Smith v. Fanning

• Decision Date: 08 April 1946
• Docket Number: 36077.
• Citation: 25 So.2d 481
• Court: Mississippi Supreme Court
• Parties: SMITH et al. v. FANNING.

25 So.2d 481

SMITH et al. v. FANNING.

No. 36077.

Supreme Court of Mississippi

April 8, 1946

Appeal from Chancery Court, Jasper County; Geo. B. Neville Chancellor.

"Not to be reported in State Reports".

Homer Currie, of Raleigh, and H.L. Finch, of Laurel, for appellants.

J.M Travis, of Meridian, and O.M. Oates, of Bay Springs, for appellee.

L.A SMITH, SR., Justice.

Appellants in the Chancery Court of the Second Judicial District of Jasper County, sought revocation, of the probate of a paper writing theretofore admitted to probate as the last will and testament of W.J. Fanning, the matter to be determined upon an issue devisavit vel non. By agreement of the parties, a jury was waived and the chancellor heard the case and entered a final decree dismissing the contest of the will, and from this decree the contestants below appealed here. The sole ground of the contest was that the signature of the testator was forged, and also that of one subscribing witness. Errors assigned are that the finding and decree of the trial court were contrary to the law and evidence in the case.

The testator, W.J. Fanning, was a single man, whose father and mother predeceased him. Mr. Fanning was survived by one brother, Hardell Fanning, one of the appellees, and by two sisters, and by the children of two deceased brothers, and a deceased sister, all of whom are appellants here and contestants below, and they, together with appellee, Hardell Fanning, were the sole surviving heirs at law of the alleged testator, W.J. Fanning, who, on the 24th day of March, 1944, died seized and possessed of certain property; and the purported will at issue in this case, dated October 13, 1942, was presented by Velton Fanning, the son of Hardell Fanning, and a nephew of W.J. Fanning, and father of Ouida Faye Fanning, and admitted to probate as the true last will and testament of the said W.J. Fanning. By this document, all of his estate, real and personal, was devised and bequeathed to his greatniece, the said Ouida Faye Fanning, and it appointed said Velton Fanning as executor thereof. They are all appellees here.

The contestants introduced evidence of bad feeling between the alleged testator and his brother and nephew, appellees here; to lack of particular affection between him and the sole beneficiary of the will, his greatniece; also, without objection, declarations that the testator had made no will; and statements, after his death, by the executor in the probated will, implying that he, the executor, knew of no such will, although at the trial he testified that the will had been entrusted to him by the testator and was in his possession upon the death of the testator. For this latter charge the executor offered an explanation, and the other charges were all denied by appellees.

On behalf of the contestants evidence was also introduced to the effect that on October 13, 1942, the date of the purported will, Mr. W.J. Fanning, the testator, was not in the courthouse or the sheriff's office at Bay Springs, but was at the home of a kinsman helping him dig potatoes all day. On the other hand, proponent offered evidence that the will was executed by W.J. Fanning in the private office of the sheriff at the courthouse in Bay Springs,...