Opinion
No. 38793.
June 8, 1953.
1. Wills — revocation — sufficiency in form of revocation.
An instrument signed by the testatrix in which she declared her purpose to revoke a will previously made by her and that being of sound mind and memory "I do make, publish and declare this my codicil to my last will and testament by revoking said will and testament" is sufficient in form to constitute a revocation of the will. Sec. 658, Code 1942.
2. Wills — revocation — question of fact.
Whether the instrument mentioned in the foregoing headnote had been executed in compliance with the requirements of the statute was a question of fact to be determined according to the proof.
3. Wills — revocation — exact date of instrument of revocation.
The instrument of revocation was not void because it failed to show the exact date of its execution, so held when its date was shown as ____ day of November, 1950.
4. Wills — reference to will intended to be revoked — when sufficiently certain.
The reference to the will intended to be revoked was sufficiently certain when it was referred to in the revoking instrument as the will made by the testatrix in Room 127 of the Hattiesburg Methodist Hospital on the ____ day of October, 1950, especially when the testamentary instrument could be and was readily identified by parol evidence in such manner as to exclude the possibility of a mistake in the identification.
5. Wills — witnessing — sufficiency of.
Where a revoking codicil was signed in the presence of only one of the two attesting witnesses, and as to the other the testatrix did not in any way inform her that she had signed the instrument, or that it was her codicil or was testamentary in character, and the only information supplied to the second witness was a later statement made to her by the first witness, the revoking codicil was not sufficiently attested.
6. Wills — revocation — burden of proof.
The burden of proof rests upon the parties contesting the probate of a will to prove the due execution and attestation of the revocating instrument, when revocation is relied on as the ground of the contest.
Headnotes as approved by Kyle, J.
APPEAL from the chancery court of Marion County; LESTER CLARK, Chancellor.
Kelly J. Hammond and Davis Davis, Columbia, and Jackson Ross, Jackson, for appellants.
I. The revocation of November 7, 1950, was sufficient to vest estate in appellants. Secs. 657, 658, 699, Code 1942; 38 A.L.R. 245; 24 Words and Phrases 299, Last Will Testament; 45 Words and Phrases 171, 182; 79 Words and Phrases 91, et seq.; 57 Am. Jur. 188, 326, 415, 426, Secs. 223, 235, 467, 605, 624; Ball v. Phelan, 94 Miss. 293, 49 So. 956, 23 L.R.A. (N.S.) 895; Bearden, et al. v. Gibson, (Miss.), 60 So.2d 655; Fotheree, et ux. v. Lawrence, 30 Miss. 416; Gathings, et al. v. Howard, 122 Miss. 355, 84 So. 240; In re Estate of Annie Lou Alexander, et al. v. Hamilton, 61 So.2d 683; Keely v. Adams, et al., 149 Miss. 201, 115 So. 344; Maxwell v. Lake, 127 Miss. 107, 88 So. 326; Minor, et al. v. Russell, et al., 126 Miss. 228, 88 So. 633; Pratt, et al. v. Hargraves, et al., 76 Miss. 955, 55 So. 688; Reeves v. Duke, 192 Okla. 519, 137 P.2d 897, 147 A.L.R. 634; Schlottman v. Hoffman, 73 Miss. 188, 18 So. 892; Southern Pine Co. v. Mitchell, (Miss.), 19 So. 583; Tyson v. Utterback, 154 Miss. 381, 122 So. 496, 63 A.L.R. 1188; Warren v. Sidney's Estate, 183 Miss. 669, 184 So. 806; Joiner v. Joiner, 117 Miss. 507, 78 So. 369; Holcomb v. Holcomb, 173 Miss. 192, 159 So. 564; Hawkins v. Duberry, 101 Miss. 17, 57 So. 919; Johnson, et al. v. Delome Land Planting Co., et al., 77 Miss. 15, 26 So. 360; Lee v. Stewart, 139 Miss. 287, 104 So. 89; Alexander on Wills, 44, Sec. 40; 40 Cyc. 1098; Estes v. Estes, 200 Miss. 541, 27 So.2d 854; McManus v. Wilson, et al., 138 Miss. 1, 102 So. 543; McDaniel v. Johnson, 45 Miss. 632; United States v. Moore, 197 Ark. 664, 124 S.W.2d 807, 809; Breckenridge v. Breckenridge's Ex'rs, 264 Ky. 82, 94 S.W.2d 283, 288; Klien v. Gaines, 203 Miss. 871, 34 So.2d 488; Lanham, et al. v. Howell, 210 Miss. 383, 49 So.2d 701, certiorari denied, 72 S.Ct. 57, 342 U.S. 834, 96 L.Ed. 631.
