Opinion
No. 37833.
February 19, 1951.
1. Wills — implied revocation — parol evidence.
An implied revocation of a will may be shown only by the execution of conflicting deeds and other instruments, and parol testimony in the attempt to establish such a revocation is not admissible.
2. Appeal — decree on wrong ground, right result.
If a decree has been based upon a wrong ground, but is correct as having reached the right result on the whole case, it will be affirmed.
3. Wills — concealing — duty to produce.
It is a crime knowingly to secrete a will, and as a matter of public policy a person in possession of a will, after the testator's death has a duty to produce and file it with the proper parties or court.
4. Wills — estoppel to present will for probate.
A person by his conduct may estop himself and his privies from subsequently procuring probate of a will, and such an estoppel may be predicated upon long delay in propounding the will for probate during which property of the estate was transferred to subsequent purchasers for value and without notice of the will.
5. Equity — maxims — clean hands.
He who comes into an equity court must come with clean hands and he cannot use the processes of that court when his conduct with respect to the transaction in question has been characterized by wilfull inequity, illegality and fraud.
6. Wills — estoppel against fraudulent proponent — inequitable conduct as a bar.
The draftsman of a will retained it in his possession for about three years, concealing its contents from the testator's widow and the devisees and all others, but immediately after testator's death set about covinously to purchase and did purchase by unrecorded deeds the interests of the devisees for a nominal consideration and when thereafter made a party defendant to a cloud suit by the widow, the sole heir at law, he admitted by a decree pro confesso that the alleged testator died intestate after which a third party in reliance thereon purchased from the widow her entire interest therein for an adequate consideration: Held that the said draftsman was estopped and barred by his illegal, fraudulent and misleading acts from probating the will as against the widow's grantee.
Headnotes as approved by Ethridge, C.
APPEAL from the chancery court of Franklin County, R.W. CUTRER, Chancellor.
Forman Torrey, for appellant.
I. The proof shows conclusively that Eph Stoball, testatory, was, at the time of making his will, of sound and disposing mind and memory, above the age of 21 years, and fully possessed of testamentary capacity in every respect.
II. The proof shows conclusively that Eph Stoball, testator, was, at the time of the making of his will, not in anticipation of immediate death.
III. The proof shows conclusively that the will was duly and properly executed by the testator, in every respect, according to the statutes in such cases made and provided, and without duress, fraud or undue influence being brought to bear upon him by any person. Bolton, et al. v. Bolton, et al., 107 Miss. 84, 64 So. 967; Tyson v. Utterback, et al., 154 Miss. 381, 122 So. 496.
IV. The proof shows conclusively that the will was never revoked by the testator during his lifetime, either expressly, impliedly, or by operation of law. Hilton v. Johnson, et al., 194 Miss. 671, 12 So.2d 524; Hoy v. Hoy, 93 Miss. 732, 48 So. 903; Gaine v. Barnwell, 120 Miss. 209, 82 So. 65; Jones v. Mosely, 90 Am. Dec. 327; Garrett v. Dabney, 27 Miss. 335.
V. Sec. 658 Code 1942 by its very language excludes the use of parol testimony to vary or change a will in any respect. Hilton v. Johnson, et al., 194 Miss. 671, 12 So.2d 522; Stratton v. Durham, 191 Miss. 420, 2 So.2d 551; Minor v. Russell, 126 Miss. 228, 88 So. 663; Moore v. Parks, 122 Miss. 301.
VI. The will itself was and is proof in this record that it is not void and illegal, but on the contrary, is in every respect a good and valid testamentary disposition of the property of the testator, capable of being established and effectuated by the court according to the intention and wishes of testator, Eph Stoball, deceased. Scott v. Turner, 137 Miss. 636, 102 So. 467; Cross v. O'Cavanagh, 198 Miss. 137; Temple v. First National Bank of Meridian, 202 Miss. 92, 30 So.2d 605; Yeates v. Box, 198 Miss. 602, 22 So.2d 411; Hamberline, et al. v. Terry, Executor, et al., S. M. Ch. 589; Henry H. Morris v. William St. J.E. Henderson, 37 Miss. 492; S.W. Barton, et al. v. Richard M. King, et al., 41 Miss. 288; Byrd v. Wallis, 182 Miss. 499, 181 So. 727; Clark v. Case, et al., 42 So.2d 109.
L.A. Whittington, for appellee.
