Warren v. Sidney's Estate

• Court: Mississippi Supreme Court
• Writing for the Court: Anderson, J.
• Citation: Warren v. Sidney's Estate, 183 Miss. 669, 184 So. 806 (Miss. 1938)
• Decision Date: 05 December 1938
• Docket Number: 33442
• Parties: WARREN v. SIDNEY'S ESTATE et al

184 So. 806

183 Miss. 669

WARREN v. SIDNEY'S ESTATE et al

No. 33442

Supreme Court of Mississippi

December 5, 1938

Division B

Suggestion Of Error Overruled January 2, 1939.

APPEAL from the chancery court of Yazoo county HON. M. B MONTGOMERY, Chancellor.

Proceeding in the matter of the estate of Mary Sidney, deceased, to establish a lost or destroyed will, wherein R. D. Warren public escheator, instituted a contest of the will. From a judgment for proponents, R. D. Warren, public escheator, appeals. Affirmed.

Affirmed.

Ruth Campbell, of Yazoo City, for appellant.

Mississippi has no statutory laws relative to how a lost will should be proven, in fact very little law on lost wills, but in an early case, Vining v. Hall, 40 Miss. 103, where the contents of a lost will were attempting to be proven, our court said: "It is well settled that when the contents of a will improperly destroyed are satisfactorily proved by witnesses they will be established as the will, but the policy of the law requires such contents to be established by the clearest, most conclusive and satisfactory proof."

Moore v. Parks, 84 So. 230; Lane v. Hill, 44 A. 393; Griffith v. Higinbotom, 104 N.E. 233.

In 69 Corpus Juris, page 1020, this is said of testimony in denial of execution of a will: "While the testimony of attesting witnesses denying or impeaching the execution of the will is to be considered, and may be sufficient in some cases to prevent probate, it is to be viewed with caution and suspicion; it is usually entitled to little credence, and proponent obliged to call them as witnesses is not bound thereby."

Section 3550 of Code of 1930 requires the signatures of two or more credible witnesses to a will. Credible is a witness worthy of belief.

J. W. Isabel falsely testified to many facts and admitted error and confusion on the stand. First he said he thought he had sent the original will to the Bank of Brandon, but the very letter to the Bank of Brandon showed he never intended to send anything but a copy; next he was not positive as to when Nat Sidney died, whether in 1929 or 1930, but does testify positively this will was drawn after they settled up his business; next his grave error about S.E. Montgomery being present at the signing of the will dated Feb. 19, 1930, when Montgomery was dead; next he was not positive about the date of the will, he made an error in the dates.

This witness was not worthy of belief and the court committed error in believing his testimony relative to L. Banks signing this will, when it was clearly demonstrated that J. W. Isabel had made a false statement about S.E. Montgomery signing the will, when Montgomery was dead.

Also the court committed error in finding that a witness was not to be held to strict account on unimportant details.

This court is bound by our early case, Vining v. Hall, supra, which required the clearest, most conclusive and most satisfactory proof of witnesses to prove the contents. Not merely one. Our courts must protect wills, as the maker's lips are sealed by death, and our statute requires two or more credible witnesses to a will--to do what--to protect the title to their estate.

Even in a case where the original will was before the court, Williams v. Moorehead, 116 Miss. 658, and both witnesses arbitrarily refused to testify that the signature to the will was their signature, then the proponents may offer other proof to establish its execution by showing by competent testimony that the testator signed it, or that it contains his signature, and that the signatures of at least two of the witnesses are the genuine signatures of the persons purporting to be witnesses thereto.

Certainly in a lost will where the signatures cannot be compared, the court should require the most positive and most conclusive and satisfactory evidence, as to competency and credibility of witnesses, that the original will was lost, and that the original of the lost will was executed in accordance with Sec. 3550 of the Code of 1930 in every detail before a will could be declared as the last will, and that the contents were exactly as the contents of the original will, after the will has first been duly proven as properly executed; or otherwise our courts will open wide the door for fraud, and many original wills will never see the light of day, and courts will be flooded with copies of lost wills, if our courts permit a witness who has testified falsely on the stand to prove the will, and corroborate this witness by hearsay testimony of the testator, that she had made a will and left her property thus and so, when a testator's statements could only be admitted in a record on mental capacity.

Barbour & Henry, of Yazoo City, for appellee.

