Reinecke's Estate, In re, 39793

• Decision Date: 21 November 1955
• Docket Number: No. 39793,39793
• Citation: 225 Miss. 376,83 So.2d 438
• Parties: In re ESTATE of Joseph E. REINECKE, Deceased. John Martin REINECKE v. Mrs. Eugenia WHITE, Administratrix, et al.
• Court: Mississippi Supreme Court

Page 438

83 So.2d 438

225 Miss. 376

In re ESTATE of Joseph E. REINECKE, Deceased.

John Martin REINECKE v. Mrs. Eugenia WHITE, Administratrix, et al.

No. 39793.

Supreme Court of Mississippi.

Nov. 21, 1955.

Donald W. Cumbest, Pascagoula, for appellant.

O. L. McLeod, Pascagoula, for appellees.

HOLMES, Justice.

This appeal involves the determination of the rightful beneficiary, or beneficiaries, of the estate of Joseph E. Reinecke, deceased. Pending the appeal of this cause to this Court, the appellee, Robert Reinecke, administrator of the estate of Joseph E. Reinecke, deceased, has died and as to said appellee, the cause has been revived in the name of Mrs. Eugenia White, administratrix of the estate of Joseph E. Reinecke, deceased. The decedent, an adult resident of Jackson County, Mississippi, residing in Pascagoula, died on October 24, 1952. He left no personal estate and his only property consisted of real estate described as Lots 5, 6, 7 and 10, Subdivision of Lot 2, Sidoine Krebs Tract, Surveyor's Record Book 1, page 81, Jackson County, Mississippi. His only debts consisted of doctors, hospital, medical and funeral bills aggregating approximately $1,000. He left as his sole and only heirs at law his brothers and sisters, namely: Robert Reinecke, Pascagoula, Mississippi; Mrs. Eugenia White, Pascagoula, Mississippi; G. F. Reinecke, San Diego, California; and Mrs. D. P. White, La Mesa, California.

Following his death a search of his premises and effects revealed no last will and testament. Robert Reinecke, one of the brothers, applied for and obtained appointment as the administrator of the estate of the deceased. There being no cash or funds with which to pay the debts and expenses of administration of the estate, appropriate proceedings were had for the sale of the decedent's real property, at which sale the property was sold for $7,000. After the payment of debts from the proceeds of the sale, there remained for distribution to the rightful beneficiary or beneficiaries of the estate the sum of approximately $6,000.

Subsequent to the appointment and qualification of Robert Reinecke as administrator of the estate of the deceased, John Martin Reinecke, a nephew of the deceased residing in San Diego, California, filed a petition to dissolve the letters of administration issued to Robert Reinecke and to adjudge the petitioner, who is the appellant here, to be the sole heir and beneficiary of the estate upon the grounds that the said John Martin Reinecke and the deceased had entered into an agreement in the lifetime of the deceased whereby each would will to the other his entire estate.

On the hearing of the petition, both documentary evidence and oral evidence were introduced, and at the conclusion of the evidence, the appellee moved the court to exclude the evidence and to dismiss the petition upon the ground that the proof was insufficient to sustain the allegations of the petition. The chancellor found from the evidence that the decedent never made a will and never executed any document of a testamentary nature, and that no valid and binding agreement was entered into between the said John Martin Reinecke and the decedent during the latter's lifetime for the making of mutual wills, and he accordingly sustained the motion of the appellee to exclude the evidence and entered a decree dismissing the petition. From this decree, the appellant, who was the petitioner in the court below, prosecutes this appeal.

The appellant makes two contentions: (1) That the decree of the chancellor is contrary to the overwhelming weight of the evidence, and (2) that the trial court erred in not allowing the appellant, John Martin Reinecke, to testify in his own behalf.

The appellant relies upon certain letters exchanged between him and the deceased, supplemented by the oral testimony of O. K. Weisenburg, Mrs. Belle Griffin, and Robert Joseph Lopez, to support the appellant's contention that there was a valid agreement entered into between him and the deceased whereby he was to will all of his property to the deceased and the deceased was to will all of his property to the appellant. Three of these letters were introduced in evidence. One from Joseph E. Reinecke to John Martin Reinecke, dated November 17, 1951, read in its pertinent parts, as follows: 'Dear Newphew I received your 2 letters and I have enjoyed all that you said and all so your intentions to make my your Benafactor in case of Death. I shall do the same in case of Death now I would like for you to come and see me when you get through all of your Toures or when you take your vacation, some time in June 1952.'

Another letter was dated December 4, 1951, and was from John Martin Reinecke to Joseph E. Reinecke, and read in its pertinent parts, as follows: 'I am going to make you my beneficiary in case of death and would appreciate you doing the same.'

Another letter was dated August 13, 1952, and was from John Martin Reinecke to Joseph E. Reinecke, and read in its pertinent parts as follows: 'I own a business lot worth about $18,000 on one of the best business streets in San Diego. I have had it for 20 years, it is clear. Cannot get enough money ahead to build on it. Why don't you sell your property come out here, go in partners with me. We can put buildings on this lot that will bring us enough income so we can live the rest of our days. How does that sound to you?'

O. K. Weisenburg, called as a witness for the appellant, testified that he had represented the deceased in his lifetime for a number of years; that he talked to the deceased on August 26, 1952, about two months prior to his death; that on that date he noticed that the deceased was becoming feeble and he told him he was reaching that stage of life where he should make a will, and he asked the deceased if he had a will, and the deceased said h...