Gaston v. Gaston, No. 50189

• Citation: 358 So.2d 376
• Decision Date: 19 April 1978
• Docket Number: No. 50189
• Parties: Sylvester GASTON and Edna Jones Gaston, and Aggie Lee Gates, Individually and as Administratrix of the Estate of Willie Gaston, C.T.A. v. Bernice GASTON and Bernette Gaston.
• Court: United States State Supreme Court of Mississippi

Page 376

358 So.2d 376

Sylvester GASTON and Edna Jones Gaston, and Aggie Lee Gates Individually and as Administratrix of the Estate of Willie Gaston, C.T.A. v. Bernice GASTON and Bernette Gaston.

No. 50189.

Supreme Court of Mississippi.

April 19, 1978.

As Modified On Denial of Rehearing May 24, 1978.

Caldwell & Lewis, Ben M. Caldwell, Marks, Sullivan, Smith, Hunt & Vickery, Ralph E. Chapman, Clarksdale, for appellants.

William Dean Stark, Clarksdale, for appellees.

Before ROBERTSON, P. J., and SUGG and WALKER, JJ.

ROBERTSON, Presiding Justice, for the Court:

The Chancery Court of Quitman County sustained a motion for judgment notwithstanding the verdict, set aside the verdict of the jury finding that the last will and testament of Willie Gaston, deceased, was properly executed and witnessed, and entered judgment for Bernice and Bernette Gaston, his nieces, finding that Willie Gaston had died intestate, and that they inherited his property under the laws of descent and distribution.

The court also found that Edna Jones Gaston was not the common law wife of Willie Gaston and that Sylvester Gaston was their illegitimate son, and did not inherit from his father, Willie Gaston.

There were two principal issues:

Whether the original of the instrument styled "Last Will and Testament of Willie Gaston" was properly executed and witnessed and subsequently lost, so as to make the copy of the will (blank as to date and signatures) properly admitted to probate; and

Whether there was a valid common law marriage between Willie Gaston and Edna Jones Gaston and whether their son, Sylvester Gaston, was legitimate.

If there were a valid common law marriage, then the question would arise:

Whether Edna, by her conduct after separating from Willie in 1930, had estopped herself from inheriting any part of Willie's estate.

A four-page copy of the will (blank as to date and signatures) was received as an exhibit. Mrs. Robbie Lee Gore testified that she typed the instrument styled "Last Will and Testament of Willie Gaston" in early December, 1966, while a secretary in the law offices of Denton and Gore. After the original was delivered to Willie, she does not remember him returning to the office to execute the will, nor does she remember signing as a witness. In fact, she does not remember Willie Gaston.

Mississippi Code Annotated section 91-5-1 (Supp.1977), provides that, if the will is not a holographic will:

"(I)t shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix."

Section 91-7-7 (1972) provides:

"The due execution of the will, whether heretofore or hereafter executed, must be proved by at least one of the subscribing witnesses, if alive and competent to testify. If none of the subscribing witnesses can be produced to prove the execution of the will, it may be established by proving the handwriting of a testator and of the subscribing witnesses to the will, or of some of them." (Emphasis added).

No witness testified as a subscribing or attesting witness, nor did any witness testify that the will was signed by the testator in his or her presence. Furthermore, James McCain, who testified that he saw the names of James McKibben and Robbie Lee Gore on the original, did not testify that he saw the testator or any witness sign the will, nor did he testify that he was familiar with their handwriting and that the names on the will were in fact their genuine signatures. Thus there was neither direct nor secondary evidence that the alleged lost or destroyed will was ever signed and witnessed and executed according to law.

We are of the opinion that the chancellor was correct in setting aside the jury verdict (finding that the lost or destroyed will had been properly executed according to law) under the authority of the Estate of Willis et al. v. Willis et al., 207 So.2d 348 (Miss.1968). In affirming the trial court's denial of probate of a lost typewritten will, this Court said:

"In short, there was no testimony that the signatures of Hillman and Latimer, as attesting witnesses, were genuine, or that someone saw these witnesses sign their names to the will. Although required by code section 498 (now § 91-7-7, Miss.Code Ann. (1972)), there was no evidence, direct or secondary, that the signatures of Hillman and Latimer were genuine." 207 So.2d at 349.

The next issue is whether there was a valid common law marriage between Willie Gaston and Edna Jones Gaston. According to Edna, and her testimony was undisputed, at 14 years of age she was married to Willie Gaston on the front porch of her family's home in January, 1925. There were quite a few people present at the ceremony, which was performed by a preacher to whom Willie paid $2.00. The preacher and all witnesses were dead at the time of the trial.

On May 26, 1926, while living together in the same house as man and wife, Edna Jones Gaston gave birth to Sylvester Gaston. When Edna was 16 years of age, which would have been two years after their marriage, she was baptized under the name "Gaston".

From 1925 to 1930, Willie and Edna lived on various plantations in the same house as man and wife, received a "furnish" as man and wife, attended church together, ball games and various other functions, acknowledged each other and publicly stated on many occasions that they were man and wife and the father and mother of Sylvester. They were recognized in the community as man and wife from 1925 until their separation in 1930.

Mrs. Sadie Boyle Wilson, Tobe Boykin, Leon Rice, Mrs. Martha Kurkendall, and Mrs. Elnora Wilie all testified that Willie and...