Rice v. McMullen, 37226

• Decision Date: 28 November 1949
• Docket Number: No. 37226,37226
• Citation: 43 So.2d 195,207 Miss. 706
• Parties: RICE et al. v. McMULLEN.
• Court: Mississippi Supreme Court

Page 195

43 So.2d 195

207 Miss. 706

RICE et al. v. McMULLEN.

No. 37226.

Supreme Court of Mississippi, in Banc.

Nov. 28, 1949.

Breland & Whitten, Sumner, for appellants.

Roberson, Luckett & Roberson, Clarksdale, for appellee.

MONTGOMERY, Justice.

The appellee, Nathan J. McMullen, a residuary legatee under the will of P. H. McCalep, brought this suit in the Chancery Court of the Second Judicial District of Tallahatchie County to recover from the estate of Mrs. Carrie McCalep Armstrong, a sister of P. H. McCalep, deceased, his alleged rightful share of the residuum of the trust estate created by the last will and testament of P. H. McCalep, the corpus of which trust estate, it is alleged, had been wrongfully appropriated by Mrs. Armstrong, as the sole heir at law of P. H. McCalep, deceased, on the strength of a void decree rendered by the trial court theretofore on April 23, 1939, whereby it was decreed that the alleged will was not the true last will and testament of P. H. McCalep, deceased, and adjudging Mrs. Armstrong to be his sole heir at law and as such entitled to receive the estate. There was a decree in the lower court for appellee for the sum of $3,984.33 and from this decree the executors appeal and the appellee cross-appeals.

For a full understanding of the case presented here for decision it is necessary that we briefly review the facts.

On February 10, 1939, P. H. McCalep executed his last will and testament, Items 4, 5, and 10 of which are material in our discussion here and which items read as follows:

'IV. It is my desire that my sole, surviving close relative, to-wit: my sister, Carrie McCalep Armstrong, shall be provided for during her life. I, therefore, constitute and appoint the said M. P. Sturdivant and the said J. R. Flautt, my trustees, to take charge of, to manage, and to invest all property of which I shall die, seized and poassessed, to hold, manage and to invest the same and out of the proceeds to pay to my said sister each a sum and amount equal to $200.000 per month, there being charged against the said $200.00 a month, the amount per month which my sister shall receive from any annuity policies which I have procured, payable to her; she, however, to receive in addition to the $200.00 per month, the proceeds of any policies other than annuity policies in which she is beneficiary, which sum or sums so received shall not be considered or computed as payments on the $200.00 per month allowance herein provided for.

'V. In the event of illness or other emergency, which in the judgment of my said trustees and executors, shall justify the expenditures, they are authorized in addition to the $200.00 a month, to expend additional sum out of either income or principal in whatever amount may be necessary for the proper care of my sais sister.'

'X. After my said sister shall die, the property in the hands of said trustees shall be divided equally between Mrs. Alice McMullen, Mrs. Nita Seawright Campbell, Mrs. Katie Seawright Crowe, Nathan McMullen, Francher McMullen Provine, share and share alike.'

P. H. McCalep died on February 16, 1939, just six days after the execution of the will. On February 21, 1939, it was offered for probate in common form and by order of the Chancery Clerk was duly admitted to probate and record. On March 21, 1939, Mrs. Carrie McCalep Armstrong filed a contest of the will on the grounds that it was not lawfully executed by the testator and that the testator did not have, at the time of its alleged execution, the necessary testamentary capacity to enable him to make a will. All of the legatees, who were to take under the will, were made parties. The appellee, Nathan J. McMullen was alleged in the petition to be a non-resident in the following language, 'Nathan J. McMullen, whose place of residence and post-office address in Sherman, Texas, but whose street address is unknown to respondent and could not be ascertained after diligent inquiry'. There was no separate affidavit and the foregoing was the sole allegation in support of the process by publication for appellee, Nathan J. McMullen. Thereafter all of the parties defendant, except the appellee, employed attorneys to represent them in resisting the effort of Mrs. Armstrong to have the will declared null and void and the proposed contract of employment of said attorneys was sent to Nathan J. McMullen at his home in Sherman, Texas, but was returned by him without signature. Appellee stated to the other residuary legatees that he did not want to be involved in a lawsuit with Mrs. Armstrong. He also acknowledged that he received from the clerk a copy of the published summons and that he received a copy of the instrument purporting to be the will of P. H. McCalep.

