Williams v. Moorehead

Citations

• 116 Miss. 653
• 77 So. 658

Syllabus

<p>1. Wnxs. Contest. Instructions. Burden of proof.</p> <p>Where a will which had been duly filed for probate and was admitted to probate by the chancery clerk in vacation was being contested on the ground that the testator had made a subsequent will revoking the first, an instruction for the contestants, “that if the whole evidence in the case leaves it doubtful whether the will probated and now being contested was the true last will of deceased, the jury should find against'its validity; for it is incumbent upon the proponents of the said will by a preponderance of the evidence to reasonably satisfy the minds of the jury that the instrument was in truth the last will of deceased;” was erroneous because the burden of proof was not upon the proponents to disprove the validity of the subsequent will, but it was upon the contestants to show affirmatively that the alleged subsequent will sought to be proven orally by contestants, was legally and validly executed in all respects as required by law; and unless this burden was met by contestants, the former valid, probated will was not revoked, but should prevail as the last will and testament of deceased.</p> <p>2. Wnxs. Execution. How proved. Code 1906, section 1991.</p> <p>Under Code 1906, section 1991 (Hemmingways Code, section 1656), providing that the due execution of a will must be proved by at least one of the subscribing witnesses when present in person, where such attesting witness cannot be procured, or refuses to testify or denies .the execution of the will, such execution may be established by other proof.</p>