The appellant was without authority of law to probate the will. He was without interest in the property, and he, therefore, could not propound the will for probate. Cochrane, et al. v. Henry, 107 Miss. 233, 65 So. 213. This appeal herein is by Archie Prather, a disinterested party. On the contrary, if the appellant, Archie Prather, was an interested party, was to obtain for himself the property devised to the devisees, then living, to wit, Martha, Fred and Elzie Stoball, then he was incompetent to establish the will as a subscribing witness. Sec. 661 Code 1942. The whole proof shows that, if and when Archie Prather had established the will as the last will and testament of Eph Stoball, the property was to be his that was devised to the above named devisees. We are unable to distinguish the lack of competency of the subscribing witness under these facts and circumstances from the statute making him incompetent as a subscribing witness to a will wherein he is devised property.
The will is to be signed by two competent witnesses. In this case, the only witness offered to establish the probating of the will was the appellant, Archie Prather.
The evidence of the justice of the peace was wholly insufficient because the execution of the will could not be established by one competent witness and because his evidence is wholly insufficient to meet the burden of proof required to establish the execution of the will and the capacity of the testator.
In either case, the decree of the chancellor refusing to allow the probate of the will as the last will and testament of Eph Stoball should be affirmed.
Again, the evidence offered in support of the probate of the will was wholly insufficient to meet the burden of proof showing the testamentary capacity of the testator at the time of the execution of the will.
Again, the facts and circumstances and evidence show overwhelmingly that the petitioner, Archie Prather, has come into a court of equity with unclean hands and by his fraudulent acts in concealing the will, should not in equity be allowed to profit, or gain thereby or therefrom.
Again, the only inference and presumption that may be inferred from the statement of the appellant that he would destroy the will, or burn it, if the widow would sell him forty acres of the land and his statement undisputed that he would offer the will for probate, if the devisees would sell him the land devised to them, is that he knew that Eph Stoball had told him to destroy the will, or that he knew that Eph Stoball knew nothing about the execution of the will.
He knew that Eph Stoball had married, that he lived with his wife some three years before he died and his statement is that he never said anything to Eph Stoball about the will after he returned home, recovered in health and after he married. If he had the right to destroy, or burn, the will, it must follow that either he had been instructed by Eph Stoball to destroy, or burn, the will, or he knew that Eph Stoball had no recollection of executing it.
It was testified to by Leonard James that Archie Prather said, if the widow would sell him the forty acres next to his land, "I will tear up the will or burn it", and by Mr. Mullins to the same effect. This evidence was not disputed by Archie Prather, the appellant herein.
And we submit that the decree of the court below should be affirmed because the will had been impliedly revoked, that is, by operation of law.
The provisions thereof, after the marriage of Eph Stoball, have become unenforceable, because of a statute which provides that the widow, where not provided for in the will, should take a child's part, in this case, one-half of his property. Counsel has misinterpreted the contention made in the court below as to the effect of the marriage, subsequent to the date of the alleged will.
If the will had devised to his nephews and nieces all his property, a different case would have been presented. They would have taken between themselves only one-half of the property.
But the will in this case made specific bequests and specified the land and property that was devised to each. Since the testator only owned 75.87 acres, and since he gave the 40 acres of the NW 1/4 of the NE 1/4 to three of the devisees, and to the other 36 acres, which was the W 1/2 of the SE 1/4, North and East of Sandy Creek (by inference only), it would be impossible for the terms of the will to be carried out, for to undertake to do so would be for the court to write the will and find some land for the devisee, Elzie Stoball, for undoubtedly, the home and 36 acres of land would have to be given to widow for her one-half interest of the land. For this reason, we say that by operation of law, by statute, the said will was and is impliedly revoked. This is the implied revocation contended for in the court below.
In support of the above counsel cited the following authorities: Sheehan v. Kearney, 82 Miss. 688, 21 So. 41; Moore v. Parks, 122 Miss. 301, 84 So. 234; Maxwell v. Lake, 127 Miss. 107, 88 So. 326; Smith v. Young, 134 Miss. 738, 99 So. 370; Thompson on Wills, 2nd Ed., par. 169, p. 222; Holcomb v. Holcomb, 173 Miss. 192, 155 So. 564; Sec. 669, Code 1942.
This is an appeal from a decree of the Chancery Court of Franklin County, Mississippi, disallowing the requested probate of a will of Eph Stoball. The petition for probate was filed by Archie Prather, who is the grantee of the three devisees in the will, and by the devisees. Prather is the only appellant. The principal question involved is whether Prather is estopped by his actions subsequent to testator's death from probating this will under which he is now the sole claimant. We hold that he is so estopped and affirm the decree of the chancery court.
