Opinion
No. 36308.
March 17, 1947.
1. WILLS.
The words "interested parties," as used in statute providing that in will contest all interested parties shall be made parties, means parties who have a pecuniary interest in the subject of the contest, including heirs at law of the testator, who are also "necessary parties" (Code 1942, sec. 506).
2. ATTORNEY AND CLIENT.
Attorneys, who are officers of the court, were presumed to have been authorized to file answer in behalf of interested parties in will contest.
3. APPEARANCE.
Where attorneys filed answer in behalf of all interested parties in will contest, trial court was entitled to proceed the same as if they had been duly served with process by the contestants.
4. APPEAL AND ERROR.
Supreme Court is required to look to the record alone as filed in the Supreme Court.
5. WILLS.
Where attorneys filed an answer on behalf of all interested parties in will contest, and thereafter the attorneys moved to be allowed to withdraw the answer as to all persons named therein except one, and the motion was sustained, trial court nevertheless had the right to proceed with the will contest (Code 1942, sec. 506).
6. WILLS.
In contest of will of unmarried testator, wherein contestants relied on theory that the mother of the named beneficiary of the will had, by undue influence and persuasion, fraudulently induced testator to believe that the named beneficiary was the testator's illegitimate child, contestants' offered proof tending to show that chief beneficiary was probably the child of a third person was immaterial.
7. WILLS.
In will contest, proof of undue influence was insufficient to submit to jury.
8. WILLS.
In will contest, proof was insufficient to justify submission to jury of want of testamentary capacity.
APPEAL from the chancery court of Washington county. HON. J.L. WILLIAMS, Chancellor.
Ernest Kellner and Ben Wilkes, both of Greenville, for appellants.
The court erred in denying appellants' motion for a continuance. The ground for the appellants' motion for a continuance was that by reason of the withdrawal of the answer of the defendants, Rosaria Provenza, Salvatore Provenza, Luciano Provenza, and Concetta Provenza, the mother, brothers and sister of Frank Provenza, deceased, on the day of the trial by counsel who had answered for them, and against whom no process was had, they, as necessary parties, were not before the court. In any proceeding to contest the validity of a will, all persons interested in such contest shall be made parties.
Hoskins v. Holmes County Community Hospital et al., 135 Miss. 89, 99 So. 570; Hooks v. Burns, 168 Miss. 723, 152 So. 469; Austin v. Patrick, 179 Miss. 718, 176 So. 714; Hancock et al. v. Reedy, 181 Miss. 830, 180 So. 81; Dorsey v. Sullivan, 199 Miss. 602, 24 So.2d 852; Reedy et al. v. Johnson's Estate, 200 Miss. 205, 26 So.2d 685; Cajoleas v. Attaya, 145 Miss. 436, 111 So. 359; Ford v. Byrd, 183 Miss. 846, 184 So. 443; Code of 1942, Sec. 506.
The trial court erred in sustaining the appellee's motion to strike certain parts of the appellants' caveat. The trial court sustained the appellee's motion to strike on the ground that they were "impertinent and irrelevant" the following allegations from the appellants' caveat: (1) "a colored prostitute," (2) "that for many years said Genie Rawls has lived in prostitution with various men of both the colored and white races, including said Frank Provenza, deceased;" and (3) "although said Genie Rawls was still living in prostitution with other men." We recognize the general rule that an illicit relation is not sufficient per se to warrant a conclusion of undue influence. However, the illicit relation between Frank Provenza, deceased, and Genie Rawls, and her prostitution with other men both before and after her illicit relation with Frank Provenza, deceased, are not relied upon alone as constituting undue influence in this case. Those relations are relied upon to establish the alleged fraud of Genie Rawls in inducing and causing Frank Provenza, deceased, to believe that the proponent, Edward Provenza, was his son, whereby he was influenced to devise and bequeath the major part of his estate to the bastard child of Genie Rawls. If Genie Rawls was a colored prostitute living in prostitution with various men both before and after her illicit relations with Frank Provenza, deceased, those facts were pertinent and relevant to establish that Genie Rawls did not know who was the father of her child, the proponent, Edward Provenza, and that, as a reasonable inference therefrom, she defrauded Frank Provenza, deceased, into believing that he was the father of her child.
