House v. Callicott

| Miss. | Oct 15, 1903

CalhooN, J.,

delivered the opinion if the court.

Plenry M. Callicott, being a widower with one child, Lillian, who is the appellant, married the appellee Jessie, by whom he had two other children, and he made a holographic will, and died leaving a considerable estate and his widow and three children. This will gives to each of these children $10,000, and the residue of his estate to his wife, the appellee, Jessie M. C. Callicott, charged “to educate, support and nourish” the children. Mrs. Lillian House, the child of the first marriage, filed her bill charging that her father, Henry M. Callicott, was under undue influence when he made this will, and was wholly incapable mentally of making it when he did make it; and she urges that a paper, which will hereinafter be set out in full, signed by the widow after his death, should be established as a valid act. Ap-pellee, Jessie M. C. Callicott (defendant below), denies the material allegations of the bill, and, as to the paper signed by her, says it was without any consideration whatever, and signed when she was in great affliction, and at the request of J. C. Calli-cott, the paternal grandfather of appellant, and as a concession to his wishes, she having for him the love of a daughter. There is nothing in the averments of undue influence over the testator or unsoundness of mind when he executed the will, and neither is seriously insisted on, the real contention being over the validity of the paper signed by appellee, said to be good as a compromise or as a family settlement. No court could fail on the evidence to sustain the. will, as was done by the court below, and in tbe action dismissing tbe bill tbe chancellor must have believed, as be was warranted in believing, tbe facts to be as we will set them out. Tbe most beautiful relations of love and devotion existed between tbe testator and bis wife and children, and between all of them and bis father, J. 0. Oallieott, at whose bouse the testator and bis family had lived at one time for two br.three years. Tbe testator died on November 17, 1899, and was buried the next day, November 18th. On tbe next day, but one after tbe burial, Monday, November 20th, bis father, J. 0. Oallieott, came- to bis daughter-in-law’s bouse immediately after breakfast and asked the widow to let him see tbe will. She was in great distress, had never even read tbe will, and bad refused to let her husband in his lifetime read it to her or talk about its contents, as he bad wanted to do, and so she was entirely ignorant of any of its provisions. But at her father-in-law’s request she went to her deceased husband’s private papers, got tbe instrument, and banded it to bis father, who, after reading it, said that, “if be had seen Henry, and talked with him, be did not think be would have written it that way,” and be asked the widow to give Lillian one-fourth of tbe personal estate. She answered that she preferred tbe will to remain as her husband bad written it, to which be replied harshly that, if she did not, be intended to break tbe will, but did not state any grounds on which be could do so. On the 23d of that month be came again to tbe bouse, and they went to town together, and she signed tbe paper, because, as she says: “I bad always bad such confidence in him and felt so drawn to him, ... I didn’t make tbe paper because I was afraid of him breaking tbe will, not in tbe least. It was signed ;just simply to have no unpleasantness in tbe family and with tbe father of such, a devoted son.” It must 'be noted that J. 0. Oallieott,, after tbe first interview, and before bis daughter signed, had made inquiries and taken advice, and found that be could not break tbe will, of all which bis daughter-in-law was in total ignorance. When she signed tbe paper J. 0. Oallieott took charge of it, and has bad it eyer since in bis possession. Afterwards bis granddaughter, Lillian, the appellant, contracted a marriage that did not please bim, and he came again to appellee, Jessie, and be and she signed a cancellation of the paper, written across its face. The paper and its cancellation are as follows:

“State of Mississippi, Tate Couhty.

“Whereas the will of H. M. Callicott, this day probated, gives and bequeaths to each of his children the sum of ten thousand dollars, and to his wife, Jessie May Carver Callicott, all the residue of his estate, and whereas, one of his children, Lillian Clay Cal-licott, is not the child of the said Jessie M. 0. Callicott, now to avoid all litigation, to compromise all differences and in the earnest desire to render exact justice to each of the children of «aid H. M. Callicott, I, Jessie May C. Callicott, do hereby agree and bind myself to pay to said Lillian Clay Callicott an amount in addition to said ten thousand dollars willed to her by her father, H. M. Callicott, sufficient to make the estate of said Lillian 0. Callicott, including said legacy, equal to one-fourth the value of the said estate of H. M. Callicott, as shown by the inventories and appraisements taken and made in said estate.

“This additional sum is to be paid as soon after all debts are paid and as soon after the thirty thousand dollars directed by said will to be invested in bonds for the children is invested as practical.

“Witness my signature this Nov. 23, 1899.

“Jessie May Oakvee. Callicott.”

Written across the face of the contract is this:

This paper was made and entered into to be executed by and between Jessie M. C. Callicott and J. 0. Callicott on the day it bears date, but was never signed by the latter, though since that time held in his possession. By agreement of said parties and for reasons satisfactory to themselves they hereby agree and declare that this paper and all the agreements and obligations therein contained shall be hereby cancelled, abrogated and made void and of no effect whatsoever. This January 24, 1902.

“Jessie May Carver Callicott.”

That Mrs. Callicott and her father-in-law were on very unequal planes when she signed the original paper will strike the average mind at once. She was at a great disadvantage. While he had no sort of legal interest in the will of his son, his idea was, as the head of the family, to substitute his own will for the will of his son, and, without any consideration whatever, he induced her to agree to give his granddaughter one-fourth of the personal estate of her husband. Under our statute only parties in interest may contest a will, and the question of interest or no interest may be made an issue, and this is triable before the issue devisavit vel non is tried. J. C. Callicott had no more interest in the matter than a total stranger to the family, in the eye of the law. So his threat to break the will, made to the widow, when analyzed, amounts simply to a threat that unless she gave away '.the property at his dictation he would incite those in interest to litigate. So it is impossible to predicate compromise on his refraining from this action as a consideration. He had nothing to compromise except a power to try to foment trouble in the family, and it would be monstrous to hold this a consideration for a compromise. This case has no kinship to the doctrines applied to family settlements. They must be between parties in interest, not one party in interest and an outsider on his threat to create trouble in the family. No earthly consideration moved from J. 0. Callicott or Mrs. House; there was in the premises no legal duty owing by the widow to either of them, and the actual rights of Mrs. House under the will are not in the slightest degree affected.

Affirmed.