Prather v. Prather

Mississippi Supreme Court

Prather v. Prather

52 So. 449, 97 Miss. 311

CourtMississippi Supreme Court

DecidedMarch 15, 1910

StatusPublished

Cited by8 cases

This text of 52 So. 449 (Prather v. Prather) 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

Prather v. Prather, 52 So. 449, 97 Miss. 311 (Mich. 1910).

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Opinion

Anderson, J.,

after stating the facts as above, delivered the ■opinion of the court.

In Young v. Wark, 76 Miss. 829, 25 South. 660, it was held that: “Want Sarah relatives have all property. S. A. M. Sadler” — was neither in form nor substance a will, and, in the absence of evidence to show that it was intended as a will, it was not in fact such; and in Redhead v. Redhead, 83 Miss. 141, 35 South. 761, the following was held to be1 a valid will: “Realizing the uncertainty of life at all times, and the dangers incident to- travel, I leave this as a memoranda of my wishes should anything happen to me during my intended trip to Buffalo and other places” — followed by a disposition of his estate. In Buffington v. Thomas, 84 Miss. 157, 36 South. 1039, 105 Am. St. Rep. 423, it was held: “A letter, testamentary in its ■character and wholly written and dated and signed by the testator, is a valid holographic will, although it contains a request to the person to whom it was addressed, to keep its contents private” — and the fact that it requested an answer from the person to whom it was addressed did not make it dependent upon ■■a contingency, although it Was never answered, and the testator lived several months after writing the letter.

Whether a writing was intended as a will may be shown by parol testimony alone, or by such testimony together with the writing. - The letter under consideration by its language is testamentary in character. It purports to be a will. However, the language: “This leaves me as well as could expect. Business is very dull here at present. * * * Come out some time” — clearly shows it was written to reach the hands of. the brother at an early date, and before the death of the writer; ■and the fact that it did not, and was found in possession of the latter at his death, unexplained, would sufficiently prove that he had abandoned treating it as his will, that he did not intend it as his will. On the other hand, if the allegations of the pe[319]*319tition are true, that for sufficient reasons to be shown the decedent never intended to deliver the writing to his brother during the former’s lifetime, but kept it, treating and intending it as his will, then it is his will.

Affirmed and remanded, and defendants given thirty days after mandate filed in court below in which to answer.

Affirmed.

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Anderson, J.,

after stating the facts as above, delivered the ■opinion of the court.

In Young v. Wark, 76 Miss. 829, 25 South. 660, it was held that: “Want Sarah relatives have all property. S. A. M. Sadler” — was neither in form nor substance a will, and, in the absence of evidence to show that it was intended as a will, it was not in fact such; and in Redhead v. Redhead, 83 Miss. 141, 35 South. 761, the following was held to be1 a valid will: “Realizing the uncertainty of life at all times, and the dangers incident to- travel, I leave this as a memoranda of my wishes should anything happen to me during my intended trip to Buffalo and other places” — followed by a disposition of his estate. In Buffington v. Thomas, 84 Miss. 157, 36 South. 1039, 105 Am. St. Rep. 423, it was held: “A letter, testamentary in its ■character and wholly written and dated and signed by the testator, is a valid holographic will, although it contains a request to the person to whom it was addressed, to keep its contents private” — and the fact that it requested an answer from the person to whom it was addressed did not make it dependent upon ■■a contingency, although it Was never answered, and the testator lived several months after writing the letter.

Whether a writing was intended as a will may be shown by parol testimony alone, or by such testimony together with the writing. - The letter under consideration by its language is testamentary in character. It purports to be a will. However, the language: “This leaves me as well as could expect. Business is very dull here at present. * * * Come out some time” — clearly shows it was written to reach the hands of. the brother at an early date, and before the death of the writer; ■and the fact that it did not, and was found in possession of the latter at his death, unexplained, would sufficiently prove that he had abandoned treating it as his will, that he did not intend it as his will. On the other hand, if the allegations of the pe[319]*319tition are true, that for sufficient reasons to be shown the decedent never intended to deliver the writing to his brother during the former’s lifetime, but kept it, treating and intending it as his will, then it is his will.

Affirmed and remanded, and defendants given thirty days after mandate filed in court below in which to answer.

Affirmed.

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Bluebook (online)

52 So. 449, 97 Miss. 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prather-v-prather-miss-1910.

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