Perry v. Aldrich, 43247

• Decision Date: 14 December 1964
• Docket Number: No. 43247,43247
• Citation: 251 Miss. 429,169 So.2d 786
• Parties: Fred F. PERRY v. Mrs. Elizabeth Balfour Franklin ALDRICH, Executrix, Estate of Mrs. Marie Balfour O'Kelley, Deceased.
• Court: Mississippi Supreme Court

Page 786

169 So.2d 786

251 Miss. 429

Fred F. PERRY v. Mrs. Elizabeth Balfour Franklin ALDRICH, Executrix, Estate of Mrs. Marie Balfour O'Kelley, Deceased.

No. 43247.

Supreme Court of Mississippi.

Dec. 14, 1964.

Callon, Zuccaro, Wood & Pintard, Robert L. Netterville, Natchez, for appellant.

Brandon, Brandon, Hornsby & Handy, Laub, Adams, Forman & Truly, Natchez, for appellee.

RODGERS, Justice.

This is a will case. It came to this Court from the Chancery Court of Adams County, Mississippi, on appeal from the final decree of the chancery court revoking and annulling a vacation order of the chancery clerk, probating an alleged will of Mrs. Marie B. O'Kelley. The chancellor permitted an appeal to this Court 'to settle all of the controlling principles involved.' Thus, this Court is called upon to determine whether or not the chancellor ruled correctly upon the pleadings filed in the chancery court, under the following circumstances:

Appellant, Fred F. Perry, presented to the chancery court clerk, in vacation, on October 28, 1963, an alleged will of Mrs. Marie B. O'Kelley, dated June 24, 1961, in which appellant was named executor. The clerk entered an order admitting the attached will to probate and signed an order adjudging the alleged will to be 'the Last, True and Original Will of the said Mrs. Marie B. O'Kelley and this Decree and Order supersedes and has precedence over any other decrees heretofore rendered in said cause * * *.' Appellant qualified as executor by taking oath and proceeded to give notice to creditors. At this juncture, Mrs. Elizabeth Balfour Franklin Aldrich filed a bill of complaint in the foregoing proceeding in which she alleged she was the executrix of the estate of Mrs. Marie B. O'Kelley, deceased; that deceased died October 17, 1963; that thereafter on October 21, 1963, the complainant probated the last will of Mrs. O'Kelley. This will was dated February 23, 1957, and was proven and probated in a separate proceeding prior to the proceeding presented by Fred F. Perry for the probate of a later will. The complainant alleged that the prior order probating a previous will is conclusive until it is set aside, and that the later proceeding filed by Fred F. Perry to probate a will dated after the previously probated will was a nullity, because a good and valid will had already been probated and letters testamentary issued; that this will and the decree had not been attacked, qualified, revoked or appealed from, and the later proceeding was had without notice to the original executrix in the previous proceeding. The prayer of the bill of complaint requested the court to enter a decree adjudging the latter proceeding instituted by Fred F. Perry to be void and that the proceeding be revoked and cancelled. Appellant, Fred F. Perry, filed a general and a special demurrer to the appellee's bill of complaint. The special demurrer, among other things, charged 'That a will, as this will was, may be probated despite prior administrative or probate proceedings'; that the decree in the last probate proceeding was a judicial act establishing the validity of the later will and that this order could only be attacked as set out by Mississippi Code Annotated Section 504 (1942); and that 'only a jury can hear the issue on the validity of the will.'

The chancellor heard the argument in term time and entered an order taking the matter under advisement for determination in vacation, and on the 27th of February 1964, the chancellor overruled the demurrer and cancelled the second probate proceeding in which Fred F. Perry had qualified as executor of the estate of Mrs. Marie B. O'Kelley, deceased.

The only question for our determination is whether or not a later will can be probated in common form after a will has previously been probated, in a separate proceeding establishing a prior will as the last will and testament of the deceased testator.

We have reached the conclusion that the chancellor was correct in refusing to permit two conflicting testamentary proceedings establishing two separate wills of the deceased testator to be carried on in the chancery court at the same time, and in refusing to permit the probating of two conflicting wills in common form as the last will and testament of the deceased testator. There can be only one true and last will of a deceased person. Where two instruments are not in conflict, they may be construed together as one will, but where two known instruments purporting to be the last will and testament of a deceased testator are distinct and in conflict, it is necessary for the chancery court to determine which of the instruments is the true, last and genuine will of deceased testator. In order to present the matter to the court and jury, it is necessary that the instruments be brought to issue in one proceeding. The method of probating a will in common form is a statutory procedure in Mississippi. Miss.Code Ann. Secs. 496 through 501 (1942). The validity of a will probated without notice may be contested 'at any time within two years.' MissCode Ann. Sec. 505 (1942). On the other hand, a will may be offered for probate in solemn form, where all interested persons are made parties in the first instance, and persons made parties to the proceedings are 'concluded by the probate of the will.' Miss.Code Ann. Sec. 503 (1942).

