McCormack v. Warren, 40200

• Decision Date: 01 October 1956
• Docket Number: No. 40200,40200
• Citation: 228 Miss. 617,89 So.2d 702
• Parties: Hugh E. McCORMACK et al. v. Benjamin Hugh WARREN.
• Court: Mississippi Supreme Court

Page 702

89 So.2d 702

228 Miss. 617

Hugh E. McCORMACK et al. v. Benjamin Hugh WARREN.

No. 40200.

Supreme Court of Mississippi.

Oct. 1, 1956.

Watkins & Eager, Jackson, for appellants.

R. L. Landrum, Jackson, Roger Landrum, Columbus, for appellee.

KYLE, Justice.

This case is before us on appeal by Hugh E. McCormack and others, nephews and nieces of Mrs. Mary Elizabeth Warren, deceased, from a decree of the Chancery Court of Hinds County admitting to probate in solemn form the last will and testament of Mrs. Mary Elizabeth Warren, deceased. The record shows that the instrument offered for probate had been executed in duplicate by the testatrix on April 23, 1945, and both executed copies were in the possession of the testatrix at the time of her death. The instrument consisted of one type-written page, and each of the two copies was duly signed by the testatrix and attested by the two subscribing witnesses. The original or ribbon copy of the instrument, which was found in an envelope with other papers belonging to the testatrix, was torn from the bottom upward by five separate tears which extended to points opposite or above the testatrix' signature. No part of the sheet was torn off however, and the signatures of the testatrix and the subscribing witnesses were plainly legible. There were no interlineations, erasures or cancellation marks on the instrument. The carbon copy, which was found in another box of papers, was neither torn nor wrinkled. Both copies have been sent to this Court for our inspection.

In Item 1 of the will the testatrix devised to the descendants of her deceased brother, Robert Fountain McCormack, living at the time of her death, the appellants herein, certain lands in Yazoo County described as the 'McCormack Place', and also a residence house and lot owned by her on Fourth Street in Yazoo City, Mississippi. In Item 2 the testatrix devised all the rest and residue of her real property to her husband, Hastings Sandidge Warren, for and during the term of his natural life, with power to sell or encumber any portion thereof and to use the proceeds in such manner as he might desire; and in Item 3 the testatrix devised and bequeathed to Benjamin Hugh Warren, her husband's brother, the appellee herein, so much of the real property devised and bequeathed to her husband in Item 2 as remained undisposed of at his death. In Item 4 the testatrix devised and bequeathed the residue of her property to her husband.

Hastings Sandidge Warren executed his will on the same day and the wills of the wife and husband were attested by the same witnesses.

The record shows that Hastings Sandidge Warren died sometime prior to the year 1948. Mrs. Mary Elizabeth Warren died May 10, 1955.

The property involved in the will contest is a house and lot on Jackson Street, in Yazoo City, of the value of several thousand dollars which, under the will, goes to the appellee. If the will should be of no effect the property would go to the appellants as heirs at law and next of kin of Mrs. Mary Elizabeth Warren, deceased

On June 29, 1955, the appellants filed a petition in the chancery court asking for the appointment of Hugh E. McCormack as administrator of the estate of Mrs. Mary Elizabeth Warren, deceased. In their petition the petitioners stated that they were the only heirs and next of kin of the decedent. The petitioners also alleged that after the death of Mrs. Warren the duplicate copies of the will dated April 23, 1945, were found among her papers, but the signature and date on the original instrument had been torn through by six separate tears, and the will had in truth and in fact been destroyed, cancelled, and revoked by the testatrix. The petitioners asked that letters of administration be granted to Hugh E. McCormack and that process be issued for Benjamin Hugh Warren commanding him to appear and answer the petition if he desired to do so, and that a proper issue be made up and tried for the purpose of determining the validity or invalidity of said will. Benjamin Hugh Warren appeared and filed an answer to the petition, and in his answer denied that the will had been destroyed or revoked. He made his answer a cross-bill and asked that the will be admitted to probate.

The cause was heard before the chancellor at the regular October 1955 Term of the court.

