Opinion
No. 32878.
November 8, 1937.
1. WILLS.
Subscribing witnesses to wills are not required to sign in the presence of each other, under statute relating to execution of wills (Code 1930, section 3550).
2. WILLS.
The affidavits of two subscribing witnesses to a will were sufficient for the probate thereof in common form (Code 1930, sections 1602, 3550).
3. WILLS.
Subscribing witnesses to wills are not required to see the testator sign the will, but it is enough if testator produces the will, declares it to be his will, and states that signature appended thereto is his and that he wrote it (Code 1930, sections 1602, 3550).
4. WILLS.
Evidence of subscribing witness that testatrix told him that instrument was her will, that she had signed it and wanted him to sign it as a witness, and that he did so in her presence, and testimony of other witness who did not sign in presence of other subscribing witness and was not present when other witness signed that testatrix told him instrument was her will and requested him to sign it as a witness, was sufficient to authorize admission of will to probate in solemn form (Code 1930, sections 1602, 3550).
5. WILLS.
The admission of a will to probate was only prima facie evidence of its validity and would not conclude the heirs at law as interested parties from contesting will within two years in manner prescribed by statute, where the heirs at law had not been made parties to the petition for the probate thereof (Code 1930, sections 1607, 1609).
6. WILLS.
An administrator is not such an "interested party" within statutes providing that a proponent may make all interested persons parties to application for probate of will and that any interested person may at any time within two years contest validity of will probated without notice, as is authorized to contest will subsequently presented for probate (Code 1930, sections 1607, 1609).
7. WILLS.
In proceeding to probate will and to remove administratrix theretofore appointed, chancery court was without jurisdiction to hear contest as to validity of will where none of the interested parties as such were before the court, and hence such parties would not be concluded by decree adjudicating validity of will (Code 1930, sections 1607, 1609).
8. EXECUTORS AND ADMINISTRATORS.
Where testimony was sufficient to have will probated in solemn form, chancery court had authority to admit will to probate, grant letters testamentary to executor named therein, and set aside appointment of administratrix theretofore made under statute providing that if a will shall be found and probated, and letters testamentary granted thereon, the same shall be a revocation of administration (Code 1930, section 1641).
APPEAL from chancery court of Pike county.
F.D. Hewitt, of McComb, for appellant.
The only question before the court is whether or not this is a valid will as shown by the proof. The code provision with reference to the execution of wills provides, among other things, that wills shall be in writing, and if not wholly written and subscribed by the testator or testatrix, they shall be attested by two or more creditable witnesses in the presence of testator or testatrix. Under the admitted facts, in this case the testatrix never subscribed to the will in their presence and neither of them subscribed to the will in the presence of each other. Under the admitted facts the acts of the witnesses in signing the will was not one continuous transaction.
The court held in the case of Gordon v. Parker, 104 So. 77, in a will contest, from the Chancery Court of Washington County, that where the execution of a will and the signing of the same by a testator and the subscribing witnesses constitute one continuous transaction, the signing by each taking place in the presence of the other is sufficient, and for all intents and purposes, and proper attestation of the will, and is decisive of this case.
The statute of wills is a statute of frauds. And the court has said that is the reason wills are required to be in writing and when not in the own handwriting of the testatrix to be attested by two subscribing witnesses to prevent frauds and perjuries.
If a will can be executed in this fashion and under these circumstances, it would certainly violate the statute. Peter Crossley, one of the witnesses, said he did not know that Mr. Furlough signed it and Mr. Furlough said that he did not know that Peter Crossley signed it. And that is the very essence of the statute requiring two witnesses to subscribe to the instrument in the presence of the testator or testatrix. The proposition is so elementary that further discussion of it is useless. The facts do not prove a valid execution of this will, and the court erred in permitting the same to be probated and the administratrix removed and appellee appointed in her place.
Counsel does not understand correctly the procedure that he himself took in this case. Instead of filing the petition, having process issued for all of the defendants to come into court and show cause why the will should be probated, he undertook by motion to displace the administratrix.