II. The court erred in granting a new trial. 39 Am. Jur. 135, et seq., New Trial, Secs. 126, 127, 128; Columbian Mutual Life Ins. Co. v. Gunn, 173 Miss. 897, 163 So. 454; Masonite Corp. v. Dennis, 175 Miss. 855, 168 So. 613; Stricklin v. Harvey, 181 Miss. 606, 179 So. 345; Wheat v. Teche Lines, Inc., 181 Miss. 408, 179 So. 553; Long v. Patterson, 198 Miss. 554, 22 So.2d 490; Montgomery Ward Co. v. Skinner, 200 Miss. 44, 25 So.2d 572; Hutchins v. H.L. Green Co., et al., (Miss.), 56 So.2d 499; Gow Co., Inc. v. Hunter, 175 Miss. 896, 168 So. 264; Southern Ry. Co. v. Floyd, 99 Miss. 519, 55 So. 287; Hoxie v. Hadad, 193 Miss. 896, 11 So.2d 693; Yazoo M.V.R.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50; Blalock v. Magee, 205 Miss. 209, 38 So.2d 708; In re Estate Annie Lou Alexander, et al. v. Hamilton, (Miss.), 61 So.2d 683; Alexander, Mississippi Jury Instructions, 455, 466, Wills, Secs. 4895, 4926; Curry v. Lucas, 181 Miss. 720, 180 So. 397; Bliel v. Kansas City, (Mo.), 70 S.W.2d 913, 915; McAlexander v. Puryear, 48 Miss. 420; Berkheim v. Dibreed, (Miss.), 11 So. 795; Gulf S.I.R. Co. v. Simmons, 153 Miss. 327, 121 So. 144; McLemore McArthur v. Rogers, 169 Miss. 650, 152 So. 883; Continental Casualty Co. v. Garrett, 173 Miss. 676, 161 So. 753; Guion v. Doherty, 43 Miss. 538; Kansas City M. B.R. Co. v. Cantrell, 70 Miss. 329, 12 So. 344; Stroud v. Loper, 190 Miss. 168, 198 So. 46; Jackson City Lines v. Harkins, 204 Miss. 707, 38 So.2d 102; Tri State Transit Co. v. Moore, 188 Miss. 722, 196 So. 231; Saenger Theatres Corp. v. Herndon, 180 Miss. 791; Faulkner v. Middleton, 186 Miss. 355, 188 So. 565; Louisville N.R. Co. v. Jones, 134 Miss. 53, 98 So. 230; Trotter v. Staggers, 201 Miss. 9, 28 So.2d 237; Austin v. Patrick, 179 Miss. 718, 176 So. 714; Tyson v. Utterback, 154 Miss. 381, 122 So. 496, 63 A.L.R. 1188; Sec. 498, Code 1942; Maxwell v. Lake, 127 Miss. 107, 88 So. 326; Morley v. Cranmore Skimobiles, 67 F. Supp. 812; 50 C.J.S. 974, Juries, Sec. 228; Sec. 1763, Code 1942; Wood v. State, 62 Miss. 220; George v. State, 39 Miss. 570; Brown v. State, 60 Miss. 447; 50 C.J.S. 1014, Juries, Sec. 252; Watson v. Byrd, 53 Miss. 483.
Travis Travis, Hattiesburg, and Sebe Dale, Jr., Columbia, for appellees.
