57 So. 919 | Miss. | 1911
delivered the opinion of the court.
The appellee, Eliza Duberry, filed her bill in the chancery court of Yalobusha county against A. Seymour, administrator cum testamento annexo, and Mrs. Alice Hawkins, wherein she alleges that she is a resident citizen of Tennessee; that her husband, John W. Duberry, died in Memphis, Tenn., on February 12, 1908, leaving com
On the 18th of January, 1905, the Masonic Benefit Association issued its benefit certificate to John W. Du-berry, of water Yalley, Miss., wherein it agreed to pay to said Duberry upon his death five hundred dollars upon certain conditions. Said John W.-Duberry on the bottom of this certificate-made and executed his last will and testament, wherein he gave and bequeathed the money due him by virtue of the certificate unto Mrs. Alice Hawkins. This will was properly attested by three subscribing witnesses. The will is in the following language: “I, Jno. W. Duberry, of Water Yalley, Mississippi, age fifty-nine years, being of sound and disposing mind, give and bequeath the money due me by virtue of the certificate upon which this my last will is indorsed: Mrs. Alice Hawkins, $699.00; Eliza Duberry, $1.00. And this is my last will. December 31, 1907. [Signed] J. W. Duberry.” Beneath this will is the following: “In witness whereof I, this the 18th day of November, 1905, sign, publish and declare this instrument as my last will so far as the money is concerned which is due me after my death from the Masonic Ben
It appears from the testimony of one Noah Cox that he was in Memphis on December 31, 1907, at the house of Mrs. Alice Hawkins, and that the testator said that he had consulted a lawyer, who informed him that, if he did not give his wife, Eliza something, she might give trouble by breaking the will, and that in order to avoid this the said John W, Duberry added to the will, in his own handwriting, the following after the -word Alice Hawkins: ‘ ‘ $699.00; Eliza Duberry, $1.00. ’ ’ There were no subscribing witnesses to this addition. In answer to-the question, “It was not his intention, then, to give Alice Hawkins the total and Eliza Duberry nothing?” the witness said, “In the original first signed, he willed it all to Alice Hawkins, and when I called on him in December, 1907, he called my attention to it, and said he had consulted some lawyer, who said, if he did not give Eliza something, she might give trouble by breaking the will.” It does not appear from the record whether this will was probated, but the witnesses refer to the will as having been probated, and the bill of complaint filed in this case attaches, as an exhibit to it, a copy of what is called the alleged will. There is nothing in the record to show that the widow, who is complainant in this cause, ever renounced this will. There is some evidence in the record to the effect that John
We are not at all satisfied with the result in the lower court. It is manifest from the evidence that this was a valid will. It was properly executed and attested, and if it be true that on December 31, 1907, he added to the then valid will the words and letters, to-wit, ‘J $699.00; Eliza Daberry, $1.00,” without having it properly attested, the failure to have this addition attested would not destroy the otherwise valid instrument. The rale
Not being able, from this imperfect record, to reach any satisfactory conclusion as to the rights of the parties, and as the lower court erred in holding, as it did, that “the paper purporting to-be the last will and testament of John W. Duberry is not the will, and does not entitle the defendant to. the moneys in controversy, ’ ’ we reverse the case. Reversed.'