous acquaintance, and Mrs. Ard. The will was executed .in a hospital room with Mrs. Ard, the sole beneficiary, sitting on the foot of the bed. Mrs. Ard was the one person in direct conflict with these two children.

There was an issue of fact, and I cannot say the Chancellor was manifestly wrong, and therefore concur in affirming.

I do have deep concern, however, at the cloud of suspicion, and perhaps hatred, existing between the parties which could have been avoided.

DAN M. LEE, J., joins this opinion.  