Lee v. Stewart

104 So. 89, 139 Miss. 287, 1925 Miss. LEXIS 139

• Court: Mississippi Supreme Court
• Decided: May 11, 1925
• Docket: No. 24950.
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

The appellant, Lee a non compos mentis, by guardian filed a bill to contest the will of Pinkie Allen Lee, his wife, and, if the will should be adjudged to be valid as a will, to renounce it and take under the statute giving him the right to renounce. The will reads as follows:

“I, Pinkie Allen, of the city of Greenville, in the county of Washington, and state of Mississippi, being* of sound and disposing mind, memory and under standing, and being above the age of twenty-one, do hereby make my last will and testament in maimer and form following: 1st. I give, bequeath and devise to David Lee, one dollar. 2nd. I give, devise and bequeath to my nephew, Johnnie Stewart, his heirs and assigns, forever, all of my personal property, real and mixed, of what I die possessed, except my household furniture, which I wish to leave my nieces.

“In witness whereof, I, Pinkie Allen, the maker of this will, do hereby sigpa my name.

“ [Signed] Pinkie Allen Lee.”

“Attested by Mamye L. Gtbson.

“ Agnes Jones.

“Will Gibson.”

The contest was principally upon the ground that the will was not dated, and it is earnestly contended that a date is necessary. As indicated above, the will was witnessed bjr the statutory number of competent witnesses.

While the date of the will is important, and in the case of a holographic will, which is not required to be witnessed at all, it may. be vital to the validity of a will for it to be dated, which we do not now decide, but in the case of attested wills there is nothing in the statute that requires attested wills to be dated, and the authorities generally hold that as to such wills the date is not necessary, unless required by statute. Alexander on Wills, section 40, p. 44; 40 Cyc, 1098. The decree of the chancellor, therefore, upholding the validity of the will is correct.

When the bill was filed the will had been probated, but no letters of administration had been granted. The deceased had been buried and a contract for the burial ex penses had been made with the undertakers by the devisee, Stewart, who had given a mortgage on the property devised to him to secure the undertakers their expenses in performing the services for the funeral and burial. When the cause came on for trial an agreement with reference to the funeral expenses was filed and which is as follows:

“It is agreed that the property involved in this suit may be charged with seventy dollars funeral expenses, payable to Dave and M. A. Willis, and that an agreed order may be entered, directing the commissioner to pay out of any funds in her hands belonging” to the estate the seventy dollars.”

When the bill was filed the court appointed a receiver to take charge of the premises occupied by the deceased in her life and to collect the rents therefrom. The funeral account agreed to be paid by Stewart seems to have amounted to about one hundred and forty dollars and had not been probated; no letters of administration having been taken out.

The chancellor entered a decree directing the seventy dollars agreed funeral expenses to be charged against the real estate, and it has been assigned for error that the expenses should have been charged solely against the personal property, and that the chancellor should have imposed the funeral expenses against the personal property and not against the real estate.

Conceding the contention to be correct, in the absence of an agreement, we think the agreement here involved permitted the chancellor to charge the funeral expenses against the property in the hands of the receiver, which consisted of real estate and rentals therefrom.

The decree of the chancellor allowed the appellant one-half of both the real and personal property, and, as we see it, his rights would not be affected adversely by the decree, as his one-half of the expense account of the funeral would have to be paid from his part of the property. Stewart has not appealed from the order, and the decree, so far as it affects him, stands unappealed therefrom.

The judgment of the court below will therefore be affirmed.

Affirmed.