215 Miss. 218 | Miss. | 1952
William McGhee died in 1948, leaving children, grandchildren, and a great-grandchild surviving him as heirs at law. He left a will by which he bequeathed $100.00 to each of four named children, the remainder of his cash to be divided equally among the remaining children and a grandson. All other personal property was to be divided equally among his children. He devised a life estate in his realty, consisting of 160 acres of land to' three of his sons, with remainder over in fee to all of his children and with the right of representation in descendants of deceased children.
The will was admitted to probate in common form upon affidavits of the subscribing witnesses to the will and thereafter petition was filed contesting the will on the grounds of testamentary capacity and undue influence. The three sons who were left the life estate, and a daughter, Gracie McGhee Gibson, were proponents of the will and the other heirs at law were the contestants. There was a trial on the issue devisavit vel non by a jury, which returned a verdict in favor of the proponents, followed by a decree, from which decree appellants prosecute this appeal.
(Hn 1) On the trial, the proponents introduced in evidence the entire record of the proceedings of the probate of the will in common form, and rested. The contestants then introduced evidence tending to show testator’s lack of testamentary capacity and that the will was the result of undue influence. After the contestants rested, the proponents introduced evidence rebutting the testimony of the contestants by others than the subscribing witnesses to the will. The burden of proof was on the proponents as to both issues, testamentary capacity and undue influence. Proponents met the burden of proof and made out a prima facie case by introducing the record of the probate of the will in common form.
The appellants cite a number of authorities, among them being the case of Tyson v. Utterback, 154 Miss. 31, 122 So. 498. In this case the Court said: “And as we have already in effect said, but in order that nothing immediately next above stated may mislead, we repeat that the proof of due execution, and this includes every requisite element, may, if necessary, be made by others than any of the subscribing witnesses, although the subscribing witnesses must be produced, if possible. Helm v. Sheeks, 116 Miss. 726, 77 So. 820.”( Italics ours).
In view of this statement by the Court and the statement of counsel for appellants that the court file in Mar
“The widow contends that they ought to have gone further and made the proof either by having the subscribing witness or witnesses present to testify before the court or their testimony in the form of depositions. There is no merit in that contention. Section 1603, Code of 1930, provides that the affidavit of any subscribing witness to a will before and certified by any officer of the state competent to administer oaths shall be received as a substitute for the personal attendance of affiant to prove the will where there is no contest. Section 1611, Code of 1930, provides that 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.’ See Moore v. Parks, 122 Miss. 301, 84 So. 230; Gathings v. Howard, 122 Miss. 355, 84 So. 240; Sheehan v. Kearney, 82 Miss. 688, 702, 21 So. 41, 35 L. R. A. (N.S.) 102.” (Secs. 1603 and 1611, Code of 1930, were carried forward in Code of 1942 as Secs. 499 and 507).
We have carefully examined the instructions and find that when they are all considered together as one instruction, the jury was furnished a correct guide and could not have been misled. Brister v. Dunnaway, 149 Miss. 5, 115 So. 36; Haggerty, et al. v. Williams, et al., 184 So. 165 (Miss.). The evidence was conflicting but was ample to sustain the verdict of the jury upholding the validity of the will.
Affirmed.