Lewis v. Lewis

• Decision Date: 01 May 1961
• Docket Number: No. 41655,41655
• Citation: 129 So.2d 353,241 Miss. 83
• Parties: Mrs. Bettye K. LEWIS, Executrix, et al. v. Katherine Ann LEWIS et al.
• Court: Mississippi Supreme Court

Page 353

129 So.2d 353

241 Miss. 83

Mrs. Bettye K. LEWIS, Executrix, et al. v. Katherine Ann LEWIS et al.

No. 41655.

Supreme Court of Mississippi.

May 1, 1961.

Snow, Covington & Shows, Meridian, for appellants.

Gilbert & Cameron, Thomas K. Holyfield, Meridian, for appellees.

KYLE, Justice.

This case is before us on appeal by Mrs. Bettye K. Lewis, proponent of an alleged holographic will of W. Jack Lewis, deceased, from a decree of the Chancery Court of Lauderdale County, rendered on September 8, 1959, in favor of Katherine Ann Lewis, an adult, and Mrs. Bess Lassiter Lewis, guardian and next friend of Margueritte Gibson Lewis, a minor, contestants, denying probate of said alleged will, which had been theretofore admitted to probate in common form.

The record shows that W. Jack Lewis lost his life by drowning in the Tombigbee River, near Demopolis, Alabama, on August 30, 1958; and that he left surviving him as his only heirs at law and next of kin, his wife, Mrs. Bettye K. Lewis, and two daughters by a former marriage, namely, Katherine Ann Lewis, an adult, and Margueritte Gibson Lewis, a minor of the age of 14 years. On September 26, 1958, Mrs. Bettye K. Lewis, the surviving widow of the deceased, filed for probate, a holographic instrument alleged and purporting to be the last will and testament of the deceased, which was in words and figures as follows:

'9/26/57

'I. W. Jack Lewis, Leave To:

'Marge Lewis, Four Thousand Dollars

'Cash, in Trust of Julian Patrick

'as Distributor----

'To:

'Bettye K. Lewis, my wife, all My

'Estate, (Minus $4,000 above)

'W. Jack Lewis.'

The handwriting of the deceased was proved by the affidavits of three witnesses, and the will was admitted to probate in common form by a decree of the chancellor signed on September 26, 1958. The decree also provided that letters of administration with the will annexed be issued to Mrs. Bettye K. Lewis, as administratrix C. T. A. upon the execution of a surety bond in the sum of $15,000, conditioned as required by the statute. The bond was duly executed and letters were issued to Mrs. Bettye K. Lewis on October 20, 1958.

On June 10, 1959, a petition for the contest of the will was filed by Katherine Ann Lewis and Mrs. Bess Lassiter Lewis, guardian and next friend of Margueritte Gibson Lewis, a minor. The petitioners alleged in their petition that the deceased had died intestate, and that the alleged holographic will which had been admitted to probate on September 26, 1958, was not the last will and testament of W. Jack Lewis, deceased; that said instrument was not testamentary in character and did not comply with the requirements of the statute governing the execution of a valid holographic will; and that said instrument was not wholly written by the said W. Jack Lewis, deceased. In their prayer for relief the petitioners asked that proper process be issued for Mrs. Bettye K. Lewis to appear and show cause why the alleged will should not be suppressed and probate be denied; that a proper issue be made up for the contest of the alleged will; and that upon the final hearing the instrument be denied probate and be declared not to be the last will and testament of the deceased. Mrs. Bettye K. Lewis, proponent, filed her answer to the above mentioned petition, and in her answer denied that W. Jack Lewis had died intestate. In her answer the proponent averred that the instrument of writing as set forth above was wholly written, dated and subscribed by the said W. Jack Lewis in his own handwriting as a last will and testament. She denied that said instrument was not testamentary in character; she denied that said instrument did not comply with the statutory requirements for a valid holographic will; and she denied that said instrument was not wholly written by the said W. Jack Lewis, deceased.

By agreement of the parties, a special chancellor was appointed to try the case, and at the July 1959 term of the court an order was entered directing that a jury be drawn for the trial of the issues presented by the pleadings. The trial was begun on August 31, 1959, and was concluded on September 4, 1959. The jury returned a verdict against the will. The proponent filed a motion asking that the verdict of the jury be set aside and that a decree be entered sustaining the will notwithstanding the verdict of the jury or, in the alternative, that the verdict of the jury be set aside and a new hearing be granted. As grounds for said motion the proponent stated that the verdict of the jury was merely advisory, and was not conclusive upon the court; that the jury had mistaken the instructions given by the court; and that the verdict of the jury was contrary to the overwhelming weight of the evidence. The motion was overruled by the chancellor, and a final decree was entered adjudging that the instrument offered for probate was not the last will and testament of the deceased, and annulling the order admitting the same to probate in common form. From that decree the proponent has prosecuted this appeal.

