Fuqua v. Mills

• Decision Date: 14 June 1954
• Docket Number: No. 39171,39171
• Citation: 73 So.2d 113,221 Miss. 436
• Parties: FUQUA v. MILLS et al.
• Court: Mississippi Supreme Court

Page 113

73 So.2d 113

221 Miss. 436

FUQUA v. MILLS et al.

No. 39171.

Supreme Court of Mississippi.

June 14, 1954.

Suggestion of Error Overruled July 23, 1954.

See 73 So.2d 928.

Fred M. Belk, Holly Springs, Robert B. Smith, III, Ripley, for appellant.

Fant & Bush, Holly Springs, for appellees.

KYLE, Justice.

This case is before us on appeal by Mrs. Alice E. Fuqua from a decree of the Chancery Court of Marshall County dismissing her petition contesting the validity of a codicil to the last will and testament of Mrs. Antionette Arnold in which the testatrix had devised and bequeathed the residue of her estate to the Methodist Church, Byhalia, Mississippi.

The record shows that Mrs. Antionette Arnold died on April 20, 1952, and that her last will and testament dated July 22, 1949, and a codicil thereto dated August 11, 1950, were duly admitted to probate in common form by two separate decrees of the chancery court rendered on May 29, 1952. Letters testamentary were duly granted to Mrs. Alice E. Fuqua as executrix of said will on the last mentioned date. In her will the testatrix disposed of her property as follows: In Item I of the will she directed that her just debts and funeral expenses be paid; in Item II of the will she confirmed a deed which she had executed to Mrs. Alice E. Fuqua on July 7, 1949, conveying to Mrs. Fuqua and her husband a house and lot in the Town of Byhalia, which was occupied by her at the time of her death. In Item III of the will the testatrix bequeathed to her daughter, Mrs. Gretchen Arnold Thompson, who at the time the will was executed was confined as an inmate in the Mississippi State Hospital at Whitfield, all of the personal property that she might own at the time of her death, after the payment of her debts and funeral expenses; and the testatrix appointed Mrs. Alice E. Fuqua as testamentary guardian of her said daughter. The testatrix in Item III of her will then devised and bequeathed to Mrs. Alice E. Fuqua all of her personal property remaining undisposed of at the death of her daughter. In Item IV of the will the testatrix named Mrs. Fuqua as executrix of the will and relieved her from executing bond as such.

The codicil, which was written in the testatrix' own handwriting and was dated August 11, 1950, is as follows:

'Mrs. C. D. Arnold

'Aug. 11, 1950.

'Byhalia, Mississippi

'I am correcting a mistake the lawyer, made in my will, I will, what money I have to my daughter Mrs. Gretchen Ann Thompson. The will, read, for it all be used for her, &, Mr. and Mrs. Fuqua to have the rest, if there was any left; I want all, used for her, & if any left, I want it, to go, to the Methodist Church. as I have never been financially able to give to the church, as I wanted to, & I want Aubry French to see that it is carried out as I want it. Witnesses

'Mrs. Antionette Arnold

'Mrs. C. D. Arnold

Emilee Dee Lowry

J. B. Going, Jr.'

In her petition to contest the codicil the appellant alleged that Mrs. Arnold had entered into a verbal agreement with the appellant and her husband, Fred T. Fuqua, on May 30, 1949, in which she had agreed to purchase and convey to petitioner and her husband the residence property in the Town of Byhalia, known as the 'Clyde Neely place,' reserving to herself a life interest in the property; and to execute a will whereby she would leave to petitioner all of her personal property remaining after the death of her daughter. The petitioner alleged that she and her husband had agreed to render certain valuable services to Mrs. Arnold in the consideration of her agreement to convey said homestead property to them and to bequeath to petitioner the residue of her personal property. The petitioner further alleged in her petition that Mrs. Arnold did on July 7, 1949, execute and deliver to her and her husband a deed of conveyance of the above mentioned residence property known as the 'Clyde Neely place,' reserving to herself, however, a life interest in the property; and that in pursuance of the above mentioned oral argeement, Mrs. Arnold and the petitioner and her husband, on July 22, 1949, executed a written contract covering the terms of the agreement relating specifically to the rights of the parties in the use and occupancy of the residence property during Mrs. Arnold's lifetime; and that Mrs. Arnold on the same date executed the above mentioned will.

