Baker v. Brown

• Decision Date: 16 May 1904
• Court: Mississippi Supreme Court
• Parties: ELIZA M. BAKER v. JEFFERSON D. BROWN ET AL

36 So. 539

83 Miss. 793

ELIZA M. BAKER v. JEFFERSON D. BROWN ET AL

Supreme Court of Mississippi

May 16, 1904

October 1903

FROM the chancery court of Wilkinson county. HON. WILLIAM P. S VENTRESS, Chancellor.

Mrs Baker, appellant, propounded the will in controversy, in the court below; Brown and others, appellees, contested. The issue devisavit vel non was submitted to a jury in the chancery court and a verdict was returned in favor of the contestants. The court below overruled the motion of the proponant for a new trial and rendered a decree adjudging the will void. From this decree the proponant, Mrs. Baker appealed to the supreme court.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

McWillie & Thompson, Bramlette & Tucker, and Thompson & Stricker, for appellant.

The writing propounded as the will of Mrs. Barkley had, by way of caption, the words "My Will," and the contestants addressed a great part of their efforts to show that these two words were written with a different colored or somewhat paler ink than the rest of the instrument, by a different hand and at a different time.

The chancellor instructed the jury, at the instance of the contestants, that unless they believed from the evidence that "the paper" offered in evidence as the will of Mrs. Barkley was wholly written and signed by her they must find for the defendant, although they might believe that all of the will was written and signed by her except one word.

This instruction was erroneous and misleading, and the result of the trial shows that it was injurious. The evidence was overwhelming that the body of the instrument as well as the signature was in the handwriting of Mrs. Barkley, and it was for that reason that an effort was made to throw suspicion on the caption. The instruction made it requisite that every word on "the paper" should have been written by Mrs. Barkley, and was particularly aimed at the caption "My Will," the authenticity of which could not affect the instrument, complete in itself, since it contained testamentary words and was dated and signed by Mrs. Barkley.

The words "My Will," which constituted the caption of the writing, cannot properly be said to have constituted a part of the will. No caption or indorsement, however worded, will make that a will which is not one without it, as for lack of signature, date or testamentary words, etc., and the converse of the proposition is equally true, for a writing which is in substance a will is in nowise dependent for its effect upon such caption or indorsement. Roy v. Roy, 16 Gratt. (Va.), 418, 84 Am. Dec., 696; Plumstead's Appeal, 4 So. (Pa.), 545; Warwick v. Warwick, 86 Va. 596; Conway's Will, 124 N.Y. 455; Re Booth's Will, 127 N.Y. 109.

It has been held that an holographic will in which two words appeared which were not in the testator's handwriting should be sustained when the presence or absence of the words did not affect the meaning of the instrument. McMichael v. Bankston, 24 La. Ann., 451.

If the writing in question had not contained words showing that it was to take effect at the death of the subscriber, a resort to the words "My Will" might have been necessary to ascertain the testamentary purpose, but in the body of the writing the subscriber says she wants the proponent, Mrs. Baker, to have all that she owned "at my (her) death," and employs other expressions going to show the testamentary character of the instrument. The will itself, if wholly written and subscribed by Mrs. Barkley, satisfied the terms of our statute, § 4488, Code 1892. It was complete without the caption, and wholly lacked that uncertainty of character which causes the small boy to attach to his drawing the label, "This is a horse." It could not be anything but her will in view of the terms it employed, and the caption so designating it was wholly superfluous.

This being the case, the jury were certainly misdirected by the instruction mentioned, and the weight of the evidence being decidedly in favor of the genuineness of the instrument they must have been misled by it.

J. H. Jones and A. G. Shannon, for appellee.

There is involved only a question of fact of which the jury were the sole judges. If there is evidence tending to show that the will was not wholly written and signed by Mrs. Barkley, then the verdict cannot be disturbed, no matter how conflicting the evidence may be. We confidently refer to the evidence of Sidenspinner, Stricker, and Spencer and the comparison of the alleged original will with writings and signatures proved and admitted to be the writings and signatures of Mrs. Barkley as abundant evidence to justify the jury in considering the proposed will a forgery, or at least not wholly written and signed by Mrs. Barkley.

We would respectfully call the attention of the court to the differences between the handwriting of the alleged will and of some of the documents proved to be in Mrs. Barkley's handwriting, or signed by her and introduced by both proponent and contestant.

The words "My Will" are clearly written with different ink and at a different time from the body of the paper, and in a different handwriting. These words seem to have been an afterthought to meet the case of Young v. Wark, 76 Miss. 729.

Argued orally by T. A. McWillie, for appellant.

OPINION

WHITFIELD, C. J.

It may be accepted as true from the finding of the jury that the caption of the will consisting of the two words, "My Will," were not written by the testatrix. The instrument probated as the will is in the following words:

"MY WILL."

"STAMPS LANDING, July 26th, 1903.

"I want Eliza Baker to have all I own at my death and carry out my wishes the best she can. Let everything stand as I leave it. Give each heir $ 5.00 for me.

E. H. BARKLEY."

All of this instrument, except these two words, "My Will," were written by the testatrix, according to the overwhelming weight of the evidence. In other words, the whole paper, except the two words specified, was wholly written, dated, and signed by the testatrix. On this state of the testimony the court gave the following instruction for the defendants:

"The court instructs the jury for the defendants, that unless the jury...