Young v. Wark

• Decision Date: 08 May 1899
• Citation: 76 Miss. 829,25 So. 660
• Court: Mississippi Supreme Court
• Parties: JOHN R. YOUNG ET AL. v. MARY E. WARK ET AL

25 So. 660

76 Miss. 829

JOHN R. YOUNG ET AL. v. MARY E. WARK ET AL

Supreme Court of Mississippi

May 8, 1899

March 1899

FROM the chancery court of Monroe county, HON. BAXTER MCFARLAND Chancellor.

The appellees, Mary E. Wark et al., were the complainants in the court below. The appellants, Young et al., were defendants there. The facts are fully stated in the opinion of the court.

Affirmed.

Clifton & Eckford, for appellants.

The plea of res judicata is a complete bar to the maintenance of the bill by Mary E. Wark and William Sadler. Both of these complainants appeared by counsel when the will was presented for proof and probate, and presented the same objection to the probate of the will that is now urged in the bill against its validity. These issues were presented by a motion which was regularly set for hearing, and which contained the same legal question and issues embraced and set out in the original bill. It was a mode of procedure which the complainant had a right to adopt and invoke, and which required the judgment of the court on the issues therein presented, the same as if set out in an original bill. Wall v. Wall, 30 Miss. 95, 96; Sartor v Sartor, 39 Miss. 769; code of 1892, §§ 474, 1815.

In accordance with the statutes the caveat was filed, and the caveat in the form of this motion suspended the order or decree of the clerk probating said will. Code, §§ 473, 474, and 1815 Under this caveat the complainants could raise any question of law or facts that would defeat the will. Mary E. Wark and William Sadler by their own action made themselves parties to the application to probate the will. And the procedure invoked constituted them actors or complainants. They attacked the validity of the will, in fact and in law. They assign their objection to the probate of the will both in law and in fact, and ordered their objections to be set down for final hearing. As to the legal objection, the case was ready for hearing, and even under the rules of equity pleading they could not dismiss their case or withdraw from the contest of their own choosing. See order for hearing. Phillips v. Wormley, 58 Miss. 398. But as probate proceedings, it was both in rem and in personam, and under our statute their withdrawal of objections and the failure to ask for an issue devisavit vel non to be made up is as to them res adjudicata. Annotated code 1892, § 1884; 6 Am. & Eng. Enc. L., 867; Roberts v. Trawick, 13 Ala. 82; Hudson v. Sawyer, 10 S.E. (N. C.), 85; McMahon v. McMahon, 13 S.W. 203.

The question, whether the paper offered for probate is testamentary in its character or an instrument of another character, is a question of law for the court to decide from an inspection of the paper ordinarily. The power of a court to withhold the paper from the jury is confined alone to this inquiry, and the further question, whether the formalities required in the execution of a will had been observed. If in this case the paper be testamentary in its character--that is, if from the paper the intention of the grantor be clear that no interests or rights pass until after his death, the court must make up the issue devisavit vel non. Sartor v. Sartor, 39 Miss. 770; Wall v. Wall, 30 Miss. 96; Harrington v. Harrington, 2 How., 720. Or, if such intention, though uncertain from an inspection of the paper, is capable of being made certain by parol proof of the concurrent circumstances of its execution, the issue must go to the jury. Wall v. Wall, 30 Miss. 96; Schlottman v. Hoffman, 18 So. 893; Wigram on Wills, 142 and 154 pl. 79, 156 pl. 83-88; Schouler on Wills, 556, 579.

"Want Sarah relatives have all property:" these same words, in effect, have been construed in the cases cited below, all of which are leading cases, to be testamentary because it takes effect and conveys the property in future, and conveys nothing in presenti for want of delivery. If this be true, then proof of handwriting establishes this paper to be a will on its face.

"Want Sarah relatives have all property:" these words are both testamentary and imperative, and have been so construed by our own court in Garner v. Lansford, 12 Smed. & M., 559 and 561. As a gift in presenti and inter vivos it would be void for want of delivery; as a will the property would pass to Sarah's relatives upon the testator's death. Tozer v. Jackson, 30 A. 401, 402, 713; Schouler on Wills, sec. 262; 1 Jarman on Wills (Perkins' Notes), *19; Cocke v. Cook, I Prob. & Div., 241; Mitchell v. Donohue, 38 Am. St. Rep., 279.

But there is an uncertainty under the instrument as to who the beneficiaries are, and it is both competent and necessary to prove by parol evidence, viz: (a) Who Sarah was. (b) Who Sarah's relatives were. Wigram on Wills, p. 142, prop. 5; 2 Jarman on Wills, 33, 37; 4 Kent (5th edition), note C, 605; Schouler on Wills, sec. 537 and note; 20 Am. & Eng. Enc. Law, 728; Smith v. Smith, 4 Paige, 271; Love v. Buchanan, 40 Miss. 758.