Morris v. Morris, 192 Miss. 518, 6 So.2d 311; Woodville v. Pizzati, 119 Miss. 442, 81 So. 127; Gathings v. Howard, 122 Miss. 355, 84 So. 240; Davis v. Calvert, 25 Am. Dec. 282; 28 R.C.L. 148.
The trial court erred in refusing the appellant's request to call Genie Rawls as an adverse witness. The appellants sought to call Genie Rawls as an adverse witness which was refused by the trial court with the statement, "You cannot call her as an adverse witness, if you call her she will be your witness." A witness may be introduced and cross-examined as an adverse witness upon a showing that the party calling such witness has been surprised by the testimony of such witness, or that such witness is hostile.
Bove v. State, 185 Miss. 547, 188 So. 557; Code of 1942, Sec. 1710.
Appellants' witnesses, L. Freeman, Bob Calloway and T.P. Reynolds, testified that they knew and were very intimate with W.W. Wilson up to the time of his death in 1928; that they knew Genie Rawls; that the relation of W.W. Wilson and Genie Rawls up to the time of his death in 1928 was that of husband and wife; that they saw and knew the children of Genie Rawls, including the proponent, Edward Provenza; that Wilson recognized the children of Genie Rawls as his children and that Wilson told them they were his children; that up to the time of the death of Wilson in 1928 they never heard or knew of any relation between Genie Rawls and Frank Provenza, deceased. The testimony of these witnesses was excluded on the grounds (1) that it impeached or contradicted the testimony of Genie Rawls, and (2) that it was not relevant. It is settled that a party cannot impeach the testimony of his witness; however, it is equally settled law that a party may prove a fact to be contrary to the testimony of his witness.
Jarnigan v. Fleming, 43 Miss. 710; Manning v. State, 188 Miss. 393, 195 So. 319; Davis v. Calvert, supra; 28 R.C.L. 643.
The court erred in excluding the power of attorney from the appellee to Genie Rawls Lewy. The power of attorney from the appellee to Genie Rawls Lewy, who was the same person as Genie Rawls, is as broad, full and complete as possible. In addition to the eleven enumerated powers, the power of attorney vests in Genie Rawls Lewy full, complete and general power over the estate of the appellee. The caveat charges that Genie Rawls, "with a view and purpose of ultimately gaining the estate of Frank Provenza, deceased, induced said Frank Provenza, deceased, to believe that the said Edward Provenza was born of the illicit relations between her and the said Frank Provenza, deceased," and that she continued said deception until the death of Frank Provenza, deceased, "in pursuance of her purpose to gain the entire estate of the said Frank Provenza, deceased." The foregoing power of attorney was executed on July 1, 1945, which was after the probate of the will of Frank Provenza, deceased, on October 1, 1943, and almost at the expiration of the two year period (statutory) for the contest of the will of Frank Provenza, deceased. Most certainly the execution of the power of attorney under those conditions was relevant evidence to sustain the foregoing allegations of the caveat.
The trial court erred in excluding the birth certificates of Nanette Rawls, Rastus Rawls, Kilmer Rawls, Sarah Rawls and Winston Bernard Rawls. The birth certificates were competent and relevant evidence to show (1) the continued prostitution of Genie Rawls practically up to the time of the death of Frank Provenza, deceased, and (2) that Edward Provenza was Edward Earl Rawls, the bastard child of Genie Rawls, a colored prostitute.
Childress v. Ford, 10 Smedes M. (18 Miss.) 25; 2 Jones on Evidence (2 Ed.), pp. 1083, 1149.
The trial court erred in granting a peremptory instruction for the appellee.
Curry v. Lucas, 181 Miss. 720, 180 So. 397; Isom v. Canedy, 128 Miss. 64, 88 So. 485; 28 R.C.L. 139; 1 Jones on Evidence (2 Ed.), 438.
Farish Keady, of Greenville, for appellee.
