40 Miss. 261 | Miss. | 1866
delivered the opinion of the court.
This was an issue of devismit vel non in the Probate Court.
Peter E. Spinks, who was appointed executor by the last will
The executor, upon the production of these several witnesses to prove declarations of the deceased made during his last sickness and a short time before his death, objected to their introduction for that purpose, but the objection was overruled; and after the testimony of said several witnesses was delivered, the executor moved to exclude it from the jury, and the several motions were overruled, and the executor excepted.
The court then gave sundry instructions to the jury at the instance of both' parties, and the jury returned a verdict against the will. The executor moved to set aside the verdict, and for a new trial; but the motion was overruled, and hence this appeal.
The first error assigned is, that the court regarded the ccmeat and ordered, the issue, at the time it did, which was at the term at which the will was propounded for probate.
It is said that it was the duty of the court, under the statute,. Rev. Code, 434, article 43, to take the probate of the will immediately on its being presented for that purpose, leaving the parties to contest its validity by subsequent proceedings. This is a misapprehension of the provisions of the statute. It authorizes the court to proceed immediately to take the probate, but it is not imperative as to the time of doing so. It was never intended that the coiu’t should proceed to take the probate, notwithstanding objections to it were regularly filed as soon as the paper was propounded, or before the matter of probate was proceeded with. For the same statute provides elsewhere for the appointment of an administrator acl oolUgendvm, pending a contest about a will, and until probate be granted. Rev. Code, 437, article 56.
The second assignment is, that the court erred in admitting the testimony of the witnesses in relation to the conduct and declarations of the deceased, and in overruling the motion of
It is not alleged that this evidence tended to show a positive revocation of the will; but the purpose for which it was introduced was to show an implied revocation, resulting from an alteration of the circumstances of the testator, by which new moral duties had been devolved on him after the execution of the will, which may be presumed to have caused a change of his intention towards his daughter. If the evidence tended to show such a state of facts in this case, it was properly admitted, otherwise it should have been excluded on the executor’s motion. The question, then, is whether the evidence is of this character, and upon this the whole case depends.
The rule upon the subject of implied revocations in cases of this sort, is thus stated in the elementary works, and in the leading cases upon the' subject:
“ If the testator’s circumstances be so altered that new moral testamentary duties have accrued to him, subsequent to the date of the will, such as may be presumed to produce a change of intention, this will amount to an implied revocation.” 1 Lomax Exrs. 55.
Sir John Nicholl says, there must be “ such a change in the condition of the deceased, such new obligations and duties, that they raise an inference that a testator would not adhere to a will made previous to their existence, considering it an act of moral duty to revoke that disposition“ and if there does not arise such a state of circumstances as to produce new duties, if the change is provided for, there is no reason to presume a revocation.” Talbot v. Talbot, 1 Hagg. (Eng. Eccl. Hep.) J05. The same learned judge lays down the rule in another case, that there must be “ such an alteration of circumstances arising from new moral duties, accruing subsequent to the date of the will, as by necessary implication creates an intention to revoke and he further states, with still more precision, that “ courts have required that the rule shall have for its basis a change of intention, produced by, and to be presumed from, some new
yBy these rules, it is essential that there should be a change im, the testator’¡s cwciomsicmces, producing new moral duties, after the execution of the will, in order to effect a revocation. This change must be in his condition as affecting the substantial relations of the parties, such as subsequent marriage, and -the birth of a child or children; a will executed under'the mistaken belief that a child not provided for was dead; marriage and the birth of a posthumous child, and the like. In all such cases, a moral duty devolves upon the testator, by the happening of the facts stated, to make provision for the support and welfare of the child; which creates the strongest presumption that the testator would not have made the will, if he had anticipated that such a state of .facts would take place, and hence that it will be presumed he intended that it should not remain in force, under such circumstances. But.the change-must be in material relations, and not in mere matter of sentiment.
No case has been brought to our notice, nor have we been able to find one, where the doctrine of implied revocation has been applied to a case of mere change of feelings by the testator towards a party, subsequent to the date of the will, without a substantial change of circumstances, producing new obligations ; and we think that such a case would-not be reconcilable with the principle on which the doctrine-rests. It is time, that feelings of affection from a parent to a child ¡are a high moral duty, and that a change from feelings of animosity to those of fondness and attachment is highly commendable. But this alone is not such a change of his condition, and such a ground of new-obligations and duties, as to come within the principle on which the doctrine, is founded; for the alteration of the material condition of the testator is the'basis of the rule, and the matter -of personal feeling is but a secondary and incidental consideration, which, by itself, would not justify the application of the doctrine.
In this case, there was no alteration of the condition of the testator, except in point of feeling towards his daughter. His
We think it clear, thereto, e, that the evidence was insufficient to establish a revocation of the will, and that the motion to exclude it from the jury should have been sustained. And it follows that the instructions given at the instance of the oameators were erroneous, because there was no sufficient evidence to justify them.
Let the judgment be reversed, the verdict set aside, and the case remanded for a new trial.