Pratt v. Hargreaves

• Decision Date: 08 May 1899
• Citation: 25 So. 658,76 Miss. 955
• Court: Mississippi Supreme Court
• Parties: GEORGE K. PRATT ET AL. v. BELLA P. HARGREAVES ET AL

25 So. 658

76 Miss. 955

GEORGE K. PRATT ET AL. v. BELLA P. HARGREAVES ET AL

Supreme Court of Mississippi

May 8, 1899

March 1899

FROM the chancery court of Harrison county, HON. NATHAN C. HILL Chancellor.

The appellants, George King Pratt et al., were complainants in the court below; appellees, Bella P. Hargreaves et al., were defendants there. Defendant, Proot, is and was a notary public of Louisiana.

The appeal is from a decree sustaining a demurrer, dissolving an injunction and dismissing the suit. The bill alleged that on June 4, 1890, Louisa J. Bidwell, who was then a citizen and resident of Louisiana, made, published and declared her last will, whereby, after making a small, specific bequest, she devised and bequeathed all the rest of her property and estate to the children of George K. Pratt and his wife Louisa, who were then living, and such other children of said Pratt and his wife as might thereafter be born, share and share alike, and appointed said George K. Pratt as executor of the will; that said will was executed pursuant to the laws of Louisiana, and was made in the form known in that state as a nuncupative will, by notarial act--that is, the original will was written out at length on the record of notarial acts of George C. Proot, a notary public of the city of New Orleans, and was subscribed on said notarial record by said Louisa J. Bidwell and by witnesses on said record, and that such will became, and is a part, of the public records of Louisiana; that on the nineteenth day of May, 1897, George K Pratt, executor, presented said will, pursuant to the laws of Louisiana, to the civil district court of the parish of Orleans, in said state, for probate, and said will was duly admitted to probate in said court; that thereafter, on August 6, 1897, said Pratt, executor, filed his petition in the chancery court of Harrison county, Mississippi, setting forth the facts in regard to the execution of the will, and of the action of said civil district court in admitting same to probate, and obtained and presented with said petition the sheets of the record containing said will, which said Proot notary public, permitted to be temporarily detached for the purpose, but that, on account of said sheets of paper containing said will being a part of the notarial record of said notary public, and, as such, a public record of Louisiana, the chancery court of Harrison county ordered and decreed that the clerk make and file in the record of said proceeding for the probate of said will a duly certified copy thereof, which was accordingly done, and said original will was then delivered to said George C. Proot, notary, who carried it back to his office in New Orleans; that the defendants to this bill, Bella P. Hargreaves and Agnes E. Carey, entered their appearance in said cause, filing a caveat against the probate of said will, asserting that it was procured by undue influence exercised by said George K. Pratt, father of complainants, and also that said Louisa J. Bidwell was a citizen of Mississippi at the time of her decease; that, at the February term, 1898, of said court, the question as to the domicile of said testatrix at the time of her decease was submitted to the court by agreement, and the court found, from the facts offered, that Louisa J. Bidwell was at the time of her decease a citizen of Harrison county, Mississippi, and denying the said petitioner, Pratt, the right to probate said will on an authenticated copy; that an appeal was prosecuted by said Pratt from said decision of the chancellor, and the action of the court in its finding as to the domicile of said testatrix was affirmed, but the case reversed on the other issues involved (Pratt v. Hargreaves, 75 Miss, 897); that, since the domicile of said testatrix had been determined by the court to have been, at the time of her decease, in Harrison county, Mississippi, complainants, the children of said George K. Pratt and his wife, Louisa, the devisees named in said will, have exhausted every resource in their power to obtain from said George C. Proot, notary public, the said original will, without avail; that they have offered to give bond in any sum that may be required to said notary to indemnify him against any loss or damage that might or could result from the removal of said will from his custody, but that said notary public claims that, under the laws of the State of Louisiana, he is forbidden to permit the same to be removed, and refuses to deliver said will to complainants, and that defendants and their solicitors have warned said Proof not to permit the removal of the original will from his possession, and have threatened to prosecute him under the criminal laws of the State of Louisiana if he permits the same to be removed, and, by reason of said Proot's refusal, moved and induced by said defendants' threats and warnings, the complainants are wholly unable to procure the original will; that the certified copy of said will filed with the bill and the copy made by the clerk of the Harrison county circuit court are true, faithful and exact copies; that said testatrix left real and personal property in Harrison county; that on March 29, 1898, the defendants began, in the circuit court of Harrison county, an action of ejectment against one Caton, a tenant of complainants, for the possession of a parcel of land belonging to said testatrix at the time of her decease, which is now pending; that subsequently said defendants instituted an action of unlawful entry and detainer before a justice of the peace for the same land and obtained a judgment therefor, from which judgment complainants took an appeal to the circuit court, where said cause is now pending; that said suits for possession have been begun by said defendants as heirs at law of Louisa J. Bidwell and by threatening said Proot with prosecutions and preventing the production and probate of the will until the actions for possession are tried, and thereby prevent and render impossible the introduction and use of said will as evidence of title in complainants; that upon the probate of said will the title of complainants will relate back to the death of said testatrix, and that said defendants are wholly insolvent, and, if permitted to recover said property under said possessory actions, the entire rental value of said lands would be lost to complainants.

