Hanna v. Magee, s. 4-3364, 4-3469.

• Decision Date: 28 May 1934
• Docket Number: Nos. 4-3364, 4-3469.,s. 4-3364, 4-3469.
• Citation: 72 S.W.2d 237
• Parties: HANNA et al. v. MAGEE et al.
• Court: Arkansas Supreme Court

72 S.W.2d 237

HANNA et al. v. MAGEE et al.

Nos. 4-3364, 4-3469.

Supreme Court of Arkansas.

May 28, 1934.

Rehearing Denied June 25, 1934.

Appeals from Miller Chancery Court; Dexter Bush, Chancellor.

Suits by Jake Hanna and others against Mrs. Mallie Magee, administratrix of the estate of J. O. Magee, deceased, and others. Judgment and decree for defendants, and plaintiffs appeal; the cases being consolidated and briefed together.

Affirmed.

J. D. Cook, Sr., J. D. Cook, Jr., and B. E. Carter, all of Texarkana, for appellants.

Shaver, Shaver & Williams, of Texarkana, for appellees.

MEHAFFY, Justice.

J. O. Magee died on July 17, 1932. The record shows that in 1918 J. O. Magee made a will, which was left with the bank in Texarkana, Ark.

On January 23, 1924, J. O. Magee made another will. This will, made in 1924, was written by Judge Pratt P. Bacon, who was at that time practicing law in Texarkana, Ark. At Judge Bacon's suggestion, Mr. Magee gave him $1 to pay to the clerk, and the will was deposited with the county clerk of Miller county.

After the death of J. O. Magee, this will was probated, and F. F. Magee, the executor named in the will, took charge of all the property of the deceased. F. F. Magee was a brother of J. O. Magee. On November 18, 1932, F. F. Magee died, and his widow, Mallie Magee, was appointed administratrix of the estate of J. O. Magee.

The will made in 1924 was identical with the will made in 1918, except the will in 1918 did not mention the brothers and sisters of J. O. Magee, and the will of 1924 gave them $1 each. All of the estate of J. O. Magee, except $1 each to his brothers and sisters, was bequeathed to F. F. Magee. In the will of 1918, all the property was bequeathed to F. F. Magee.

After the death of F. F. Magee, on April 21, 1933, the appellants filed suit in the Miller chancery court, alleging that prior to the death of J. O. Magee, on or about the last day of March or the first day of April, 1932, he executed his last and final will and testament, and by its terms revoked all former wills; and that said will, alleged to have been executed by J. O. Magee, had been lost, destroyed, or suppressed, and that a former revoked will had been probated. It was alleged that F. F. Magee, a brother of J. O. Magee, was named as practically the sole beneficiary in the will alleged to have been revoked; that he had caused the same to be probated, and letters testamentary issued to himself, by virtue of which he took possession of all the property of J. O. Magee, deceased; that either Fleet F. Magee, who had since died, suppressed, lost, or destroyed said will during his lifetime, or the same at his death fell into the hands of his successor in administration, Mallie Magee, or into her hands as administratrix of the estate of F. F. Magee, and said administratrix had suppressed, lost, or destroyed said will; that said last will was written entirely in the handwriting of J. O. Magee, and was declared by him to be his last will and testament, and the written terms thereof revoked any and all former wills made by him.

The complaint then set out the provisions of said lost, suppressed, or destroyed will. It further alleged that Mallie Magee was appointed administratrix of the estate of J. O. Magee, and also administratrix of the estate of Fleet F. Magee; that Mallie Magee as administratrix has made no report of the property that came into her hands, and that she was at that time asking for an order of distribution. It was also alleged that the estate was of the value of $120,000.

The complaint prayed that they be permitted to prove the existence and possession of said wills and contents of same, and the legal execution; that said lost will be restored and caused to be probated; and that the will already probated be canceled and set aside. The appellees filed answer denying all the material allegations in the complaint. The appellants prosecuted an appeal from the probate court to the Miller circuit court, and there filed the complaint, which was substantially the same as the complaint in the chancery court.

On May 16, 1933, the chancery court heard the case in the suit to restore the lost will, and dismissed the complaint for want of equity. On November 29, 1933, the case was tried in the circuit court; and judgment entered admitting the will executed in 1924 to probate as the last will and testament of J. O. Magee, and approving and confirming the judgment of the probate court admitting said will to probate. The chancery case is here as No. 3364 and the appeal from the circuit court is here as No. 3469. The two cases are consolidated and briefed together.

It is admitted that the will probated, the one executed in 1924, was duly made and published; but appellants contend that it was revoked by a later will, which is alleged to have been lost, destroyed, or suppressed.

Mrs. Will Green testified that she had known Mr. J. O. Magee the last six years of his life; that she and her husband lived about one-half mile from Magee's house; that Magee talked to her about making a will several times before he made it; that there were some he felt he should leave things to; that she and her husband witnessed the will made some time the last of March or first of April; that Jake Davis, a negro boy, came to their house and took them over to Mr. Magee's, and he said he wanted them to witness a will for him; he had not prepared the will at the time; he prepared it in the presence of witness and her husband; they went to his house about 10 o'clock and he sat down and got some paper and said he had a general form to go by; he said that the donations and gifts he was going to make, he had on a slip of paper; said he had made two former wills, but this one revoked all other wills; the will said J. O. Magee declared it to be his last will and testament, and something about sane and disposing mind; said he revoked all former wills; this was in the will; that he wanted Paralee Brown to have $500 and 60 acres of land; gave a description of the land, but witness does not remember it; he gave I. D. Miller $500 and Jake Davis $250 and any car he would have at his death; and Mrs. Bettie Dodson at Garland $5,000 and a brick store building; witness does not know the description of the property, but testified that he gave it to Bettie Dodson before the will was made; that he gave to Fleet Magee $1, and a $5,000 life insurance policy, and forgave Fleet Magee all his debts; he said he wanted the balance of his property to be divided among his brothers and sisters; said he wanted it distributed according to the laws of inheritance; that Magee signed the will and read it to witness and Mr. Green; there was a little paragraph after he signed it, and witness and her husband signed it at his request and in his presence and in the presence of each other; witness read it before she signed it; his mental condition was normal; the will was dated at the top; she saw the will again on Sunday before Magee went to Texarkana sick, and read the will at that time; Magee took the will out of a wallet where he kept it in the right-hand drawer of a dresser, locked; he kept money and other papers there; some insurance and receipts and some notes; he wrote the will with an indelible pencil; made his will in March or April, 1932, using large sheets of heavy writing paper; it took one and one-half sheets; this was the first will witness ever saw; no one was present except Magee, witness, and her husband; she does not think her...