Caffey v. Tindall

Mississippi Supreme Court

Caffey v. Tindall

56 So. 177, 99 Miss. 851

CourtMississippi Supreme Court

DecidedMarch 15, 1911

StatusPublished

Cited by2 cases

This text of 56 So. 177 (Caffey v. Tindall) 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

Caffey v. Tindall, 56 So. 177, 99 Miss. 851 (Mich. 1911).

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Opinion

Smith, J.,

delivered the opinion of the court.

The alleged testator died seised and possessed of both real and personal property, all of which is necessarily included in the description, “all my property,” contained in the alleged nuncupative will, and would pass thereby, were it lawful to devise realty by parol.

At the request of contestants, the court charged the .jury that “the law presumes, and, in the absence of evidence to the contrary, conclusively presumes, that Bill Caffey, if he was sane, knew that real estate would not pass under a nuncupative will.” If the testator in fact knew that real property would not pass under a nuncupative will, it is hardly probable that he would have attempted to so devise such property, and consequently the jury, on account of this fact alone, would have been warranted in seriously doubting the making of the will at all. That the will attempted to pass real estate would be of no assistance to the jury in determining whether •or not the will was made, if the testator in fact had no knowledge at all as to what property the law would permit to .pass under it.

In this connection, the knowledge or want of knowledge on the part of testator is a fact to be proven in the same manner that other facts are proven. The law does presume, for some purposes, that all persons know the law; but not for the purpose of supplying evidence of a-fact material to the controversy. Under this instruction, [859]*859■as there was no evidence to the contrary, the jury were instructed to conclusively presume the existence of a fact necessary to be established by evidence, before the .jury could draw any inference therefrom, and of which there was no evidence at all. The writer of this opinion is strongly inclined to the view that the evidence of the ■regatio testium fails to meet the requirements of the statute; that for this reason the court should have directed a verdict for appellees; and that consequently the ■error committed by the court in granting the instruction hereinbefore set out was harmless. A majority of the ■court, however, think otherwise.

Reversed and remanded.

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Smith, J.,

delivered the opinion of the court.

The alleged testator died seised and possessed of both real and personal property, all of which is necessarily included in the description, “all my property,” contained in the alleged nuncupative will, and would pass thereby, were it lawful to devise realty by parol.

At the request of contestants, the court charged the .jury that “the law presumes, and, in the absence of evidence to the contrary, conclusively presumes, that Bill Caffey, if he was sane, knew that real estate would not pass under a nuncupative will.” If the testator in fact knew that real property would not pass under a nuncupative will, it is hardly probable that he would have attempted to so devise such property, and consequently the jury, on account of this fact alone, would have been warranted in seriously doubting the making of the will at all. That the will attempted to pass real estate would be of no assistance to the jury in determining whether •or not the will was made, if the testator in fact had no knowledge at all as to what property the law would permit to .pass under it.

In this connection, the knowledge or want of knowledge on the part of testator is a fact to be proven in the same manner that other facts are proven. The law does presume, for some purposes, that all persons know the law; but not for the purpose of supplying evidence of a-fact material to the controversy. Under this instruction, [859]*859■as there was no evidence to the contrary, the jury were instructed to conclusively presume the existence of a fact necessary to be established by evidence, before the .jury could draw any inference therefrom, and of which there was no evidence at all. The writer of this opinion is strongly inclined to the view that the evidence of the ■regatio testium fails to meet the requirements of the statute; that for this reason the court should have directed a verdict for appellees; and that consequently the ■error committed by the court in granting the instruction hereinbefore set out was harmless. A majority of the ■court, however, think otherwise.

Reversed and remanded.

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Bluebook (online)

56 So. 177, 99 Miss. 851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caffey-v-tindall-miss-1911.

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