Love v. Love

• Decision Date: 01 December 1930
• Docket Number: 28972
• Citation: 158 Miss. 785,131 So. 280
• Court: Mississippi Supreme Court
• Parties: LOVE et al. v. LOVE

131 So. 280

158 Miss. 785

LOVE et al. v. LOVE

No. 28972

Supreme Court of Mississippi

December 1, 1930

Division B

1. APPEAL AND ERROR. Pleading.

Motion to strike involves merely point of practice, and does not settle controlling principles involved, and is therefore not within statute allowing interlocutory appeals (Code 1930 section 14).

2 PLEADING.

Motion to strike is generally appropriate only in absence of remedy by regular pleading and cannot dispose of merits.

3. APPEAL AND ERROR.

Decree overruling motion to strike, not settling controlling principles involved, held not within statute allowing interlocutory appeals, warranting dismissal (Code 1930 section 14).

HON. R. E. JACKSON, Chancellor.

APPEAL from chancery court of Bolivar county, Second district, HON. R. E. JACKSON, Chancellor.

Petition by Fannie W. Love in the matter of the estate of Jerry Love, deceased, opposed by Florence Love and another, to establish her rights as surviving widow in the estate of the decedent. From the decree rendered, the latter appeal. Appeal dismissed.

Appeal dismissed.

Shands, Elmore & Causey, of Cleveland, for appellants.

Ruth Campbell and T. H. Campbell, both of Yazoo City, and J. C. Roberts, of Cleveland, for appellee.

Briefs of counsel addressed to merits of case and not to points of practice upon which court acted.

OPINION

Griffith, J.

On August 28, 1928, Jerry Love of Bolivar county departed this life, leaving a will dated July 28, 1928, by the terms of which all his real estate was devised to named devisees and by which a bequest was made also as to his personal property; the provisions respecting said bequest, however, not being entirely clear. This will was duly admitted to probate on September 5, 1928, and letters testamentary were issued to the executor nominated in the will, whereupon the executor entered upon the discharge of his trust in the ordinary course of testamentary estates.

Thereafter and on February 25, 1929, appellee filed her petition in the matter of said estate and averred that she is the widow of said testator, and his sole heir at law; that petitioner has no separate estate, and by reason of the fact that the testator made no provision for her in his said will, she is entitled to share in said estate to the extent of one-half thereof, and that a decree should be entered declaring her rights as aforesaid; and that all orders theretofore made in the administration of said estate in contravention of her interests should be vacated and annulled. The will was annexed to the petition as an exhibit.

Appellants being two of the devisees named in said will, instead of answering said petition, or demurring thereto, filed a motion to strike it from the files; and the said motion to strike being overruled by the court, strange to say, the court granted an interlocutory appeal "to settle the principles of law." The grounds of the motion to strike may be summarized in the language of the appellants' brief as...