Opinion
No. 35585.
April 24, 1944. Suggestion of Error Overruled September 25, 1944.
1. EXECUTORS AND ADMINISTRATORS.
The word "probate," in connection with the probate of a claim against an estate, means that claim, in judgment of clerk, had been proven in manner required by law.
2. WILLS.
The entry by clerk of his order in vacation admitting to "probate" purported will of decedent was an adjudication that such instrument had been duly proven by presentation thereof with affidavits of subscribing witnesses thereto attached (Code 1942, sec. 1248).
3. WILLS.
The probate in common form before clerk in vacation is prima facie evidence of validity of will until its invalidity is determined by the court (Code 1942, secs. 507, 1248).
4. WILLS.
Where proponent probated will in common form before clerk in vacation, subsequent contest, which was filed before chancellor entered order approving act of clerk, was not a contest "before probate" within meaning of statute providing that, where objections to probate of will are filed "before probate," probate may not be had without notice to objector (Code 1942, sec. 504).
5. WILLS.
Where proponent probated will in common form before clerk in vacation and before contestants filed objections to probate thereof, upon trial of issue of devisavit vel non where proponent merely proved such probate before clerk and rested and contestants adduced no evidence, peremptory instruction in favor of proponent was proper (Code 1942, secs. 504, 507, 1248, 1251).
APPEAL from the chancery court of Washington county, HON. J.L. WILLIAMS, Chancellor.
Ernest Kellner, of Greenville, Johnson Allen, of Indianola, and Creekmore Creekmore, of Jackson, for appellants.
The fundamental issue involved in this case is whether under the facts set forth the will of Mrs. Bigleben had been duly admitted to probate in common form, so that on the trial of the issue devisavit vel non, the record of such probate would establish a prima facie case under the provisions of Section 507 of the Code of 1942.
It was the position of the proponent consistently followed throughout the trial, that when the will was proven in common form before the clerk in vacation, and that action was approved by the court, the will had then been duly admitted to probate, and the record thereof was properly receivable in evidence on the trial of the issue notwithstanding the filing of a caveat by appellants.
The position of appellants diametrically opposite, and by them also consistently maintained throughout the trial, was that the act of the clerk in vacation in admitting the will to probate was not a final probate thereof in common form until validly approved by the court in term time; that before such approval of the court in term time they had the absolute right under the statute (Section 504, Code of 1942) to file their caveat, and present their objections to the probate, and, having filed such caveat, there could be no approval of the acts of the clerk in vacation by the court, and such probate in common form could not become final, unless notice was given to, and a hearing had by, the objectors. In short, appellants have consistently maintained the position that by filing their caveat, the probate of the will was intercepted and thereby was cast upon proponent the burden of proving the will in the same manner as if probate had been sought in solemn form.
Edwards v. Gaulding, 38 Miss. 118; Tucker v. Whitehead, 59 Miss. 594; Jones v. Moseley, 40 Miss. 261; Kelly v. Davis, 37 Miss. 76; Murray v. Murphy, 39 Miss. 214; Wilburn v. Williams, 193 Miss. 831, 11 So.2d 306; Hitt v. Terry, 92 Miss. 671, 46 So. 829; Young v. Wark, 76 Miss. 829, 25 So. 660; Helm v. Sheeks, 116 Miss. 726, 77 So. 820; Ward v. Ward, 124 Miss. 697, 87 So. 153; Sanders v. Sanders, 126 Miss. 610, 89 So. 261; Maxwell v. Lake (Miss.), 88 So. 326; Isom v. Canedy, 128 Miss. 64, 88 So. 485; King v. King, 161 Miss. 51, 134 So. 827; Curry v. Lucas, 181 Miss. 720, 180 So. 397; Hoskins v. Holmes County Community Hospital, 135 Miss. 89, 99 So. 570; Austin v. Patrick, 179 Miss. 718, 176 So. 714; Code of 1857, Art. 43, p. 434; Code of 1871, Sec. 1099, p. 213; Code of 1880, Sec. 1967, Ch. 59; Code of 1880, Secs. 1969, 1970; Code of 1942, Secs. 503, 504, 507, 1248, 1251, 1253, 1254.
