Anderson v. Anderson

• Decision Date: 29 September 1930
• Docket Number: 28793
• Citation: 130 So. 91,158 Miss. 116
• Court: Mississippi Supreme Court
• Parties: ANDERSON et al. v. ANDERSON et al

130 So. 91

158 Miss. 116

ANDERSON et al. v. ANDERSON et al

No. 28793

Supreme Court of Mississippi

September 29, 1930

Division A

1. DESCENT AND DISTRIBUTION.

Executors and administrators. Evidence held insufficient to show that deceased's widow willfully procured his death, precluding her removal as administratrix and forfeiture of share in estate.

2. APPEAL AND ERROR.

To warrant review of alleged error in excluding testimony rejected testimony must be set out so that materiality may be determined.

HON. N R. SLEDGE, Chancellor.

APPEAL from chancery court of De Soto county, HON. N. R. SLEDGE Chancellor.

Suit by Bertha Anderson and others against Julia Anderson and others. From a decree dismissing the bill, complainants appeal. Affirmed.

Affirmed.

W. H. Fisher, of Memphis, Tenn., for appellants.

To reserve any question on the ruling of the trial court in excluding testimony there must be a pertinent question propounded and, upon objection being made, a statement to the court, of the testimony which it is expected will be elicited by the question and an exception taken to the ruling thereon.

Central R. R. Co. v. Robinson, 106 Miss. 905; 2 Cyc., p. 697.

Disqualification under Hemingway's Code, section 1577, of claimant as witness to establish his own claim against decedent's estate, does not disqualify him as witness for other claimants.

Ellis v. Berry, 145 Miss. 652, 110 So. 211.

In a proceeding in a chancery court to have a widow removed as administratrix of the estate of her deceased husband and have her right to share therein forfeited on the ground that she procured the death of the husband it is an error to admit evidence showing that she had been acquitted upon an indictment charging her with the murder of her husband.

15 R. C. L., sections 476-480.

The court erred in permitting the introduction of evidence as to the reputation of the defendant as to peace and violence.

Dinkins & Wilroy, of Hernando, for appellees.

The findings on the facts by the chancellor should be sustained as all the material facts were controverted.

The introduction of the record of the indictment and acquittal of the wife, Julia, for the murder of her husband, George Anderson, was not only offered without objection on the part of the complainant, but actually with consent of counsel.

Argued orally by W. H. Fisher, for appellant, and by N. E. Wilroy, for appellee.

OPINION

McGowen, J.

Bertha Anderson and other children of George Anderson, deceased, exhibited their bill in the chancery court of De Soto county against Julia Anderson, his widow, and two grandchildren of George Anderson, by which bill it was sought to have Julia Anderson, who had theretofore qualified as administratrix of the estate of George Anderson, removed as such administratrix and to have the court declare her right to participate or share in the distribution of the estate forfeited for the alleged reason that she willfully caused or procured the death of her husband. The estate consisted of a one hundred-acre farm and some personalty.

The answer filed by the respondents, the appellees here, was in effect tantamount to a denial of all the material allegations of the bill. There was also filed with the answer a demurrer on the ground that the bill was multifarious. This demurrer seems never to have been pressed, and the lower court heard the case on its merits, dismissed the appellants' bill, and from such decree an appeal is prosecuted here.

The record discloses that two physicians in charge of a negro hospital in Memphis testified that the decedent came to his death because of a wound or contusion on the left rear part of the skull at the junction of the parieto-occipital bone. They had made an X-ray which showed the contusion and the fracture of the skull to be an inch or two inches in length, and said that this fracture was caused by a hard blow and that a fall to the floor or against a certain kind of cream separator would not probably have caused the wound. They testified that decedent was a man between sixty and seventy years of age and that his general health was good; that when he was brought to their hospital from his home in De Soto county he was bleeding from the left ear, and that he had to be detained in bed by straps; the disturbed mental condition was a natural result of the blow.

There was further testimony that before sundown Julia Anderson appeared at the home of a nearby neighbor very much agitated and said that she and her husband, George, had been in a "mix" over her purchase of a sack of flour, and George sought to lay hands on her and she ran; having eluded him, she looked back and saw her son strike him a blow. Other witnesses testified that the decedent pointed out a place where they had knocked him down and that he pointed toward Julia and said "they have killed me and done beat me," and that Julia would undertake to flee from the room when he accused her.

For the defendant the local physician testified that he had, prior to the occasion of this, treated Anderson for nephritis and heart trouble. He...