Opinion
No. 34623.
May 26, 1941.
WILLS.
A letter by testator to daughter reciting "I am revoking my will" in favor of sister but not declaring that testator revoked will thereby did not revoke the will, in absence of evidence that any intent to do so was carried out, or of written declaration, testamentary or otherwise, revoking the will.
APPEAL from the chancery court of Amite county, HON. R.W. CUTRER, Chancellor.
Joe D. Gordon, of Liberty, and Price, Price Phillips, of Magnolia, for appellant.
The contestants' evidence on the question of deceased revoking his will was insufficient for the court to submit this issue to jury or sustain the verdict of the jury, because the express revocation offered by contestants was insufficient as a matter of law.
Code 1930, sec. 3551; Harriston et al. v. Harriston et al., 30 Miss. 276.
This letter must be taken by this court and by all concerned as a whole; simply taking therefrom the last part thereof regarding the alleged revocation one would have no meaning nor sense of what was to be intended. We therefore respectfully contend that when the content and substance of this letter is taken in connection with the record herein there can be but one reasonable conclusion therefrom, to-wit: This deceased at that time was inviting a reconciliation with his family to talk over old affairs and settle differences, very violent differences, that had theretofore existed between him and them; that it was upon this condition that he might revoke his will. According to the record, the persons mentioned in the letter never accepted his invitation to visit him, nor was any of the business therein referred to discussed or transacted; nor does there appear any response to his invitation to write him "what day you will come."
F.D. Hewitt, of McComb, for appellee.
Section 3551, Code of 1930, provides that the sole method of revoking a will is by a declaration in writing.
Minor et al. v. Russell et al., 88 So. 633.
Holographic will in the form of a letter is valid.
Buffington v. Thomas, 84 Miss. 157, 36 So. 139; Baker v. Brown, 83 Miss. 793, 36 So. 539.
The letter contains a clear cut declaration revoking his will for the following reasons: (1) It is on his letterhead. (2) It gives the postoffice address, Liberty, Mississippi. (3) It is dated 2/3/1934. (4) It is addressed to his son-in-law, daughter and grandson. (5) It advises them he wanted to see them on some business. (6) It said, "I am revoking my will to Alta." (7) It was signed by him, giving his postoffice address, Liberty, Mississippi, Route 3. (8) It was wholly in his own handwriting. (9) It referred specifically to the particular will that proponent claims he made to her.
His sister had done nothing for him from the day he left there shortly after this will was executed. There is no testimony that she cared for him or did anything for him up until the time of his death. There is a certain reason, a cause, and a purpose and intention for him to write such a letter.
Argued orally by O.W. Phillips, for appellant, and by F.D. Hewitt, for appellee.
This is an appeal from a judgment on an issue devisavit vel non setting aside the probate of a will.
W.R. Short executed the will in July, 1932, died on August 22, 1938, and the will was probated in short form on August 28, 1938. He devised $1 to each of his seven children, all of whom seem to be adults, and the residue of his property to his sister, Mrs. Alta Short Jackson, now Mrs. Stratton. Afterwards, the probate of the will was challenged in the court below by the testator's seven children on two grounds: (1) That it had been procured by undue influence; and (2) it had been revoked by a written declaration. The trial judge excluded the contestants' evidence offered in support of their charge of undue influence, and submitted the case to the jury on the charge of revocation. The verdict was for the contestants and there was a decree accordingly. The testator married a number of years prior to 1928 and was then living with his wife. Whether their seven children were then living with them does not appear. Sometime during that year, he and his wife disagreed, separated, and were divorced in 1932. Thereafter the appellant lived apart from his children and for at least a part of the time with his sister, Mrs. Stratton. An attorney, who drafted the will and who continued thereafter to act as the testator's attorney when called on so to do, testified to the execution of the will and that immediately thereafter he placed it in an envelope with his professional card on it, sealed the envelope, marked it for identification, and delivered it to the testator. This envelope still sealed was brought to him after the testator's death. Whereupon, he opened the envelope, took the will out and probated it. The testator's former wife testified that in February, 1934, she was visiting Mrs. Boone, her and the testator's daughter, in Brookhaven, and while there Mrs. Boone received a letter through the mail wholly written and signed by the testator, reading as follows: "Liberty, Miss., 2/3 1934 Mr. Thurman Boone Bertha Jr how ar you all fine i hope. i have about got over the flu an am able to work some. Thurman if you an Bertha come over here soon stop an see me i wanto see you all on some business. Write me what day you will come i will be at my place i am revoking my will left to Alta. W.R. Short Liberty Miss R 3." The evidence does not disclose that either Mr. or Mrs. Boone complied with the letter's request to visit the testator.
This letter does not declare that the writer thereby revoked his former will nor does it contain any words to that effect. The words "I am revoking my will" manifestly refer to another paper or act which the writer was about to execute or do which would revoke the will. The writer's intention to revoke his will, if such he in fact had, does not appear from the evidence to have been carried out for he left the will intact in the sealed envelope in which the draftsman had put it immediately after its execution. No written declaration, testamentary or not in character, revoking it appears in the evidence. It therefore fails to disclose any fact on which the jury's verdict for the contestants can rest. Had the appellant requested and been refused a directed verdict in her favor, we could reverse this judgment and render one for her here. She failed to make such a request. Consequently, all we can do is to reverse the judgment and remand the case for a new trial.
So ordered.
Roberds, J., did not participate in this decision.