Summary
In Hilton v. Johnson, 1943, 194 Miss. 671, 12 So.2d 524, there was a similar factual situation, and the Court expressly held that under the Code of 1942, Sec. 658, providing for the method of revoking a will, parol testimony designed to show an implied revocation is not admissible. The doctrine of implied revocation has been carefully limited in Mississippi to the execution of conflicting deeds and other instruments.
Summary of this case from In re Stoball's EstateOpinion
No. 35075.
March 29, 1943. Suggestion of Error Overruled May 24, 1943.
1. WILLS.
Under statute, authorizing affidavit of subscribing witness to will to be received as a substitute for personal attendance of affiant to prove will where there is no contest, and statute, providing that on an issue of validity of will which has been probated, probate shall be prima facie evidence of validity, proponents of will on contest after probate, properly introduced probate of will in common form by affidavits of subscribing witnesses and rested (Code 1930, secs. 1602, 1603, 1611).
2. WILLS.
In widow's contest of husband's will leaving estate to husband's brothers and sisters, under statute providing manner in which will may be revoked trial court properly excluded parol testimony that husband had declared that on his death he wanted wife to have all the property (Code 1930, sec. 3551).
3. WILLS.
Statute providing manner in which will may be revoked has no application to implied revocations by operation of law but is limited to express revocations (Code 1930, sec. 3551).
4. WILLS.
A will is not revoked by a subsequent marriage.
APPEAL from chancery court of Warren county, HON. J.L. WILLIAMS, Chancellor.
R.M. Kelly, of Vicksburg, for appellant.
John W. Hilton, a soldier, was enlisted in the service Army of the United States. On April 4, 1921, he was admitted as a member of the Ancient and Accepted Scottish Rite of Masonary at San Antonio, Texas, and shortly thereafter took up his residence in Warren County, Mississippi, and on July 12, 1922, he was united in marriage to Nora V. Hopkins, of said county, where he thereafter continued to reside. The marriage, it appears, was an especially happy one. By reason of the industry and frugal habits of husband and wife they accumulated some property. On September 20, 1938, after a protracted illness (cancer) Hilton passed away at the Vicksburg Sanitarium. The wife throughout the long illness and suffering of the husband and throughout their married life was his constant companion and attendant. The wife, on the 26th day of October, 1938, filed a petition in the chancery court of Warren County for administration and was appointed administratrix of the husband's estate. On the 5th day of April, 1939, Mrs. Lyda Johnson filed a petition for administration and offered for probate a certain alleged last will and testament of said Hilton, which said will is purported to have been executed on the 4th day of April, 1921, in Baxter County, Texas. The will offered for probate is a "form" will, prepared and printed with certain blank spaces to be filled in by the candidate for membership in the order of Ancient and Accepted Scottish Rite Masonary. The execution of such instrument at the time it was executed by Hilton was one of the conditions required to be complied with by the initiate. This form will, when executed, was, under the rules of the order, delivered in keeping to the secretary of the lodge as part of the record. Some time prior to the death of Hilton (evidently for some good reason or purpose) a resolution was adopted at a meeting of the Supreme Council of the Order, Washington, D.C., making it mandatory upon secretaries to restore all wills to the makers thereof. Some time after Hilton's death a notice came to the Hilton residence notifying Hilton of the resolution of the Supreme Council to return all wills and the same envelope containing the notice contained a life membership card for Hilton in the order of Scottish Rite Bodies. The receipt of this notice was the first knowledge the widow had (and insofar as it appears from the history of this case, that John Hilton ever had) that a will of the kind was executed. At the time of the execution of said alleged will deceased owned no property anywhere in the world; he was a single man; marriage to complainant was not contemplated or thought. The printed "form" of the will offered for probate was submitted to him at the time he was about to be received in membership in the order of "Scottish Rite" and was there executed without serious thought as to its effect or consequences. It is evident that John Hilton never saw or heard of said will from the time of its execution to the time of his death.
Directly after the execution of said will in San Antonio, Texas, having spent twenty-two years in military service of the United States, serving in this and in foreign countries, he took up his permanent residence in Warren County, Mississippi, and on the 12th day of July, 1922, was joined in marriage with appellant and spent the balance of his life as a resident and citizen of Warren County. Appellant, through the years of her married life with deceased, contributed by her labor and her money to the acquirement of the property belonging to the estate. She advanced money on the original purchase price of the property listed as property of the estate; she advanced money for repairs made on said property and for payment of taxes required to be paid on said property, the amounts of said advances and payments being offered in evidence by receipts, bills and records at the hearing of the cause. She contributed to the welfare of the deceased and tenderly nursed and comforted him throughout his married life, and throughout his long continued illness, for all of which the deceased husband, by his acts and by all of his declarations, voiced his extreme gratitude. He repeatedly declared to appellant during his last illness and at various times, and to confidential friends of appellant and deceased, that he had no last will and testament; that there was no necessity for a last will and testament; that appellant helped to make and accumulate everything he possessed; that when he was gone she was his sole heir and entitled to anything and everything he left at the time of his demise. Throughout his long suffering in hospitals to the time of his death he declared that Nora was his sole heir and would get what he had, as she had helped make it.