In the early fall of 1938 the testator, Eph Stoball, a Negro, was about sixty-eight years of age. He lived about fourteen miles south of Meadville in Franklin County. His foot and leg became infected, and in September, 1938, Prather, whose property adjoined that of Stoball, was requested by Stoball to take him to the hospital in Natchez, for treatment of the infected leg. This was done, and Stoball remained in the hospital for approximately five months. After he had been there for about a month, Stoball sent for Prather and asked him to prepare a will for him according to Stoball's directions. Prather wrote the will in his own handwriting, and Stoball signed it on October 6, 1938. It was witnessed by Prather and also by a justice of the peace. Bolton v. Bolton, 1914, 107 Miss. 84, 64 So. 967. At Stoball's request, Prather took custody of the will and kept it in his possession.
When the will was executed, Stoball was not married, and had no children. The will undertook to devise in stated parts the property of Stoball, consisting of about seventy-six acres, to two of his nieces, and two of his nephews. One of the nieces died before the testator's death. After his release from the hospital, Eph Stoball married Rena Simms on April 28, 1940. They had no children. Stoball died in August, 1943. Apparently Prather was the only person at that time, other than the other witness, who had any knowledge of the existence of the will. Prather admitted that he did not show the will to the widow, but stated that he told her several months after testator's death that Eph had left a will, but he did not tell her the terms of it. The widow remained in possession of the property until February 27, 1946, when she moved to California. Shortly after Eph's death the widow undertook to sell some wood on the property to third parties, and Prather warned them not to purchase any wood or deal with her with reference to the land.
Almost immediately after testator's death, Prather, who continued to retain possession of the will and failed to disclose its contents, began trying to locate the devisees in the will for the purpose of buying their interests from them. On October 29, 1945, one of the devisees, Martha Stoball, in consideration of $1 and the balance of $159 payable "if and when" Stoball's will would be duly established, conveyed her interest under the will to Prather. Another devisee, Elzie Stoball, in August, 1945, executed a similar deed of his interest under the will to Prather, and on October 10, 1945, the remaining devisee, Fred Stoball, executed a similar deed to Prather. Each of the deeds provided that "the balance of the purchase price . . . it to be reduced to not more that forty per cent to compensate the grantee for his efforts in establishing said will". None of these deeds were filed for record in Franklin County until May 12, 1948.
In the meantime the widow, Rena Stoball, filed a bill of complaint in Cause No. 5299 in the Chancery Court of Franklin County against Prather, upon whom personal process was served, and against Elzie Stoball, a nephew and devisee of deceased, a resident of Louisiana, upon whom substitute process was obtained. The bill charged that Rena was the sole heir of Eph Stoball, that he died intestate, that she owned the seventy-six acres in Franklin County, that the two defendants were asserting some claim to the land, the exact nature of which was unknown to complainant; and complainant prayed that their claims be removed as clouds upon her title, which should be confirmed. Prather and Elzie Stoball appeared by their attorney and moved for time in which to answer, and on December 11, 1945, they were given until January, 1946, rules. On March 1, 1946, an order was executed, by consent of counsel of all parties, setting the case for final hearing on April 4, 1946. Defendants did not appear, and Rena Stoball moved for a decree pro confesso, which was granted on June 11, 1946. In that decree it was adjudicated that the defendants had failed to file any answer and that "all matters and facts and all allegations of the bill of complaint set forth therein be taken as confessed as against both defendants above named". No final decree was taken upon that decree pro confesso, but that latter decree is still in effect and has not been set aside. When Prather was given additional time to answer the complaint, on December 11, 1945, he had already obtained from the three devisees in the will deeds to their interests. He did not file any pleading or answer setting up his claims, and wholly failed to comply with his duty to disclose them to the court.
