Tyson v. Utterback

• Decision Date: 20 May 1929
• Docket Number: 27922
• Citation: 122 So. 496,154 Miss. 381
• Court: Mississippi Supreme Court
• Parties: TYSON v. UTTERBACK et al

122 So. 496

154 Miss. 381

TYSON v. UTTERBACK et al

No. 27922

Supreme Court of Mississippi

May 20, 1929

Division B

1 WILLS. Notary public taking acknowledgment of will became in law a witness.

Notary public taking acknowledgment of will became in law also a witness.

2 WILLS. "Publication" of will signed by testator in presence of attesting witnesses is unnecessary.

"Publication" of a will actually signed by testator in presence of attesting witnesses is unnecessary under statute "publication" being formal declaration or acknowledgment of testator, in presence of subscribing witnesses at time of subscription, that instrument is his last will and testament.

3. WILLS. It is not essential to validity of will, when signed by testator to witnesses' personal knowledge, that they should know contents, or should know it is will.

Publication in presence of witnesses not being required under statute, it is not essential to validity of will, when it has been signed by testator to their personal knowledge, that witnesses should know its contents, or should know that it is a will.

4. WILLS. It need not be proved by attesting witnesses that testatrix knew that paper she signed was will or that she knew contents.

It is not essential that it be proved by attesting witnesses that testatrix knew that paper she signed was a will or that she knew contents thereof.

5. WILLS. Testator not blind nor illiterate nor of unsound mind will be presumed to know that paper he signed in presence of witnesses was will.

Where testator is not blind and is not illiterate, and is not of unsound mind, his knowledge that paper signed was will, will be presumed when he signed it in presence of witnesses.

6. EVIDENCE. Judgments may not be based on conjecture.

Judgments or decrees may not be based on conjecture.

7. WILLS. Although all witnesses to will who are alive must be produced if possible, one witness is sufficient to take case to jury if he testifies to facts showing due execution.

Although all witnesses to will who are alive must be produced if possible, one of witnesses is sufficient to take case to jury if he can and does testify to facts necessary to show due execution under statute, although statute requires two attesting witnesses.

8. WILLS. Proof of due execution of will may, if necessary, be made by others than subscribing witnesses, although subscribing witnesses must be produced if possible.

Proof of due execution, which includes every requisite element, may, if necessary, be made by others than any of subscribing witnesses, although subscribing witnesses must be produced if possible.

9. WILLS. Functions of attestation are that testator and witnesses may know paper attested is one testator signed, and that witnesses shall be satisfied testator is capable of executing will.

Functions of attestation of will are that testator and witnesses may know that paper attested is exact paper which testator signed, and also that witnesses shall be reasonably satisfied that testator is of sound and disposing mind and memory and capable of executing will.

10. WILLS. Presumption is, when will is signed by testator and by witnesses, that witnesses performed duty in matter of satisfying themselves of competency of testator.

There Is a presumption, when will is signed by testator and by witnesses, that witnesses have performed their duty in matter of satisfying themselves of competency of testator.

11. WILLS. Presumption that witnesses satisfied themselves of testator's competency may be overturned or supported by any competent testimony that testator was of unsound mind or of sound mind.

Presumption that witnesses to will performed their duty in matter of satisfying themselves of competency of testator may be overturned or supported by any competent testimony, either of attesting witnesses or of others, that testator was in fact of unsound mind or of sound mind, as case may be.

12. WILLS. There must be some direct proof of testator's mental capacity, but proof is not confined to attesting witnesses.

There must be some direct proof of mental capacity of testator, but proof is not confined to attesting witnesses.

13. WILLS. Whether will was duly executed held for jury.

Question whether will was duly executed held for jury.

14. COURTS. Language of court's opinion must be interpreted in accordance with facts of case.

Language of court's opinion must be interpreted in accordance with facts of case with which court is dealing.

15. WILLS. Testamentary capacity of testatrix held for jury.

In will case, question of testamentary capacity of testatrix held for jury.

Suggestion of Error Overruled June 10, 1929.

APPEAL from chancery court of Marshall county.

HON. N. R. SLEDGE, Chancellor.

Proceeding by Mary B. Tyson for the probate of the last will and testament of Mrs. Priscilla S. Burton, opposed by Valerie B. Utterback and others. From a judgment for contestants, proponent appeals. Reversed and remanded.

Reversed and remanded.

