Rolkosky v. Rolkosky
| Decision Date | 02 July 1959 |
| Docket Number | No. 41057,41057 |
| Citation | 237 Miss. 89,113 So.2d 661 |
| Parties | Mrs. Jeanette ROLKOSKY, Administratrix of the Estate of James F. ROLKOSKY, Deceased, v. Miss Josephine ROLKOSKY. |
| Court | Mississippi Supreme Court |
Jules Schwan, Albert S. Johnston, Howard McDonnell, Arnaud Lopez, Biloxi, for appellants.
Gaston Hewes, Jo Drake Arrington, Gulfport, for appellee.
James Rolkosky died intestate on August 9, 1957 at the age of approximately ninety years. He left surviving him as his sole and only heirs at law his widow, Mrs. Jeanette Rolkosky, two sons, Anthony and Alex Rolkosky, two daughters, Josephine Rolkosky and Mrs. Frances Rolkosky Olander, and a grandson, Wilbur Barry. Jeanette Rolkosky was the second wife of the deceased, to whom he was married in about the year 1931 or 1932. The children of the deceased were born of a former marriage. At the time of the deceased's death, Josephine, who was then about 50 years of age, was in the Mississippi State Hospital at Whitfield for treatment for a nervous condition, where she had been for about two months. Mrs. Jeanette Rolkosky, the widow of the deceased, qualified as the administratrix of the deceased's estate.
On August 28, 1957, Mrs. Jeanette Rolkosky, as administratrix, filed in the Chancery Court of Harrison County what she styled a 'petition in discovery proceeding--to recover assets of estate.' All of the heirs of the deceased were named as respondents to the petition. The petition alleged that after the death of James Rolkosky, a large sum of cash money was found in coffee cans and boxes in the house in Biloxi which was being occupied by the deceased and his wife and his daughter, Josephine; that during the lifetime of the deceased, he and his wife and Josephine agreed to save and keep their money and earnings in the house where they resided in the City of Biloxi, and that the money so kept was in currency and coins and was kept in coffee cans, boxes, and inside mattresses; that the money so accumulated and saved was the property of James Rolkosky and his wife and his daughter Josephine, and that it was commingled by and with the consent of the owners. The petition prayed that the heirs be cited and that the court examine into the matter for the purpose of determining the rights of the respective parties with respect to said money. The money, on being counted after its discovery, developed to be $21,634.65.
Josephine Rolkosky, the appellee here, filed an answer to the petition, wherein she denied that there was any agreement between her and her father and Mrs. Jeanette Rolkosky to keep their money together, and denied that their money was commingled by consent of herself and her father and Mrs. Jeanette Rolkosky. On the contrary, she averred that the aforesaid money was found in her room and in her cedar chests, and that she was the sole owner thereof, and that neither the estate of her deceased father nor Mrs. Jeanette Rolkosky, nor anyone else, had any interest therein.
Anthony Rolkosky and Wilbur Barry, a son and grandson respectively of the deceased, answered the petition and admitted that the money in question belonged to Josephine.
Alex Rolkosky filed an answer to the petition wherein he averred that the money in question belonged to the estate of the deceased and the widow of the deceased and Josephine, the daughter of the deceased.
On the hearing of the petition, the administratrix sought by her proof to establish the fact, notwithstanding the contrary allegations of her petition, that Josephine had wilfully and tortiously commingled the monies belonging to her, her father, and her step-mother with the result that Josephine should be denied any interest therein. The proof on behalf of Josephine sought to establish that she was the sole owner of the money. At the close of the testimony, and after the cause had been submitted to the chancellor, and after he had rendered his oral decision and had filed his findings of fact and conclusion of law, the appellant filed a motion seeking to have the chancellor file additional findings of fact, and also filed a motion to amend the allegations of the petition to conform to the proof. Both of these motions were overruled, and the chancellor rendered his final decree adjudging Josephine Rolkosky, the appellee here, to be the sole owner of the money in question. From this decree the appellant prosecutes this appeal.
The appellant assigns as error (1) that the chancellor's findings of fact are manifestly wrong; (2) that the court erred in overruling her motion seeking to have the chancellor make additional findings of fact, and (3) that the court erred in overruling the appellant's motion to be permitted to amend the allegations of the petition to conform to the proof.
We relate the material facts, as disclosed by the evidence, relative to the determination of the issue as to whether the chancellor's findings of fact are manifestly wrong.
The Rolkosky family were a family of seafood workers, who had for years worked in sea food factories in the Point Cadet area in Biloxi. James Rolkosky and his family had for many years occupied a two- story dwelling. His children were reared in this dwelling. He was twice married, his second wife being Mrs. Jeanette Rolkosky. They were a thrifty and frugal people. Josephine Rolkosky began work in the seafood factories when she was about eight years of age. She was so small that she had to stand on a box to shuck oysters and pick shrimp. She was an industrious and fast worker for more than forty years, with few intervals of any great extent. She went from factory to factory engaging in her work. According to her testimony, she saved her money, and in the last few years preceding the death of her father she kept the money in her room in two cedar chests. She earned, according to her testimony, from $750 to $800 annually. Jeanette Rolkosky and James Rolkosky were slow workers. James had ceased work about eight or ten years prior to his death. Jeanette had ceased to work about three or four years prior to her husband's death. After the children grew up, James and Jeanette and Josephine occupied the two-story home in Biloxi and continued to occupy it until it was destroyed by the 1947 hurricane. After it was destroyed, James rebuilt a three-room 'shotgun' type house on the same site, and he and his wife, Jeanette, and Josephine occupied the same. The front room was...
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Natural Mother v. Paternal Aunt, 90-CA-0357
...where the party requesting the amendment has not exercised due diligence in filing the application to amend. Cf. Rolkosky v. Rolkosky, 237 Miss. 89, 113 So.2d 661 (1959) (chancellor committed no error in denying amendment where motion was filed after the cause was submitted and the chancell......
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William Iselin and Co., Inc. v. Delta Auction and Real Estate Co.
...consistently affirmed a chancellor's denial of an amendment in cases similar to the one now under consideration. In Rolkosky v. Rolkosky, 237 Miss. 89, 113 So.2d 661 (1959), the appellant contended that the chancellor erred in overruling her motion to amend her petition to conform to the pr......
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Mauldin Company v. Turnage
...ultimate facts that are required, rather than the evidentiary facts upon which the ultimate facts are based. Rolkosky v. Rolkosky , 237 Miss. 89, 99, 113 So. 2d 661, 665 (1959). As set forth in our discussion above, the trial court's six-page order contained all of the findings of fact and ......
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Saxon v. Harvey, 44035
...in the pleadings at the hearing to conform to the proof almost as a matter of course, * * * This rule is set out in Rolkosky v. Rolkosky, 237 Miss. 89, 113 So.2d 661 (1959), though there the amendment was denied since the motion to amend came after the cause was submitted to the chancellor ......