The petitioner further alleged that the above mentioned deed, dated July 7, 1949, and the above mentioned contract dated July 22, 1949, and the above mentioned will, were all executed pursuant to the verbal agreement entered into by and between the parties on May 30, 1949; and that said instruments, including the will, were irrevocable. The petitioner also alleged that she and her husband had faithfully carried out their part of the agreement; and that the execution by Mrs. Arnold of the codicil dated August 11, 1950, wherein she attempted to change the terms of said will, represented an attempt to perpetrate a fraud in law and in fact upon the petitioner; that the attempted change in the will had been made in violation of the terms of the agreement; and that the codicil was therefore void. It was also alleged in the petition that the codicil was so vague and indefinite in its terms that it was without legal effect on that account.

The trustees of the Methodist Church of Byhalia were made parties defendant to the petition; and the petitioner asked that proper process be issued for them, and that upon a hearing of the petition the above mentioned codicil be declared null and void and that the petitioner be recognized as sole legatee of the property owned by the testatrix at the time of her death. It was also alleged in the petition and the record shows that Mrs. Gretchen Ann Thompson, the daughter of the testatrix mentioned in the will and codicil, died sometime during the month of December 1951.

Copies of the above mentioned deed dated July 7, 1949, and the above mentioned contract dated July 22, 1949, and the above mentioned will were filed as exhibits to the petition.

The defendants in their answer to the petition admitted the execution of the above mentioned deed dated July 7, 1949, and the contract dated July 22, 1949. But the defendants expressly denied that Mrs. Arnold had promised to execute a will bequeathing all or any part of her property to the petitioner, or that the will dated July 22, 1949, was executed by Mrs. Arnold pursuant to any contract, or that the will was irrevocable. They denied that the testatrix in executing the codicil attempted to perpetrate a fraud upon the petitioner, or that the codicil was void for any reason.

Three witnesses testified on behalf of the appellant concerning the alleged oral agreement. Fred T. Fuqua, the appellant's husband, testified that he and his wife and their son and daughter were living in an apartment at the Harrison Hotel in Byhalia during the first half of the year 1949, and that Mrs. Arnold was also living at the hotel at that time; that Mrs. Arnold was 89 years of age and had one daughter, Mrs. Gretchen Arnold Thompson, who was confined as an inmate in the Mississippi State Hospital at Whitfield; that Mrs. Arnold had several conversations with his wife and him concerning the purchase by Mrs. Arnold of a dwelling house and lot to be occupied by them as a home; and that on May 30, 1949, the matter was again discussed by the three of them in the Fuqua apartment at the hotel; and that Mrs. Arnold then agreed to purchase the 'Clyde Neely place', in the Town of Byhalia, and convey the property to him and his wife, with the understanding that he and his wife were to take care of her and provide her with table board as long as she lived. Fuqua stated that Mrs. Arnold also agreed to make a will leaving her property to her daughter, and at her daughter's death the property to go to Mrs. Fuqua. Mrs. Arnold did thereafter purchase the 'Clyde Neely property', and on July 7, 1949, executed a warranty deed conveying the same to Fuqua and his wife, jointly, reserving to herself, however, the use, control and occupancy of the premises for and during her lifetime; and on July 22, 1949, Mrs. Arnold and Mr. and Mrs. Fuqua executed a formal contract, whereby Mrs. Arnold rented the 'Clyde Neely property' to Fuqua and his wife, reserving, however, her own room and such other part of the premises as she desired for her own personal use. The Fuquas agreed to furnish Mrs. Arnold table board and incidental comforts and conveniences as long as she lived, or until she got to the point where she needed hospitalization. Mrs. Arnold, however, was to pay all of her doctor's bills and hospital expenses and other expenses out of her own personal funds. The Fuquas agreed to pay the taxes, insurance and special assessments against the property and the costs of repairs and improvements. The contract was duly signed and acknowledged by the parties before a notary public. On the same day the contract was signed, Mrs. Arnold executed the will dated July 22, 1949.

Fuqua testified that both instruments had been prepared by Mr. Hindman Doxey, an attorney of Holly Springs. Fuqua stated that he accompanied Mr. Aubry French to Holly Springs a few days before the contract was signed to see Mr. Doxey about the preparation of the instruments for Mrs. Arnold. Fuqua stated that Aubry French read the contract and the will to Mrs. Arnold before she executed the instruments on July 22, 1949. He admitted that he and his wife read the contract and signed it and received a copy of the contract. Mrs. Arnold signed the will and delivered it to Aubry French to be put in the bank for safekeeping. No copy of the will was given to Fuqua and his wife. Fuqua stated that Mrs. Arnold continued to live in the home with him and his wife until her death, and that he and his wife furnished her table board and cared for her during that time. He stated on cross examination that Mrs. Arnold paid for her own gas...