Jefferson's Will, Matter of
| Decision Date | 31 August 1977 |
| Docket Number | No. 49545,49545 |
| Citation | 349 So.2d 1032 |
| Parties | In the Matter of the WILL and Estate of Alcot JEFFERSON deceased. Scott JEFFERSON et al. v. Ella MOORE, Executrix, Estate of Alcot Jefferson, deceased. |
| Court | Mississippi Supreme Court |
P. Zeb Jones, Jackson, for appellants.
Howie, Montgomery & Montjoy, Gid Montjoy, IV, Jackson, for appellee.
Before INZER, P. J., ROBERTSON and WALKER, JJ., and COFER, C KERMIT R. COFER, Commissioner for the Court: 1
The Chancery Court of the First Judicial District of Hinds County, overruling objections of the contestants, entered a decree holding the will of Alcot Jefferson, deceased, duly executed, and the contestants have appealed therefrom.
The grounds of contest making up the issue devisavit vel non and submitted to the decision of the chancellor without a jury, were lack of testamentary capacity and that the instrument was not signed by the testator, and, if it was signed by another in the presence of the testator, it was not signed by the testator's express direction.
Appellants assign as error the chancellor's finding that Alcot Jefferson was of sound and disposing mind and memory and fully competent to execute his will on its date, February 12, 1975. A second error and to be hereinafter noticed was assigned, but in their assignments, appellants do not attack the chancellor's holding that the will was signed by the testator in a manner authorized by the statute.
It is this Court's view that the proof, by a clear preponderance, established the testamentary capacity of the testator at the alleged execution of the will. A review of the proof is, however, rendered unnecessary by the Court's conclusion as to the second and last assignment of error, "The Court below further erred in finding that the telephone conversation of one of the witnesses to the will constituted presence of the witness to the signing of the will."
This assignment of error was not a part of the contest, but is based upon proof as adduced in the hearing.
Attorney E. W. Montgomery, II, prepared the instrument, and caused it to be signed by the testator in a manner authorized by the statute. Sec. 91-5-1 Miss.Code Ann. (1972). He then became an attesting witness thereto, signing the document in the presence of the testator as provided by that statute. (The will was probated in common form by use of his proof as attesting witness).
When the testator and Mr. Montgomery had signed the will, Mr. Montgomery took the instrument to his and Mr. Gid Montjoy, IV's law office; Mr. Montjoy called Alcot Jefferson, told him he had a will in his hand (which Mr. Montgomery testified he had just handed to Mr. Montjoy), and asked him, the testator, if he had signed it. The chancellor summarized the activity of Mr. Montjoy thus, in his decree:
2. . . . That Mr. Montgomery returned to his office in the Deposit Guaranty National Bank Building in Jackson, Mississippi and informed Gid Montjoy, IV, his law partner, that the instrument exhibited to him was Alcot Jefferson's will and that Alcot Jefferson had requested that Gid Montjoy witness the same as a subscribing witness. That Mr. Montjoy then telephoned Alcot Jefferson and inquired as to whether the instrument presented was his will, and Alcot Jefferson verified the fact. Whereupon, Gid Montjoy, in the presence of the other subscribing witness, E. W. Montgomery, II, signed the same as a subscribing witness. That it is the opinion of the Court that the will was witnessed in compliance with the statute and that the telephone call constituted presence.
In his opinion on which the decree was based, the chancellor said, in part,
. . . The Court is going to hold that Mr. Montjoy's conversation with him over the telephone, in which he, Mr. Montjoy, states as a witness that he knew the voice of Alcot Jefferson, and that Alcot Jefferson testified to him that this was the will he had signed or executed, and that then Mr. Montjoy signed that will in the telephone presence of the deceased, the Testator.
Now, that may not be the law, Mr. Jones, and if it isn't, you will now have the opportunity to test it, but I believe under the circumstances that the will was properly executed and was the will of Alcot Jefferson . . .
In the progress of the hearing, the chancellor had taken notice of the uncustomary witnessing of the will, was disturbed by the lack of attestation by both witnesses in the immediate presence of the testator and the fact that "the validity of the will will end up being based on a telephone conversation", correctly announced that in a will contest trial, the court would be bound to take note that the execution of the will was improperly accomplished, if the proof so showed, and, correctly again, proceeded to the conclusion as treating the pleadings, in respect to the attestation, as being conformed to the proof, "and that the issue is before the Court as to whether or not the will was properly signed . . ."
There is no cross appeal, nor is there assertion in appellee's brief that it was improper for the court to treat the pleadings as being thus amended to conform to the proof, and that question is not now before the Court.
The issue now for consideration of this Court is as to whether, on the facts of this case, attestation by Mr. Montjoy was in the presence of the testator. The answer must be in the negative.
The pertinent part of Section 91-5-1, Mississippi Code Annotated (1972), governing the execution of wills says,
. . . Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.
In the early case of Watson v. Pipes, 32 Miss. 451 (1856), it was held,
The object of the statute, in requiring that the witnesses shall subscribe their names in the presence of the testator, is, that he may have ocular evidence of the identity of the instrument attested as his will, and thus to prevent the fraudulent substitution of another.
The presence contemplated by the statute, is not simply the bodily presence of the testator; it is essential, that he be also mentally capable of recognizing and actually conscious of the act performed before him. In the meaning of the law, to be corporeally present, it is not indispensable that the testator and the witnesses should be in the same room, or even in the same house, where the attestation is made. An attestation made in the same room with the testator is prima facie good. And where the attestation is shown to have taken place in a different apartment, it is prima facie bad. But this presumption, in either case, will yield to positive proof. And it is settled by all the authorities, that it is not absolutely essential that the testator should actually see, but if the attestation be shown to have been made within the scope of the testator's view from his actual position, it will be sufficient. For example, when the testator, having a mental consciousness of the act which is performed in consequence of the position in which he lies upon his bed, does not actually see the attesting witnesses subscribe their names, the attestation will be good, provided he had the physical ability to change his position, and by doing so could have seen the proceeding. (32 Miss. at pages 467-8).
The Watson case, supra, was cited with approval and quoted in Walker v. Walker, 67 Miss. 529, 7 So. 491 (1890), wherein the Court said:
. . . The whole evidence (with only a single variant note) declares that the instrument was at once attested by the subscribing witnesses, in the testator's room, within a few feet of him as he lay upon his bed, and that the testator could have witnessed the attestation, if he had so desired, having only to turn his head to see what was done. That he was abundantly able physically to move his head is perfectly manifest.
On this statement of fact, it plainly appears that the instrument was dictated by...
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