Instead of answering in Cause No. 5299, Prather, on September 20, 1946, filed a petition, in Cause No. 4938-A, as the alleged agent for the three devisees, setting up that Eph Stoball had left a will and asking for its probate. The terms of the will were not disclosed, nor was a copy attached to the petition for probate. Another petition for probate of the will in the same cause was filed by Elzie Stoball on September 25, 1946, in which petition a copy of the will was set forth, but no affidavit of subscribing witnesses was attached until July 23, 1948. To this Rena Stoball filed an "objection to probating will", charging that the will had been revoked after her marriage to testator, and that he was not mentally competent when the will was made. No action was taken on these two petitions until July 24, 1948, when Archie Prather and the three devisees filed an amended petition for probate of the will in this same cause. Walter Mullins then intervened, and pleaded a void description of the property in the will, an implied revocation by deceased in his lifetime, that on February 27, 1946, Rena Stoball had conveyed to him all of her interest as Eph's sole heir for a consideration of $1,600 cash, and that Rena Stoball died on or about September 1, 1948. Mullins also pleaded that Prather had wrongfully kept the will and concealed its existence and terms for at least three years after testator's death until he could get deeds from the devisees, and that Prather was estopped to probate or claim under it.
This matter came on for trial at the September, 1949, term of the Chancery Court. Prather was the only witness for proponent of the will. The objectors to the probate used eight witnesses, several of whom testified that Eph Stoball told the witness after his marriage that he wanted Rena to have all his property after his death; and that she was his only lawful heir. (Hn 1) Much of the testimony was devoted in this way to undertaking to show an implied revocation of the will by testator. However, this evidence was improperly admitted. 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. Hoy v. Hoy, 1909, 93 Miss. 732, 48 So. 903, 25 L.R.A., N.S., 182. Exclusion of such parol evidence of oral statements of testator is also necessary under the general rule of evidence. 2 Page, Wills, Secs. 871, et seq.; 57 Am.Jur., Wills, Sec. 456, 457. However, the admission of this evidence was harmless error because the case must be affirmed on another basis.
The chancellor in his opinion found as a fact that Prather, the sole appellant, had wrongfully retained the will, and that he was "trying to chisel the old woman out of her property". The trial court adjudicated that the will should not be admitted to probate. (Hn 2) The decree is not clear. It could have been based upon estoppel or implied revocation. If the latter, we hold nevertheless that the trial court's decree should be affirmed because the decree reached the correct result, for reasons subsequently set forth.
The inequitable and fraudulent conduct of appellant and Mullins' change of position based upon Prather's actions precludes and estops him from probating this will. He is now the sole claimant under the will. Appellant wrongfully concealed the terms, if not the existence of this will, until Elzie Stoball filed his petition for probate on September 25, 1946. He concealed this matter for more than three years after testator's death. Uncontradicted testimony of two witnesses for appellees was to the effect that Prather had offered to Mullins to destroy the will if Mullins could buy cheaply Stoball's property from his widow and let him, Prather, have forty acres of it on the same basis.
Prather wilfully failed to comply with his duty to reveal the existence and contents of the will with reasonable promptness to the widow and the devisees. On the contrary, he admitted that he only told the widow in mysterious terms that he had in his possession a will left by Stoball. He defrauded the widow, and he also defrauded the devisees. He refused to let them have the will, insisted on deeds, paid only a nominal consideration, and charged them forty per cent of the contingent purchase price for him, a subscribing witness, proving the will.
Prather himself testified that in 1945, when he was negotiating with the devisees for the purchase of their interests, that "Those boys came to my house after I contacted them, followed up, just like you followed it, I handed it to them, one took a hold of it. I would not turn it loose. I said `There it is. If you ain't going to have it, give it away, that's your affair. If we can agree on a price, I'll buy it.' I put it if and when."
Moreover, Rena Stoball, the widow, sued him to remove any clouds on her title and obtained personal process. Prather never answered that bill in which it was charged that Eph Stoball died intestate, Rena was his sole heir, and that defendant was making some unknown claim to the property. The pro confesso decree held that these allegations were admitted. It is still in effect. No motion has been made to set it aside. The appellant held onto the will until he had obtained deeds from all of the devisees. He failed to comply with his duty to the court to reveal the facts.
In brief, Prather wrongfully withheld and concealed the terms of the will for at least three years during which time he had the will in his exclusive possession. He began immediately after Stoball's death to try to buy the devisees' interests, all the time concealing from others entitled to know the facts the terms of the will. He even concealed them from the court in Cause No. 5299, although when he obtained additional time in which to plead, he already had deeds from the three devisees in question. (Hn 3) As a matter of public policy and at common law a person in possession of a will, after testator's death, has a duty to produce and file it with the proper parties or court. Miss. Code, Sec. 497; 2 Page, Wills, Sec. 585. It is a crime in this state knowingly to secrete a will after the testator's death. Miss. Code, Sec. 2417. Appellant in effect admitted that he refused to turn the will over to the widow, and the devisees when he was negotiating for the purchase of their interests. He did not pay those grantors for their deeds more than a nominal consideration, exacted a substantial sum for proving the will, and offered to destroy the will if the land could be purchased cheaply from the widow.
