Lane v. Woodland Hills Baptist Church, 47292
| Decision Date | 03 December 1973 |
| Docket Number | No. 47292,47292 |
| Citation | 285 So.2d 901 |
| Parties | Leonora E. LANE et al. v. WOODLAND HILLS BAPTIST CHURCH. |
| Court | Mississippi Supreme Court |
Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellants.
Thompson, Alexander & Crews, Jackson, for appellee.
This is an appeal by Leonora Lane et al. from a decree of the Chancery Court of the First Judicial District of Hinds County wherein that court refused to admit to probate a holographic will executed by Mrs. Beulah S. Rogers on December 20, 1968. We reverse and remand.
On September 3, 1963, Julius P. Rogers and Beulah S. Rogers executed a joint last will and testament reading as follows:
Be it known that we, Julius P. Rogers and Beulah S. Rogers, husband and wife, and resident citizens of Hinds County, Mississippi, being over the age of 21 years and of sound and disposing mind and memory do hereby make, declare and publish this one true Joint Last Will and Testament, specifically revoking all previous wills.
1. On the death of one of us, the survivor shall become the full owner of all interest of the one dying in real and personal property, wheresoever situated, with full power in the survivor to own and control the same, and full power to sell and transfer any part of the said property, real, personal or mixed, and to convey good title to any of the property conveyed, and to be transferred and conveyed for any reason deemed good by the said survivor.
2. At the death of the survivor, the property not therefore disposed of by the survivor shall be and become the property of Woodland Hills Baptist Church, Old Canton Road, Jackson, Mississippi.
3. The survivor shall be Executor or Executrix, and is to serve without bond, and without making report or account to any court in any state.
This our true Joint Last Will and Testament executed by both of us this September 3, 1963, by signing our names to this instrument and declaring at the time of signing to be our Joint Last Will and Testament; and so signed and declared in the presence of H. O. Thompson and S. L. Stringer who are requested by both of us to sign this instrument as subscribing witness thereto this Tuesday, September 3, 1963.
/s/ Julius P. Rogers
(J. P. Rogers)
/s/ Beulah S. Rogers
Witness:
/s/ H. O. Thompson
/s/ S. L. Stringer
Julius P. Rogers departed this life on March 14, 1968, and the joint will was probated in the Chancery Court of the First Judicial District of Hinds County as his last will and testament. His estate was administered, and a final decree was entered in that cause.
On December 20, 1968, Mrs. Beulah S. Rogers executed the following instrument:
December the 20th My Will 1968
Lamps on east corner table Hazel-Lamp on South corner table in pink Lenora Lane Lamp by couch (green couch) Eunice Lane Lamp with Baby faces (Wilma Harris) (Chair small Victorian) Pink rose Phylis Harris. 2 Large Victorian chairs-Jim & Eunice Lane Pictures Jim and Eunice Lane (Certain words erased)-Bird pictures Jenny Linn-Jim & Eunice Lane) Tables-Southern Bell picture and table by window and lamp-Lenora Lane living room furniture-Lamp by couch-green couch living room table with leather top and printed gold around the edge-and my home to Jim an (sic) Eunice Lane Coffie (sic) table edge with goldprint and my Home to Jim & Eunice Lane with all other things.
/s/ Beulah S. Rogers
/s/ H. O. Thompson
/s/ Daisy C. Thompson
After the death of Mrs. Rogers, Leonora Lane and others filed a petition for probate of the instrument executed by Mrs. Rogers in solemn form as her true last will and testament. The Woodland Hills Baptist Church was made a party defendant to the petition. The petition prayed that on final hearing, the will of Mrs. Beulah S. Rogers executed on December 20, 1968, be admitted to probate as her true last will and testament, thereby revoking the joint will executed on September 3, 1963.
The Woodland Hills Baptist Church answered the petition and admitted in information and belief that prior to her death, Beulah S. Rogers executed the instrument dated December 20, 1968, but it did not know whether the instrument constituted the valid last will and testament of Mrs. Rogers and asked the court to determine that question before admitting the will to probate. Additionally, the church filed a cross bill asking the court to determine whether the instrument dated December 20, 1968, constituted the valid last will and testament of Mrs. Rogers and in the event the court so found, to construe and interpret said instrument in order to determine whether it had the effect of revoking in whole or in part the joint will executed on September 3, 1963. The cross bill also prayed that if the court found that the instrument executed on December 20, 1968, did not constitute the valid last will and testament of Mrs. Rogers, then the court should determine that said instrument did not have the legal effect of revoking the aforesaid joint will and admit the joint will to probate as the true last will and testament of Mrs. Rogers. The cross bill further prayed that the court determine whether the home constituted any part of the estate of Mrs. Rogers and to enter an order adjudicating that the property owned by Mr. Rogers at the time of his death does not constitute any part of the estate of Mrs. Rogers.
Petitioners answered the cross bill stating that it sought no relief requiring an answer and that the matters raised therein were not pertinent until the issue relative to probate of the last will of Mrs. Rogers was determined.
After a hearing, the chancellor found: (1) the will of Mrs. Beulah S. Rogers executed on December 20, 1968, was wholly in the handwriting of Mrs. Rogers, except for the signatures of the subscribing witnesses, who were not present when the will was written and subscribed, (2) when she wrote and signed the same, she was over the age of 21 years and of sound mind, and (3) the said instrument was written and signed in conformity with the requirements of law governing the preparation and execution of holographic wills. However, the court held that the holographic will did not constitute the valid last will and testament of Mrs. Rogers and was not entitled to probate. This holding was based in part on the stipulation made during the course of the trial and upon a finding that Mrs. Rogers could not, under the law, revoke the joint will she had executed with her husband. A decree was entered refusing to admit the holographic will to probate and authorizing the church to present the joint will for probate. Hence, this appeal.
The first question to be determined in whether the chancellor was in error in holding that Mrs. Rogers could not by a valid, subsequent will revoke her part of the joint will executed with her husband on September 3, 1963. The chancellor based his holding in this regard on our holding in Monroe v. Holloman, 185 So.2d 443 (Miss.1966). However, the instrument involved in that case was more than a will, it was also a contract. It contained the following provisions:
'It is understood that we hereby mutually agree and contract for the disposition of the estate of us, either of us, it being our expressed intention that the survivor of us shall receive all of our estate without limitations upon his or her use, enjoy, or dispose of the same; however, it further...
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