I. The alleged revocation of November 7, 1950, was wholly insufficient to accomplish that which it purports to do. Hawkins v. Duberry, 101 Miss. 17, 57 So. 919; Griffith, Mississippi Chancery Practice, Sec. 82; Gathings v. Howard, et al., 122 Miss. 355, 84 So. 240; Maxwell v. Lake, 127 Miss. 107, 88 So. 326.
II. The court had every right and power to set aside the jury verdict and grant a new trial. 66 C.J.S. 67, Sec. 2; Jakup v. Lewis Grocery Co., 190 Miss. 444, 200 So. 597; Montgomery Ward Co. v. Windham, 17 So.2d 208; 39 Am. Jur., Sec. 217; Griffith's Miss. Chancery Practice, Sec. 309.
ON CROSS APPEALBrief for appellants.
I. Refusal of court to grant the peremptory instruction requested by appellees. Austin v. Patrick, 179 Miss. 718, 176 So. 714; Board of Miss. Levee Comm'rs v. Kellner, 189 Miss. 232, 196 So. 779; Buckley v. United Gas Public Service Co., 176 Miss. 482, 168 So. 462; Crawley v. Ivy, 149 Miss. 764, 116 So. 90; Davis v. Shemper, 210 Miss. 201, 49 So.2d 253, 50 So.2d 143; Forrest County v. Thompson, 204 Miss. 628, 37 So.2d 787, 793; Fotheree, et ux. v. Lawrence, 30 Miss. 46; Hilton v. Johnson, 194 Miss. 671, 12 So.2d 524; Merchants Fertilizer Phosphate Co. v. Standard Cotton Gin, 199 Miss. 201, 23 So.2d 906; Minor v. Russell, et al., 126 Miss. 228, 88 So. 633; Newboles v. Newboles, 169 Ark. 282, 273 S.W. 1026; Planters Lbr. Co. v. Plumbing Wholesale Co., 181 Miss. 782, 180 So. 793; Pratt, et al. v. Hargreaves, et al., 76 Miss. 955, 25 So. 688; Southern Pine Co. v. Mitchell, 19 So. 583; Tyson v. Utterback, 154 Miss. 381, 122 So. 496, 63 A.L.R. 1188.
II. The overwhelming evidence did not justify a peremptory instruction of insanity.
Brief for appellees and cross-appellants.
I. The trial court erred in refusing to grant the peremptory instruction requested by the proponents, for the following reasons: (A) The alleged revocation is void on its face, and therefore ineffective for any purpose whatsoever; (B) The alleged revocation is void for the reason that the contestants failed to show that it was properly executed and attested, and therefore is ineffective for any purpose whatsoever; (C) The trial court erred in admitting the alleged revocation for filing during the progress of the trial and over the objection of proponents; (D) The trial court erred in overruling the motion of proponents to exclude the testimony of Nadine Cochran. Newboles v. Newboles, 169 Ark. 282, 273 S.W. 1026; Page on Wills, Vol. II, Sec. 547, p. 18; 68 C.J. 802, Sec. 487; Hawkins v. Duberry, 101 Miss. 17, 57 So. 919; Hairston, et al. v. Hairston, et al., 30 Miss. 303; Maxwell v. Lake, et al., 127 Miss. 107, 88 So. 326; Miller v. Miller, 96 Miss. 526, 51 So. 210; Austin v. Patrick, 179 Miss. 718, 176 So. 714; Minor, et al. v. Russell, et al., 126 Miss. 228, 88 So. 633; Fotheree, et ux. v. Lawrence, 30 Miss. 416; Pratt, et al. v. Hargreaves, et al., 76 Miss. 955, 25 So. 658; Hilton v. Johnson, et al., 194 Miss. 671, 12 So.2d 524; Sec. 657, Code 1942.
II. The overwhelming competent testimony sustains the case of the proponents, and for that reason it was error on the part of the trial judge to refuse the request of proponents for a peremptory instruction, and to subsequently refuse to sustain the motion of proponents for the entry of a decree in favor of proponents.