After the filing of the petition for probation of the alleged will by appellee, appellant filed protest and contest of probation of the alleged will, and upon hearing of the cause on issue devisavit vel non, after the introduction of the alleged will, appellee rested.
After the introduction of the aforesaid testimony appellant moved to exclude and for judgment of the court for appellant. The motions were overruled by the court and appellant offered the testimony of numerous witnesses, as shown by the record, as to declarations and acts of the deceased, his positive affirmance that no will existed, that there was no necessity for a will, and circumstances which clearly tended to show that John W. Hilton never knowingly and intentionally executed a last will and testament and, if so, it was certainly his intent to revoke it and he did revoke it at least by implication. All objections offered by appellant to introduction of testimony offered by appellee were overruled and all testimony offered by appellant tending to show revocation and invalidity of the will was excluded by the court upon objections of appellee and a decree entered for proponents of the will, from which decree this appeal is prosecuted.
We most respectfully submit that the testimony offered by the proponents was not sufficient to justify the decree entered in this cause by the chancellor. The validity of the will was challenged by appellant's original and amended bill. The burden was upon proponents to prove, not only that John Hilton made a will, but that the will propounded was an existing legal and valid will. There is nothing in the proof offered by appellee that tends even to show that the testator was a person competent to execute a valid will under our law. The parties whose names were signed as witnesses are nonresidents of the state; they were not produced as witnesses and no depositions were offered or sought — not even the record offered in evidence.
It is the universal rule that the party propounding a will for probate has the burden of proving its due execution in compliance with all the statutory requirements existing at the date of its execution. The general rule, also, is that whenever the validity of a will comes directly in issue, the burden of proving its formal execution is upon the person relying upon the will. And it is immaterial whether the question arises upon a contest of the will, in an action to set the probate aside, on appeal from the order of the probate court, or on an issue out of chancery. And due execution must be regularly proved although it is not specifically in issue. The fact that the specific grounds of contest are set forth which the contestant must prove, does not affect the duty of the proponent to establish the due execution of the will.
Helm v. Sheeks, 116 Miss. 726, 77 So. 820; Edgington v. Mabry, 111 Miss. 492, 71 So. 801; Gathings v. Howard, 122 Miss. 355, 84 So. 240; Ward v. Ward, 124 Miss. 697, 87 So. 153; Martin et al. v. Perkins, 56 Miss. 204; Garrett v. Dabney, 27 Miss. 335; Maxwell v. Lake (Miss.), 88 So. 326; Ragland v. Green, 14 Smedes M. 194; Smith v. Young, 134 Miss. 738, 99 So. 370; Nunn v. Ehlbert, 54 L.R.A. (N.S.) 1915B, 87; Code of 1930, Secs. 1602, 1603, 1604, 1612, 3550; 14 Encyclopaedie of Evidence 403, Sec. 1; 28 R.C.L. 369, Sec. 370.
If implied revocation of wills is still the law of Mississippi, as asserted in opinions in Helm v. Sheeks, supra; Garrett v. Dabney, supra; Holcomb v. Holcomb, 173 Miss. 192, 159 So. 564; Jones v. Mosley, 40 Miss. 261; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41; Hoy v. Hoy, 93 Miss. 732, 48 So. 908; Caine v. Barnwell, 120 Miss. 209, 82 So. 65, and other authorities herein cited, then the testimony offered in behalf of appellant by witnesses introduced and offered to be introduced was competent and should have been admitted by the trial judge.
As set out in opinions of this and other courts, to constitute a will, a legal and valid will, it is necessary that it be executed with testamentary intent on the part of the testator. If these conclusions of the court as to the necessity for the "intent" to be existing and present at the time of the execution of the instrument, then on the validity of the will being challenged, and no attesting legal proof being offered by the proponents, the presence of the attending witnesses or their depositions not being offered, there being nothing on the face of the will introduced to show that it was executed by a person competent under our laws to execute a valid will and no record of the probate proceedings being introduced in evidence, was not testimony that would at least tend to show the circumstances under which the will was executed and the acts and declarations of testator after the execution of the instrument, the change in his circumstances, the regard he had for his wife and his expressed concern for her welfare, always, the manner in which the alleged will was held from his possession for a period of twenty years after being signed, the fact that it was signed apparently as a part of an initiation ceremony and not as a voluntary act on the part of Hilton, with solemn intent to devise and bequeath, competent to be admitted. Brunini Brunini and George Chaney, all of Vicksburg, for appellees.
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.
Moore v. Parks, 122 Miss. 301, 84 So. 230; Gathings v. Howard, 122 Miss. 355, 84 So. 240; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41; Code of 1930, Sec. 1611.
The marriage of Hilton did not revoke his will.
Lee v. Blewett, 116 Miss. 341, 77 So. 147; Hoy v. Hoy, 93 Miss. 732, 48 So. 903; Garrett v. Dabney, 27 Miss. 335.
