Hutton v. Hutton

• Decision Date: 05 May 1958
• Docket Number: No. 40768,40768
• Citation: 102 So.2d 424,233 Miss. 458
• Parties: Rosalind Gwin HUTTON, III, Minor, by Her Father, Samuel D. G. Hutton, v. J. B. HUTTON, Jr., Executor of the Estate of Mrs. Rosalind Gwin Hutton, Deceased, and Mrs. Russ M. Johnson.
• Court: Mississippi Supreme Court

Page 424

102 So.2d 424

233 Miss. 458

Rosalind Gwin HUTTON, III, Minor, by Her Father, Samuel D G. Hutton, v. J. B. HUTTON, Jr., Executor of the Estate of Mrs. Rosalind Gwin Hutton, Deceased, and Mrs. Russ M. Johnson.

No. 40768.

Supreme Court of Mississippi.

May 5, 1958.

Watkins & Eager, Jackson, Canada, Russell & Turner, Memphis, Tenn., for appellant.

Wm. Harold Cox, Jackson, J. B. Hutton, Jr., for appellee.

ROBERDS, Presiding Justice.

The primary question involved in this case is the identity of one of the devisees in the will of Mrs. Rosalind Gwin Hutton, Deceased. By the will she devised one hundred and sixty-nine acres of land out of the Cooper five hundred and seven acre tract in Holmes County, Mississippi, to 'Rosalind Gwin Hutton.' Rosalind Gwin Johnson (nee Hutton), a daughter of testatrix, and Rosalind Gwin Hutton, a granddaughter of testatrix, each claim to be the devisee. The chancellor decided in favor of Mrs. Johnson, the daughter. The minor appeals to this Court.

In our endeavor to decide the question we should place ourselves as nearly as may be in the position of testatrix when she wrote the will. Strickland v. Delta Investment Co., 163 Miss. 772, 137 So. 734; Slaughter v. Gaines, 220 Miss. 755, 71 So. 760, 49 A.L.R.2d 1355. This includes a consideration of the circumstances surrounding the testatrix, the terms of the will itself and competent evidence extrinsic of the will.

The will was written wholly in the hand-writing of the testatrix. It is dated July 13, 1951, but the testatrix added three codicils thereto under dates of November 10, 1953, July 15, 1955, and July 19, 1955. She departed this life November 23, 1955.

The testatrix was an elderly widow. Her husband, the Rev. James Buchanan Hutton, had died in 1940. At the time she wrote the will she had five living children--Mary Ryburn McCutchan, Sam D. G. Hutton, James G. Hutton, Jr., Rosalind Hutton Johnson and Charlton D. Hutton. She had eleven living grandchildren. One grandchild is Susan Van Houten Smith, who is the child and only heir of Martha Gwin Hutton Thompson, Deceased. The five named children and Mrs. Smith, the granddaughter, were the heirs and the only heirs-at-law of the testatrix. She had ten other grandchildren but their parents were living and these grandchildren were not heirs of the testatrix. The minor who appeals here is one of the granddaughters of the testatrix but not her heir. The minor was a little less than one year old at the time the will was written. She is the daughter of Sam D. G. Hutton and his wife, who have three other children. These four children are included in the ten grandchildren mentioned above.

At the time the testatrix wrote the will she owned certain lands in Holmes, Hinds, Madison and Rankin Counties, Mississippi. She possessed a small amount of personal property. Her personal possessions included many family relics and mementoes. The total value of her estate is about $45,000.

As to the terms of the will, she devised her lands, except as to some mineral rights, to Mary Ryburn McCutchan, James B. Hutton, Jr., Rosalind Gwin Hutton, and to the granddaughter, Mrs. Smith, who, as stated, was an heir of the testatrix along with the five children of testatrix. She did not devise any lands to Sam D. G. Hutton and Charlton D. Hutton. She did give to them certain mineral rights in lands. In her will she explained her action and reasons in these words: 'I am making no land or cash bequests to my sons, S. D. G. Hutton and Charlton D. Hutton by reason of cash advances made to them; to S. D. G. Hutton for his business ventures from 1920 to 1939 inclusive, and to Charlton D. Hutton, from 1937 to 1950 inclusive.' In a letter dated July 19, 1955, written by the testatrix to J. B. Hutton, Jr., she said she had changed her will as originally written except as to the special bequests, and then she quoted the statement which appears in the will to the effect that she had given no land or cash bequests to S. D. G. Hutton and Charlton D. Hutton. She then said in the letter: 'The mineral rights I willed to S. & C. equally with the rest.' In that letter she expressed the apprehension that Sam would not like what she had done, and repeated as a reason therefor the fact that she had already advanced to Sam and Charlton '* * * much more than the value of the property I have willed to any one of the rest of you.' Charlton, the testatrix wrote, was satisfied with his omission as a devisee of the lands. Again, in a letter dated August 4, 1955, written by testatrix to J. B. Hutton, Jr., she said Sam D. G. Hutton had the Cooper place rented 'through '57', and that his rent notes were held by a bank as collateral, and that Sam wanted her to 'sign a rent waiver each year.' She objected to doing that and indicated she was not going to do so, and, as it appears from subsequent events, she did not do so. She also said in that letter that Sam was causing 'turmoil'. She said '* * * he seems to (be) out for every material advantage he can get for his own children.' In a letter dated June 8, 1955, the testatrix, discussing her disposition of 'my Cooper place 509 acres', referred to the devisees as children of the testatrix.

