Martin v. Perkins

Citations

• 56 Miss. 204

Syllabus

<p>1. Wills. How proved, after probate once refused.</p> <p>When a writing purporting to be a last will and testament has been oifered for probate in the “common form,” under sect. 1099 of the Oode of 1871, and the probate refused because of the insufficiency of the proof, such refusal does not preclude the devisees or legatees from subsequently presenting the writing for probate, in a more formal and solemn manner, and supplying full proof of its character and establishing its validity.</p> <p>2. Same. Who competent to prove. Mental condition of testator.</p> <p>Upon the ex parte exhibition of a writing to be probated as a will, in “ common form,” under our statute, the subscribing witnesses must be examined, and they are the only competent witnesses to prove the signing, publishing, and attestation of the writing; but others are equally competent to testify as to the mental condition of the testator, the only difference being that the subscribing witnesses ma}^ express their opinions as to his mental condition, while other witnesses are confined to a narration of facts. And where the judge, or clerk, is satisfied from the testimony of such other witnesses that the testator had mental capacity to make the will, it is his duty to allow the same to be probated, notwithstanding the subscribing witnesses may testify against the capacity of the testator.</p> <p>3. Same. Mental condition. Must be proved,.</p> <p>Our statute upon the probate of wills, when its various provisions are collated and construed together, requires that some direct proof of a sound and disposing mind in the testator shall be made, on the probate of a will in “common form.”</p>