Austin v. Patrick
| Citation | 179 Miss. 718,176 So. 714 |
| Decision Date | 08 November 1937 |
| Docket Number | 32878 |
| Court | United States State Supreme Court of Mississippi |
| Parties | AUSTIN v. PATRICK |
1 WILLS.
Subscribing witnesses to wills are not required to sign in the presence of each other, under statute relating to execution of wills (Code 1930, section 3550).
2 WILLS.
The affidavits of two subscribing witnesses to a will were sufficient for the probate thereof in common form (Code 1930 sections 1602, 3550).
3 WILLS.
Subscribing witnesses to wills are not required to see the testator sign the will, but it is enough if testator produces the will, declares it to be his will, and states that signature appended thereto is his and that he wrote it (Code 1930, sections 1602, 3550).
4. WILLS.
Evidence of subscribing witness that testatrix told him that instrument was her will, that she had signed it and wanted him to sign it as a witness, and that he did so in her presence, and testimony of other witness who did not sign in presence of other subscribing witness and was not present when other witness signed that testatrix told him instrument was her will and requested him to sign it as a witness, was sufficient to authorize admission of will to probate in solemn form (Code 1930, sections 1602, 3550).
5. WILLS.
The admission of a will to probate was only prima facie evidence of its validity and would not conclude the heirs at law as interested parties from contesting will within two years in manner prescribed by statute, where the heirs at law had not been made parties to the petition for the probate thereof (Code 1930, sections 1607, 1609).
6. WILLS.
An administrator is not such an "interested party" within statutes providing that a proponent may make all interested persons parties to application for probate of will and that any interested person may at any time within two years contest validity of will probated without notice, as is authorized to contest will subsequently presented for probate (Code 1930, sections 1607, 1609).
7. WILLS.
In proceeding to probate will and to remove administratrix theretofore appointed, chancery court was without jurisdiction to hear contest as to validity of will where none of the interested parties as such were before the court, and hence such parties would not be concluded by decree adjudicating validity of will (Code 1930, sections 1607, 1609).
8. EXECUTORS AND ADMINISTRATORS.
Where testimony was sufficient to have will probated in solemn form, chancery court had authority to admit will to probate, grant letters testamentary to executor named therein, and set aside appointment of administratrix theretofore made under statute providing that if a will shall be found and probated, and letters testamentary granted thereon, the same shall be a revocation of administration (Code 1930, section 1641).
HON. R. W. CUTRER, Chancellor.
APPEAL from chancery court of Pike county HON. R. W. CUTRER, Chancellor.
Proceeding in the matter of the estate of Sarah Patrick, deceased, wherein Rosina Austin was appointed administratrix, but letters were not issued, with respect to the petition of Matthew Patrick for the probate of the purported last will and testament of Sarah Patrick, deceased, wherein Matthew Patrick was named as executor, and with respect to the motion of Matthew Patrick for the removal of Rosina Austin as administratrix. From a decree admitting the instrument to probate as the last will and testament of Sarah Patrick, deceased, and setting aside the order appointing Rosina Austin administratrix, and issuing letters testamentary to Matthew Patrick as executor, Rosina Austin appeals. Affirmed.
Affirmed.
F. D. Hewitt, of McComb, for appellant.
The only question before the court is whether or not this is a valid will as shown by the proof. The code provision with reference to the execution of wills provides, among other things, that wills shall be in writing, and if not wholly written and subscribed by the testator or testatrix, they shall be attested by two or more creditable witnesses in the presence of testator or testatrix. Under the admitted facts, in this case the testatrix never subscribed to the will in their presence and neither of them subscribed to the will in the presence of each other. Under the admitted facts the acts of the witnesses in signing the will was not one continuous transaction.
The court held in the case of Gordon v. Parker, 104 So. 77, in a will contest, from the Chancery Court of Washington County, that where the execution of a will and the signing of the same by a testator and the subscribing witnesses constitute one continuous transaction, the signing by each taking place in the presence of the other is sufficient, and for all intents and purposes, and proper attestation of the will, and is decisive of this case.
