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.