Amyotte v. Hollingsworth

585 So. 2d 731, 1991 Miss. LEXIS 521, 1991 WL 164841
CourtMississippi Supreme Court
DecidedAugust 21, 1991
DocketNo. 90-CA-0751
StatusPublished

This text of 585 So. 2d 731 (Amyotte v. Hollingsworth) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amyotte v. Hollingsworth, 585 So. 2d 731, 1991 Miss. LEXIS 521, 1991 WL 164841 (Mich. 1991).

Opinion

PITTMAN, Justice,

for the Court:

This case involves the question of the requirements for execution of a holographic will. The chancellor followed what has been settled law in this jurisdiction for some time and dismissed the proposed holographic will as invalid. We affirm.

[732]*732I.

Mildred Rowell died on August 6, 1989. She was sixty-five years old, a widow, and possessed a tenth grade education. She was survived by seven children: Pauline Fulmer; Evelyn Hollingsworth; Dale Bunch; Linda Soudélier; Kathey Amyotte; George W. Rowell; and Paul C. Rowell. On December 21, 1989, Evelyn Hollings-worth filed a Petition for Letters of Administration, alleging that her mother had left no will, and asking that she be named administratrix of her mother’s estate. Hollingsworth was subsequently named ad-ministratrix of her mother’s estate. Holl-ingsworth also gave notice to creditors.

On February 6, 1990, Kathey Amyotte filed a Petition for Probate of Will and for Letters Testamentary. She alleged that her mother had left the following holographic will, handwritten on two sides of one sheet of paper:

I Mildred Rowell of Route 2 Box 210 Vossburg Miss 39366 of Clark County Mississippi, being of sound and disposing mind and memory, do hereby make ordain, publish and declare this instrument to be my last will and testament, hereby expressly revoking any and all wills codicils or other instruments of a testamentary nature heretofore made by me in manner and form following.
I
It is my will and I so devise and bequeath that my one hundred acres or ninety eight acres be equal Divided between my two Boys George W Rowell and Paul Rowell, and the minerals wright Divided among the Boys and girls George, Paul, Pauline, Evelyn, Linda, Dale + Kathey Rowell.
II
It is my will My house where I live goes to my Grandson Cassidy Clay Porter and everything inside it with 2 acres of land with it.
III
It is my will that I have five acres left in Chester Rowell est. I leave three (3) to George Rowell and 2 acres to Evelyn Hollingsworth, over
I hereunto set my hand and affixed my seal having first written my in the bottom of the preceding page hereof for the purpose of identification, in the presence of the two subscribing witnesses, on this the 28 day of June in the year of our lord, one thousand nine hundred seventy-seven.

Kathey asked that she be named executrix of her mother’s estate, as Amyotte’s son, Cassidy Clay Porter1, was the primary beneficiary of the alleged will. Amyotte also alleged that Evelyn Hollingsworth knew of the holographic will’s existence at the time she was made administratrix of the estate, and that the letters of administration should, as a result, be set aside.

Evelyn Hollingsworth, Pauline Fulmer, Dale Bunch, and Linda Soudelier filed an objection to the probate of the holographic will. They alleged that the will was not written by Mildred Rowell, nor had it been subscribed as required by law.

A hearing was held on June 7, 1990. The plaintiffs presented testimony from George Rowell, Paul Rowell, Cassidy Porter and Kathey Amyotte. Paul Rowell testified that his mother had given him a blue plastic folder approximately two years before her death and had told him to keep it for her. A few days after she died, Paul Ro-well examined the folder and found the holographic will. It appears that the terms of the will were fairly accurate as to Mildred Rowell’s possessions. The will did not dispose of all of Mildred Rowell’s possessions. She had approximately $100.00 in a checking account and two cars of questionable condition that were not mentioned. George Rowell, Paul Rowell and Kathey Amyotte all testified that they were familiar with their mother’s handwriting and that the will had been written- by her. It seems that Mildred Rowell had wanted Cassidy Porter to have her property be[733]*733cause she had practically raised him for the first three years of his life. George Rowell and Cassidy Porter testified that Mildred had told them that she wanted Cassidy to have her house and the property around it. According to George and Paul Rowell, their mother left the one hundred acres in question to them because she wanted the property to remain in the Rowell family. There was some confusion over the date of the will, as Cassidy Porter, one of the will’s principal beneficiaries, had not yet been born in 1977.

After the plaintiffs rested, Evelyn Holl-ingsworth and her sisters moved the court to dismiss the claim. The chancery court found that the document in question was written by Mildred Rowell. Relying on Miss.Code Ann. § 91-5-1 (Supp.1989), and Wilson v. Polite, 218 So.2d 843 (Miss.1969), and noting that the will had not been signed at the end by Mildred Rowell, the court found that the will had not been subscribed as required by statute and was therefore invalid.

II.

The objectors moved for dismissal of Ka-they Amyotte’s claim under Miss.R.Civ.P. 41(b). When considering a motion under 41(b), the trial judge considers the plaintiffs evidence fairly, instead of in the light most favorable to the plaintiff. If after consideration in this manner the trial court finds that the evidence is insufficient to meet the requisite burden of proof or to prove one or more key elements of the claim, then the trial court should render judgment in favor of the defendant. If there is doubt, then the motion should be denied. Smith v. Smith, 574 So.2d 644 (Miss.1990). As for findings of fact made by a judge sitting without a jury, this Court employs the substantial credible evidence/manifest error rule. Croenne v. Irby, 492 So.2d 1291 (Miss.1986).

The requirements for execution of wills is controlled by Miss.Code Ann. § 91-5-1 (Supp.1989), which provides:

Who may execute.
Every person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, of, in, or to lands, tenements, hereditaments, or annuities, or rents charged upon or issuing out of them, or goods and chattels, and personal estate of any description whatever, provided such last will and testament, or codicil, be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.

The trial court found the document in question was in the handwriting of Mildred Rowell, and we would uphold such a finding under the applicable standard of review. However, the trial court further found that the will had not been “subscribed” as required by § 91-5-1 and applicable case law.

Wilson v. Polite, 218 So.2d 843 (Miss.1969) is our definitive case on this matter.

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Related

Wilson v. Polite
218 So. 2d 843 (Mississippi Supreme Court, 1969)
Croenne v. Irby
492 So. 2d 1291 (Mississippi Supreme Court, 1986)
Smith v. Smith
574 So. 2d 644 (Mississippi Supreme Court, 1990)
Mississippi College v. May
128 So. 2d 557 (Mississippi Supreme Court, 1961)
In Re the Estate of McMahon
163 P. 669 (California Supreme Court, 1917)
Estate of Brooks
4 P.2d 148 (California Supreme Court, 1931)
Graham v. Edwards
173 S.W. 127 (Court of Appeals of Kentucky, 1915)
Lyle v. Shannon
228 So. 2d 594 (Mississippi Supreme Court, 1969)
Woodville v. Pizzati
81 So. 127 (Mississippi Supreme Court, 1919)

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Bluebook (online)
585 So. 2d 731, 1991 Miss. LEXIS 521, 1991 WL 164841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amyotte-v-hollingsworth-miss-1991.