Walker v. Walker

Decision Date05 May 1890
Citation67 Miss. 529,7 So. 491
CourtMississippi Supreme Court
PartiesSUSIE F. WALKER ET AL. v. RUFUS WALKER ET AL

FROM the chancery court of Marshall county, HON. J. G. HALL Chancellor.

By the will which is contested in this case the testator, W. W Walker, gave his estate, consisting of five or six thousand dollars, to his mother for life, and at her death it was to go to his three sisters. He had two brothers, John and Rufus. To the former he gave five dollars, and to the latter a horse. His mother died a few hours before he did, but on account of his illness he was not informed of the fact. The will was prepared by Lafayette Gatewood, husband of one of the devisees, and he was named as executor. This was some ten days before the death of the testator. It was written as directed by him, and was in accordance with his previous wishes as to the disposition of his property. While sick and away from home there was a decided change for the worse in his condition, and, because of this, his brother-in-law, the said Gatewood, was sent for. Gatewood reminded him that the will had not been signed, and, at the request of the testator, three persons were called in to witness its execution. The will was produced by Gatewood, who handed it to the testator in the presence of the witnesses, saying "Here is your will." He was lying in bed, his head propped on pillows facing west, and there is evidence that he was in a "sort of stupor," with his eyes closed. But when spoken to he responded intelligently, and was aware of what was going on and the purpose of it. When the will was handed to him he said he could not see the lines, and called for and adjusted his spectacles, and either read or glanced over the paper. He then asked for a book to rest his hand upon and signed the will in the presence of the witnesses. It was then taken by Gatewood, who passed around to a table east and back of the testator, and there the witnesses subscribed it. There was a conflict of evidence as to whether the testator could have seen the witnesses sign, and on some other points as stated in the opinion. The three witnesses all testified that they were not requested by the testator to sign as witnesses, and that they signed at the request of Gatewood.

The will was probated in common form, and afterwards appellants the widow and child of the said John Walker, brother of the testator, instituted this proceeding to annul said will on two grounds: 1. Because of the testator's mental incapacity. 2. Because the will was not properly attested. The executor and the devisees were made parties defendant and answered asserting the validity of the will, and an issue devisavit vel non was made up and tried. From a decree in favor of defendants the contestants appealed. A further statement of the case is contained in the opinion of the court.

Affirmed.

J. H. Watson, for appellants.

The facts in this case, I submit, are not sufficient to establish the due attestation of the will. The testator was in a stupor, and was only aroused by persons speaking to him. He could not have seen the attestation even if he had been in a conscious condition. Can the testimony of the subscribing witnesses be supplemented by that of a third person and thus establish the fact that he knew what they came for, and had requested that they witness the will? To answer this affirmatively would open the door for fraud, and would virtually destroy the safeguards thrown around wills and their execution by the wisdom of ages. The testator must not only be present bodily, but he must be in a conscious state. After signing, if he falls into insensibility before the witnesses sign, there is no attestation. Redf. on Wills, § 20.

The witnesses must subscribe in the presence of the testator, in order that he may have ocular evidence of the identity of the instrument attested as his will, and to prevent the fraudulent substitution of another. Mere proximity of the subscribing witnesses is not sufficient if the signing is not in the presence of the testator. 2 Greenl. Ev., § 678. See also Brooks v. Duffiel, 23 Ga. 441; Roberts v. Phillips, 4 Ellis & Bl. 450, 30 Eng. L. & Eq. 147.

The presence contemplated by the statute is not simply the bodily presence of the testator. He must be mentally capable of recognizing, and actually conscious of the act performed before him by the subscribing witnesses in attesting the execution of the will. Watson v. Pipes, 32 Miss. 451; 26 Ga. 294; 12 B. Mon. 619; 23 N.Y. 9; 10 Ired. [N. C.] 219; 1 Jarman on Wills, 223, 224.

J. H. Watson, also made an oral argument.

Fant & Fant, for appellees.

Probate of the will was prima facie evidence of its validity on the trial of this issue. Code 1880, § 1969.

The presumptions are in favor of the capacity of the testator, and that the will was fairly made. Payne v. Banks, 32 Miss. 292.

The testimony shows clearly the proper attestation of the will. The contents were well understood by the testator, and the will as written was in accordance with his previously expressed wishes as to the disposition of his property. He sent for the parties to witness the execution of his will. He looked at the paper presented as his "will," stated that he could not see the lines, and called for his spectacles and read the will, or satisfied himself that...

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9 cases
  • Gordon v. Parker
    • United States
    • Mississippi Supreme Court
    • May 11, 1925
    ...are concerned. Heatherington v. Pipes, 32 Miss. 451; Fatheree v. Lawrence, 33 Miss. 585; Murray v. Murphy, 39 Miss. 214; Walker v. Walker, 67 Miss. 529, 7 So. 491; Miller v. Miller, 96 Miss. 526, 51 So. Armstrong v. Walton, 105 Miss. 337, 62 So. 173, 46 L. R. A. (N. S.) 552, Ann. Cas. 1916E......
  • Kavcic's Estate, In re
    • United States
    • Florida District Court of Appeals
    • January 14, 1977
    ...511 (1845); Mendell v. Dunbar, 169 Mass. 74, 47 N.E. 402 (1897); Spratt v. Spratt, 76 Mich. 384, 43 N.W. 627 (1889); Walker v. Walker, 67 Miss. 529, 7 So. 491 (1890); Tucker v. Sandidge, 85 Va. 546, 8 S.E. 650 (1888); Chappell v. Trent, 90 Va. 849, 19 S.E. 314 (1893); McMechen v. McMechen, ......
  • Jefferson's Will, Matter of
    • United States
    • Mississippi Supreme Court
    • August 31, 1977
    ...could have seen the proceeding. (32 Miss. at pages 467-8). The Watson case, supra, was cited with approval and quoted in Walker v. Walker, 67 Miss. 529, 7 So. 491 (1890), wherein the Court . . . The whole evidence (with only a single variant note) declares that the instrument was at once at......
  • Smith v. Fanning
    • United States
    • Mississippi Supreme Court
    • April 8, 1946
    ... ... Co., 105 Miss. 688, 63 So. 209 ... The rule also applies where a jury was waived and the issues ... submitted to the chancellor. Walker v. Walker, 67 ... Miss. 529, 7 So. 491 ... However, we are in accord with the finding of the chancellor, ... and are not to be ... ...
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