The court did not err in denying appellants' motion for a continuance.
Chambliss v. Chambliss, 182 Miss. 480, 181 So. 715; Lester v. Watkins, 41 Miss. 647; 68 C.J. 934, Sec. 678.
The court did not err in sustaining appellee's motion to strike certain allegations of appellants' caveat.
Crosby v. Columbus G.R. Co., 182 Miss. 771, 181 So. 139; 49 C.J. 722, Sec. 1015.
The court did not err in refusing appellants' request to call Genie Rawls as an adverse witness.
Bove v. State, 185 Miss. 547, 188 So. 557; Moore v. Chicago, St. Louis New Orleans R. Co., 59 Miss. 243.
The court did not err in excluding the testimony of appellants' witnesses, Freeman, Calloway and Reynolds.
Manning v. State, 188 Miss. 393, 195 So. 319; 70 C.J. 1156-1159, Sec. 1341.
The court did not err in excluding the power of attorney from appellee to Genie Rawls Lewy.
The court did not err in excluding the birth certificates of the five other children of Genie Rawls.
The court did not err in granting a peremptory instruction for the appellee.
Moore v. Parks, 122 Miss. 301, 84 So. 230; Fortenberry v. Herrington, 188 Miss. 735, 196 So. 232; Gathings v. Howard, 122 Miss. 355, 84 So. 240; O'Bannon v. Henrich, 191 Miss. 815, 4 So.2d 208; Morris v. Morris, 192 Miss. 518, 6 So.2d 311; Isom v. Canedy, 128 Miss. 64, 88 So. 485; Sanders v. Sanders, 126 Miss. 610, 89 So. 261; Scally v. Wardlaw, 123 Miss. 857, 86 So. 625; Estes v. McGehee, 133 Miss. 174, 97 So. 530; Barnett v. Barnett, 155 Miss. 449, 124 So. 498; Davis v. Calvert, 25 Am. Dec. 282; Saxton v. Krumm, 107 Md. 393, 126 Am. St. Rep. 393; Norton v. Clark, 253 Ill. 557, 97 N.E. 1097; 28 R.C.L. 148; 68 A.L.R. 243; 68 C.J. 477.
Argued orally by Ernest Kellner, for appellants, and by William Keady, for appellee.
The appellants, Vincent and Tony Provenza, residents of Greenville and Benoit, Mississippi, respectively, filed a contest of the will of their brother, Frank Provenza, deceased, in Washington County. The trial resulted in a directed verdict and decree, sustaining the will, after the introduction of certain evidence by the contestants, whereby they undertook to show that the execution of the will was obtained through undue influence, and that there was a want of testamentary capacity.
The defendants, or respondents, to the contest were the appellee, Edward Provenza, a resident of Washington County, and the mother, two brothers and a sister of the deceased, who reside in Italy. It was shown that the said Frank Provenza executed the will on August 4, 1941, and that he died on September 26, 1943; that he left an estate of the estimated value of $80,000, which was all devised to the appellee, Edward Provenza, with the exception of that which was devised to his mother, two brothers and a sister, residing in Italy as aforesaid, consisting of $12,500 in cash to be divided among them equally, and the sum of $30 per month to each of them during the lifetime of each of the said beneficiaries.
The contest was filed on September 29, 1945, within the two-year period allowed by law, and an answer was filed on behalf of the appellee, Edward Provenza, and the foreign defendants, denying the allegations of the contest as to undue influence and want of testamentary capacity, and it appears that on March 13, 1946, an order was entered by the court, setting the cause for trial by agreement of the parties on March 21, 1946, and providing for summoning a jury to hear the contest on that date.
When the cause came on for trial, it appears that the attorneys who had filed the answer made a motion to be allowed to withdraw the same as to all persons named therein, except the appellee, Edward Provenza, and that this motion was sustained. Whereupon the contestants moved the court, "to continue this cause for the reason that the defendants . . ., citizens of Cefalu, Italy, having withdrawn their answer in this cause upon the foregoing motion and order — and said defendants not having been made parties hereto by service of process on them, or by publication of process against them, and for the further reason that said defendants are necessary parties to a trial of this cause . . ." This motion for a continuance was overruled, and the action of the trial court in that behalf is assigned as one of the several grounds relied upon for a reversal of the cause.