The court holds that the testimony of J. W. Isabel, one of the subscribing witnesses, satisfies the requirement of Section 1602, Code of 1930, as to the execution of the will, and that Isabel testified to every fact necessary to the due execution of the will by Mary Sidney, and the court rejected the conflict raised by L. Bank's denial that he signed as a witness. All other witnesses, including Banks, vouch for Mary Sidney's testamentary capacity and there is no hint of undue influence.

As authority for his establishment of the will on the testimony of one subscribing witness the Chancellor cites Harrell v. Harrell, 223 S.W. 919.

Declaration of testator as corroboration of other competent testimony showing execution and contents of will is upheld by Lane v. Hill, 44 A. 393, and by Griffith v. Higginbotam, 164 N.E. 233, and by Clark v. Turner, 38 L.R.A. 433.

In a case where the evidence is conflicting and the verdict depends upon the weight to be given the testimony of the witnesses, and upon inferences to be drawn from facts proven and the conduct of the parties in interest, a new trial will not be granted, except for clear and manifest error in the rulings of the court, or where the verdict is against the overwhelming weight of the evidence.

Watkins v. Watkins, 106 So. 753; Cox v. Tucker, 133 Miss. 378, 97 So. 721; Aetna Ins. Co. v. Robertson, 131 Miss. 343, 94 So. 7, 95 So. 137.

OPINION

Anderson, J.

The Chancellor in his opinion, made part of the record, embodied his findings of fact and conclusions of law. We are of the opinion that his findings of fact were amply justified by the evidence, and his conclusions of law are the correct governing principles. We do not think we could do better than to adopt his opinion as the opinion of the Court. It follows:

This is a proceeding to establish a lost or destroyed will alleged to have been executed by Mary Sidney, deceased, in her lifetime and attested by J. W. Isabel and Lonnie Banks as witnesses. R. D. Warren, Sheriff of Yazoo County, as public escheator, under the authority of Chapter 27, Code of 1930, section 1511 et seq., instituted a contest of the will on the grounds that it was not properly executed and that Mary Sidney did not have testamentary capacity at the time of the alleged execution of the will.

The first question presented is whether or not the state has a right to contest the probate of a will. It seems to be settled by the weight of authority that the state, both in view of its rights under escheat to the property of intestates who die without heirs, and as parens patriae for the protection of the interests of any possible unknown heir who might appear, may bring suit to contest a probated will. 68 C. J., sec. 671, page 928, citing State v. Rector, 134 Kan. 685, 8 P.2d 323; State v. Nieuwenhuis, 43 S.D. 198, 178 N.W. 976; contra In re Leslie's Estate, 92 Misc. 663, 156 N.Y.S. 346, 350, affirmed 175 A.D. 108, 161 N.Y.S. 790. So far as known, Mary Sidney left no heirs at law.

The burden of proof as to the validity of a will is on the proponents thereof throughout the contest of the same. Brown v. Walker (Miss.), 11 So. 724; Isom v. Canedy, 128 Miss. 64, 88 So. 485. And this burden of proof extends to (1) the proof of the existence and proper execution of the will, (2) to the evidence of its loss or destruction, and (3) to the proof of its contents, but it is well settled that when the contents of a will lost or improperly destroyed without the knowledge of the testator are satisfactorily proved by witnesses, it will be established as the will; but the policy of the law requires such contents to be established by the clearest, most convincing and satisfactory proof. Vining v. Hall, 40 Miss. 83.

Section 1602 of the Code of 1930 provides:

"The due execution of the will must be proved by at least one of the subscribing witnesses, if alive and resident in the state, and competent to testify; but if none of the subscribing witnesses can be produced to prove the execution of the will, it may be established by proving the handwriting of a testator, and of the subscribing witnesses to the will, or of some of them."

Secondary evidence cannot be used to prove due execution of a will if the subscribing witnesses will and can prove the facts, until they have been called or produced. Helm v. Sheeks, 116 Miss. 726, 77 So. 820. But proof of the due execution of the will may, if necessary, be made by others than subscribing witnesses, although subscribing witnesses must be produced, if possible. Tyson v. Utterback, 154 Miss. 381, 122 So. 496, 63 A.L.R. 1188.

J. W Isabel testified that, with the aid of a business guide and a dictionary, he drafted the will for Mary Sidney according to her directions and at her special request. He states that Mary Sidney told him she wanted to draw up a will so that if she died at any time Durwood Collins, whom she had raised from a child, would get everything, because it had been understood between her and her dead husband that the property should go...