Estate of Leggett, Matter of, 90-CA-0430

• Decision Date: 17 July 1991
• Docket Number: No. 90-CA-0430,90-CA-0430
• Citation: 584 So.2d 400
• Parties: In the Matter of the ESTATE OF Felton L. LEGGETT, Deceased. Carl N. BERRY, Jr. v. Jacqueline L. SMITH, Executrix.
• Court: Mississippi Supreme Court

Page 400

584 So.2d 400

In the Matter of the ESTATE OF Felton L. LEGGETT, Deceased Carl N. BERRY, Jr. v. Jacqueline L. SMITH, Executrix.

No. 90-CA-0430.

Supreme Court of Mississippi.

July 17, 1991.

Erwin C. Ward, Gene A. Wilkinson, Stennett Wilkinson & Ward, Jackson, for appellant.

Jerry T. Johnston, Brandon, for appellee.

Before HAWKINS, P.J., and ROBERTSON and McRAE, JJ.

ROBERTSON, Justice, for the Court:

I.

This is the case of the will not found. We know that the testator made a will, leaving his entire estate to his sole surviving daughter, and we have every reason to believe that for years he kept that will in a locked desk drawer. The testator died in late December, 1988, and diligent searchers failed to find the will.

The daughter held a photostatic copy of the will, depicting identically the original, and thereupon sought probate. The testator's grandson, an heir-at-law, objected, arguing that the circumstances gave rise to a presumption that the testator had revoked his will by destroying it. The Chancery Court found for the proponent daughter, and the grandson appeals.

II.

A.

Felton L. Leggett was a long-time resident of Jackson, Mississippi. Leggett departed this life on December 29, 1988, eleven days short of his eighty-first birthday. Leggett was a widower, his wife having died on June 5, 1970.

Via a prior marriage which had ended in divorce, Leggett had two children, both daughters, Jacqueline Leggett Smith, who lives in Jackson, and JoAnn Leggett Berry, who passed away on June 27, 1978, predeceasing her father and leaving one child, Carl N. Berry, Jr.

Leggett's heirs-at-law at his death were his daughter, Jacqueline Leggett Smith, and his grandson, Carl N. Berry, Jr. Smith was the plaintiff proponent below and is appellee here. Berry was the contestant below and is appellant here.

On August 15, 1982, with the assistance of Jackson lawyer Hugh Cunningham, Leggett executed his Last Will and Testament. In that will, he bequeaths to his daughter, Jackie Smith, "all of the property of which I may die seized and possessed, either real, personal or mixed, and wheresoever situated, regardless of kind and character." All seem to think Leggett took the will and placed it under lock and key in a roll-top desk in the living room in his home. We know that the day he signed his will Leggett gave his daughter a photostatic copy of it.

Leggett's last months were difficult ones. He was often confused and disoriented. His physical condition deteriorated to the point where those close to him decided he needed round-the-clock sitters. On October 6, 1988, Leggett gave his daughter, Jackie, his power of attorney, saying he could no longer handle his financial affairs. A conservatorship followed on November 28, 1988, the Chancery Court, finding that he suffered from Alzheimer's Disease, was senile, mentally incompetent and incapable of managing his affairs. Leggett spent his last days in a nursing home and died four days after Christmas, 1988. His will was never found.

B.

On February 1, 1989, Jacqueline Leggett Smith filed in the Chancery Court of Hinds County, Mississippi, her Petition to Probate Will in Solemn Form. As evidence of the form and content of that will, she exhibited the photostatic copy of the August 15, 1982, will her father had given her. Berry did not seriously contest Leggett's execution nor publishing of this will, nor the authenticity of the copy exhibited. The testimony of the subscribing witnesses, together with the other evidence, removes any lingering doubt that Leggett did, in fact, make and publish a Last Will and Testament on August 15, 1982, in the form and with the content of that exhibited to the Court.

Berry did question, however, the will's present power to direct descent of Leggett's estate and relies here, as below, upon a presumption of revocation said to emanate from the fact that the will was known to have been under Leggett's control and was not found at his death. He argued the Court should thereupon hold Leggett revoked his will, Miss.Code Ann. Sec. 91-5-3 (1972), and declare that Leggett died intestate, in which event Berry should take half of his estate. ¹ Miss.Code Ann. Secs. 91-1-3 and -11 (1972).