The record in the case shows that W. Jack Lewis was approximately 52 years of age and was engaged in the operation of an insurance agency in the City of Meridian at the time of his death. His business associate was Julian Patrick, who was the husband of his sister, Mrs. Margueritte Patrick. Mr. Lewis had been married to his second wife, Mrs. Bettye K. Lewis, approximately six years at the time of his death. His marriage to Mrs. Bess Lassiter Lewis, the mother of his two children, had terminated in a divorce in 1951 or 1952. Prior to the filing of the suit for divorce by Mrs. Bess Lassiter Lewis, Mr. Lewis had executed an agreement dated June 5, 1951, by the terms of which he had agreed to pay to Mrs. Bess Lassiter Lewis the sum of $62.50 each month for the support of each of the two children until such child should attain the age of 21 years. He had also agreed to convey to the two children his undivided one-half interest in the residence property in the City of Meridian occupied by the family at that time. The record shows that the deed to the residence property was executed on June 29, 1951, and that the monthly payments for the support of the two children were made promptly thereafter, as provided for in the agreement. Katherine Ann had graduated from M. S. C. W. and was teaching school in the City of Denver, Colorado, when she received the news of her father's death. Margueritte Gibson was living with her mother, Mrs. Bess Lassiter Lewis, at the time of her father's death. The record shows that the relations between Katherine Ann and her father had been strained for a period of several years; but notwithstanding the strained relationship that existed between them, it appears that Mr. Lewis had visited her in her home when she was sick and had given her a watch on her 21st birthday.

According to the testimony of Mr. Lewis' sister, Mrs. Margueritte Patrick, the instrument of writing offered for probate was found in an inner compartment of a plastic wallet or billfold, which was delivered to Mrs. Bettye K. Lewis by an attendant at the funeral home in Meridian after the body had been brought to Meridian for burial. The wallet in which the alleged will was found was delivered to Mrs. Lewis in a sealed envelope which contained the personal belongings of the deceased taken from his pockets when the body was being prepared for burial. Mrs. Patrick stated that she saw the instrument in the home of her brother a few days after his death, when she and Mrs. Bettye K. Lewis were going through Mr. Lewis' personal effects. They found that there was a bulge in the middle of the wallet, which had been turned over to Mrs. Lewis at the funeral home; and when they examined the wallet they found the will in the inner compartment of the wallett. The paper was folded, the wallet was still moist, but the moisture had not penetrated the wallet to the extent that it would have if the wallet had been made of some other kind of material.

Eighteen witnesses, who were called to testify as witnesses for the proponent, testified that the instrument offered for probate was in the handwriting of W. Jack Lewis, deceased. These witnesses included a brother and two sisters of Mr. Lewis, who were familiar with the handwriting of the deceased, and former employees in the office of the Lewis-Patrick Insurance Agency, business associates and clients of the deceased, the treasurer of a lodge of which the deceased was a member, and the vice president of a bank in which the Lewis-Patrick Insurance Agency carried deposits of money, all of whom testified that they had known Mr. Lewis personally during his lifetime, that they were acquainted with his handwriting, that they had frequent opportunities to observe his handwriting and his signature, and that, in their opinion, the instrument offered for probate was wholly written by Mr. Lewis in his own handwriting. The proponent also offered to prove by several of the witnesses statements made to them by the deceased during the several months immediately preceding his death to the effect that he had made a will and that he kept it in his pocketbook or billfold. The chancellor, however, excluded that testimony on the theory that the testimony was mere 'hearsay', and therefore inadmissible on the issue of foregery of the will.

Against the testimony of this large number of witnesses who knew Mr. Lewis personally and were acquainted with his handwriting, the contestants offered the testimony of Mr. Lewis' former wife, Mrs. Bess Lassiter Lewis, who, as guardian of Mr. Lewis' minor daughter, was named as one of the two contestants, and the testimony of C. D. Brooks of Birmingham, Alabama, an alleged handwriting expert and examiner of questioned documents.

The appellant's attorneys have assigned and argued several points as grounds for reversal of the decree of the lower court. The alleged errors, stated in the order in which they occurred during...