There is no ambiguity in the description of the property conveyed by the will. 2 Kent, *535, and notes; 2 Jarman on Wills, 139; Schouler on Wills, sec. 510.

The remaining question is, whether the formalities required in the execution of wills had been observed. This instrument being holographic, proof that the testator was twenty-one years old and that he wholly wrote and signed the will himself, meets the requirements of the statute as to formalities. Annotated code 1892, § 4488. At common law a will was not required to be dated, and the date, when affixed, was no part of the will. 1 Jarmon on Wills, 122, note 1; Schouler on Wills, sec. 16; Hunt v. Hunt, 17 Am. Dec., 438; 4 Kent Com. (2d ed.), sec., 520.

The local statutes of the place where the lands are located control, and, as already shown, our statute does not require that a will shall be dated. Schouler on Wills, secs. 264, 285, 261 and note; Id., sec. 9, citing 4 Kent (8th ed.), *520; Wilbourn v. Shell, 59 Miss. 205; Heffner v. Heffner, 23 So. 281; Davis v. Williams, 57 Miss. 847.

Nor is there any law or statute requiring the will to be kept in any particular place. This will was found on the mantle in the room where the testator died, and on the day of the funeral, immediately upon return from the cemetery, by one of the beneficiaries, while gathering up the testator's private papers, and in the presence of several witnesses. The place where it was found is material only on the issue of testamentary intent. This will being holographic, proof that it is wholly in the handwriting of S. A. M. Sadler, is proof that he executed it as a free agent. 29 Am. & Eng. Enc. Law, 127b, note 4; Wilbourne v. Shell, 59 Miss. 205; Anderson v. Pryor, 10 Smed. & M., 620; Watson v. Pipes, 32 Miss. 451; Wilbourne v. Shell, 59 Miss. 205; Mitchell v. Donohue, 100 Cal. 202; Crutcher v. Crutcher, 11 Hum. (Tenn.), 377.

Walker & Tubb, on the same side.

The issue presented by this appeal is whether or not the paper probated as the will of S. A. M. Sadler is a testamentary instrument. It is admitted that it was "wholly written and subscribed" by Sadler. It is established by the evidence that it was found on the mantel in the room where Sadler died, and shortly after his death. It is also established by the evidence that "Sarah, " named in the writing, was the dead wife of Sadler, and that appellants, the proponents of the will, are the nearest of kin to her; also that the entire estate of Sadler was inherited by him from his wife, Sarah. In this attitude of the case does the writing show testamentary intent in Sadler? Appellees contend that for three reasons the writing cannot be accepted as a holographic will. (1) It is not dated; (2) it was not found among Sadler's private papers; (3) the writing is too vague and ambiguous.

The construction of testamentary documents is controlled by the law of the domicile of the testator. Some of the states require by statute that the writing proposed as a holographic will shall be wholly "written, dated, and signed" by the deceased. In those states, when such a requirement is made by statute, their supreme courts have held that writings not conforming to that requirement shall not be construed as wills. But even then the courts will strain a point and indulge presumptions in order to uphold the testamentary character of the writing, as was done in the case of Lagrone v. Merle, 52 Am. Dec., 589, by the Louisiana court. But the laws of Mississippi do not require that the instrument should be "dated." Ann. code, § 4488. That a date is not essential where the statutes do not require it, we refer the court to the following authorities: Schouler on Wills, sec. 261; Wright v. Wright, 5 Ind., 389; 79 Ky. 607; 40 Ark., 144; 1 Jarman on Wills, 110, 122, note 1; Dinkins v. Hollis, 7 Gill. & Johns., 311; Tolbee v. Williams, 80 Ky. 661; 1 Jarman on Wills, 342, note 1.

The laws of this state do not require that the writing must be found among the valuable papers and effects of the deceased, or shall have been lodged in the hands of any person for safe keeping. Some of the states, as, for instance, Tennessee and North Carolina, require that by statute, and the supreme courts of those states decline to uphold writings not meeting such requirement.

When the statute does not make this requirement, as does not the state of Louisiana, "a holographic will found two years after the death of the testator, attached by paste or mucilage to the under side of the tray or till of a common trunk, was admitted" to probate and upheld. State v. Ames, 23 La. Ann., 69, s.c. 52 Ann. Dec., 593, note.

There is much learning in the books on the sufficiency and insufficiency of words in writings to show a testamentary intent, "and courts, in reading wills, always supply obviously omitted words." The clearest enunciation...