Crosby v. Alton Ochsner Medical Foundation
| Decision Date | 16 April 1973 |
| Docket Number | No. 46953,46953 |
| Citation | 276 So.2d 661 |
| Parties | Mrs. Ida May CROSBY et al. v. ALTON OCHSNER MEDICAL FOUNDATION. |
| Court | Mississippi Supreme Court |
Hall, Callender & Dantin, Columbia, Heidelberg, Woodliff & Franks, W. Swan Yerger, Jackson, Sherman Muths, Jr., Gulfport, for appellants.
White & Morse, Gulfport, Malcolm L. Monroe, John Thomas Lewis, New Orleans, La., for appellee.
This is an appeal by the Executors of the Estate of Hollis H. Crosby, deceased, and his heirs at law from a decree of the Chancery Court of Harrison County holding valid a charitable bequest in favor of appellee, Alton Ochsner Medical Foundation.
Hollis H. Crosby died on March 25, 1971, leaving a last will and testament dated January 20, 1971. He was survived by his wife and two daughters. His will was probated in the Chancery Court of Harrison County in common form. Thereafter on June 4, 1971, the joint executors named in the will filed a petition for probate of the will in solemn form and for construction of Item III of the will. This item bequeathed one half of the residue and remainder of the testator's estate to his wife and one half to Alton Ochsner Medical Foundation. The petition alleged that the medical foundation was a scientific, educational, literary and charitable corporation and in view of the fact that the testator died within ninety days from the date of the will, the bequest to it appeared to be void under the provisions of Mississippi Constitution § 270 (1890), as amended, and Section 671, Mississippi Code 1942 Annotated (1956). The petitioners asked for adjudication as to the validity of the bequest to Alton Ochsner Medical Foundation.
Appellee, Alton Ochsner Medical Foundation, sometimes referred to as medical foundation, answered and alleged that neither Section 671, Mississippi Code 1942 Annotated (1956), nor Mississippi Constitution § 270 (1890), was applicable to the bequest for the reason that the bequest to it was not more than one-third of the gross estate of the deceased. Appellee further alleged that even if the Mortmain Statute in Mississippi were applicable, it could have no effect other than reducing the amount of the bequest to an amount equivalent to no more than one-third of the gross estate. It was also alleged that the doctrine of dependent relative revocation applied. The answer was made a cross petition against the executors and the surviving wife and daughters alleging that on September 11, 1970, at a time when fully competent, Hollis H. Crosby had duly executed a will by the terms of which he had made a similar devise to the medical foundation, but that the instrument was no longer in existence because Hollis H. Crosby thought he had executed a valid new will and attempted to revoke the instrument by physical destruction. It was alleged that the revocation was ineffectual as to the bequest in favor of medical foundation as it was only meant to take effect, if and when another will carrying out the intent of the testator was properly executed.
The cross petition alleged that if it were held that the bequest under the January 20, 1971, will was ineffectual, then that portion of the September 11, 1970, will, insofar as it dealt with the bequest in its favor, should be entered for probate under the doctrine of dependent relative revocation.
Mrs. Ida May Crosby, the widow, and her two daughters answered the cross petition, denied the allegations of the cross petition, alleged that if Hollis H. Crosby had executed a will on September 11, 1970, it was not then in existence and that he had destroyed it, intending that the same be revoked, and further alleged that all former wills were expressly revoked by the will of January 20, 1971, and such revocation rendered invalid all parts of the will of September 11, 1970. The executors of the estate filed a similar answer to the cross petition.
On the hearing of the cause, petitioners introduced into evidence the proceedings probating the 1971 will in common form. It was then stipulated that medical foundation was in fact a charitable foundation and was at the time of the death of the testator and that the bequest to it under the terms of the will would be less than one-third of the distributable estate. It was also stipulated that his widow, Mrs. Ida May Crosby, and his two daughters, Mrs. Henrietta C. Levings and Mrs. Molly May Crosby Taggart, were the sole surviving heirs at law of Hollis H. Crosby.
