Mims v. Johnson

Ethridge, J., delivered the opinion of the court. This is a contest over the establishment and the probation of a will. The appellee, Cornelia Johnson, filed her bill in the chancery court, setting forth that Mahalia Keith died in 1918, leaving as her last will and testament a will dated the 19th day of November, 1913, in the following words: “I, Mahalia Keith, being of sound mind, do make and declare this to be my last Will. I give, devise, and bequeath unto William Mims $1.00, and also to Ristic Per-ryman $1.00, and I give, devise and bequeath the balance of my estate, both real and personal, to my daughter, Cornelia Johnson. I appoint -- executor of my last will without bond. “In witness whereof, in Copiah county, Mississippi, I hereunto set my hand and seal, this the 19th day of November. ... her “[Signed] Mahalia X Keith. mark “Witness: A. D. Slay. “State of Mississippi. [409] “The said Mahalia Keith, in the county of Copiah, Mississippi, on the 19th day of November, 1913, signed the foregoing instrument and published and declared the same in our presence as her last will, and we, at her request and in her presence and in the presence of éach other, on the said date, have hereunder written our names as subscribing witnesses thereto. [Signed] J. B. Brown. “J. P. Brian.” After the death of Mahalia Keith, the appellant filed and secured probation by the clerk of a will to him, dated the 30th day of June, 1904, in the following words: “In the name of God, Amen. I, Mahalia Keith, of the county of Copiah, and the state of Mississippi, being of sound mind and disposing memory, and being admonished of the uncertainty of life and the certainty of death, do make, publish and declare this to be my last Will and Testament. “First. It is my wish and desire that all of my just debts, including those of my last illness, shall first be paid and to this end I charge all my estate both real and personal. “Second. On account of the attentiveness of William Mims, my oldest son, during my old age, in maintaining me and his many efforts to make me comfortable and happy. I hereby devise and bequeath to the said William Mims my entire estate both real and personal, said property consisting of money and lands lying in the county of Copiah, state of Mississippi. “Third. I hereby appoint the said William Mims the executor of this my last will and testament without bond, and it is my wish that the said William Mims shall not be required to render an inventory of my property. “Witness my signature this the 30th day of June, 1904. her “[Signed] Mahalia X Keith. mark / “Wo, the undersigned, at the request of the testator, Mahalia, set our hands as subscribing witnesses to this her [410] last will and testament. She published, declared and signed in our presence the last will and testament, and we signed in the presence of each other. “Witnesses: [Signed] M. S. McNeil. “ T. H. Sanders.” The complainant’s will ivas established by the verdict of the jury. The contest over the 19.13 will (being the last will) turned upon the mental capacity of Mahalia Keith to make a will. The proof ivas conflicting upon this proposition. The subscribing witnesses and others testified for the complainant to sustain the will, and there was testimony which tended to show incapacity of the testatrix, Mahalia Keith, to make a will for the defendant, Mims, which in our judgment the jury would have been authorized to accept, if they believed it to be true. In other words, on the evidence in the record, we think the jury’s verdict would have been upheld for either party, if there were no errors of law. The court, however, committed error in granting the complainant, Cornelia Johnson, instructions which placed the burden of proof upon the defendant in the case. The will in favor of the defendant, Mims, had been probated, which gave it a prima facie validity. The will in favor of the appellee, Cornelia Johnson, had not been probated, and it devolved upon the proponent of that will to establish it; that is to say, the burden of proof was upon Cornelia Johnson to establish the 1913 will. Williams v. Moorehead, 116 Miss. 653, 77 So. 658; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 35 L. R. A. 102. It was therefore error for the court to grant the complainant the said instructions, for which the judgment must be reversed, and the cause remanded. Reversed and remanded.