If the position of appellees be sustained then this court will render meaningless and of no avail Section 504, Code of 1942, providing for a contest, in limine of the probate of a will. That section provides for the contest of a will "presented for probate." This court knows that as a matter of universal practice among the members of the bar of this state, when a will is presented to the clerk in vacation for probate in common form, entry of a decree, and the issuance of letters testamentary, are all matters which are concluded within a very short period of time. The heirs of the testator or others interested who might desire to contest the probate know nothing about the contents of the will, and have no means of determining whether they desire to contest the same until the clerk's order has been entered, and then, being a public record, they have the opportunity of learning its contents. In order that there could be no misunderstanding about the matter the statute therefore provided for the filing of a caveat, not before the will was presented, but after it had been presented for probate, and before the probate had become final through approval of the vacation acts of the clerk by the court in term time. It was for this same reason that the statute provided that after the caveat had been filed, probate should not be had, without notice to the objector.
Appellants have strictly complied with the statute. All interested parties have been joined in the proceeding, either as caveators or as respondents. The grounds of contest were specifically set forth, and on the answers of respondents to the caveat the issue devisavit vel non was made up and joined; all prior to the date of approval by the court in term time of the clerk's vacation acts. It was then a pending suit, and the court, in that situation, was wholly without power to enter any order which would affect the issues involved, either in respect to the burden of proceeding with the proof, or in respect to the competency or incompetency of evidence to be received on the trial of the issue.
The order of the court approving the vacation acts of the clerk was void, and on the trial of the issue, proponents had the burden of proving the due execution of the will, and testamentary capacity of the testator. This could not be done by offering the record of the attempted probate before the clerk. The proponent has wholly failed to present any competent evidence to prove the will. The peremptory instruction requested by appellants should have been given. We therefore earnestly urge upon the court that this cause should be reversed, and a judgment rendered here for the appellants.
Ben Wilkes and Farish, Keady Branton, all of Greenville, for appellees.
It is the contention of the appellee that having proved, as she did, that the will had been admitted to probate in common form by the chancery clerk of Washington County, Mississippi, on May 27, 1943, she thereby made out a prima facie case under the provisions of Section 1611, Code of 1930, now Section 507, Code of 1942, and the contestants having offered no evidence, the judgment of the lower court is correct in sustaining the will.
It seems to be the contention of counsel for the contestants that having filed their caveat and presented their objections, the court was without power to approve the acts of the clerk in vacation, pending the determination of the issue of devisavit vel non. It is proponent's contention that while such action is immaterial in this case, still the statute places no such restriction on the court's approval of such acts, but merely says that if a caveat be filed before probate of the will the issue of devisavit vel non shall be made up and the issue tried, and that when objection has been made in writing and filed, probate shall not be had of such will without notice to the objector. That when the caveat was filed the clerk had already admitted the will to probate in common form, that thereafter contestants filed their objection to further action of the court thereon, called for and obtained a hearing in vacation, and the chancellor, after such hearing, overruled their motion, and we contend that having seen fit to adopt that course they cannot contend that the approval of the acts of the clerk in vacation was without the notice referred to in Section 1608, Code of 1930, Section 504, Code of 1942.
Tucker v. Whitehead, 59 Miss. 594; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41; Moore et al. v. Parks et al., 122 Miss. 301, 84 So. 230; Gathings v. Howard, 122 Miss. 355, 84 So. 240; Rylee v. Union Planters' Bank Trust Co., 122 Miss. 385, 84 So. 247; O'Bannon et al. v. Henrich, 191 Miss. 815, 4 So.2d 208.