ON DIRECT APPEAL
This case is before us on appeal by Mrs. Minnie L. Kennard and others, contestants, from a decree of the chancery court of Marion County rendered in favor of John M. Evans, administrator C.T.A. of the estate of Mrs. Lucy E. Polk, deceased, and others, proponents of the last will and testament and codicil of the deceased, in a will contest case involving the validity of an instrument purporting to be a revocation of said will and codicil.
Mrs. Lucy E. Polk, testatrix, died on November 15, 1950. Her husband, M.E. Polk, had died on November 5, 1950. Mrs. Polk was 72 years of age at the time of her death, Mr. Polk was 80 years of age at the time of his death. Neither of them left children or other lineal descendants surviving. But Mr. Polk, prior to his marriage to Mrs. Lucy E. Polk in 1927, had adopted two sons, John M. Evans and Joe E. Evans, who were the children of his first wife's sister. On September 30, 1930, Mr. Polk and his wife executed separate wills, in which each devised to the other all property owned by him or her at the time of his or her death, and on October 10, 1950, Mr. Polk executed a codicil to his will, in which it was provided that in the event Mrs. Polk should not be living at the time of his death, all of his property should go to the above mentioned adopted sons. And on the same day Mrs. Polk executed a codicil to her will in which it was provided that in the event Mr. Polk should not be living at the time of her death all of her property should go to the above named John M. Evans and Joe E. Evans. Mrs. Polk and her husband were patients at the Methodist Hospital in the City of Hattiesburg at the time the codicils were executed, and both died at the hospital.
On December 5, 1950, the last will and testament of Mrs. Polk and the codicil dated October 11, 1950, were admitted to probate in common form by the chancery court of Marion County, and letters of administration with the will and codicil annexed were issued to John M. Evans as administrator of her estate. On December 14, 1950, Mrs. Minnie L. Kennard and others, legal heirs of Mrs. Polk, filed a petition in the chancery court against John M. Evans, as administrator, and John M. Evans and Joe E. Evans, as devisees and legatees under the will and codicil of Mrs. Polk, who were made parties defendant in the petition, in which the petitioners alleged that Mrs. Polk, prior to her death, had executed an instrument of writing by which she had revoked her last will and testament and the codicil dated October 10, 1950, and that she had died intestate. A copy of the revocation instrument which the witnesses alleged had been executed on November 7, 1950, was filed as an exhibit to the petition, and the petitioners asked for the issuance of process for the above named John M. Evans and Joe E. Evans as defendants, and that upon the hearing of the petition the probate of the above mentioned will and codicil be annulled and that said instruments be denied probate and that the court decree that Mrs. Polk died intestate and that the heirs were entitled to the estate.
The instrument of revocation, alleged to have been executed by Mrs. Polk on November 7, 1950, was as follows:
"REVOCATION OF THE LAST WILL AND TESTAMENT OF MRS. M.E. POLK.
"Know all men by these presents: That whereas the undersigned, in Hattiesburg, Mississippi, in the Methodist Hospital, in Room 127, State of Mississippi, did on the ____ day of October, 1950, make, execute, publish and declare my last will and testament in writing, bearing date the day and year aforesaid.
"And whereas I now desire to revoke said will.
"Now, therefore, I, the said Mrs. M.E. Polk, being of sound mind and memory, do make, publish, and declare this my codicil to my last will and testament by revoking said will and testament.
"Witness my signature this the ____ day of November, A.D. 1950.
"WITNESSES: /s/ Mrs. Lucy E. Polk "Nadine Cochran Mrs. M.E. Polk" "Mrs. V. Easterling"
When the matter came on for hearing at the February, 1951, term of the Court, the chancellor ordered that the petition be amended so as to make all of the heirs of Mrs. Polk parties complainant or parties defendant; and an amended petition was filed a few days later for the purpose of bringing in all of the heirs of the deceased. John M. Evans and Joe E. Evans answered the petition, and in their answer denied that the testatrix had revoked the codicil dated October 10, 1950, by the execution of a valid instrument of revocation, and in their answer the defendants challenged the validity of the revocation instrument on the grounds (1) that the instrument failed to indicate the date on which it had been executed; (2) that the testatrix at the time of the execution of the instrument did not have sufficient mental capacity to execute the same; (3) that the execution of the instrument had been procured by the undue influence, duress and fraud of the testatrix' sister, Mrs. Minnie L. Kennard; and (4) that the instrument had not been executed and attested by the witnesses as required by the statute, and that the witnesses who signed the same had not been informed by the testatrix that the instrument was a revocation of her will and in fact did not know the nature of the instrument which they were called upon to attest.