The testimony offered by the appellant, claiming to be an implied revocation of the will, was not an expressed revocation as required by Section 3551 of the Code of 1930, nor does it come within the holdings of our court with reference to implied revocation, and we submit that the chancellor was correct in his holdings, to-wit, that the testimony was incompetent and therefore it was his duty to direct a verdict for the appellees.
Moore v. Parks, supra; Stratton v. Durham, 191 Miss. 420, 2 So.2d 551; Minor v. Russell, 126 Miss. 228, 88 So. 633; Miller v. Miller, 96 Miss. 526, 51 So. 210.
Argued orally by R.M. Kelly, for appellant, and by John Brunini, for appellees.
John W. Hilton died in 1938 leaving a wife and no children. His nearest of kin, other than his wife, being seven brothers and sisters. He left a will by which he devised and bequeathed to his seven brothers and sisters all of his property in equal shares, naming his sister Mrs. Lyda Johnson, one of the appellees, as the executrix. There was a trial of the issue devisavit vel non between his widow, the appellant, on the one hand and his seven brothers and sisters, the appellees, on the other hand. The trial was by a jury. After the evidence was in the court directed a verdict in favor of the appellees upholding the will, which was followed by a judgment. From which judgment the widow prosecutes this appeal.
The will involved was executed in the State of Texas in 1921. At that time the testator was a resident of that state. In 1922 he married Nora V. Hopkins in this state and thereafter resided here until his death in 1938. On the trial the proponents of the will, his brothers and sisters, assuming the burden, which under the law devolved upon them, of making out a prima facie case of its validity, introduced the probate of the will in common form by the affidavits of the subscribing witnesses who resided in the State of Texas. The proof was in compliance with Section 1602, Code of 1930. After doing so they rested.
The widow contends that they ought to have gone further and made the proof either by having the subscribing witness or witnesses present to testify before the court or their testimony in the form of depositions. There is no merit in that contention. Section 1603, Code of 1930, provides that the affidavit of any subscribing witness to a will before and certified by any officer of the state competent to administer oaths shall be received as a substitute for the personal attendance of affiant to prove the will where there is no contest. Section 1611, Code of 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." See Moore v. Parks, 122 Miss. 301, 84 So. 230; Gathings v. Howard, 122 Miss. 355, 84 So. 240; Sheehan v. Kearney, 82 Miss. 688, 702, 21 So. 41, 35 L.R.A. (N.S.) 102.
To meet the prima facie case so made by the proponents of the will the widow offered evidence of several witnesses to the effect that the testator stated in their presence that his wife had been faithful and true to him and on his death he wanted her to have all of his property. On objection the court ruled out such evidence. The widow assigns and argues that action of the court as error. Section 3551, Code of 1930, provides among other things that no will shall be revocable except by the testator or testatrix cancelling or obliterating the same, or causing it to be done in his or her presence, or by subsequent will, codicil or declaration in writing made and executed. The statute by its very language excludes parol testimony to change a will in any respect. Stratton v. Durham, 191 Miss. 420, 2 So.2d 551; Minor v. Russell, 126 Miss. 228, 88 So. 633; Moore v. Parks, supra; Miller v. Miller, 96 Miss. 526, 51 So. 210. There was no error, therefore, in excluding such evidence.
That statute, however, has no application to implied revocations by operation of law. It has reference alone to express revocations which were sought to be shown in the manner stated. Garrett v. Dabney, 27 Miss. 335; Hoy v. Hoy, 93 Miss. 732, 48 So. 903, 25 L.R.A. (N.S.) 182, 136 Am. St. Rep. 548, 17 Ann. Cas. 1137; Caine v. Barnwell, 120 Miss. 209, 82 So. 65. It was held in the latter case that where the testator subsequent to the making of the will conveyed his entire estate by deed there was a revocation implied by law. But in Hoy v. Hoy, supra, the court held in unmistakable language that a marriage subsequent to the making of the will would not revoke the will "although the statute makes his widow an heir of the testator." This subject is discussed in Page on Wills, Vol. 1, Ch. 15, Sections 422 to 533, inclusive. In Section 511 there is a discussion of the effect of subsequent marriage as an implied revocation. It is shown that there is a diversity of decision among the courts. Hoy v. Hoy, supra, is referred to a holding that a will was not revoked by a subsequent marriage. In Jones v. Moseley, 40 Miss. 261, 90 Am. Dec. 327, the court used this language in discussing the subject of revocation of wills by operation of law: "This change must be in his condition as affecting the substantial relations of the parties, such as subsequent marriage, and the birth of a child or children." However, that language was not decision. It was entirely outside of the case. In that case the wife was not involved, but a daughter of the testator. Furthermore in Paragraph 2 of the syllabus it is stated that an implied revocation of a will may be shown by the declaration of the testator made after its execution. Nevertheless in the opinion itself the oral testimony to establish the revocation was held to be insufficient.
Affirmed.