Bigleben v. Henry
| Decision Date | 24 April 1944 |
| Docket Number | 35585. |
| Court | Mississippi Supreme Court |
| Parties | BIGLEBEN et al. v. HENRY et al. |
Ernest Kellner, of Greenville, Johnson & Allen, of Indianola and Creekmore & Creekmore, of Jackson, for appellants.
Ben Wilkes and Farish, Keady & Branton, all of Greenville for appellees.
The sole question here presented for decision is whether or not under the facts hereinafter set forth the proof of the probate in common form before the Clerk in vacation of the purported last will and testament of Josephine Theresa Bigleben, deceased, was prima facie evidence of the validity of the will on the trial of an issue of devisavit vel non in the court below. A few days after the presentation to the Clerk of the instrument and the affidavits of the subscribing witnesses thereto, the heirs at law of the alleged testatrix other than the appellee, Mrs. Christine B. Henry, daughter of the deceased and sole beneficiary under her will, filed a contest or caveat against the same, alleging undue influence and lack of testamentary capacity. This action was taken subsequent to the entry of the order by the Clerk in vacation admitting the instrument to probate, the issuance of letters of executorship and the administration of the oath to the Executrix named therein, but prior to the convening of the next regular term of court on the first day of which the Chancellor entered an order approving the acts of the Clerk done in vacation.
It appears that upon the filing of the contest the contestants, who are the appellants here, also filed a motion under Section 1251, Code of 1942, Section 340, Code of 1930, seeking to obtain an order of the Chancellor in vacation to suspend the orders and proceedings of the Clerk until the trial could be had before the court; that upon notice to the other interested parties the contestants of the purported will obtained a hearing upon said motion in vacation, at which hearing the same was overruled. Thereafter and prior to the first day of the next regular term of the court the proponent of the alleged will filed her answer to the contest, denying the allegations of undue influence and lack of testamentary capacity of the Testatrix.
On the first day of the said regular term of court the Chancellor approved and confirmed all of the acts of the Clerk in vacation, including the probate of the said instrument in common form before the Clerk, and without further notice to the contestants in that behalf. Thereafter the issue of devisavit vel non was made up, a jury empaneled and the trial of the issue was proceeded with, when proponent offered in evidence, over the objection of the contestants, the probate of the instrument in common form before the Clerk and the order of the Chancellor approving the acts of the Clerk done in vacation, and then rested her case. The contestants then made a motion that the court vacate its order whereby the acts of the Clerk in vacation had been approved and confirmed, on the ground that the court was without authority to enter such order while the contest of the purported will was pending and unheard. This motion was overruled and the contestants thereupon declined to offer any proof in support of their allegations of undue influence and lack of testamentary capacity. The motion which had been filed by the contestants in vacation to suspend the orders and proceedings had before the Clerk, together with the order of the Chancellor in vacation overruling the same, were then introduced by the proponent over the objection of the contestants, and whereupon both the proponent and the contestants requested a directed verdict in their favor respectively, and whereupon the Court granted the peremptory instruction in favor of the proponent and, of course, refused that which had been requested by the contestants. From the decree entered pursuant to the verdict for the proponent in that...
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- Wells v. State
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Rice v. McMullen, 37226
...proper and lawful proceeding in a proper court, having jurisdiction of the subject matter and of the parties in interest. Bigleben v. Henry, 196 Miss. 586, 17 So.2d 602. On the hearing in this cause, appellee introduced in evidence the proceedings before the clerk in vacation admitting the ......
- Salts v. State, No. 2006-KA-00437-COA.
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IN RE ESTATE OF TAYLOR
...contestants present no evidence, the proponent's prima facie case stands, and the will will be found to be valid. Bigleben v. Henry, 196 Miss. 586, 17 So.2d 602, 603 (1944). Furthermore, the contestants may raise other issues, such as undue influence, but like the other grounds for invalidi......