Murray v. Murphy, 39 Miss. 214

39 Miss. 214 | Miss. | 1860

Handy, J.,

delivered the opinion of the court:

This was a petition in the Court of Probates, in the nature of a bill of review, filed by the appellant, the widow, and also a legatee and devisee under the will, of Bobert Murray, deceased, praying that the probate of the will granted at a previous term should be corrected and set aside, so far as the will was admitted to probate as applicable to the real estate of the testator; alleging, as the ground of the relief sought, that there were only two attesting witnesses to the will. u

The petition sets forth the will, and the orders and proceedings in the Court of Probates when the will was admitted to probate. The appellees demurred to the petition, and upon the hearing of the demurrer it was sustained, and the petition dismissed.

An objection was taken to the petition by the demurrer, which appears to us to be fatal to it. It is, that a bill of review will not lie to an order of the Probate Court admitting a will to probate.

The probate is not a final adjudication of the validity of the will, but an incipient step necessary to enable the court to proceed to carry the will into execution. Kelly v. Davis, 37 Miss. R. 76. It is not conclusive against the heirs and distributees; and if they desire to contest the validity of the will, the statute prescribes the mode in which that shall be done, by an issue of devisavit vel non. If it appear by the record that it has been admitted to probate generally, when it appears not to have been subscribed and proved by the requisite number of attesting witnesses to render it effectual as a will disposing of real estate, but is attested and proved by the number of witnesses requisite to its validity as to the personalty, the probate would simply extend to it as a will of the personal estate. But if it appears by the record to be attested and proved by three witnesses, a bill of review is not the proper mode of having it declared invalid as to the real estate, upon the face of the record, as was here attempted. The remedy is that prescribed by the statute.

In answer to this objection it is said that the petition should be regarded as an application for an issue of devisavit vel non. But that is plainly not its character. It does not pray for an issue to be tried, but alleges that the probate is “ erroneous” as to the real estate, and prays that it may be “ reviewed and reversed” as to the real estate.

But upon the merits of the case and upon the facts shown by the petition, it is clear that the will was properly executed as to the real estate.

The face of the will, which is set out in the petition, shows, opposite the signature of the testator to the instrument and in the place where the names of attesting witnesses are usually written, tbe names of “ J. S. Whitwortb and John Hargon.” On the reverse page of the same paper there appears a certificate of a justice of the peace, stating that the testator on the day of its date “ signed, sealed, and delivered the within will and testament, for the consideration and purposes therein specified, as his own proper act and deed.” This is signed “ G. W. Grafton, J. P.,” and also as follows: “ Attest, J. S. Whitworth, John Hargon.” The petition also sets forth the proceedings' relative to the probate, showing that John Hargon and G. W. Grafton were examined in court on the question of the probate, and stated, among other things, that the testator “ published and declared the paper to be his last will and testament, in the presence of each and all three of said witnesses, and that each and all of the three attesting witnesses subscribed their names thereto as witnesses in the presence of the testator and of each other; that the witness Grafton stated that he signed his name in his official capacity, because he and the other witnesses believed that it would give greater validity to his signature by prefixing thereto his official certificate, but that he intended thereby to’‘be an attesting witness to the will; that the witness Whitworth testifibd to the publication of the will by the testator in the presence of the persons whose names are subscribed to it, and that "the witness and Hargan and Grafton each subscribed their names thereto as attesting witnesses in the presence of each other and of the testator, and by his direction;” and, upon this evidence as to the attestation, the will was ordered to be admitted to probate.

There can be no question of the sufficiency of this attestation as to all of the three witnesses. The certificate was intended and signed by Grafton as an attestation to the execution of the will; and the two other witnesses also signed their names to it for the same purpose, and all in the presence of the testator. Though the certificate is useless, yet the signature of Grafton as a subscribing witness, which was the essential thing and that which was intended, is valid. The superfluous certificate cannot invalidate the regular signature ; for utile per inutile non vitiatur. And as to the place of signature of the attesting witnesses, all that was necessary for that purpose was, that the witnesses should sign their names upon the paper, in the presence of the testator, in testimony of the fact that it was the paper signed and published by him as his will. Fatheree v. Lawrence, 33 Miss. R. 585-624.

It is, however, urged that, as the petition alleges that the will was signed by but two attesting witnesses, and this is admitted by the demurrer, this allegation must be taken as true as the case is now presented. But the will and the record of the proceedings in relation to the probate are incorporated into the petition; and, indeed, the very ground on which it is based is, that there appears to be error in the record and proceedings in relation /to the probate. If the record -thus shown negatives the allegation of the petition, the appellee is not concluded, by his demurrer, of the benefit of the facts shown by the record, which is made part of the petition, and which must necessarily be taken into view in considering the petition; but it must be taken that the allegation is not supported by the record on which it purports to be founded.

Let tbe decree be affirmed.