Rasco v. Estate of Rasco, 56106
| Decision Date | 21 January 1987 |
| Docket Number | No. 56106,56106 |
| Parties | Kay Leigh RASCO v. ESTATE OF Richard RASCO. |
| Court | Mississippi Supreme Court |
John Booth Farese, Farese, Farese & Farese, Ashland, for appellant.
Paul R. Scott, Wilroy, Lee & Scott, Hernando, for appellee.
Before PRATHER, ROBERTSON and SULLIVAN, JJ.
This will contest examines whether a divorce accompanied by property settlement revokes, by implication, a previously executed will where the parties continue to live together after the divorce.
The Chancery Court of DeSoto County ruled that a divorce decree and property settlement entered into by Kay and Richard Rasco, revoked by implication a will executed by Richard Rasco prior to the divorce proceeding.
Appellant Kay Rasco appeals alleging that the trial court's order was in direct contravention of the relevant Mississippi law relative to the doctrine of implied revocation of wills and contrary to the best interests of the minors involved. The Court examined the case but reverses on other grounds.
Kay Leigh Rasco married Richard Rasco, a citizen of DeSoto County, Mississippi. She had three children by a previous marriage, Rebecca Herring, George Davis Herring, II and Frank Leon Herring. In his will dated June 29, 1981, Richard Rasco bequeathed $500.00 to George Herring and one acre of land each to Rebecca and Frank Herring. The bulk of his estate he devised to his wife, Kay Leigh Rasco, who was also named as executrix.
On April 13, 1982, a divorce action for irreconcilable differences was granted to the parties. The property agreement was to be:
"a full, final and complete settlement of all their property rights, and ... full and complete settlement of the controversy over the property rights of the parties, and save the right of either party to prosecute his or her suit for complete divorce, this settlement and agreement is and forever after shall be a bar to any suit at law or otherwise for anything growing out of the marriage relation of the parties as well as the property rights of the one against the other."
Under the terms of the settlement, the wife was to receive frozen goods in the deepfreeze, home prepared canned goods, the organ, the sewing machine and her personal effects. She was to pay her debts and maintain her husband's hospitalization insurance until he remarried. The husband was to pay all attorneys' fees and court costs.
Despite the divorce decree, Kay and Richard Rasco continued to live together. Richard Rasco died on November 24, 1982; Kay Rasco was appointed executrix pending the outcome of the will contest by Rasco's children--Alice Mae Robinson, Frank Rasco Jr., R. H. (Harry) Rasco, Robert Henry Rasco Jr., and Robert Allan Rasco. The contest claims that Richard Rasco revoked his purported last will and testament by way of a property settlement incorporated in the 1982 divorce decree.
The case was tried on the stipulation of the foregoing facts, and in addition the following facts:
(1) That Richard Rasco and Kay Rasco continued to live in the same house they were occupying at the date and time of the divorce and slept in the same bed, and were so living together at the time of the death of Richard Rasco,
(2) That the last will and testament was found at Richard Rasco's death in his safe at the house he and Kay Rasco were occupying, and
(3) That Kay Rasco was not represented by an attorney in the divorce and property settlement.
On August 22, 1984, the Chancery Court of DeSoto County, Mississippi issued its order sustaining the will contest and finding that the Rasco divorce "... was a change in circumstances which impliedly revoked the provisions of the will" as to Kay Rasco and her children, because "no longer was there any moral, legal, or social reason for them to be the natural object of deceased [sic] bounty." The trial court found that the parties intended to settle any and all property rights against the other and "acted by implication and intent" to void the bequests. The provision in the property settlement requiring the former wife to pay the deceased's medical costs was not construed by the court to be a showing of unclean hands on the contestants' part. Therefore, the trial court held that Kay Rasco was precluded from taking under the will and "... all bequests made therein to the testator's stepchildren as such should be and are held for naught." Kay Rasco was removed as executrix.
The question on appeal is whether the facts of this case show an implied revocation of a prior will by a subsequent divorce and property settlement.
Revocation of wills in Mississippi is statutory. Miss.Code Ann. Sec. 91-5-3, in pertinent part provides:
A devise so made, or any clause thereof, shall not be revocable but by the testator or testatrix destroying, canceling, or obliterating the same, or causing it to be done in his or her presence, or by subsequent will, codicil, or declaration, in writing, made and executed. (emphasis added)
Appellants contend that Sec. 91-5-3 provides the only recognized methods for canceling a will and that a doctrine of implied revocation by reason of divorce and property settlement does not exist in Mississippi law.
This state has recognized the doctrine of revocation of wills by statute, and also, in proper cases where the facts give rise to an implied revocation by operation of law. As early as 1854 in Garrett v. Dabney, 27 Miss. 335 (1854), this Court recognized that a will may be revoked by various circumstances not within the purview of the statute. 27 Miss. at 346. In Hoy v. Hoy, 93 Miss. 732, 48 So. 903 (1909) this Court acknowledged the common law rule that the will of an unmarried man is revoked by his subsequent marriage with birth of issue, but that without issue, his subsequent marriage does not revoke his former will. See also Hilton v. Johnson, 194 Miss. 671, 12 So.2d 524 (1934); Lee v. Blewett, 116 Miss. 341, 77 So. 147 (1918) (...
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Hinders v. Hinders, 2000-CT-01779-SCT.
...a subsequent divorce accompanied by a property settlement agreement containing provisions inconsistent with the will, Rasco v. Estate of Rasco, 501 So.2d 421 (Miss.1987); (2) that based on the evidence and the law, the chancellor was not manifestly in error in finding that John had not impl......
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Chaney v. Chaney (In re Estate of Chaney), 2015–CA–01613–COA
...the testate estate. After a hearing on the motion, the chancellor issued an opinion, where he applied the factors of Rasco v. Estate of Rasco , 501 So.2d 421 (Miss. 1987), and found that the will was revoked by implication.¶ 6. Lillian and Alice filed a posttrial motion to amend the judgmen......