As to the designation in the will of the devisees in question she referred to Mrs. Johnson under different names, such as Rosalind Hutton Johnson, Rosalind Gwin Hutton, Rosalind Gwin, Rosalind Gwin Hutton Johnson and Rosalind. This demonstrates that she did not always refer to Mrs. Johnson as Rosalind Gwin Hutton. She designated her by other names. Under a heading 'Mementoes for my grandchildren' she referred to the minor as Rosalind Gwin Hutton, III. It is noted that she did not thus describe her as devisee of the land. It is admitted that this legatee is the granddaughter of testatrix. She gave to her grandchildren various family relics and mementoes but she did not give them any land or interest in any land other than to Mrs. Smith, who, as stated, is the heir of Mrs. Thompson, who was the daughter of the testatrix. In other words, it is apparent that she intended to give to her children and natural heirs all of her real estate. Indeed, in the abovementioned letter of August 4, 1955, from the testatrix to her son, James B. Hutton, Jr., she said: 'In my will I assigned definite parts of the real estate to each heir and definite parts of the mineral rights to each.' Rosalind Gwin Hutton (Johnson) was an heir. Rosalind Gwin Hutton, the granddaughter, was not an heir.

It is noted also that after devising her lands in Holmes County, which composed one tract, to Rosalind Gwin Hutton, Mary Ryburn Hutton McCutchan, a daughter, and J. B. Hutton, Jr., a son, she inserted this phrase: 'Ingress and egress to each part to be agreed upon by the owners as may be necessary.' This has some bearing upon whether Rosalind Gwin Hutton mentioned as devisee of one hundred and sixty-nine acres was the minor, Rosalind Gwin Hutton. Apparently the testatrix was an unusually intelligent person and would likely know that a minor could not agree as to ingress and egress to the properties.

Certain evidence extrinsic of the will was offered by both parties to the litigation. Objection was made to some of this and sustained. Part of it was introduced without objection. We have already referred to some of it. We will discuss its competency after further disclosure of its nature.

On behalf of the minor, it was shown that she was christened and baptized as Rosalind Gwin Hutton and her birth was so recorded in the family Bible. It was also shown that in a book kept by the testatrix called 'Daily Strength for Daily Needs' the minor was described as Rosalind Gwin Hutton, and in letters written July 29, 1951, and July 30, 1952, the testatrix addressed her as Miss Rosalind Gwin Hutton. In other words, the minor was named, christened and known as Rosalind Gwin Hutton, except, as shown hereinafter, the testatrix called her by different names.

On behalf of Mrs. Johnson, it was shown that the testatrix in speaking of the minor referred to her either as 'Little Rosalind', 'Sam's Rosalind' or 'Rosalind Gwin Hutton, III'; and that she was the namesake of the testatrix. Testatrix's original name was Irene Rosalind Hutton. Later, the testatrix changed her name by eliminating therefrom the name 'Irene' and inserting 'Gwin' between 'Rosalind' and 'Hutton.' It is also shown that Mrs. Johnson, about 1920, changed her name to correspond with that of her mother, as changed. She was thereafter known in the family as Rosalind Gwin Hutton. Her high school diploma and her graduation diploma from Belhaven College, Jackson, Mississippi, dated May 19, 1923, contained the name Rosalind Gwin Hutton. Her diploma from Millsaps College, Jackson, Mississippi, contained the same name. After her graduation she taught school and her teacher's license described her as Rosalind Gwin Hutton. When she and Mr. Johnson were married, April 14, 1943, her name was given as Rosalind Gwin Hutton. She was married by her Brother, Rev. Charlton D. Hutton, who signed the certificate of marriage. In a delayed certificate of birth dated August 4, 1942, her name is given as Rosalind Gwin Hutton. In a letter dated July 30, 1953, testatrix described the minor as 'Sam's Little Rosalind'. Again in another letter she referred to the minor as 'Sam's Rosalind.' On July 1, 1942, the testatrix executed a note to Rosalind Gwin Hutton for $500, which amount had been loaned to the mother by the daughter. The record contains a letter written by the testatrix to her daughter, addressed to Rosalind Gwin Hutton at the home of the daughter, 226 N. State Street, Jackson, Mississippi. It is shown that Russ M. Johnson, the husband of Mrs. Johnson, the appellee, entered the military service in September 1943, and Mrs. Johnson and the testatrix resided together in the same home until about 1951. It is also shown that testatrix and Mrs. Johnson bore an affectionate relation towards each...