The defendants also filed a general demurrer to the original and amended petitions, in which they challenged the legal sufficiency of the petition on the ground that the revocation instrument was void on its face because of its uncertain meaning, that the instrument was not dated, and that the instrument by its terms purported to revoke a will and not a codicil.
The chancellor overruled the demurrer, and a jury was empaneled to try the issues presented by the answer, as in other will contest cases.
The proponents of the will and codicil introduced the will dated September 30, 1930, and the codicil dated October 10, 1950, and the record of the probate thereof in common form. The petitioners, who are referred to in the record and the briefs as the contestants, then offered in evidence the revocation instrument and the affidavits of the subscribing witnesses to prove the execution of the instrument by the testatrix. The proponents objected to the admission of the instrument itself and the affidavits of the witnesses, but the objection was overruled.
The contestants then offered as their first witness Miss Nadine Cochran, one of the two subscribing witnesses to the revocation instrument. Miss Cochran testified that she witnessed the execution of the instrument by Mrs. Polk on November 7, 1950, while Mrs. Polk was on her sick bed in the hospital at Hattiesburg; that Mrs. Polk stated to her that she wanted to revoke her will and requested her to witness the same, and that she saw Mrs. Polk sign the revocation instrument, and that she then signed it as a witness in Mrs. Polk's presence; that Mrs. V. Easterling, the other subscribing witness, was not present when Mrs. Polk signed the instrument and when she signed the same as a witness, but that Mrs. Easterling, who was on duty as a nurse the day the instrument was executed, came into the room a short time thereafter, and Mrs. Polk asked her to witness her signature; that Mrs. Easterling then signed her name as a witness in the presence of Miss Cochran. On cross-examination Miss Cochran was asked the question, "Mrs. Polk didn't tell Mrs. Easterling that that was her signature to her will?" Miss Cochran's reply was: "Mrs. Easterling asked me `Did Mrs. Polk sign it,' and I told her `Yes'." Miss Cochran was then asked the question, "Mrs. Polk didn't tell her that she had already signed it and that she wanted her to sign it as a witness?" And, in answer to that question, Miss Cochran said, "I don't remember whether she did or not, but her signature was already there."
Miss Cochran was a registered nurse and helped nurse Mrs. Polk while she was in the hospital. She stated that Mrs. Polk, at the time she executed the revocation instrument, was possessed of a sound and disposing mind, but that she was a very sick woman. Miss Cochran was the only witness who testified concerning the execution of the revocation instrument. The record shows that a subpoena had been issued for Mrs. V. Easterling, the other subscribing witness, to have her appear and testify but the sheriff's return on the writ showed that she had not been found in Forrest County. Several other witnesses testified that they visited Mrs. Polk while she was in the hospital, and that in their opinion Mrs. Polk was of sound mind at the time the revocation instrument was executed.
After the contestants had rested their case, the proponents made a motion for a directed verdict on all issues set forth in their answer. The chancellor reserved his ruling on the motion.
The proponents then offered several witnesses who testified concerning the physical and mental condition of Mrs. Polk during the time that she was in the hospital, and especially during the two weeks next preceding the date of her death, including Dr. J.P. Culpepper, who attended her as a physician during her last illness, and who witnessed the codicil executed by her on October 10, 1950, and Mrs. John Parker, a registered nurse at the hospital, who saw Mrs. Polk on the day that the revocation instrument was executed. Dr. Culpepper testified that Mrs. Polk was suffering from a complication of diseases during the last two or three weeks of her life; that she was in a semicomatose condition as a result of cancer, and that her mental reaction was sluggish; and that in his opinion she was not competent to make a will or revoke a will. His statement was "It is my firm belief that due to the fact that Mrs. Polk was dying with cancer, and that due to the fact that she had to have sedatives and opiates, she was not clear enough to make a decision . . . I don't believe she could make a will." Mrs. Parker testified that "In my opinion, she wasn't in any condition to revoke a will." And several other witnesses who visited Mrs. Polk at the hospital during the last two or three weeks before her death testified concerning her mental incapacity during that time.
