James v. Barber, 42345

• Decision Date: 04 June 1962
• Docket Number: No. 42345,42345
• Citation: 244 Miss. 234,142 So.2d 21
• Parties: Mrs. John F. JAMES et al. v. Mrs. Dovie Cox BARBER et al.
• Court: Mississippi Supreme Court

Page 21

142 So.2d 21

244 Miss. 234

Mrs. John F. JAMES et al. v. Mrs. Dovie Cox BARBER et al.

No. 42345.

Supreme Court of Mississippi.

June 4, 1962.

Gartin & Hester, Laurel, Travis & McKee, Jackson, for appellants.

McFarland & McFarland, Bay Springs, for appellees.

KYLE, Justice.

This case is before us on appeal by Mrs. John F. James, and others, complainants in the court below, from a decree of the Chancery Court of the Second Judicial District of Jasper County rendered in favor of Mrs. Dovie Cox Barber and others, defendants in the court below, dismissing with prejudice complainants' petition to establish an alleged lost or destroyed will and for probate of same as the last will and testament of Mrs. Ruby Cox Newcomb, deceased.

The record shows that Mrs. Ruby Cox Newcomb died on August 23, 1960, and that she left surviving her as her only heirs at law three sisters, Mrs. Dovie Cox Barber, Mrs. Vannie Cox Little and Mrs. Maude Cox Myers; that C. H. Little was duly appointed administrator of the estate of the deceased by a decree of the chancery court of said county, dated September 8, 1960, and that letters of administration were duly issued to him as such. The petition to establish the alleged lost or destroyed will and for probate of same was filed by the appellants on December 12, 1960. The complainants named in the petition were the sisters and heirs of the deceased brothers of William Luther Newcomb, the deceased husband of Mrs. Ruby Cox Newcomb, deceased. The defendants named in their petition were the three surviving sisters of Mrs. Newcomb and the administrator of her estate.

The complainants alleged in their petition that they were the devisees and legatees under the last will and testament of Mrs. Ruby Cox Newcomb, deceased, which was duly executed by the said testatrix and duly attested by two witnesses sometime prior to her death. The complainants further alleged that said will was placed by the testatrix in a metal safety box in her home and remained in full force and effect and was never revoked by her or by anyone else authorized by her to do so; that the said testatrix, during the month of July, 1960, suffered a paralytic stroke and was removed from her home to the Jones County Community Hospital at Laurel where she thereafter became incapacitated both physically and mentally to such an extent that it was legally impossible for her to destroy said will; and that said will was neither destroyed nor revoked between the date in which the testatrix entered the hospital and the date of her death. The complainants attached to their petition as Exhibit 'A' a reconstructed copy of the alleged will and asked that the said instrument be established as the last will and testament of Mrs. Ruby Cox Newcomb, deceased, and that said instrument to admitted to probate as such.

The instrument attached as Exhibit 'A' to the complainants' petition and offered for probate as the last will and testament of Mrs. Ruby Cox Newcomb was a typewritten reconstructed copy of the alleged last will and testament of the deceased which was dated, 'the ___ day of _____ 195_.' The instrument did not show the names of any subscribing witnesses.

The provisions of the purported will were substantially as follows: Jack Stuart was appointed Executor of the will without bond. The testatrix then devised and dequeathed to Mississippi College a 40-acre tract of land described therein and situated in Jasper County. The testatrix then directed that her executor provide 'reasonable medical care' for her deceased husband's nephew, Floyd Newcomb, during his lifetime, 'said medical care to be paid by my executor as in his opinion the need demands * * *.' The testatrix then bequeathed and devised 'unto Jack Stuart, trustee and in trust, the land in the Town of Bay Springs on and in which is contained mineral deposits which has been operated as such, to operate, manage and control for a period of ten years following the date of my death.' The testatrix expressed her desire that her said executor serve as trustee 'in the management, operation and control of said mineral water business,' and that all proceeds from the operation thereof should be divided equally between her husband's heirs and her heirs. The trustee was also vested with power to sell the business and the land containing the mineral deposits, and if such sale were consummated the trustee was directed to divide one-half of the proceeds of such sale, in equal parts, among the testatrix' three sisters; and the testatrix directed that the other undivided one-half of the proceeds of such sale be divided among the heirs of the testatrix' deceased husband, and 'that they share in such proceeds in the same manner as though said undivided one-half interest had been inherited by them from my husband under the laws of descent and distribution.' The testatrix then bequeathed to her sisters surviving her an undivided one-half of all of the rest and residue of her estate, to be shared among them equally, and to her husband's brothers and sisters the other undivided one-half of all the rest and residue of her estate, to be divided among them as though they had inherited same from her husband under the laws of descent and distribution of the State of Mississippi.