After the court had already appointed the appellant as administratrix of the estate of Sarah Patrick, and she had qualified by giving bond, taking the oath, and entering upon the discharge of her duties, the court was without power to remove her and substitute in her place the appellee when the will had not been probated. J.T. Hutchison, of Summit, for appellee.
The will was introduced with all of the papers in this cause in evidence, and the same was before the court, also the attesting witnesses to the will were also before the court, and both testified that they signed the said instrument in the presence of the deceased, Sarah Patrick, at her request, she saying that same was her will, which was dividing up her lands among her children, both witnesses testified to the mental condition of the testatrix, which was sound.
It was not necessary that the witnesses attest the said will in the presence of each other, but the attestation to only be in the presence of the testatrix. Section 3550, Code of 1930. The last clause reads as follows: "if not wholly written and subscribed by himself or herself, it shall be attested by two or more credible witnesses in the presence of the testator or testatrix."
The testimony of E.E. Furlough clearly shows that he was asked to attest the will by the testatrix, and that he attested and subscribed same in her presence. Both witnesses testify that they each attested the will in the presence of the testatrix, which is required by the statute, Section 3550, but which does not require that the witnesses attest in the presence of each other.
40 Cyc. 1125.
The question before the court was whether the administratrix should be removed so the will might be probated and no caveat was filed as provided in Section 1608 of Code of 1930, and all parties must be made parties to the contest, that is all interested parties, as provided in Section 1610, and as the matter now stands there is no contest before the court as to the will in this cause, and the court only considered the revocation of the letters, and the probation of the will as same was presented, and if interested parties so desire they may contest the will within two years after probate as provided under Section 1609, Code of 1930.
The administrator under our statute has no authority to contest a will, and this must be done by the heirs of the estate or persons claiming under prior wills.
Hoskins v. Holmes County Community Hospital, 135 Miss. 89, 99 So. 570; Cajoleas v. Attaya, 111 So. 359; Section 1608, Code of 1930.
If the interested parties are not satisfied with the will as probated then they have two years in which to contest same, and the administratrix does not at any time have such authority, she should on being notified of any such contest notify or advise the heirs of the estate and then if they want to enter a contest then it is their business to so do, and on such an issue the whole will and all circumstances can be gone into. The administratrix did not even attempt to file any answer to the petition or motion of the appellee to set aside the former appointment, that is her appointment, nor is there any pleadings filed by any of the interested parties to said petition, nor did any of them appear and testify at the hearing of the said motion or petition.
We respectfully submit that the cause should be affirmed.
Argued orally by F.D. Hewitt, for appellant.
On May 4, 1937, which was during the regular April term of the chancery court of Pike county, the appellant, Rosina Austin, filed her petition in said court for letters of administration on the estate of her mother, Sarah Patrick, who died on March 13, 1937. Thereupon a decree was rendered appointing her as administratrix of the estate, and she took the oath and entered into bond, as fixed by the chancellor, and which was duly approved by the clerk. The oath did not meet the requirements of section 1631, Code 1930, but was subject to amendment, and its insufficiency is immaterial on the issue here presented. No letters of administration were issued to her on that day, and on the next day a petition was presented to the chancellor by Matthew Patrick for the probate in common form of what purported to be the last will and testament of the said Sarah Patrick, deceased, in which instrument the said Matthew Patrick was named as the executor. The petition for probate was accompanied by the purported last will and testament, together with the affidavits of the two subscribing witnesses, which were in proper form and sufficient on their face to entitle the instrument to be admitted for probate. And there was also presented in connection therewith a motion by the executor for the removal of appellant as administratrix. Thereupon the clerk was directed by the court not to issue and deliver the letters of administration which the appellant, as administratrix, would ordinarily have been entitled to receive following the filing of the petition for letters, decree of appointment, and execution of the bond duly approved by the clerk. The chancellor set for hearing on May 8th, in term time, the petition for the probate of the purported last will and testament and the motion for the removal of the administratrix, and had process issued and served on the appellant accordingly.
