Better v. Hirsch

• Decision Date: 15 October 1917
• Docket Number: 19574
• Citation: Better v. Hirsch, 115 Miss. 614, 76 So. 555 (Miss. 1917)
• Court: Mississippi Supreme Court
• Parties: BETTER ET AL. v. HIRSCH ET AL

76 So. 555

115 Miss. 614

BETTER ET AL. v. HIRSCH ET AL

No. 19574

Supreme Court of Mississippi

October 15, 1917

Division B

APPEAL from the chancery court of Warren county, HON. E. N. THOMAS Chancellor.

Suit by Mrs. Phillip Better and others against Frank Hirsch executor, and others. From a judgment for defendants plaintiff appeals.

Appellants who were certain heirs at law of Mrs. Mollie Hermann, filed a suit in the chancery court of Warren county, the purpose of which was to set aside and nullify the will of the said Mrs. Hermann, who died a widow without children, leaving appellants and others as her heirs at law. Some time previous to her death she had had a will drawn by her attorney, but a few days before her death she took this will from the bank, where it had been deposited for safekeeping, and rewrote it in her own handwriting. On the day of her death she added a concluding paragraph and sent for the subscribing witnesses, who signed the will in her presence, but not in the presence of each other. Mrs. Hermann did not subscribe her name at the end of the will, but wrote the entire will in her own handwriting, the opening paragraph of which is:

"I, Mrs. Mollie Hermann, of Warren county, Mississippi, of sound mind and memory, make this my last will."

Shortly after the attestation of the will by the two subscribing witnesses, Mrs. Hermann died. Subsequently this suit was filed against the executor and certain beneficiaries under the will, which had been duly probated. The contestants set up the following grounds for avoiding the alleged will:

"(1). That the paper, though admitted to probate in common form, is not the true last will and testament of decedent. (2) That the said writing was not executed as required by section 5078 of the Mississippi Code of 1906, in that it was not signed or subscribed by the decedent. (3) That the writing is too vague, indefinite, uncertain, and contradictory, both as to bequests and beneficiaries, to be legally effective as a last will and testament. (4) That the said decedent was mentally incapable of making a will at the time the writing purports to have been executed. (5) That the decedent had for many years entertained towards complainants violent and absurd prejudices, based on misinformation and mental delusions, and that the paper in question was the result of such insane delusions."

Section 5078 of the Code is as follows:

"Every person aged twenty-one years, male or female, married or unmarried, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title, and interest in possession, reversion, or remainder, which he or she hath or at the time of his or her death, shall have, of, in, or to lands, tenements, hereditaments, or annuities, or rents charged upon or issuing out of them, or goods and chattels, and personal estate of any description whatever, so as such last will and testament, or codicil, be signed by the testator or 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."

Affirmed.

J. C. Bryson and A. M. Klein, for appellant.

We submit that the pleadings raise, and the testimony affirmatively establishes, the following issues: First, that the paper in question was never completed and that Mrs. Mollie Hermann died leaving it in an unfinished and inchoate state; second, the signature of the decedent appearing near the beginning of the instrument was not made in final execution of the instrument as required by section 5078, Mississippi Code, 1906, and was not a signing of the instrument in legal contemplation and effect; third, that the decedent while working at the said instrument had become so weakened by sickness, the near approach of death, and the mental effect of writing as to become incapable of knowing what she was about and of comprehending the nature of the work she was attempting to perform and to bear in memory the property she possessed or the persons on whom she desired to bestow it; fourth, that the paper is not enforceable as to a holographic will because, in addition to the grounds against it as an attested will, it was not subscribed by the decedent as required by statute.

As to failure to complete and sign instrument: The first and second proposition set out above are so closely connected in fact and legal effect that we deem it best to present them together. Let us first consider what the statute contemplates by requiring that the instrument "be signed by the testator."

Mr. Webster defines the transitive verb "signed" as "third, to affix a signature to; to ratify by hand or seal; to subscribe in one's own handwriting; " and the intransitive verb "sign" he defines as "third, to write one's name as a token of assent, responsibility or obligation."