The defendants filed their answer to the complainants' petition on March 27, 1961, and in their answer the defendants denied that the said Mrs. Ruby Cox Newcomb died testate. The defendants denied that Mrs. Ruby Cox Newcomb had ever executed any such instrument as that attached to the complainants' petition; and the defendants denied the remaining material allegations of the petition. On May 22, 1961, a motion was filed by Mrs. John F. James, one of the complainants, suggesting the death of Mrs. Betty Newcomb Haden, one of the original complainants, and asking that the suit be revived as to Mrs. Haden's interest in the name of her heirs at law. An order of revivor was thereupon duly entered reviving the suit as to Mrs. Haden's interest therein in the name of her heirs; and on July 17, 1961, Mrs. Handen's seven children filed a formal instrument of writing in which they made themselves parties complainant in place of their mother and adopted the averments of the complainants' original petition.

The cause was heard by a special chancellor, in vacation, during the month of August, 1961.

Twenty witnesses testified during the hearing before the special chancellor. The only witnesses who testified concerning the execution of the alleged will, a reconstructed copy of which was attached to the complainants' petition, and the contents of the alleged will, were Jack Stuart, a merchant and cattleman of Morton, Mississippi, who was called to testify as a witness for the complainants, and Robert McFarland, the attorney who prepared the alleged will and was called to testify as a witness for the defendants.

Stuart testified that he had known Mrs. Newcomb and had had business dealings with her for a period of about five years prior to her death; that he went with Mrs. Newcomb to the law office of McFarland & McFarland, in the Town of Bay Springs, sometime between eighteen months and two years prior to Mrs. Newcomb's death; and was present when the will was prepared by Robert McFarland or under his direction. He stated that after the will had been typewritten, it was read aloud in the presence of Mrs. Newcomb and was signed by Mrs. Newcomb and was attested by Stuart and Mr. McFarland's secretary as witnesses. Stuart testified that Mrs. Newcomb had discussed the making of a will with him several times prior to the date of the signing of the will in Mr. McFarland's office, and that he was present and gave the directions for the making of the will and Mrs. Newcomb made some suggestions, which Mr. McFarland of course took into account when he dictated the will to his secretary. Stuart stated that he had an independent recollection of the contents of the will; that a ten-year trust was to be set up with regard to the mineral property adjacent to Mrs. Newcomb's home; and that the property was to be divided between the heirs of Mrs. Newcomb and the heirs of her deceased husband; that the 40 acres of land mentioned in the will was to go to Mississippi College; and that Stuart himself was to be executor of the will. Stuart stated that there was a specific bequest to 'someone named Green', a relative who was crippled and lived in Louisiana, and was unable to provide for himself and his family--he was to be taken care of. Stuart stated that he had several conversations with Mrs. Newcomb relative to the will after it was executed; that he saw the will on several occasions; that the last time he saw the will was about three weeks before Mrs. Newcomb's death when he took her to Laurel to attend to some banking matters. Stuart stated that he visited Mrs. Newcomb three times while she was in the hospital, but he had no conversation with her about the will at that time; that after her death Mr. McFarland went with him to Mrs. Newcomb's home, and they made a search for the will but were not able to find it. On cross-examination Stuart admitted that the crippled beneficiary named in the will, who was to be cared for, died during Mrs. Newcomb's lifetime, and he was not sure that his name was Green. He stated that he never read the will again after he heard it read in Mr. McFarland's office, but he asked Mrs. Newcomb later if she had changed her will and she said she had not. He stated that the will was in a metal box in Mrs. Newcomb's home when he saw in the last time; and he admitted that what he saw was the back of a blue manuscript cover.

Robert McFarland testified that Mrs. Newcomb came to his office with Jack Stuart and he prepared a will for her, about six months after Mr. Newcomb's death on June 8, 1955; that he had made a careful search of his file and had been unable to find a copy of the will which he prepared. McFarland stated that he...