After both sides had rested the court overruled a motion for a directed verdict that had been made by the proponents at the conclusion of the evidence offered by the contestants. Each side then requested a peremptory instruction. The court refused both requests, and the case was submitted to the jury on the issues presented in the defendants' answer and the testimony taken during the trial. The jury returned a verdict for the contestants. The proponents filed a motion for a new trial, which the chancellor took under advisement, and at the February, 1952, term of the court the chancellor sustained the motion for a new trial without assigning his reasons therefor.
At the July term of the court the court permitted the proponents to file a second general demurrer in which they alleged the same grounds for demurrer as those alleged in the first demurrer which the chancellor had overruled. The chancellor, after hearing arguments on the demurrer, held that the revocation instrument was insufficient as a matter of law to effect a revocation of the will and codicil, and the chancellor entered a decree sustaining the demurrer. The contestants declined to plead further; and the court then entered a final decree dismissing the original and amended petitions on the merits. From that decree the contestants have prosecuted this appeal, and the proponents have filed a cross assignment of errors.
The appellants have assigned as errors (1) the action of the court in sustaining the demurrer to the original and amended petitions contesting the codicil dated October 10, 1950, and in entering a final decree dismissing the original and the amended petitions; and (2) the action of the court in granting a new trial after the jury had returned a verdict in favor of the contestants.
The appellees, in their cross assignment of errors, say that the court erred in refusing to grant the peremptory instruction requested by proponents at the conclusion of the evidence, when the case was tried at the November 1951 term of the court.
We think that the court erred in sustaining the demurrer to the original and amended petitions. But we also think that the court erred in refusing to grant the peremptory instruction requested by the proponents when the case was tried before the jury.
(Hn 1) The revocation instrument signed on November 7, 1950, was not void on its face for any of the reasons assigned by the proponents in their demurrer. Section 658, Code of 1942, is a part of the code chapter on Wills, and provides as follows:
"A devise so made, or any clause thereof, shall not be revocable but by the testator or testatrix destroying, canceling or obliterating the same, or causing it to be done in his or her presence, or by subsequent will, codicil, or declaration, in writing, made and executed . . ."
Whether the instrument of revocation signed by Mrs. Polk on November 7, 1950, was in its nature a will, a codicil of merely a declaration in writing, it was in form sufficient to effect a revocation of the codicil dated October 10, 1950, if properly executed by her in conformity with the requirements of the statute, and (Hn 2) whether the instrument had been executed in compliance with the requirements of the statute was a question of fact to be determined according to the proof.
(Hn 3) The instrument of revocation was not void because it failed to show the exact date on which it was executed. This Court held in the case of Lee v. Stewart, et al., 139 Miss. 287, 104 So. 89, that there is nothing in the statute that requires attested wills to be dated. (Hn 4) Neither was the instrument of revocation void because of the failure of the instrument to show the exact date of the testamentary instrument referred to which the testatrix proposed to revoke. The prior instrument which the testatrix undertook to revoke was referred to in the revocation instrument as the last will and testament which she had executed in Room 127 of the Methodist Hospital, in the City of Hattiesburg, "on the ____ day of October 1950." It is not claimed that the testatrix had executed any other testamentary instrument while she was in Room 127 of the Methodist Hospital in Hattiesburg during the month of October, and we think that the instrument which the testatrix proposed to revoke was referred to with sufficient certainty to identify it. The testamentary instrument referred to could be readily identified with the aid of parole evidence in such manner as to exclude the possibility of a mistake in the identification. 57 Am. Jur., pp. 195, 196, Wills, Sec. 235.
