Genna v. Harrington
| Decision Date | 08 November 1971 |
| Docket Number | No. 46386,46386 |
| Parties | Joseph V. GENNA et al. v. Aubrey Highsmith HARRINGTON. |
| Court | Mississippi Supreme Court |
Johnston & Johnston, Thomas J. Wiltz, Biloxi, for appellants.
Louis Hengen, Thomas L. Wallace, Biloxi, for appellee.
Agnes E. Barnes Harrington died November 5, 1968, in Harrison County, Mississippi, after having written a will on April 17, 1968. On November 12, 1968, Aubrey Highsmith Harrington, the named executor appointed by the testatrix, filed a petition to probate the will of the deceased.
Item 2 of the will is in the following language: 'I give, devise and bequeath all my property, real, personal and mixed, wheresoever located, to my husband, Aubrey Highsmith Harrington, to have and to hold as his property absolutely.' The will also provided that her husband serve as executor without bond.
The petition to probate the will, the will and proof of execution by two witnesses were filed and presented to the Chancery Court. The Chancellor signed a decree on November 12, 1968, admitting the will to probate as the last will of the testatrix. The executor made oath and filed an executor's bond in the sum of $1,000.00. No appraisers were appointed. Letters testamentary were issued to the executor on November 12, 1968, and he took charge of the property belonging to the estate of testatrix Agnes E. Barnes Harrington. Thereafter, the executor petitioned the Chancery Court and obtained an order permitting him to operate the business of the deceased known as Agnes' Department Store, West Beach, in Biloxi, Mississippi. Several orders were issued to the executor by the Chancery Court and the usual notice was published to the creditors of the deceased.
On July 23, 1969, Jay D. Trochessett and Gay Trochessett Hopkins, Eugene Paul Stanley, Joseph V. Genna, Charles John Barnes, Jr. and Jan Barnes Cook, devisees in a former will, filed a petition contesting the alleged last will of the testatrix upon the grounds that the deceased testatrix was not of sound and disposing mind and memory at the time she executed the will and that she was unduly influenced and coerced into signing the alleged will. Contestants also alleged that Aubrey Highsmith Harrington could not in any case take anything as a devisee under the will, because he intentionally 'set about to cause the early death of his deceased wife' and caused her to drink intoxicating beverages for a long time so that he brought about and effected a state of alcoholism in the deceased and willfully caused and procured the death of the testatrix. It was, therefore, contended that, because of having wrongfully procured the death of the testatrix, he was incapable of inheriting from his wife under our law. Sec. 479 and 672, Miss.Code 1942 Ann. (1956).
Aubrey Highsmith Harrington, acting as devisee and executor of the will of his late wife, filed his answer to the petition denying in detail the charges alleged therein.
When the case came on for hearing in the Chancery Court, the Chancellor proceeded to make up the issue devisavit vel non to be tried by the jury. The issues prepared by order of the Chancellor submitted to the jury only two questions: (1) whether or not Agnes Barnes Harrington, the testatrix, was of sound and disposing mind and memory and competent to dispose of her estate at the time the will was executed; and (2) whether or not the paper signed by her was procured by undue influence of any person.
At the trial the proponent introduced the petition to probate the will. The will was offered in evidence together with proof of the will by both subscribing witnesses and the original decree admitting the will to probate. The oath of the executor and letters testamentary were also introduced in evidence. Whereupon, proponent rested and the contestants moved the court for a decree in their favor. The motion was overruled and the contestants offered testimony in an effort to establish their claim that the paper probated was not the will of the deceased because of her mental condition and because of alleged undue influence on the part of the devisee. After the contestants rested their case, the proponent offered many witnesses who testified to facts indicating that the deceased not only knew and understood the contents of her will, but that, in fact, she was an astute business woman and carried on her affairs in a competent manner. The jury returned its verdict in favor of the validity of the will.
The contestants have appealed to this Court and now contend that the trial court committed many reversible errors, some of which merit discussion as will be hereafter shown.
