Woodville v. Pizzati

• Decision Date: 17 March 1919
• Docket Number: 20551
• Court: Mississippi Supreme Court
• Parties: WOODVILLE ET AL v. PIZZATI

81 So. 127

119 Miss. 442

WOODVILLE ET AL v. PIZZATI

No. 20551

Supreme Court of Mississippi

March 17, 1919

Division B

APPEAL from the chancery court of Harrison county, HON. W. M. DENNY JR., Chancellor.

Suit by Mrs. Francisco Pizzati against Robert Woodville and others. From a judgment for plaintiff defendants appeal.

The facts are fully stated in the opinion of the court.

Affirmed.

J. L. Taylor and H. Chalmers Alexander, for appellants.

It would appear from counsel's brief for appellee that he recognized the contention of appellants with regard to the full faith and credit clause of the Constitution and the matter of estoppel, but claims that because of the agreement entered into among the parties, namely Mrs. Pizzati, Marco Pizzati, and Robert Woodville, which was afterwards declared null by the Supreme court of Louisiana that it was a fraud upon Mrs. Pizzati, so that she is not estopped by reason of her conduct and actions in the court of Louisiana, and that jurisdiction was obtained there because of said fraudulent agreement.

We call the court's attention to section 1998 of the Code of 1906, which is as follows: "In any proceeding to contest the validity of a will, all persons interested in such contest shall be made parties." Now, the contestant did not make Marco Pizzati, who, on the face of this will is an interested party a party to the suit, which shows by her pleading that she recognized the validity of the decree of the supreme court adjudging Marco Pizzati not to have been a legally adopted son, and who because he refused to collate the twenty thousand dollars, was denied any legacy.

Counsel cites the McCormick case, U. S. Law Ed. Vol. 6, page 300, in support of his theory of the matter, but a reading of that case will disclose that an authenticated copy of the will was not probated in Ohio, according to a similar statute of our state, but it was sought to give the will as probated in Pennsylvania extra territorial powers, and, of course, that cannot be done. And, in the Blount case, U. S. Law Ed., Vol 33, page 1036, cited by counsel, the same matter arose and the court said: "But the state court, conceded that the judgment of the probate court of North Carolina established that the will of Mrs. Blount was her last will and testament duly executed, and its decision did not in the slightest degree proceed upon the denial of that fact but gave the judgment the same force and effect it had in North Carolina, for in neither of the states would the will, as such, dispose of property that did not belong to the testatrix."

In the Robinson case, U. S. Law Ed. 27, page 1049, there was no contest of the probate of the will, but by the lapse of seven years it became conclusive under the laws of Virginia, but no probate of an authenticated copy was even offered in the District of Columbia, and that is what that case decided.

In all the cases we have found that the full faith and credit clause did not apply to such matters were instances where the proceedings were ex parte and thereby in the nature of proceedings in rem, but in every case where there was litigation and the parties all in court, we find that the judgment in such that the full faith and credit clause of the Constitution is applicable.

Opposing counsel in discussing the subject of estoppel make reference to 2 Alexander on Wills, section 827, page 1199, to the effect that a litigation made in ignorance of facts will not estop, but the next ensuing section of this text book, section 828, distinctly sets forth in substance that election by estoppel may arise where the party having the right of election and acting with knowledge of his rights and not because of ignorance or fraud or mistake, deals with the property as his own and exercises acts of ownership. This section, cited by opposing counsel on page 1200, distinctly recited that: "Under the conditions just mentioned, election by estoppel will arise by a widow joining in a conveyance by the executor with no stipulation in regard to dower." And this same text book, on which counsel for appellee relies, further and at another place, states as follows:

"Section 1328, where one entitled to contest a will enters a personal appearance in the matter prior to the admission of the will to probate and expressly consents to its admission, in the absence of fraud the decree of the probate court accepting the will is conclusive against such party, and he cannot thereafter contest the validity of the instrument or of the decree admitting it. In such a case the court has jurisdiction of both the subject-matter and the parties. 3 Alexander on Wills, page 2041; Champlain v. Jackson et al., 34 Colo. 447; Benoit Julienne Caujolle, et al. v. Cyrus Curtiss, 20 Law Ed. 507.