On the other hand, Prather knew that Mullins was interested in buying the property. Mullins testified that Prather told him in the Spring of 1945 that he had a will of Stoball's in his possession, but that Prather never told him its terms. Mullins bought from Rena Stoball about a year after this conversation with Prather, and under these circumstances we think he was justified in assuming that, if Prather had a will of Eph Stoball, or at least a valid one, he would have turned it over to the widow or probated it. Mullins' attorney made a search of the public records, and found no will or deeds. Laches and estoppel are closely related, as are estoppel by delay and by silence or inaction. 19 Am.Jur., Estoppel, Secs. 38, 59. Estoppel may exist where based upon words, conduct, silence, or delay. All of them co-exist here. Ibid., Sec. 85. When Mullins bought the land from Rena Stoball on February 27, 1946, Rena was in possession claiming it as sole heir. He paid her $1,600 for it. None of the deeds from the devisees to Prather were then of record, nor was Prather in possession. Nor had Prather filed any answer to Rena's bill asserting for himself any claim. And when the pro confesso decree was taken on June 11, 1946, Prather's apparent abandonment of any claim to the land evidenced thereby and whatever other effect that decree had inured to the benefit of Rena's grantee, Mullins.
Under all of these circumstances Mullins was not further obliged to insist on Prather producing a will in order for Mullins to qualify as a bona fide purchaser as against Prather. Whether Mullins would have been such as against the devisees if they had not conveyed their interests to Prather is not in issue here. Insofar as Prather and his interest is concerned Mullins was a bona fide purchaser for value of the property. Prather's wilful concealment of the will and its terms, and his failure to record his deeds from the devisees were the causes of the change of position by Mullins in reliance on the misleading, fraudulent, and wrongful acts of Prather. Prather is estopped under these facts from probating the will, and, since Prather claims the entire interest devised under the will, the estoppel extends to any rights which might accrue under it. The elements of equitable estoppel must be considered in the light of all the peculiar circumstances of this case, and of a balancing of the equities of the respective parties. As is said in 19 Am.Jur., Estoppel, Sec. 39, "the proper function of equitable estoppel is the prevention of fraud, actual or constructive . . . the counter equities of the parties are entitled to due consideration".
This result is consistent with the cases which have dealt with this type of problem. 57 Am.Jur., Wills, Sec. 794, states the rule to be that (Hn 4) "a person by his conduct may estop himself and his privies from subsequently procuring probate of a will. An estoppel may be predicated upon long delay in propounding the will for probate during which property of the estate was transferred to subsequent purchasers for value and without notice of the will". In Dowd v. Dowd, 1941, 62 Idaho 631, 115 P.2d 409, 412, 135 A.L.R. 1213, there was no innocent purchaser involved. The Court applied this principle of estoppel to probate to a situation where the widow had originally concealed a will, obtained letters of intestate administration, and later sought to probate the will. Upon a contest by deceased's children, the Court held that the financial expenses which they had incurred in order to defend the precedent litigation, and the "mental disquietude and family disturbance" caused by the widow's concealment of the will constituted a sufficient change of position to support an estoppel. The Court said: "If one, who has destroyed a will, is estopped to thereafter resist probate thereof, it is difficult to see how one who deliberately withholds or conceals a will may thereafter be allowed to urge its probate." See also Annotation, 135 A.L.R. 1222. In re Swisher's Estate, 1945, 153 Kan. 401, 110 P.2d 765 involved a somewhat similar situation. The proponents of a will had concealed it from the probate court, and were estopped to probate it at a later time. The heirs had incurred financial expenses in defending the first lawsuit concerning an earlier will. This was considered sufficient change of position by them to support an estoppel.
(Hn 5) Another reason why the decree of the chancery court must be affirmed is that a court of equity is a court of conscience, and nothing but good faith and reasonable diligence by Prather could call forth the exercise of equity's powers. Stated differently, he who comes into an equity court must come with clean hands. One cannot use the processes of that court when his conduct with respect to the transaction in question has been characterized by wilful inequity, illegality, and fraud. Griffith, Miss. Chancery Practice (2d Ed., 1950), Secs. 32, 42. (Hn 6) Appellant's actions since testator's death with reference to the will have deprived him of any equitable standing.
Affirmed.
The above opinion is adopted as the opinion of the Court, and for the reasons therein stated, the case is affirmed.