Adams, Etc. v. Davis
Adams, Etc. v. Davis
Opinion of the Court
This is a will contest involving the alleged last will and testament of Vera Manese White, deceased. Vera Man
On April 22, 1953, Vera went to the office of Roger C. Landrum, an attorney in Columbus, Mississipp, and employed him to prepare her will. She was accompanied by her niece, Helen Z. Hampton Thompson (sometimes called Helen and sometimes called Blanche), who was on a visit from her home in Detroit, Michigan. Vera told Mr. Landrum what property she had and the disposition she desired to make of it. Mr. Landrum had never met or seen either Vera or Blanche Thompson prior to this occasion. Blanche did not participate in the conference between Mr. Landrum and Vera other than to occasionally assist Vera in remembering the complete names of some of the devisees. After receiving the instructions from Vera as to the disposition which she desired to be made of her property, Mr. Landrum prepared the will. He told Vera that in his practice he usually prepared wills in at least duplicate copies so that in the event the original should be lost the copy could be probated if there were no objections. In this instance he prepared the will
After the will was prepared and each copy thereof had been executed, Vera inquired of Mr. Landrum if he could rent a safety deposit box for her in the bank in wMch to place her will and other papers. On inquiry, it developed that the bank was unable to rent the box, and Vera then requested Mr. Landrum to place the original or ribbon copy of the executed will and some other papers in his own safety deposit box for safekeeping. This Mr. Landrum consented to do. Blanche then asked if she might have one of the copies of the will in order that she could show her people what Vera had done. Mr. Landrum said that this took place in the presence of Vera, and since there was no objection on the part of Vera, and since Blanche knew the contents of the will, he gave her one of the executed copies. He placed the other executed copy in his own files and placed the original or ribbon copy together with some other papers in Ms safety deposit box for safekeeping for Vera. Mr. Landrum stated that Vera was clearly mentally capacitated at the time of the execution of the will and fully understood what she was doing and gave specific instructions as to the disposition which she desired made of her property. Mr. Landrum further stated that on May 15, 1953, about one month later, Vera came to his office with some colored woman whom he did not know and asked him for “my will and papers”. He said that he obtained the will and papers from his safety deposit box and returned them to Vera and took her receipt therefor and that he has not since seen the will.
In the latter part of December 1954, or the early part of January 1955, Vera suffered an illness or slight stroke at her home and was taken to the hospital in Macon and was later taken to the home of James Pendleton in Columbus, where she remained until she died. She kept
The will of the deceased as executed by her devised to her husband for life 160 acres of land described as that included in her application for homestead exemption, and provided that at his death said acreage, along with other land which she owned, should be devised as follows: To Sadie Hampton Grace, 10 acres; to Irma Hampton Cook, 10 acres, to Ruth Hampton Pollard, 10 acres; to William Wayne, 60 acres; and the balance to Helen Z. Hampton Thompson and Esther Hampton Benjamin, as tenants in common, with the provision that the said Helen Z. Hampton Thompson be empowered to determine the particular parcels to be received by the said named parties, and with the further provision that as to that part of the real estate owned by her at the time of her death and not constituting part of her homestead the same should descend immediately upon her death to the parties designated by Helen Z. Hampton Thompson.
Within the period óf two years allowed by statute for
The contestants, who are the appellees here, assailed the will upon the grounds (1) that it was procured through undue influence exercised upon the testatrix by Helen Z. Hampton Thompson, and (2) that at the time of the execution of the will the testatrix was without the mental capacity to make a will, and (3) that the instrument admitted to probate was a copy and not the true last will and testament of the testatrix and that the original thereof had been destroyed by the testatrix animo revocandi.
Upon the conclusion of the evidence, the chancellor found as a fact that the proof failed to show undue influence or the lack of mental capacity on the part of the testatrix at the time of the execution of the will, and he was amply warranted in so doing. The record is wholly barren of any substantial proof to establish undue influence or mental incapacity. The chancellor further held, however, that since the proof showed that the original will was last seen in the possession of the testatrix in July 1954, and was not found after her death, it must he presumed to have been destroyed animo revocandi, and that, therefore, the testatrix must be held to have died intestate, and he rendered a decree accordingly.
There is no difficulty about the law of the case. Section 658, Mississippi Code of 1942, prescribes the manner in which a will once made may be revoked. It provides:
“A devise so made, or any clause thereof, shall not be revocable but by the testator or testatrix destroying, canceling, 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; . . ”
There is no direct proof that Vera White after executing her will revoked the same by ‘ ‘ destroying, canceling, or obliterating the same, or causing it to be done in his or her presence, or by subsequent will, codicil, or
In an annotation appearing in 17 A. L. R. 2d, page 814, the following is said: ‘ ‘ The general rule that where a will which cannot be found following the death of the testator is shown to have been in his possession when last seen, the presumption that he destroyed it animo revocandi, is usually held applicable in instances where two or more duplicate original wills were executed, with the result that where one of the duplicates is traced to the possession of the testator prior to his death, there is, if such duplicate cannot be found after testator’s death, a rebuttable presumption that he destroyed it with the intention of revoking both it and any other duplicates. ’ ’
In Section 437, Page on Wills, Vol. 1, quoted with approval in Phinizee v. Alexander, 210 Miss. 196, 49 So. 2d 250, the following appears: “This so-called presumption, however, is an inference of fact and not a conclusion of law. The inference is weaker where testator has both copies of the will, and stronger where one of the copies is in the possession of a third person.”
The presumption of intention to revoke may be rebutted. 68 C. J., Sec. 758, p. 992; Phinizee v. Alexander, supra. In McCormick v. Warren, 89 So. 2d 702, we held that the intent to revoke must appear clearly and un
“If a will is traced into the testator’s possession, and is not found at his death, the presumption is that he destroyed it for the purpose of revoking it; but the presumption may be rebutted, and it will be more or less strong according to the character of the custody which the testator had over the will. It is difficult to lay down any general rule as to the nature of the evidence which is required to rebut the presumption of destruction. It depends to a considerable extent on the testator’s property and his relations towards his family. Where the will makes a careful and detailed disposition of the testator’s property, and nothing happens to make it probable that he wishes to revoke it, the presumption raised by the disappearance of the will may be rebutted by slight evidence, especially if it is shown that the access to the box, or other place of deposit where the will was kept, could be obtained by persons whose interest it is to defeat the will. In fact, it may almost be said that in such a case the presumption is the other way, namely that the testator did not intend to die intestate. . . .”
Applying the foregoing principles to the facts of the case at bar, we think that the overwhelming weight of the evidence shows that Vera White, after executing her will, did not revoke it and had no intention of revoking it, and that such evidence amply rebuts the presumption arising by reason of the fact that the will was not found after her death.
In determining whether Vera disposed of her property as she desired to dispose of it, it is important to consider the relationship of the parties. In Re Vail’s Will, 87 So. 2d 68. The devisees in her will are her blood kin with whom she was on affectionate terms. They were the natural objects of her bounty. The contestants are the blood relatives of her husband. It was entirely rea
Reversed and judgment rendered here for appellant.
Dissenting Opinion
dissenting:
The chancellor was on the ground. He personally saw and heard the witnesses testify. He was in much better position to pass upon the credibility of the witnesses and evaluate the weight of their testimony than are the members of this Court. I dissent because I think he had substantial evidence to support his conclusions.
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