We think that opposing counsel have not answered our argument that under the full faith and credit clause of the Constitution our Mississippi court accepted the action of the Louisiana court as final in this cause.

In conclusion, we again reiterate the assertion set forth in the brief on file for appellants that the actions and acquiescence and the acceptance by Mrs. Pizzati and her proceedings in court, preclude procedure by her in Mississippi to contest the will under which she has profited, and we cite the following decision of the U. S. supreme court in further support of our contention, to-wit: Drexel v. Burney, 122 U.S. 241, 253, 30 Law Ed. 1219, and which, as digested in volume 5 of the Encyclopedia of the United States supreme court decisions, [119 Miss. 447] page 567, reads as follows: "56. Probate of Will. A citizen of the United States died in France, leaving in Europe and elsewhere large amounts of property. He named his widow, his brother, a resident of Alabama and a third person, a citizen of France, as executrix and executors. The executrix while domiciled in France became a party to certain notarial instruments and records in France which declared that the probate of her husband's will in Alabama was valid, and that he was domiciled in Alabama, and received legacies under such will. It was held that the executrix by her acts and conduct has estopped herself from disputing facts of such domicile, and from asserting any facts which annuls the executorship of her husband's brother under the Alabama probate.

We accordingly submit that the decree of the court below was erroneous and should be reversed, and proper decree be now entered in this appellate court in favor of the appellants.

Counsel cite the code as to construction and effect of wills, and we beg to say that that question is not now before this court on this issue, the sole question here being, whether or not this is the last will and testament, and not the effect of it.

Mize & Mize, for appellees.

First Ground Estoppel. As a general rule, if there is anything well settled, it is that where one accepts gifts or benefits under a will as a legatee, this will estops contest of the will by such person. Thompson on Wills and Testamentary Forms, sec. 519 reads as follows: "A person may estop himself from contesting a will by transfer, release, agreement or extinction of his heirship, and such estoppel, though equitable, may be pleaded as a defense in the probate court. Thus, an agreement by legatee to pay money to an heir at law of the testator for forbearance of his right to contest the will rests upon a valuable consideration and is valid. When one has accepted the benefits of a will with full knowledge of the facts on which his right is based, he is thereby estopped from asserting the invalidity of the instrument, especially if there has been a lapse of time, witnesses have died, etc. But there can be no estoppel as against a plaintiff unless it be shown that the defendant has incurred some liability, or has been induced to do something to his prejudice, in consequence of plaintiff's conduct."

In short, Thompson on Wills, sec. 519, and authorities on which the text is based, state the weight of authority on the question of estoppel, as to who is estopped and who is not. 2 Alexander on Wills, sec. 827, p. 1199; 2 Alexander on Wills, sec. 828, p. 1200.

Mrs. Pizatti could not have contested the will on the ground of undue influence in the Louisiana courts, and would not have contested it anywhere had Mr. Woodville lived up to his agreement to let her have the Mississippi property as her homestead, the only one she had.

Under title two of "donations inter vivos (between living persons) and mortis causa (in prospect of death)" are to be found in the Louisiana civil Code, the following articles of which provide:

"Art. 1490. Donations inter vivos and mortis causa may be made in favor of a stranger when the laws of his country do not prohibit similar dispositions from being made in favor of citizens of this state."

"Art. 1491. Every disposition in favor of a person incapable of receiving, shall be null, whether it be disguised under the form of an onerous contract, or be made under the name of persons interposed. The father, mother, the children and descendants of the husband or wife of the incapable person, shall be reputed persons interposed."

"Art. 1492. Proof is not admitted of the dispositions having been made through hatred, anger, suggestion or captation."

The supreme court of Louisiana, in the case of Succession of McDermott, 136 La. 80, 66 So. 546, said: "An action to annul wills on the ground of fraudulent 'undue influence' or 'captation' is repelled by the plain text of article 1492 of the Civil Code."

Again in the Succession of Hernandez, 137 La. 134, 70 So. 63, the supreme court of Louisiana said: "An action to annul a will on the ground of fraudulent suggestions or undue influence or captation is repelled by the plain text of article...