The contestants contend that the trial court should have submitted to the jury their contention that the devisee husband procured and intentionally caused the death of the testatrix and was, therefore, incapable of taking under the will because of the prohibition set forth in Sections 479 and 672, Mississippi Code 1942 Annotated (1956).
It is true that these sections prevent one who willfully causes the death of another to inherit property, or to take the property of his victim under a will. We cannot, however, agree with the contention that this charge should have been submitted to the jury along with the contention that the will was obtained by undue influence or that it was not a will because the testatrix was mentally incapable of making a will under the issue devisavit vel non. In the first place, the two contentions are contradictory. To say he is incapable of taking under the will is to assume that there is a will. This conflicts with the theory that no will was made because of undue influence or mental incapacity. This is a single issue; 'will or no will'. Blalock v. Magee, 205 Miss. 209, 38 So.2d 708 (1949).
In the second place, the Chancellor had no choice. When a will has been probated and persons desire to contest the will, they may file a petition contesting the validity of the will, whereupon, the Chancellor is required by law to make up an issue for the jury to determine whether or not the writing in question is or is not the will of the testator. Sec. 505, Miss.Code 1942 Ann. (1956).
The first issue to determine, therefore, is whether or not there is a will. If there is a will, the issue as to who shall take under the will may then be determined later. 95 C.J.S. Wills § 388, p. 292 (1957).
There are many reasons why a certain named legatee cannot take under a will, for example: a witness cannot take under a will. Crawford's Estate v. Crawford, 225 Miss. 208, 82 So.2d 823 (1955). However, that does not mean that the will is invalid, but simply means that the particular devisee is incapable of taking under the will. There may be many named devisees in a will, but their respective right to take under the will is not an issue devisavit vel non. See discussion in Payne v. Banks, 32 Miss. 292 (1856); Blalock v. Magee, supra; and 95 C.J.S. Wills § 317 at 135 (1957).
We do not consider that the cases cited by appellant, Gholson v. Smith, 210 Miss. 28, 48 So.2d 603 (1950) and Henry v. Toney, 211 Miss. 93, 50 So.2d 921 (1951), are applicable because in those cases the only issue was the willful killing of the testatrix. They did not involve the issue devisavit vel non.
The motion made by contestants requesting a decree in their favor, after proponent had introduced the various...
To continue reading
Request your trial
-
Mendez-Bellido v. BD. OF TR. OF DIV. 1181, ATU
...Budwit v. Herr, 339 Mich. 265, 63 N.W.2d 841 (1954); Sharpless v. Ground Lodge, 135 Minn. 35, 159 N.W. 1086 (1916); Genna v. Harrington, 254 So.2d 525 (Miss.1971); Wells v. Harris, 414 S.W.2d 343 (Mo.1967); In re Estate of Matye, 198 Mont. 317, 645 P.2d 955 (1982); Johnston v. Frank, 97 Neb......
-
Mississippi Power & Light Co. v. Shepard
...264 So.2d at 815. The following cases are also in point on this subject: Jones v. Phillips, 263 So.2d 759 (Miss.1972); Genna v. Harrington, 254 So.2d 525 (Miss.1971); Ezell v. Metropolitan Insurance Company, 228 So.2d 890 (Miss.1969); Berry v. Brunt, 252 Miss. 194, 172 So.2d 398 (1965); Fow......
-
Will of McCaffrey v. Fortenberry
...506 So.2d 293 (Miss.1987); Will of Polk, 497 So.2d 815 (Miss.1986); McDowell v. Pennington, 394 So.2d 323 (Miss.1981); Genna v. Harrington, 254 So.2d 525 (Miss.1971). However, the facts in the case sub judice are quite different. In the case at bar, the appellants are asking this Court to e......
-
Johnson v. State, 54917
...for an opinion of insanity. See also Edwards v. State, 441 So.2d 84 (Miss.1983); Palmer v. State, 427 So.2d 111 (1983); Genna v. Harrington, 254 So.2d 525 (Miss.1971); In Re Estate of Prine, 208 So.2d 187 (Miss.1968); Harvey v. State, 207 So.2d 108 The trial judge correctly applied the law,......