W. I. Stone, of Coffeeville, for appellant.

Where the testator was a thoroughly qualified and sane person and did sign the instrument in the presence of the witnesses and called on them to go and to sign a document that needed witnesses, whether called a will or a paper, and the testatrix declared there in her right mind that she did it with a clear understanding of its contents, the witnesses do not have to know what is in the instrument, nor do the witnesses have to certify of their own knowledge that the testator knew and comprehended fully the contents of the document. It is sufficient if the testator is thoroughly qualified and signs the document in the presence of the witnesses, and let the witnesses know that he, the testator, has signed understandingly. Even the signature does not have to be in the presence of the witnesses if the instrument is presented to the witnesses later and the declaration made.

Maxwell v. Lake, 127 Miss. 107, 88 So. 326; Green v. Pearson, 145 Miss. 23, 110 So. 862.

Wall Doxey and Hindman Doxey, of Holly Springs, for appellant.

When a will is executed and is attested by two witnesses, one signing as an attesting witness, the other as a notary public or a supervisor, the will was sufficiently attested.

Bolton v. Bolton, 107 Miss. 84.

A will may be established and proved by one of the subscribing witnesses.

2 Wigmore on Evidence, sec. 1302; 1 Alexander on Wills, sec. 508; 40 Cyc. 1303; Williams v. Morehead, 116 Miss. 659.

There should be no technical or hard rules of construction of the statute prescribing the essentials for the execution of a will.

Sheehan et al. v. Kearney et al., 82 Miss. 688; Armstrong v. Walton, 105 Miss. 337; Better v. Hirsch, 115 Miss. 623; Fatheree v. Lawrence, 33 Miss. 610.

The cases of Maxwell v. Lake, 127 Miss. 107, and Green v. Pearson, relied on by appellees are authority to establish our contention that the will was legally and properly attested.

Smith & Smith, of Holly Springs, for appellees.

The testatrix must know that she is making a will before she can be deemed to be proven to have made a will.

Maxwell v. Lake, 127 Miss. 107, 88 So. 326; 40 Cyc. 1117; Scribner v. Crane, 2 Paige (N. Y.), 147, 21 Am. Sec. 81; Smith v. Young, 134 Miss. 738, 99 So. 370, 35 A. L. R. 69.

The fact that a witness attached a jurat as a notary public to the will does not change her status from that of an attesting witness.

Bolton v. Bolton, 107 Miss. 84.

The burden of proof to make out a prima-facie case is on the proponent of a will.

Moore v. Parks, 122 Miss. 301, 84 So. 230.

The due execution of a will means more than the mere mechanical act of signing the will.

Evans v. Evans, 10 S. & M. 402; Newman v. Smith, 77 Fla. 633, 667, 688, 82 So. 236; Brook v. Luckett, 4 H. 459; Broach v. Sing, 57 Miss. 115; Heatherington v. Pipes, 32 Miss. 451.

W. C. Sweat, of Corinth, for appellees.

The attesting witnesses to a will must not only witness the signing and publishing of it by the testator, but it is also their duty to satisfy themselves that the testator is of sound and disposing mind and memory, and capable of executing a will.

Smith v. Young, 134 Miss. 738, 99 So. 370, 35 A. L. R. 69.

In order that a will may be valid, it is essential that the testator know and understand the terms and meaning of the instrument. Such knowledge will ordinarily be presumed from its execution, but if it appears affirmatively that he did not read the will and that it was not read to him, it must be shown that the contents were in some way known to him.

40 Cyc., p. 11, sec. 2; 40 Cyc., pp. 1100-1101.

Where error, fraud or undue influence is charged, stricter proof than usual may be needful to show not only capacity, but that the testator knew the contents of the instrument executed.

Schouler on Wills (6 Ed.), sec. 294; Alexander on Wills, sec. 409, p. 555.

The witnesses must not only see the testator sign the will, or at least understand that he has signed it, when they sign as witnesses to his signature; but, in order that they may be attesting witnesses, it is essential that they should know that they are, in fact, attesting a will, as distinguished from other documents.

Maxwell v. Lake et al., 127 Miss. 107, 88 So. 326.

To attest a will is to know that it was published as such and to certify the facts required to constitute an actual and legal publication.

Alexander on Wills, p. 597; 40 Cyc., page 1116.

Argued orally by Hindman Doxey and W. I. Stone, for appellant, and by L. A. Smith and W. C. Sweat, for appellees.

OPINION

GRIFFITH, J.

The probate of the alleged last will and testament of Mrs Priscilla S. Burton, late of the county of Marshall, was contested by appellees on three grounds; and...