In the instant case, a will was probated in common form and letters testamentary were issued to Mrs. Elizabeth Balfour Franklin Aldrich, the appellee, and thereafter a second will was presented to the chancery clerk and admitted to probate, and Fred F. Perry, appellant, was executor of the estate of the deceased, Mrs. Marie Balfour O'Kelley, thus it is apparent two executors were appointed by the clerk of the chancery court, in vacation, each asserting that he was acting under the true and last will of the same testatrix. It is obvious that there cannot be two last wills of the same testatrix. It has been said 'no man can die with two testaments.' 57 Am.Jur. Wills Sec. 755, p. 517 (1948). One will must supersede the other unless it is a codicil to the previous will.

The order admitting to probate an instrument in writing (Miss.Code Ann. Sec. 657, 1942) as the last will of a deceased person imports validity of the will; thus, where a will has been probated in common form, it is valid on the face of the proceedings, until modified or set aside by order of the chancery court. Mississippi Code Annotated Section 507 (1942) is as follows: 'On the trial of an issue made up to determine the validity of a will which has been duly admitted to probate, such probate shall be prima facie evidence of the validity of the will.' See Moore v. Parks, 122 Miss. 301, 84 So. 230 (1920); Gathings v. Howard, 122 Miss. 355, 84 So. 240 (1920); 95 C.J.S. Wills Sec. 574, pp. 670, 671, 672; Sec. 577 b., p. 677 (1957).

In the case of Bigleben v. Henry, 196 Miss. 586, 17 So.2d 602 (1944), this Court held that the probate in common form of a will before the clerk in vacation would be deemed prima facie evidence of the validity of the will unless and until its invalidity was determined by the court. See also the following cases to the same effect: Bearden v. Gibson, 215 Miss. 218, 60 So.2d 655 (1952); Rice v. McMullen, 207 Miss. 706, 43 So.2d 195 (1949); Hilton v. Johnson, 194 Miss. 671, 12 So.2d 524 (1943); O'Bannon v. Henrich, 191 Miss. 815, 4 So.2d 208 (1941).

The rule in this State is that the probate of a will in common form is not a final adjudication of the validity of the will but is an 'incipient step' necessary to enable the court to proceed to carry the will into execution. It is not conclusive against the heirs and distributees; and if they desire to contest the validity of the will, the statute provides the mode by which that shall be done by an issue devisavit vel non. Austin v. Patrick, 179 Miss. 718, 176 So. 714 (1937); Murray v. Murphy, 39 Miss. 214 (1860); Kelly v. Davis. 37 Miss. 76 (1859).

We have been unable to find a Mississippi case directly in point upon the question here presented but we find that this question has been presented to the Supreme Courts of other states. In the case of In re Puett's Will, 229 N.C. 8, 47 S.E.2d 488 (1948), a proceeding was instituted to probate a written paper presented by one Lelia Wilson as the last will of Minnie Stowe Puett. It appears that Minnie Stowe Puett died on May 29, 1945. A written paper purporting to be her last will and testament was duly admitted to probate in the manner prescribed by statute. By this will, the testatrix devised the bulk of her considerable estate in trust to the American Trust Company, trustee for charitable purposes, therein set out. This will was dated May 12, 1944. On May 2, 1947, Lelia Wilson offered for probate as the last will and testament of Mrs. Puett another paper dated February 23, 1945, which simply said: 'I will and bequeath everything I have to Lelia Wilson. (Signed) Minnie Stowe Puett.' The clerk entered an order in which he found this paper to be entirely in the handwriting of Mrs. Puett. The clerk then adjudged that the instrument was the last will and testament of Minnie Stowe Puett, and further declared that the purported last will and testament of decedent probated May 29, 1945, was 'null and void.' Thereafter, on November 21, 1947, George W. Stowe and others, representatives of the beneficiaries under the will probated May 29, 1945, filed a petition before the clerk asking that the...