The statute of wills is a statute of frauds. And the court has said that is the reason wills are required to be in writing and when not in the own handwriting of the testatrix to be attested by two subscribing witnesses to prevent frauds and perjuries.
If a will can be executed in this fashion and under these circumstances, it would certainly violate the statute. Peter Crossley, one of the witnesses, said he did not know that Mr. Furlough signed it and Mr. Furlough said that he did not know that Peter Crossley signed it. And that is the very essence of the statute requiring two witnesses to subscribe to the instrument in the presence of the testator or testatrix. The proposition is so elementary that further discussion of it is useless. The facts do not prove a valid execution of this will, and the court erred in permitting the same to be probated and the administratrix removed and appellee appointed in her place.
Counsel does not understand correctly the procedure that he himself took in this case. Instead of filing the petition, having process issued for all of the defendants to come into court and show cause why the will should be probated, he undertook by motion to displace the administratrix.
After the court had already appointed the appellant as administratrix of the estate of Sarah Patrick, and she had qualified by giving bond, taking the oath, and entering upon the discharge of her duties, the court was without power to remove her and substitute in her place the appellee when the will had not been probated.
J. T. Hutchison, of Summit, for appellee.
The will was introduced with all of the papers in this cause in evidence, and the same was before the court, also the attesting witnesses to the will were also before the court, and both testified that they signed the said instrument in the presence of the deceased, Sarah Patrick, at her request, she saying that same was her will, which was dividing up her lands among her children, both witnesses testified to the mental condition of the testatrix, which was sound.
It was not necessary that the witnesses attest the said will in the presence of each other, but the attestation to only be in the presence of the testatrix. Section 3550, Code of 1930. The last clause reads as follows: "if not wholly written and subscribed by himself or herself, it shall be attested by two or more credible witnesses in the presence of the testator or testatrix."
The testimony of E. E. Furlough clearly shows that he was asked to attest the will by the testatrix, and that he attested and subscribed same in her presence. Both witnesses testify that they each attested the will in the presence of the testatrix, which is required by the statute, Section 3550, but which does not require that the witnesses attest in the presence of each other.
The question before the court was whether the administratrix should be removed so the will might be probated and no caveat was filed as provided in Section 1608 of Code of 1930, and all parties must be made parties to the contest, that is all interested parties, as provided in Section 1610, and as the matter now stands there is no contest before the court as to the will in this cause, and the court only considered the revocation of the letters, and the probation of the will as same was presented, and if interested parties so desire they may contest the will within two years after probate as provided under Section 1609, Code of 1930.
The administrator under our statute has no authority to contest a will, and this must be done by the heirs of the estate or persons claiming under prior wills.
Hoskins v. Holmes County Community Hospital, 135 Miss. 89, 99 So 570;...
To continue reading
Request your trial
-
Hart v. State
... ... State, 482 So.2d 1136 (Miss.1986); Barnes v. State, 457 So.2d 1347 (Miss.1984); McMullen v. State, 291 So.2d 537 (Miss.1974); Patrick v. State, 285 So.2d 165 (Miss.1973); Craft v. State, 271 So.2d 735 (Miss.1973); Ellis v. State, 208 So.2d 49 (Miss.1968); Tate v. State, 192 So.2d ... ...
- Taylor v. State
-
Vance v. State
... ... 69; Leyner v. Leyner, 123 Iowa 185, 98 N.E. 628; ... Knight v. People, 192 Ill. 170, 61 N.E. 371; ... People v. Patrick, 182 N.Y. 131, 74 N.E. 843; ... Oliver v. Bates, 43 Ind. 132; Inhabitants v ... Henshaw, 101 Mass. 193, 3 Am. Rep. 333; Grant v ... ...
-
Hall v. State, 53550
... ... State, 291 So.2d 537 (Miss.1974); Patrick v. State, 285 So.2d 165 (Miss.1973); Craft v. State, 271 So.2d 735 (Miss.1973); Ellis v. State, 208 So.2d 49 (Miss.1968); Tate v. State, 192 ... ...