Denson v. Denson

• Decision Date: 12 January 1948
• Docket Number: 36595.
• Citation: 33 So.2d 311,203 Miss. 146
• Court: Mississippi Supreme Court
• Parties: DENSON et al. v. DENSON.

33 So.2d 311

203 Miss. 146

DENSON et al. v. DENSON.

No. 36595.

Supreme Court of Mississippi

January 12, 1948

Donald Franks, of Booneville, for appellants.

Cunningham & Cunningham, of Booneville, for appellee.

L. A. SMITH, SR., Justice.

Appellee filed suit in the Chancery Court of Prentiss County praying for the establishment of the alleged lost will of his father in which he was a substantial beneficiary, and that it be decreed to be his father's true last will and testament and admitted to probate as such. Necessary parties, the widow and other children of the decedent, were brought into court by proper process, and some of them contested the relief sought. The chancery court heard the cause on conflicting evidence and granted the decree for which appellee prayed.

It was agreed that a copy of the purported will filed as an exhibit to the original bill was, in fact, a true and correct copy thereof; that it was properly signed and published; and it is not challenged on the ground of undue influence or lack of testamentary capacity. The issues are, was this purported will made pursuant to a contract between appellee and his father, and was it susbsequently revoked by George M. Denson the deceased father of the parties?

Appellants assign as error here that the 'court below erred in establishing the will as the last will and testament of George M. Denson, deceased, and ordering the same admitted for probate.' Appellee sought to sustain the will on the ground that it was executed in his favor pursuant to an oral contract between him and his father, and had not been indeed, could not be, revoked, since he had fully performed his part of the agreement, and the execution of the will performed his father's part of it.

George M. Denson had been married five times, and at the time of his death was survived by his faith wife, one of the defendants below, and nine children,--five by his first wife and four by his third wife. He had no children by his other wives. Appellee was a child of the first wife, and the other children-defendants are, of course, some full brothers and sisters and some of the half blood. George M. Denson, the father, died on September 15, 1946, as the result of an automobile accident; his will was executed on September 3 1941, and he married his surviving widow, Mrs. Annette Easterling Denson, on September 17, 1941. In the spring of 1946, the testator called at the bank, where he had deposited the paper writing involved for safe-keeping, and upon his request, the document was delivered to him. It has not been seen since, although careful search and inquiry have been made in efforts to locate it.

Sometime in the early nineteen twenties, George M. Denson, the testator, was heavily involved, if not insolvent, and was growing old, and apparently discouraged, and offered to devise and bequeath his property, consisting of about 200 acres of farm land, and farm equipment, to any one of his sons, who could take hold of same and work him out of debt. One witness testified that the offer made was that the father would compensate in his will any such son who would so assist him. This offer was an oral one, and because of one reason or another, all of his sons found it necessary to decline the offer, except George B. Denson, the appellee. He accepted, and by most frugal living by himself and family, and the very hardest kind of toil on his father's farms, and for others occasionally, had brought his father completely out of debt in 1945, with $1500 in surplus cash.

As stated, supra, the evidence was conflicting, and appellants offered some evidence contrary to the above matters proven by the appellee. The final decree found as to the facts: 'It...