At the hearing on the petition for probate and motion for the removal of the administratrix, the court heard oral testimony of the two subscribing witnesses, E.E. Furlough and Peter Crossley, which disclosed that on December 24, 1936, the testatrix sent for the witness Peter Crossley and told him that the instrument in question was her will, and that she said that she signed it and wanted him to sign it as a witness; that he signed it as a witness in her presence, and the fair import of his testimony is that prior to that time she had signed it. The testimony of the other witness, E.E. Furlough, discloses that the testatrix sent for him about the 15th of February, 1937, and told him that the instrument was her will and requested him to sign it as a witness; that he signed it in her presence, but that he did not sign it in the presence of the other witness and was not present when the other witness signed it in December prior thereto. And section 3550 of our Code does not so require. The testimony of this witness does not disclose that the testatrix expressly stated to him that she had signed it, but merely that it was her will and requested him to sign it as a witness.
The court entered a decree admitting the instrument to probate as the last will and testament of the said Sarah Patrick, deceased, and further declared that its former decree appointing the appellant as administratrix of the estate was thereby set aside, and that letters testamentary should be issued to the executor, Matthew Patrick, upon his taking the required oath and entering into bond as required by law, all of which was accordingly done. It is from this action of the court that the appellant prosecutes this appeal.
Section 1602, Code 1930, requires that the due execution of a will must be proved by at least one of the subscribing witnesses, if alive and resident in this state, and competent to testify. The affidavits of the two subscribing witnesses were sufficient for the probate of the will in common form. And the oral testimony of the subscribing witness Peter Crossley was sufficient under the statute to probate it in solemn form, supported by that of the other witness in most of its essential features, since it was held in the case of Miller v. Miller, 96 Miss. 526, 51 So. 210, that to constitute a good attestation of the signature of the testator it is not essential that the subscribing witnesses should see the testator sign the will; that "it is enough if he shall produce the will, declare it to be his will, and state that the signature appended to the will is his, and that he wrote it." If the testatrix had signed the instrument prior to December 24, 1936, as stated by her to the witness Crossley on that date, then it follows that her statement to the other witness in February thereafter that the instrument was her will was equivalent to saying to him that it had been signed by her. Therefore, the action of the court below in admitting the will to probate was proper.
But section 1607, Code 1930, provides that "any proponent of a will for probate may, in the first instance, make all interested persons parties to his application to probate the will, and in such case all who are made parties shall be concluded by the probate of the will." Section 1609 provides that "any person interested may, at any time within two years, by petition or bill, contest the validity of the will probated without notice," etc. Section 1611, Code 1930, provides that "on the trial of an issue made up to determine the validity of a will which has been duly admitted to probate, such probate shall be prima facie evidence of the validity of the will." The admission of the will to probate in the present case is only prima facie evidence of its validity, and does not conclude the heirs at law, as interested parties, from contesting the will within two years in the manner prescribed by the statute, since they were not made parties to the petition for the probate thereof.
Under the decision in the case of Cajoleas v. Attaya, 145 Miss. 436, 111 So. 359, 58 A.L.R. 1457, the administrator of an estate is not such an interested party within the meaning of either section 1607 or section 1609, Code 1930, relative to the contest of a will, as is authorized to contest a will subsequently presented for probate. The court below was without jurisdiction to hear the contest as to the validity of the will, since none of the interested parties, as such, were before the court, and they are not concluded by the decree adjudicating its validity. Hoskins v. Holmes County Hosp. et al., 135 Miss. 89, 99 So. 570. However, it is necessary that the decree be affirmed for the reason that the court had authority to admit the will to probate, grant letters testamentary to the executor, and set aside the appointment of the administratrix, since section 1641, Code 1930, declares that "if a will shall be found and probated, and letters testmentary be granted thereon, the same shall be a revocation of the administration."
Affirmed.