Counsel says that if the position of appellees be sustained this court will render meaningless and of no avail Section 504, Code of 1942. While denying this, we say contestants had no right to proceed under this section, because the will had already been admitted to probate. But in any event the statute did not deprive them of any of their rights. Proof of the probate in common form deprived them of no rights. It is merely a rule of evidence. Had they offered proof we would have been forced to meet it. We would not have been entitled to any instruction as to having made out a prima facie case, or as to any presumptions therefrom. The court would have instructed the jury that the burden of proof was on the proponents, throughout, so we say that the prima facie statute does not deprive the contestants in a will case of any right they have but is merely a rule of evidence, and a prescription for procedure. In support of his contention in this regard, counsel says, "In order that there could be no misunderstanding about the matter the statute provided for the filing of a caveat, not before the will was presented, but after it had been presented for probate, and before probate had become final through approval of the vacation acts of the clerk in term time." A mere reading of the statute answers this statement. The statute says, "Any one desiring to contest a will presented for probate may do so before probate by entering the clerk's office in which it shall be presented his objection to the probate thereof, etc." The statute says "In which it shall be presented," not "In which it has been presented," clearly meaning by the word "shall," a will to be presented in the future. We say counsel have in reality filed no caveat, although they so designate it and the court so treated it. At most, it is only a petition or an original bill attacking the validity of this will. We made no point on this in the lower court because they were seeking a trial on an issue of devisavit vel non, we thought they were entitled to such trial, and joined issue thereon.
We respectfully submit that the proponent has presented a will, not unnatural in its terms, regular on its face, properly executed and witnessed, properly probated in common form, and has made proof of these facts in the instant case in the manner and form prescribed by our prima facie statute. That we thereby made out a prima facie case; the contestants did not see fit to offer any proof and therefore the peremptory instruction for the proponent was correctly given.
Argued orally by Rufus Creekmore, for appellant.
The sole question here presented for decision is whether or not under the facts hereinafter set forth the proof of the probate in common form before the clerk in vacation of the purported last will and testament of Josephine Theresa Bigleben, deceased, was prima facie evidence of the validity of the will on the trial of an issue of devisavit vel non in the court below. A few days after the presentation to the clerk of the instrument and the affidavits of the subscribing witnesses thereto, the heirs at law of the alleged testatrix, other than the appellee, Mrs. Christine B. Henry, daughter of the deceased and sole beneficiary under her will, filed a contest or caveat against the same, alleging undue influence and lack of testamentary capacity. This action was taken subsequent to the entry of the order by the clerk in vacation admitting the instrument to probate, the issuance of letters of executorship and the administration of the oath to the executrix named therein, but prior to the convening of the next regular term of court on the first day of which the chancellor entered an order approving the acts of the clerk done in vacation.
It appears that upon the filing of the contest the contestants, who are the appellants here, also filed a motion under Section 1251, Code of 1942, Section 340, Code of 1930, seeking to obtain an order of the chancellor in vacation to suspend the orders and proceedings of the clerk until the trial could be had before the court; that upon notice to the other interested parties the contestants of the purported will obtained a hearing upon said motion in vacation, at which hearing the same was overruled. Thereafter and prior to the first day of the next regular term of the court the proponent of the alleged will filed her answer to the contest, denying the allegations of undue influence and lack of testamentary capacity of the testatrix.
On the first day of the said regular term of court the chancellor approved and confirmed all of the acts of the clerk in vacation, including the probate of the said instrument in common form before the clerk, and without further notice to the contestants in that behalf. Thereafter the issue of devisavit vel non was made up, a jury empaneled and the trial of the issue was proceeded with, when proponent offered in evidence, over the objection of the contestants, the probate of the instrument in common form before the clerk and the order of the chancellor approving the acts of the clerk done in vacation, and then rested her case. The contestants then made a motion that the court vacate its order whereby the acts of the clerk in vacation had been approved and confirmed, on the ground that the court was without authority to enter such order while the contest of the purported will was pending and unheard. This motion was overruled and the contestants thereupon declined to offer any proof in support of their allegations of undue influence and lack of testamentary capacity. The motion which had been filed by the contestants in vacation to suspend the orders and proceedings had before the clerk, together with the order of the chancellor in vacation overruling the same, were then introduced by the proponent over the objection of the contestants, and whereupon both the proponent and the contestants requested a directed verdict in their favor respectively, and whereupon the court granted the peremptory instruction in favor of the proponent and, of course, refused that which had been requested by the contestants. From the decree entered pursuant to the verdict for the proponent in that behalf the contestants have prosecuted this appeal.