Under these definitions "to sign" is the act of giving vitality to an instrument by the writing of one's name or having it written with the conscious purpose of vitalizing or becoming bound by the instrument of writing. It is immaterial where the signature may be placed on the paper whether above, below, or in the body of the instrument, but it is essential that wherever it may be placed, it shall be done with the conscious purpose of giving effect to the writing. Barksdale v. Bullington, 69 So. 891; Board of Trustees v. Campbell, 48 La. Ann. 1543, 21 So. 184; Knox Estate, 131 Pa. 220, 18 A. 1021, 6 L. R. A. 353, 17 A. St. R. 768; Mills v. Howard, 2 N.D. 30, 49 N.W. 413; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 35 L. R. A. 102; Plate's Estate, 148 Pa. 5057, 23 A. 1038, 33 Am. St. Rep. 805; 36 Enc. of Law & Prop., 446-48; Armstrong v. Walton, 105 Miss. 337, 62 So. 173; Lampkin v. State, 105 Ala. 1, 16 So. 575; In re Camp's Estate, 134 Cal. 233, 66 P. 227; Cunningham v. Hawkins, 163 Mich. 317, 128 N.W. 223; Catlett v. Catlett, 55 Mo. 33, 43 La. Ann. 310, 26 Am. St. Rep. 183; 30 Enc. of Law, 582; 40 Cyc. 1104-5; Merritt v. Clasin, (N. Y.), 12 Johns. 102, 7 Dec. 286; Affirmed, 14 Johns. 484; Lawson v. Dawson, 21 Tex. Civ. App. 316, 53 S.W. 64; 1 Jarman, Wills, 70; Roy v. Roy, 16 Gratt. (Va.), 418, 84 Dec. 698; Ramsey v. Ramsey, 13 Gratt. (Va.), 664; 70 Dec. 438; Waller v. Waller, 1 Gratt. 454, 42 Am. Dec. 565; Ramsey v. Ramsey, 13 Gratt. 664, 70 Dec. 438; Plate's Estate, 148 Pa. St. 55; 33 Am. St. Rep. 805; Booth v. Booth, 127 N.Y. 108, 24 Am. St. Rep. 429; Estate of Seaman, 146 Cal. 455, 106 Am. St. Rep. 53; Matter of Andrews, 162 N.Y. 1, 76 Am. St. Rep. 294.

As to lack of mental capacity to make a will: The oral testimony is negative as to want of mental capacity in Mrs. Hermann to execute a valid will. On this point we must therefore look alone to the instrument itself for evidence. Indeed it seems to us, and we submit to the court, that there can be no better evidence offered as to mental capacity than one's own composition.

"The character of the provisions, however, as being just or unjust, reasonable or unreasonable, may be considered by the jury as tending to throw light on the capacity of the testator. 28 Ency. of Law (2 Ed.), 106; Leach v. Burr, 188 U.S. 510; Couch v. Couch, 7 Ala. 519, 42 D. 602; Eastis v. Montgomery, 95 Ala. 486, 36 St. 227; Knox v. Knox, 95 Ala. 493, 26 St. 235; Crandall's Appeal, 63 Conn. 365, 38 St. 375; Manatt v. Scott, 106 Iowa 203, 68 St. 293; Davis v. Calvert (Md. 25 D.), 282; Rivard v. Rivard, 109 Mich. 98, 63 St. 566; Hammond v. Dike, 42 Minn. 273, 18 St. 503.

As to the requisite degree of mental capacity we cite the following additional authorities: 28 Enc. (2 Ed.), 71-73, 86; Brock v. Luckett (Miss.), 4 H. 459; Manatt v. Scott, 106 Iowa 203, 68 St. 293; Campbell v. Campbell, 130 Ill. 466.

As to validity of holographic will: The testimony shows that the alleged will was wholly in the handwriting of Mrs. Hermann (except the signature of the witnesses) and this raises the question as to whether it may stand in any better light before the court by reason of that fact.

The statutory requirement for holographic wills is the same as for attested wills except holographic wills are required to be altogether in the testator's handwriting and to be subscribed, while attested wills are required to be witnessed. All the other legal tests and requirements are identical.

Failure to complete, failure to sign, and lack of mental capacity are as fatal in one case as the other. It follows that if our argument on the failure or execution as to an attested will is sufficient to avoid the instrument as an attested will, it must be sufficient to avoid the instrument as a holographic will.

In addition the paper is void considered as an attempted holographic will, because it is not subscribed by the testator and because it is attested by the witnesses in their own handwriting.

McLaurin & Armistead, for appellee.

It is only necessary, in our judgment, to examine the question of whether or not this will was executed in compliance with the statute of Mississippi in reference to who may execute a will, as provided by section 5078 of the Code of 1906. The court on examination of this section, will observe that it does not require that the witness of the will shall sign the same in the presence of each other, but only that the witnesses shall sign the will in the presence of the testator or testatrix, as was done in this case. Neither is it necessary that the witness shall see the testator sign the will. Miller v. Miller, 96 Miss. 526. The above statute provides two way for executing wills. One is that the will may be wholly written and "subscribed" by the testator or...