The bill prays that said defendants, Bella P. Hargreaves and Agnes E. Carey, may be restrained from interfering with said Proot to prevent the production of said will, and that Proot may be compelled to produce it, and that, in case the court is unable to compel its production, said will may be established by secondary evidence and admitted to probate; that pending the hearing of the cause and for the purpose of protecting and preserving the rights of all parties, the prosecution of said possessory actions may be restrained, and for general relief.

The defendants, Agnes E. Carey and Bella P. Hargreaves, demurred to the bill. The court sustained the demurrer and dismissed the bill.

Affirmed.

J. I. Ford, for appellants.

The injunction prayed for is simply in aid of the other relief sought, and in order to administer full relief by bringing into the chancery court all the controversies between these parties, and adjusting all of them in one suit instead of half a dozen in as many forums. The bill alleges the utter insolvency of these heirs at law, and that, in case they should get in possession of the property, complainants would, on establishing the will, be entirely remediless for the loss and damage sustained, all of which is admitted by the demurrer. The general proposition that upon the death of the ancestor the heir is entitled to the immediate possession, is subject to the exception or qualification that there be no valid will vesting the title in another. The rule is well established that where a will is made, the devisees' right to the estate vests immediately upon the death of the testator. Crusoe v. Butler, 36 Miss. 150. And where, as in this case, a perfectly valid will is shown to be in existence, and the devisee is prevented from procuring its probate by reason of the wrongful acts of the heir, who is insolvent, surely the court will not hold that such heir is entitled to possession when such possession would result in inflicting irreparable damage and injury to the devisee. These complainants show, by the facts in this bill, a complete equitable title, and the injunction is sought in aid of such title and to preserve the status quo until a final adjudication on the merits. To hold that the chancery court is powerless to issue injunctions for a purpose of this kind is to say that such court is powerless to protect itself from fraud and imposition, and we respectfully submit that any court, with the broad jurisdiction conferred upon our chancery courts, has the inherent power to issue such writs and to make such orders as may be necessary to protect and preserve property involved in a controversy before it.

The appellees contend that making the notary public, Proot, who has the custody of the will, a party defendant to the bill was improper, and that no harm could result from the threats made by the defendants, Hargreaves and Carey, to prevent his producing the will. The purpose in making this notary public a party defendant was to compel the party in possession of the will (as provided in § 1830 of the annotated code), if possible, to produce it, and failing in this, to lay the proper foundation for the introduction of secondary evidence. While it may be true that the courts of this state are without legal power to compel an officer of a foreign state to produce a document in his possession, still an effort must be made, in good faith,...