Over the objection of the executors and the heirs, medical foundation was allowed to introduce evidence establishing that on September 11, 1970, Mr. Crosby had executed a will that was properly attested in which Item III of that will was virtually identical with Item III in the January 20, 1971, will. Mr. Bernard Callendar, who was Mr. Crosby's personal attorney and as such handled all of Mr. Crosby's legal work, prepared both wills at the request of Mr. Crosby. Mr. Callender had in his possession a conformed copy of the September 11, 1970, will as to dates and signatures. Mr. Callender testified that he advised Mr. Crosby relative to the mortmain statute briefly before he executed the will on September 11, 1970, but did not discuss the mortmain statute with him before he executed the January 20, 1971, will. It was established that the September 11, 1970, will was duly executed, but it was destroyed at the express instruction of Mr. Crosby after the January 20, 1971, will was executed. There was also testimony that Mr. Crosby was for several years a director of the medical foundation. Medical foundation offered testimony showing that Mr. Crosby had made ample provision for his children before he executed both wills. An objection was sustained to this testimony.
The chancellor took the matter under advisement and briefs were submitted by counsel representing opposing parties. The chancellor rendered a written opinion, which is a part of the record. The chancellor was of the opinion that the bequest to medical foundation was valid under the January 20, 1971, will. The chancellor also was of the opinion that the doctrine of dependent relative revocation applied and admitted to probate in solemn form the January 20, 1971, will and Item III of the September 11, 1970, will thereby sustaining the bequest to medical foundation. It was his opinion that although the will of January 20, 1971, contained an express clause of revocation, it was not the testator's intention to revoke the 1970 will insofar as Item III of the will was concerned because this Item was the same in both wills. The chancellor also observed that the provisions of the 1970 and 1971 wills are very similar in their terms, provisions and bequests and that this was a significant factor in applying the doctrine of dependent relative revocation. A decree was entered in accordance with the opinion admitting to probate in solemn form the 1971 will and Item III of the 1970 will, thereby validating the bequest to medical foundation. Hence, this appeal.
The pleadings raised two basic issues in the trial court and the same basic issues must be determined by this Court. The first issue raises the question of whether a charitable bequest of less than one-third of the estate made by a person who was survived by a wife and children is void when the testator dies in less than ninety days after the date of the execution of the will under the provisions of Mississippi Constitution § 270 (1890) and Section 671, Mississippi Code 1942 Annotated (1956), and secondly, if it is void, was a similar bequest contained in an earlier will revived by the doctrine of dependent relative revocation when the last will expressly revoked the former will.
We will concern ourselves with the first question because if the bequest is valid under the January 20, 1971, will, then the second question becomes moot insofar as this appeal is concerned. The pertinent part of Mississippi Constitution § 270 (1890), is as follows:
No person leaving a spouse or child, or descendants of child shall, by will, bequeath or devise more than one-third of his estate to any charitable, religious, educational or civil institutions, to the exclusion of such spouse or child, or descendants of child, and in all cases the will containing such bequest or devise must be executed at least ninety days before the death of the testator, or such bequest or devise shall be void.
The pertinent part of Section 671, Mississippi Code 1942 Annotated (1956), is for all intents and purposes in the same language. Prior to the adoption in 1940 of Section 270, in its present form, Section 269 of the Constitution prohibited a devise of lands for religious or charitable purposes. This section was repealed at the same time that Section 270 was amended. Prior to the amendment of Section 270 it prohibited any bequest of personal property to religious or ecclesiastical corporations or societies. By the adoption of Section 270 the restrictions on the right of a person to make a will were liberalized and such devises and bequests were permitted under certain specified limitations and restrictions. It seems to be clear from a reading of the pertinent part of Section 270 that it provides that any bequest by any person leaving a spouse or child or descendants of a child of over one-third of testator's estate is void to the extent that it exceeds one-third of the estate and that any will containing a devise of more or less than one-third of the estate must be executed at least ninety days before the death of the testator or such bequest or devise will be void. However, medical foundation contended in the trial court and contends here that if the bequest or devise is not more than one-third of the estate, then the ninety day provision does not apply. With this contention we cannot agree. In Bell v. Mississippi Orphans Home, 192 Miss. 205, 5 So.2d 214 (1941), there was involved several charitable requests by a...
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