Section 507, Code of 1942, Section 1611, Code of 1930, provides as follows: "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."
Section 1251, Code of 1942, Section 340, Code of 1930, provides as follows: "All acts, judgments, orders, or decrees made by the clerk in vacation or at rules, shall be subject to the approval or disapproval of the court of which he is clerk, and shall not be final until approved by the court. All such orders and proceedings of the clerk may, by order of the chancellor in vacation, be suspended until a hearing before him in court, and shall be subject to such orders and decrees as the court may make."
Section 1248, Code of 1942, Section 337, Code of 1930, under the caption "Acts clerk may perform at any time," provides, among other things, that the clerk may at any time "take the proof of wills, admit wills to probate, in common form, grant letters testamentary," etc. It is also provided by said statute that the clerk "may make all orders and issue all process necessary for the collection and preservation of estate of decedents."
Section 504, Code of 1942, Section 1608, Code of 1930, reads as follows: "Any one desiring to contest a will presented for probate may do so before probate by entering in the clerk's office in which it shall be presented his objection to the probate thereof, and causing all parties interested and who do not join him in such objection to be made parties defendant; and thereupon the issue devisavit vel non shall be made up and tried, and proceedings had as in other like cases; and when an objection to the probate of a will has been made in writing, filed with the clerk, probate shall not be had of such will without notice to the objector."
The contestants complied with all the terms and provisions of the statute hereinbefore last quoted prior to the rendition of the order by the court wherein the acts of the clerk in vacation were approved and confirmed, unless it can be said that their action was not taken in that behalf "before probate."
It was held in the cases of Davis v. Blumenberg, 107 Miss. 432, 65 So. 503, and Stevens v. D.R. Dunlap Mercantile Co., 108 Miss. 690, 67 So. 160, 162, in defining what constitutes the "probate" of a claim against an estate, that: "The word `probate,' in this connection, simply means that the account has, in the judgment of the clerk, been proven in the manner required by law, and the fact that he allowed and registered it evidences the fact that . . . it had been so proven . . ." Likewise in the case at bar the entry by the clerk of his order in vacation admitting to probate the instrument here involved was an adjudication by him that the said instrument had been duly proven by the presentation thereof with the affidavits of the subscribing witnesses thereto attached.
In view of the fact that Section 1248, Code of 1942, Section 337, Code of 1930, supra, empowers the clerk to take the proof of wills, admit them to probate in common form, grant letters testamentary, and to make all orders necessary for the collection and preservation of the estates of decedents, and in view of the further fact that the issuance of letters testamentary to one who has duly qualified as executor or executrix under a purported will, has the effect of vesting in such person the prima facie authority to collect and preserve the assets of an estate, without regard to what distribution shall be ultimately made of such assets, we are of the opinion that such probate in common form before the clerk in vacation should be deemed prima facie evidence of the validity of the will unless and until its invalidity shall have been determined by the court. In so holding we are not unmindful that those desiring to file a caveat against the probate of a will under Section 504, Code of 1942, Section 1608, Code of 1930, supra, may not be able to avail themselves of the benefit of the provisions of this statute where a will is presented for probate in common form and is admitted to probate by the clerk without prior knowledge on the part of the would-be contestants that such an instrument is in existence, nevertheless the statute provides for the interception of the probate in those cases only where one desiring to contest a will has entered in the clerk's office his objection to the probate thereof "before probate." And we deem it unnecessary to discuss the numerous decisions cited in the briefs of counsel respectively, for the reason that it is to be conceded that the precise question here involved is one of first impression in this state and no decisions are called to our attention from other jurisdictions which are decisive of the issue before us.
From the foregoing views it necessarily follows that we are of the opinion that the action of the trial court in granting the peremptory instruction in favor of the proponent was correct and that the case must, therefore, be affirmed.
Affirmed.