Baker v. Baker's Estate

• Decision Date: 25 February 1946
• Docket Number: 36057.
• Citation: 199 Miss. 388,24 So.2d 841
• Parties: BAKER v. BAKER'S ESTATE.
• Court: Mississippi Supreme Court

24 So.2d 841

199 Miss. 388

BAKER v. BAKER'S ESTATE.

No. 36057.

Supreme Court of Mississippi

February 25, 1946

Paine & Paine, of Aberdeen, for appellant.

Jas. A. Finley, of Tupelo, for appellee.

McGEHEE Justice.

This cause was heard in the trial court upon the objections of S Wilburn Baker, husband and sole heir-at-law of Mrs. Metta G Baker, deceased, to the probate of the alleged holographic last will and testament of the deceased. From a decree declaring the said instrument to be a valid holographic will and admitting the same to probate, the appeal here was taken. Subsequent to the rendition of the said decree, the said S Wilburn Baker has died and the cause has been revived here in the name of Mrs. Lillian Baker, executrix of his estate.

The document in question is wholly written in the handwriting of the said Mrs. Metta G. Baker, deceased, but the same is not subscribed by her unless it can be said that the caption thereto in the following words can justify a holding by us that she 'subscribed' to the same, the caption being in the following words: 'Metta G. Baker writing this.'

The first paragraph of the purported will begins in the following language: 'At my death, if the following are still living I want my property to be divided. To my husband S.W. Baker I want my real estate given * * * to Betty Moore I want my (enumerating certain articles of personal property), to Nancy Lee I want my (enumerating certain articles of personal property), to Cora Lee Couch my (enumerating certain articles of personal property)', the said paragraph containing no word of disposition except as to the real estate given to the husband.

The second paragraph recites the ownership of numerous other articles of personal property which are to be divided among three named devisees, and then specifies that certain other articles are 'to go to Carrie and if Inzie is still living she, Carrie, can give her some,' and it is further provided that her desk is to go to one of her father's grandsons 'whichever one who wants it.'

The third paragraph provides that her watch is to go to the husband. 'If he is still living,' and 'it is then to go to Bettie, but never to be disposed of.'

The fourth and last paragraph recites the ownership of certain other personal property which 'I want Mary Emma, Virginia and Elizabeth to have,' and that 'If I have any cash left I want it put into bonds and used for the education only of Elizabeth and Mary Emma's children.'

No signature, date or other writing appears underneath the last paragraph of the instrument and which ends with the quotation last above mentioned.

The precise questions, therefore, presented are: (1) Whether or not the caption to the instrument, being the only place where the name of Metta G. Baker appears at all on the entire two-page document, was intended to be placed there as an executing signature or merely as words of identification of the person writing, if and when the holographic document should be completed and subscribed as a last will and testament; and (2) whether or not the said identifying notation above the beginning of the document means that the same is 'subscribed' within the meaning of our statute, Section 657, Code of 1942, which was in full force and effect when this instrument was prepared and also at the death of the writer thereof.

The statute provides that under certain limitations a person may make a last will and testament, provided that the same 'be signed by the testator of testatrix, or by some other person in his or her presence, and by his or her express direction; and, moreover, 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.' (Italics ours.)

In 28 R.C.L., Section 60, p. 108, it is stated that: 'The formalities to be observed in the execution of wills are simple and calculated to prevent frauds and uncertainty in the testamentary dispositions of property, and where a legislature has seen fit to impose certain requirements looking to the execution of a will, compliance with such requirements is necessary to the validity of any instrument offered as a testament. No essential formality may be dispensed with, and a failure to comply with formalities prescribed for the prevention of fraud is not excused by showing that in the particular case under consideration there was no fraud. The power of transmitting property by will is a power to be exercised solely under the statute law, and only by compliance with the requirements of the statute may an heir be deprived of his inheritance. It is the intention of the legislature which controls, not that of the testator, and a will which in its execution does not conform to the provisions of the statute will be denied probate, notwithstanding the intention of the testator. It is immaterial that the requirements of the law in their application in particular cases may defeat the actual intention of a person as to the disposition of his property.' Also in Section 72 of the said text, it is stated, in recognizing that there is authority to the contrary, that: 'On the other hand it has been said that the name written at another place than the end of the document and not for the purpose of authenticating it and indicating its completion, but merely to identify the person who is making the will, is not to be considered as a name signed to the will.'

And, in 68 C.J. 722, the rule is announced that: 'Where the statutes provide that a valid holographic will be signed at the end of the writing, or be 'subscribed,' the requirement must be fulfilled,' citing among other cases that of Better v. Hirsch, 115 Miss. 614, 76 So. 555. However, the same paragraph of this text further states that 'notwithstanding the usual place of signing and thereby evidencing the execution and completeness of a holographic will is at the end of the document, the signature of the testator if found elsewhere than at the end may be a signature or token of execution, if the circumstances warrant the inference. However, the only evidence which will justify this conclusion must be found in and on the instrument itself; and, in the absence of anything on the face of the paper to raise the inference that a name appearing elsewhere than at the end of the writing was intended as a signature in execution, the holographic document...