Before the trial of the will contest a settlement was agreed upon, by all of the defendants, except Nathan J. McMullen, as a result of which $16,500.00 was paid over to the other legatees, excepting Nathan J. McMullen, and those legatees agreed not to contest Mrs. Armstrong's action to set aside the will and to permit her, without contest, to take the decree desired by her. This agreement was carried out and although the decree rendered pursuant to Mrs. Armstrong's action appears by its terms to have been granted by the court after a contest of the issues involved in the action, there was, in fact, no such contest and the same was obtained by Mrs. Armstrong with the consent of all of the legatees under the will of P. H. McCalep, deceased, excepting Nathan J. McMullen, who did not consent and received nothing from the settlement of the lawsuit. On April 23rd, 1939, the court, under the circumstances above stated entered a decree setting aside the alleged will of P. H. McCalep, deceased, adjudging Mrs. Armstrong to be the sole heir at law of the deceased, and directing payment of the assets of the estate over to her as such.

From the date of this decree Mrs. Armstrong was in full possession and control of the assets of the estate of P. H. McCalep, deceased, mixing and commingling them with her own and enjoying them as her pleasures or necessities might require until her death on February 17, 1945.

Thereupon, the date of the filing not appearing in this record, the appellee, Nathan J. McMullen, filed his original bill against the appellants, who had been appointed executors upon the estate of Carrie McCalep Armstrong, deceased, and to this an amended bill was filed, the filing date not being shown in the record, and a second amended bill was filed on February 5, 1947. To these there were full answers by the defendants.

The pleadings admit that on the faith of the decree of April 23, 1940, and pursuant to the further orders of the court, M. P. Sturdivant and J. R. Flautt, the executors of the estate of P. H. McCalep, after paying all of P. H. McCalep's just debts, including those incurred in his last illness and those owed to his physicians and those probated against his estate; and after converting all of P. H. McCalep's real and personal property into cash, with the exception of a promissory note due by J. R. Flautt to P. H. McCalep in the amount of $4,500.00, a $5,000.00 certificate of deposit with the Bank of Sumner, and a $7,988.32 savings account with the Bank of Clarksdale, and after paying the legacy provided by P. H. McCalep for Sarah Faulkner; and after paying all costs of administration, including Clerk's costs, executors' fees and attorney's fees; and after paying all taxes due by the estate, delivered all of the remaining assets of the estate of P. H. McCalep to the said Mrs. Armstrong. Those assets consisted of $16,500.00 in cash, a $5,000.00 certificate of deposit in Bank of Sumner, a $7,988.32 savings account deposit in Bank of Clarksdale and a promissory note of J. R. Flautt on which there remained unpaid the sum of $4,500.00. Mrs. Armstrong thereafter collected said sums from said banks and said note from said Flautt, said gross assets amounting to a total sum of $33,988.32. The pleadings further admit that out of this sum Mrs. Armstrong paid the legacies provided for Nita Seawright Campbell, Katie Seawright Crowe, Nathan James Boatner and Patrick Wilson Flautt--amounting to a total of $2,500.00, thus leaving the net estate available to Mrs. Armstrong in the sum of $31,488.32.

The pleadings further admit that P. H. McCalep procured, prior to the execution of his last will, two annuity policies, under one of which the insurance company paid to Mrs. Armstrong seventy-two monthly installments of $63.89 each from February 27, 1939, to January 27, 1945, inclusive--a total of $4,600.08, and under the other policy the insurance company paid to Mrs. Armstrong $766.80 on May 24th of the years 1939 through 1944, inclusive, and that her estate collected a like sum on May 24, 1945--the total of these annual payments, together with the proportionate part of the last payment aggregating the sum of $5,233.23 or a grant total received by Mrs. Armstrong on both policies in the sum of $9,833.31.

The pleadings framed the following issues: (1) Was the decree of April 23, 1939, setting aside the will of P. H. McCalep, adjudicating Mrs. Armstrong to be the sole heir at law of P. H. McCalep, deceased, and directing the payment over to her of the assets of the estate as such, binding on appellee Nathan J. McMullen? (2) Was the alleged instrument of writing the true last will and testament of P. H. McCalep? (3) Was Nathan McMullen estopped to assert the invalidity of the aforesaid decree of April 23, 1939, and (4) was Nathan McMullen guilty of such laches as would bar his right of recovery?

By stipulationof counsel it was among other things agreed that the decree of the clerk admitting the will of P. H. McCalep, deceased, to probate in common form was not thereafter approved by the Chancellor of said court and that Mrs. Armstrong was never completely well ans that she expended for hospital bills, doctor bills, medicines and for nurses a...