Proof of the due execution of the will by the testatrix on April 23, 1945, was made by one of the two subscribing witnesses, who also identified a photostat copy of the will executed by Hastings S. Warren on the same day. Mrs. Benjamin Hugh Warren also testified as a witness for the proponent. She testified that Mrs. Mary Elizabeth Warren had resided in the City of Jackson during the last few years of her life, and that she had seen Mrs. Warren once or twice a month during that time; that she called to see her often and took her automobile riding; that on one occasion during the month of September 1954, while she and Mrs. Warren were driving through the Eastover Subdivision, Mrs. Warren expressed a wish that she and her husband would buy a piece of property, and said to her, 'I want to know where my money is going. * * * You are going to be taken care of; I have seen to that.' The witness also stated that while Mrs. Warren was in the hospital, five or six weeks before her death, she said to her, 'I don't want you to worry about anything. I have seen that you are taken care of. * * * I have made a will.'

Judge Louis J. Wise of Yazoo City testified as the main witness for the contestants. Judge Wise stated that he had represented Mrs. Mary Elizabeth Warren as a lawyer and as a business adviser during a long period of time, while she was a resident of Yazoo City, and that Mrs. Warren told him sometime during the year 1948 that she had made a will while he was in the military service, and that she wanted to make another will. He asked her whether the will that she had made was in existence. She said, 'Yes, and how do I go about destroying it?' His answer was, 'Just tear it up and throw it away.' Mrs. Warren then said to him, 'Well, I don't want it, and I will be by your office later and we will make a will the way I want it.' She then discussed Mr. Hugh Warren, and 'she particularly wanted to make a new will because Mr. Warren, it looked like, was trying to take some of her property away from her in her lifetime.' Judge Wise stated that Mrs. Warren later came to his office and he prepared a will for her. She told him that she had destroyed the other will, and that she no longer had a will. When Judge Wise delivered the new will to her, he told her to take it to the trust officer of the Delta National Bank and he would see that the will was properly executed. Judge Wise saw Mrs. Warren again some time thereafter and she told him that she had not signed the new will but was going to sign it, and that she had it in a good safe place. At a still later date she told Judge Wise that she had 'fixed it.' But the will that Judge Wise prepared for her was never executed by Mrs. Warren.

Hugh E. McCormack testified that he found the torn and the carbon copies of the will offered for probate among Mrs. Warren's valuable papers and effects, which were kept in her room in the home on the Old Canton road where she resided at the time of her death.

Mrs. Effie McCormack Kent, a second cousin of the testatrix was called to testify as a witness for the proponent in rebuttal. Mrs. Kent testified that she lived in the home with Mrs. Warren fom 1945 to 1950, while Mrs. Warren was living in Yazoo City, and that after Mrs. Warren moved to Jackson she spent much of her time in Mrs. Kent's home in Yazoo City. Mrs. Kent stated that some time during the year 1948 a strained relation developed between Mrs. Warren and Mr. and Mrs. Hugh Warren as a result of the sale by Mrs. Warren to the Board of Trustees of the Yazoo City Schools of a valuable piece of real estate which she owned in Yazoo City. Mr. and Mrs. Hugh Warren came over to Yazoo City to see Mrs. Warren about the matter and wanted their part of the money. Mrs. Warren became very much upset and told Mrs. Kent that she would have to change her will, that she did not think that she should leave Mr. Hugh Warren anything. But Mrs. Kent stated that after Mrs. Warren moved to Jackson her feeling toward Mr. and Mrs. Hugh Warren underwent a change and during the last few years of her life Mrs. Warren had spoken of Mr. and Mrs. Hugh Warren as being very considerate of her. Mrs. Kent stated that Mr. and Mrs. Hugh Warren brought Mrs. Warren to her home in Yazoo City on at least three separate occasions; that Mrs. Warren spent several months in her home during the years 1953 and 1954; and during that time Mrs. Warren often spoke of Mr. and Mrs. Hugh Warren's kindly consideration of her, of their taking her for automobile rides and things of that sort; and that Mrs. Warren told her that she had to remember Mr. and Mrs. Hugh Warren in some way.

The chancellor found that there was some ill feeling between Mrs. Warren and Mr. Hugh Warren some time along about the year 1948 concerning the sale of the school property, but that ill feeling had subsided, and the testatrix and Mr. Hugh Warren's family were on good terms for a number of months prior to her death, and that on at least two occasions the testatrix had made statements in the presence of witnesses which indicated that she was leaving some portion of her estate to the appellant. The chancellor found that the evidence offered on behalf of the contestants was insufficient to show that the will dated April 23, 1945, had been revoked. The chancellor stated that in his opinion there may have been a time after the sale of the Yazoo City School property when the testatrix felt that she wanted to change the provisions of her will, and that her feelings were such that she...