The Chancery Court heard considerable testimony from Smith, Berry, two sitters and friends. The Court found as a fact that

Absolutely no evidence whatsoever was ever offered in the trial of this case that proved the destruction of the August 15, 1982 Will nor is there any scintilla of evidence which would indicate that Mr. Leggett ever expressed any desire to change or revoke his Will. Further, no evidence was presented that makes it probable that Mr. Leggett would have wished to revoke his Will which in turn requires only slight evidence to rebut the presumption. To the contrary, the evidence clearly and convincingly establishes that Mr. Leggett made frequent references to his Will; that Jackie would get everything, that he had taken care of Jackie and that he did not want Carl Berry, Jr. (Sonny) to have any of his property.

The Court further discussed the facts, cited Mississippi authority, and held, in the end,

that the overwhelming weight of the evidence shows that Felton Leggett, after executing his will, did not revoke it and had no intention of revoking it, and that such evidence amply rebuts the presumption arising by reason of the fact that the will was not found after his death.

On April 3, 1990, the Court entered final judgment admitting the will to probate in solemn form.

III.

The maker of a will may certainly revoke it, but if he does so, he must at the time possess that same mental capacity required by law before he could make the will in the first place. Watkins v. Watkins, 142 Miss. 210, 234, 106 So. 753, 757 (1926); T. Lee, An Examination of Various Aspects of Mississippi Wills Law, 36 Miss.L.J. 345, 357 (1965). Destroying a will is one recognized means of revoking it, provided the proof suggests the testator's intent to revoke, not an accidental or unwitting destruction. McCormack v. Warren, 228 Miss. 617, 628-29, 89 So.2d 702, 706 (1956); Restatement (Second) of Property, Donative Transfers, Sec. 33.1, Comment F (Ten. Draft No. 12, Mar. 28, 1989). Our Court does not lightly credit claims a man has revoked his will, by destruction or otherwise. We have accepted that a testator's intent to revoke "must appear clearly and unequivocally." McCormack v. Warren, 228 Miss. at 628-29, 89 So.2d at 706 (quoting 57 Am.Jur., Wills Sec. 494); see, Adams v. Davis, 233 Miss. 228, 237-38, 102 So.2d 190, 194 (1958). These views reflect the importance our people give the will as a man's means of directing disposition of his property at his death.

If a man destroys his will with intent to revoke it, obviously the will will not be found at his death, but the converse does not follow. That a man's will be not found at his death does not necessarily mean he destroyed it nor that he intended revocation. Our concern has been how we should read the circumstantial evidence, and, in such an instance, if it be known where a man kept his will, that prior to his death it was last known to be in his possession or subject to his exclusive dominion and control, common experience suggests destruction with intent to revoke the likely explanation. Uncertainties remain, but such cases do arise and must be adjudged and, to the end that they be adjudged on a principled basis, we have made a policy choice. We have created, as a rule of evidence, a rebuttable presumption of destruction with intent to revoke.

Berry claims this presumption, and it is central to this suit, and we need be clear of its contours. It arises when the evidence shows (a) the would-be testator made a will, (b) last known to have been in its maker's possession prior to his death, but (c) not found after death despite diligent search. Where these facts be found and not rebutted, our law presumes that the decedent before his death revoked his will by destroying his will. Employing good Latin legalese, we say he "destroyed it animo revocand." Estate of Willis v. Willis, 207 So.2d 348, 349 (Miss.1968); Weems, Wills and Administration of Estates in Mississippi, Sec. 5-2 (1988). We have added that the presumption is not overcome merely "by proof that persons injuriously affected by the will had opportunities to destroy it." James v. Barber, 244 Miss. 234, 142 So.2d 21, 27 (Miss.1962) (citing 57 Am.Jur., 389, Wills Sec. 568).

The presumption has a further, critical dimension. It is rebuttable. Our later cases say it may be overcome only by "clear and convincing" evidence that the testator did not destroy it or that, if he did, he did so accidentally or otherwise without intending revocation. Estate of Willis, 207 So.2d at 349; James v. Barber, 244 Miss. 234, 142 So.2d 21, 27 (1962). Regarding the burden at issue, the Adams Court quoted with approval a more complex exposition found in 1 Jarman, A Treatise on Wills, Sixth Edition, Chapter VII, page 152,

If a will is traced into the testator's possession, and is not found at his death, the presumption is that he destroyed it for the purpose of revoking it; but the presumption may be rebutted, and it will be more or less strong according to the character of the custody which the testator had over the will. It is difficult to lay down any general rule as to the nature of the evidence which is required to rebut the presumption of destruction: It depends to a considerable extent on the testator's property and his relations towards his family. Where the will makes a careful and detailed disposition of the testator's property, and nothing happens to make it probable that he wishes to revoke it, the presumption raised by...