"A reference to the will in the codicil constitutes a sufficient identification of the will, even though the instruments are deposited in different places, provided it identifies the will with reasonable certainty." 57 Am. Jur. p. 415, Wills, par. 605.
(Hn 5) The controlling factor in this case, however, is that the evidence offered by the contestants to establish the proper execution of the alleged revocation was insufficient to show that the instrument had been executed by the testatrix and attested by the subscribing witnesses, in compliance with our own statute as construed by this Court.
In the early case of Heatherington v. Pipes, 32 Miss. 451, it was held that publication of a will actually signed by the testator in the presence of the attesting witnesses is unnecessary under our statute. But the rule is otherwise where the will is not signed by the testator in the presence of the witnesses.
In the case of Miller v. Miller, 96 Miss. 526, 51 So. 210, this Court said that it is not essential to a valid attestation of the testator's signature, under our statute, that the subscribing witnesses shall see the testator sign the will. "It is enough if he shall produce the will, declare it to be his will, and state that the signature appended to the will is his, and that he wrote it."
In the case of Maxwell v. Lake et al., 127 Miss. 107, 88 So. 326, the Court said:
"It is true that it is not necessary in this state for the witnesses to see the testator sign a will, but, if he does not sign it in their presence, there must be something to call the witnesses' attention to the fact that it is his will, or that it is his signature, or something to show the witnesses the purpose for which the signing is requested. The court does not require any particular form of words to be used by the testator, but he must indicate in some way so as to inform the witnesses as to the purpose of their signing the will."
In the case that we have here, it is admitted that Mrs. Polk did not sign the revocation instrument in the presence of Mrs. Easterling, one of the subscribing witnesses. Mrs. Polk did sign the instrument in the presence of Miss Cochran, and according to Miss Cochran's testimony, Mrs. Polk informed her of the nature of the instrument that she was signing. But Mrs. Easterling was not present when Mrs. Polk signed the instrument, and no where does it appear from Miss Cochran's testimony that Mrs. Polk told Mrs. Easterling that the instrument which she was to witness was a revocation of her will or that the instrument was testamentary in character, nor is it clear that Mrs. Polk told Mrs. Easterling that the signature appended to the instrument was her signature. Miss Cochran testified that "Mrs. Easterling asked me `Did Mrs. Polk sign it,' and I told her `Yes'." Miss Cochran was the only witness to testify concerning the execution and attestation of the revocation instrument.
Under the rule laid down in the Miller case, supra, and the Maxwell case, supra, since Mrs. Polk did not sign the revocation instrument in the presence of Mrs. Easterling, it was necessary that Mrs. Polk inform Mrs. Easterling that the instrument which she was executing was a revocation of her will, and that the signature appended to it was her signature, and that she wrote it, or that Mrs. Polk make known to Mrs. Easterling in some way that the instrument was a revocation instrument and that she had signed it. Austin v. Patrick, 179 Miss. 718, 176 So. 714.
But the proof fails to show that Mrs. Polk did make known to Mrs. Easterling that the instrument was a revocation of her will, and from Miss Cochran's testimony it appears that Mrs. Easterling learned from Miss Cochran, and not from Mrs. Polk, that Mrs. Polk had signed the instrument.
(Hn 6) The burden of proof rested upon the contestants, the petitioners in the original and amended petitions to prove the due execution and attestation of the revocation instrument, and this they failed to do.
We think that the court should have granted the peremptory instruction requested by the proponents of the will and the codicil, and that a decree should have been entered denying the relief prayed for in the original and amended petitions on the ground that the proof was insufficient to establish the validity of the revocation instrument.
The chancellor reached the right result in his final decree, and although there was error in the action of the court in sustaining the demurrer to the original and amended petitions, the appellants are not in a position to obtain any benefit from a reversal of the ruling of the court on the demurrer, because of the prior error of the court in refusing to grant the peremptory instruction requested by the appellees and cross appellants at the conclusion of the evidence on the trial of the issues presented by the defendants' answer.
For the reasons stated above the decree of the lower court dismissing the original and amended petitions of the contestants with prejudice is affirmed.
Affirmed.
Hall, J., took no part.
All other justices concur.