Section 506, Code 1942, provides that, "In any proceeding to contest the validity of a will, all persons interested in such contests shall be made parties." And it was held in the case of Hoskins v. Holmes County Community Hospital, 135 Miss. 89, 99 So. 570, 573, that the words, "interested parties," in the statute, are deemed to mean parties who have a pecuniary interest in the subject of the contest, and that the heirs at law who would take the property of the deceased in the absence of a valid will are interested parties, and also that they are necessary parties under the very terms of the statute itself. It was further held, in that case, that "the court cannot properly entertain a contest of the will without having before it all the parties interested in such contest."
However, this does not mean that after an answer has been filed to the contest, and where the court has acquired jurisdiction of the subject matter, and of all the interested parties, either as complainants or defendants, the jurisdiction is lost by the withdrawal of answer filed on behalf of any of such defendants, where the filing of such answer has been duly authorized by them. Moreover, the presumption is that the attorneys, who are officers of the court, filing such an answer, have been duly authorized to do so. In the instant case there is no proof in the record to the contrary. Therefore, after the filing of such an answer, the trial court is entitled to proceed the same as if the defendants named therein have been duly served with process.
We are unable to consider any statements found in the briefs of counsel as to the want of authority on the part of the attorneys who filed the same, but we must look to the record alone, as filed in this court, in determining whether or not all the interested parties were before the trial court. We are, therefore, of the opinion that the trial court did not commit error in proceeding with the trial.
It appears from the proof on the contest that Edward Provenza, the chief beneficiary under the will, was the son of Genie Rawls, a white "colored" person; that he was born in 1923, some eighteen or nineteen years before the will was executed; that the instrument was prepared by an attorney, who is named as the executor therein, and that neither Genie Rawls nor Edward Provenza were present, either at the time the same was prepared, or at the time the same was executed; and the proof fails to show that either of them knew that he had executed the will until they learned of such fact after the death of the testator.
It was recited in the will that: "My relatives in this country have never been friendly with me, and the fact that none of them is mentioned in this will is deliberate on my part, and not through any oversight. It is my wish that none of them have any part in what I leave."
The proof further disclosed that for several years prior to the death of the testator, the said Edward Provenza was frequently seen working about the store and fruit stand of the testator; that the latter recognized him as being his son, was very fond of him, and kept his photographs in the store while he was in the army, subsequent to the execution of the will; and it does not appear when he first began bearing the name of Provenza.
As against the foregoing proof, the contestants relied upon the theory that the mother of Edward Provenza had, by undue influence and persuasion, fraudulently induced the testator to erroneously believe that Edward Provenza was his child. Then, too, the contestants offered proof, which was rejected by the trial court, tending to show that Edward Provenza was very probably the child of one Mr. Wilson. But we are of the opinion that this profferred testimony would have been wholly immaterial, since the testator had the legal right to will his property to the boy, even under a mistaken belief that he was his child, or for any other reason satisfactory to him, since he had no wife to renounce the same.
There was some proof on behalf of the contestants to the effect that several years prior to the execution of the will the testator thought that he was "hoo dooed" by Genie Rawls, and that he was at that time afraid of her.
There being no proof that Genie Rawls actually attempted to deceive the testator as to the parentage of her son, or that the latter influenced him at all in the making of the will, we are of the opinion that the action of the trial court was correct when it held that the proof of undue influence was insufficient to submit to a jury. For aught that appears from this record, the testator formed his own conclusion and judgment as to the parentage of Edward Provenza, if indeed it makes any difference who was his father.
The proof was also wholly insufficient to justify the submission to the jury of an issue as to any want of testamentary capacity.
We have carefully considered the other assignments of error relied upon here, and we are of the opinion that, in view of the conclusions reached on the questions hereinbefore mentioned, they do not justify a reversal of this cause.
Affirmed.