Prather v. Prather

• Decision Date: 30 May 1910
• Court: Mississippi Supreme Court
• Parties: JOHN C. PRATHER ET AL. v. HENRY E. PRATHER ET AL

52 So. 449

97 Miss. 311

JOHN C. PRATHER ET AL. v. HENRY E. PRATHER ET AL

Supreme Court of Mississippi

May 30, 1910

March 1910

FROM the chancery court of Franklin county, HON. JAMES STOWERS HICKS, Chancellor.

Henry C. Prather and others, appellees, were complainants or petitioners in the court below; John C. Prather and others appellants, were defendants there. From a decree overruling a demurrer to a petition for the probation of an alleged will the defendants appealed to the supreme court.

The facts were stated by ANDERSON, J., as follows:

"This is an appeal from the chancery court of Franklin county overruling the demurrer to the petition of W. H. and H. E Prather, appellees, to which the brothers and sisters and nieces and nephews of the petitioners are made parties, to probate, as the last will and testament of their deceased brother, P. P. Prather, the following writing:

'Office of Prather & Byrd, Dealer in General Merchandise,

'Meadville, Miss. 1/3.

'Mr. H. E. Prather,

Hamburg, Miss.

'My Dear Brother:

'This leaves me as well as could expect. Business is very dull here at present. Hope you are all enjoying good health, Say Bro. if anything should ever happen to me, I want you and Bro. Walter to get what I have, and be sure and not let no one beat you out of it in days to come. As far as Willie is concerned he will treat you right, for he is strictly honest and a gentleman in every respect. Come out some time. Keep this to yourself, and oblige.

Yours truly,

'P. P. Prather.'

"The petition sets up that the petitioner, H. E. Prather, is the party to whom this letter is addressed, and 'Walter' mentioned therein is the other petitioner, and both are brothers of the decedent, P. P. Prather, and that the defendants to the petition are the brothers and sisters of the decedent and of the petitioners, and their nieces and nephews; the decedent having died single without issue. The petition alleges further: 'Petitioners would show that the above instrument is the last will and testament of P. P. Prather, deceased, and that it was written in the form of a letter and addressed to the said H. E. Prather, and marked "Personal," and was by the said P. P. Prather, deceased, wholly written, dated, and signed in the handwriting of the said P. P. Prather, deceased, and sealed and deposited by the said P. P. Prather in his trunk with his personal and private papers, and was found therein duly written, signed, and dated as aforesaid, after the death of the said P. P. Prather, and was duly turned over to H. E. Prather. Petitioners would show that when the said P. P. Prather wrote "Bro. Walter" he meant and intended his brother Walter H. Prather. Petitioners would show that although the said will in the form of a letter was addressed to H. E. Prather, Hamburg, Miss. and from the face of the letter it was to be mailed, yet in truth and in fact the said P. P. Prather, intending the said letter as a will, and knowing that it was necessary for the same to be preserved, he never intended mailing the said instrument, but intended, when he wrote it, that it should be his last will and testament, and that he would write it in the form of a letter, and that he would keep it in his private papers for safe-keeping, so that at his death the said H. E. Prather and Walter Prather would come into possession of the same, and thereby take under it all of his property, as was the intention of testator. Petitioners would further show that the said P. P. Prather, a short while before the date of the said will, went to Dr. T. K. Magee, a personal friend of his, seeking advice as to the disposition of his property, saying that he wanted to leave what he had to his brothers, Walter and H. E. Prather, and wanted to fix it so that no one would beat them out of it, and that he was advised by Magee to make a will, and for him to be sure that it was in his own handwriting, for then it would not require witnesses; that the said Prather remarked that he thought he knew how to write a will that would stick, and that he (Prather) would write it and place it in his trunk, and that if anything ever happened to him for said T. K. Magee to tell H. E. Prather or Walter Prather where they could find it; that, acting under the instructions of said Magee, the said testator made and executed the above instrument in the form of a letter and in his own handwriting, and placed the same in his trunk, where same was found after his death; that when the testator wrote the letter he intended it as his last will and testament, and never intended to mail, but to keep the same in his trunk, as per conversation to said Magee, for safe-keeping, and to retain the same within his possession and control, and the said instrument is the last will and testament of the said P. P. Prather, and under and by virtue of the same all the property of testator, P. P. Prather, both real and personal, passes to your petitioners in equal parts.'"

Affirmed.

R. L. Corban and Bennett & Torrey, for appellants.

The paper purporting to be a will in Young v. Wank, 76 Miss. 829, 25 So. 660, is stronger than the letter which appellees are seeking to probate. There is nothing in the petition to connect the letter with the suggestion, made more than a year before the death of the decedent, to Magee, that he intended to make such a will. Within a year's time, if Prather had seen proper to make a will, he could have done so, and being an intelligent man and advised as to the necessary contents of a will, it would seem that he changed his mind and never wrote a will. It is not, the province of courts to add anything to, or take anything from the paper offered for probate as the last will and testament of a deceased person. It must stand or fall on its own merits. A vague and indefinite letter cannot be construed to be a will, aided only by the fact that the party who had written the letter consulted a friend more than a year before his death and told him that he was going to make a will, and place it among his papers and requested his friend to tell his brother that he would find it. The presumption in this case is that decedent changed his mind, or neglected to make the will, and in either event, the legal effect is the same.

The case at bar is different from the case of Buffington v. Thomas, 84 Miss. 157, 36 So. 1039. The letter in the case at bar, sought to be probated, is a mere statement that if anything should happen to the writer he wanted his brothers named to have what he had and not to let anyone beat them out of it in days to come. It does not even state that he wants his property to go to his brothers named in case of his, death to the exclusion of his other brothers and sisters, and the whole purport of the paper, and the conversation with Magee leads to the conclusion and only to the conclusion that at the time he had the conversation and wrote the letter, he intended to will his property to the two brothers named. If such will has ever been made, it has not been offered for probate.

McKnight & McKnight, for appellees.

The question in this case is one of intention and the form is unimportant except as it sheds light on the question of intention.

In form the writing may be "an endorsement on the back of a promissory note, an entry in a diary, a letter to the donee of some or some other person, an order, a deed, a contract, a power of attorney or a non-descript. It need not dispose of all of the decedent's property nor appoint an executor. Of...