Opinion
No. 32227.
April 27, 1936.
1. WILLS.
Where instrument alleged to be a will does not sufficiently indicate on its face that it was intended to be of testamentary character, parol evidence is admissible to show intent of writer of such instrument (Code 1930, section 1609).
2. WILLS.
Parol evidence held to sustain finding that instrument which did not on its face sufficiently indicate that it was intended to be of testamentary character was a will (Code 1930, section 1609).
3. WILLS.
Whether writing produced is testator's will is sole question to be determined on issue of devisavit vel non and questions as to construction, sufficiency of identification of beneficiaries, and description of property devised cannot be considered (Code 1930, section 1609).
4. WILLS.
Construction of will adopted by lower court of alleged illegible words could not be changed on appeal where original will was not before appellate court.
APPEAL from the chancery court of Winston county. HON. T.P. GUYTON, Chancellor.
E.M. Livingston, of Louisville, for appellants.
The will was not probated in common form, none of the heirs of the decedent having been made party defendants. It is true the clerk entered a decree admitting the will to probate and the acts of the clerk in entering the order in vacation were approved by the court, but at the time of the approval thereof the objections of the contestants were on file and an agreement was reached by the attorneys representing all of the parties that the cause be continued and at the September term of court 1935, the cause was tried. The demurrer filed in this cause should have been sustained.
The instrument offered for probate is neither in form nor in substance a will. There is not a word in the instrument of a dispositive character. The instrument conveys nothing and is, therefore, not a will.
Young v. Wark, 25 So. 660; In re Richardson's Estate, 94 Cal. 65, 29 P. 485; 1 Jarm. Wills, 24.
The only description of property contained in the will is the north half of lot 18, and I submit that the description is insufficient.
39 C.J. 381.
The instrument presented for probate is not legible and is not capable of being read.
I realize that a different rule prevails as to description in mortgages and deeds from that of a will, but I find no case directly in point in Mississippi as to a will. Since that is true I think the opinions of this court as to valid descriptions in a mortgage or deed are at least persuasive herein.
Sack v. Gilmer Dry Goods Co., 115 So. 339; Bowers v. Andrews, 52 Miss. 596; Dingey v. Packston, 60 Miss. 1038; Sims v. Warren, 67 Miss. 278; Haughton v. Sartor, 71 Miss. 357; Nelson v. Abernathy, 74 Miss. 164; Smith v. Brothers, 86 Miss. 241; Gilchrist v. Thigpen, 114 Miss. 182.
It is respectfully submitted that the court committed error in permitting the introduction of any testimony whatever in the case, but after admitting the testimony it was error under the facts as developed herein for the court to overrule the motion to exclude and direct the jury to return a verdict for the contestants.
L.L. Martin, of Macon, for appellees.
The demurrer was properly overruled. The will was probated in common form, the acts of the clerk in vacation having been approved by the court at a prior term and the record stood at the time the demurrer was presented.
Though a will may be unambiguous on its face, parol testimony is admissible as to character of property owned by testator both at time of execution of will and at time of death, in order to properly apply terms of will to estate of which he died seized and possessed.
Welch v. Welch, 113 So. 197.
Appellants argue that the will is illegible and for this reason should not have been admitted to probate and record. They admit that it is within the authority of the court to interpret and construe the will but argue that the court in this case could not do so because, as appellants contend, the witnesses were unable to properly read the will. The fact that the court did interpret and construe the will seems to answer the argument of the appellants.
The jury in this case heard all the evidence and facts and returned a verdict upholding the will and we think that the jury verdict will settle any controversy wherein the evidence is conflicting.
L.N. Kinard died in October, 1934. Shortly thereafter a writing alleged to be his holographic will was admitted to probate by the chancery clerk, without notice, on proper affidavits. Thereafter the appellants, the heirs at law of L.N. Kinard, filed a protest to the probate of the will in accordance with section 1609, Code of 1930. An issue of devisavit vel non was then made up and tried by a jury, which found that "the instrument herein propounded is the last will and testament of L.N. Kinard." A decree was then rendered in accordance with the verdict.
The will was originally probated to read as follows:
"L.N. Kinard
"Brookville Aug. 10, 1934
"I want Jessie, Louise, Noy Waine
"To have the North haf of Lot 18 never to sell or dispose of it
"It fore love. L.N.K."
The appellants' complaints are that (a) the writing is not testamentary in character; (b) it does not sufficiently designate the beneficiaries or describe the property devised; and (c) the writing is illegible.
1. The instrument may not on its face sufficiently indicate that it was intended to be testamentary in character. Young v. Wark, 76 Miss. 829, 25 So. 660. In that case it was said that there was no collateral evidence indicating that the writer of the paper intended it to be his will. Parol evidence is admissible for this purpose, Prather v. Prather, 97 Miss. 311, 52 So. 449; Sullivan v. Jones, 130 Miss. 101, 93 So. 353, and such evidence was here introduced being, in substance, the relation existing between the deceased and the beneficiaries named in the will, together with the fact that just prior to his death he handed the paper to another stating that it was his will.
2. The court below correctly held that the construction of the paper and its legal effect, specifically, the sufficiency of the identification of the beneficiaries and the description of the property devised, did not arise on an issue of devisavit vel non. The question to be there determined is "whether the writing produced be the will of the testator or not." Section 1609, Code of 1930. "Questions of its construction and legal effect are plainly not embraced in such an issue, and should be left for subsequent adjudication." Cameron v. Watson, 40 Miss. 191; Lusk v. Lewis, 32 Miss. 297.
3. The appellants assert that the will is illegible, particularly with respect to the last three words, "it fore love," which appear in the instrument as originally probated. There was some evidence offered as to this, which seems to have been excluded by the court. The decree rendered, however, recites, after confirming the probate of the will, "with the exception that it appears to the court that the last two (?) words in the record of said will reading, `It fore love,' is a mistaken interpretation of said will, and that the words as written and intended by said testator as shown by said will is instead of said three words, `it fore love' the words `unless forced two' and the record of said will to this extent is hereby changed and corrected, and said will is established with said words reading `unless forced two.'" The court below had the will before it, which we have not, and therefore we are unable to say that its reading of the will was wrong.
Affirmed.