APPELLANT'S REPLY BRIEF

Transcription

1 E-Filed Document Dec :52: CA Pages: 15 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI HARUHIKO (HARRY) MURAKAMI APPELLANT v. SUPREME COURT# # 2015-CA JANICE M. YOUNG APPELLEE APPELLANT'S REPLY BRIEF Appeal From: The Chancery Court of Clarke County Civil Action # P John E. Howell Post Office Box 5838 Meridian, Mississippi Tel: 601/ Fax: 601/ john@howelllawfirm.com iohn@howelllawfirm.com MSB No Counsel for HARUHIKO (HARRY) MURAKAMI

2 TABLE OF CONTENTS PAGE TABLE OF CONTENTS. CERTIFICATE OF INTERESTED PERSONS. TABLE OF AUTHORITIES. STATEMENT OF CASE. SUMMARY OF ARGUMENT. ARGUMENT. CONCLUSION. CERTIFICATE OF SERVICE of 14

3 REPLY BRIEF OF THE APPELLANT CERTIFICATE OF INTERESTED PERSONS The undersigned Counsel of record certifies that the following listed persons have an interest in the outcome of this case. Haruhiko Murakami Janice M. Young Jennifer M. Eakes Justin Massingale Hon. Stephen B. Jackson Hon. John E. Howell Hon. Larry Primeaux Executor and Appellant Appellee Appellee Appellee Counsel for Appellee Counsel for Appellant Presiding Judge in Clarke Chancery Court Proceedings Isl John E. Howell John E. Howell, Attorney for Appellant 2 of 14

4 TABLE OF AUTHORITIES CASES Austin v. Patrick, 176 So. 714,179 Miss. 718 (Miss. 1937). Bearden v. Gibson, 60 So.2d 655, 215 Miss. 218 (Miss. 1952) Bolton v. Bolton, 107 Miss. 85 Edgington v. Mabry, 71 So. 801, III Miss. 492 (Miss. 1916) Gordon v. Parker, 104 So. 77, 139 Miss. 334 (Miss. 1925). Kennard v. Evans, 65 So.2d 285, 218 Miss. 176 (Miss. 1953) Millerv. Miller, 51 So. 210, 96 Miss. 526 (Miss. 1910) 8,9 II ,9 8 3 of 14

5 STATEMENT OF THE CASE Nature ofthe Case This matter is a will contest. The will by its terms is 14 pages and has been filed for probate. The will was downloaded from the internet and each article is titled, as is the page providing the "details"(re-5;r-198). The testatrix created all of the pages; whether in one sitting or more is not known. The will was properly witnessed and accepted for probate. In the Court Below A hearing on motion for summary judgment was held and no testimony was taken. The court sustained the motion for summary judgment without any mention that the will had been admitted to probate and therefore prima-facie evidence of the validity of the will. The will was found to be valid without the "details" page (RE- 5;R -198). The pages of this will are not numbered and there is no evidence to reflect any order in which the testator had arranged the pages. There is the affidavit of Ron. Polly Covington that the pages were stored together. The testatrix filled in the number of pages at "14". That number includes the "details"(re-5;r-198) page. Statement of Facts The will was admitted to probate as nine unnumbered pages of the will that states a total of 14 pages. The "details" page (RE-5;R-198), filed at the end, is dated by the testatrix the same day as the other dates appearing in the will. There is no 4 of 14

6 typed date appearing on any other page of the will except the "details" page. Mr. Murakami testified that he was not there either for the typing or the signing of the will; therefore he does not know how the document was created; nor does it matter; as the document was presented and witnessed as the will; all 14 pages. There is no explanation from the witnesses for the 14 pages or the blanks that the "details" page (RE-5;R-198) supplies the information. Factual questions ignored by the summary judgment. SUMMARY OF THE ARGUMENT Summary judgment was improper in this action because there are issues of material fact. The will was admitted to probate and prima-facie evidence of its validity. There is no evidence that the "details" page of the will was separate from the will rather there is evidence that the page was a part of the 14 page will; that was stored together and admitted to probate. The affidavits of the witnesses are pregnant with the omission of excluding the "details" page from the 14 pages that they witnessed. ARGUMENT The contestants urge the separate document theory. The "Details of Johanna Massingale's wishes of her Last Will and Testament" page (RE-5;R-198) was typed by the testatrix in a different font than that taken directly for the internet. This page was included by the testatrix as a page of her will to fill in the blanks left in the pages she downloaded. Just saying "page 9 is a separate document" does not make it so. (Appellee brief page 3) There is no evidence that this page was typed at a different 50fl4

7 time. Mr. Murakami testified that he was not present for the creation or the signing of the will. Mr. Murakami has no knowledge that is his own. Whether it was printed in the seconds before or after the other pages of her will cannot be established. It was probated and there is no evidence this page was not there at the signing; only affidavits worded by the opponents that the witnesses have "no memory" seeing the page. There is no evidence the witnesses looked at any pages of the will. Evidence that there was a separate document is factual. I downloaded the cited cases and they became part of this brief, just as the testatrix downloaded a will and added her details as part of her will. I might even type some of this brief on one day and down load cites on a different day; still one brief and one will. Opponents accept the will as having been published and contest one page without any authority that separates that page. In Bolton v. Bolton, 107 Miss. 85, the court holds an attestation is good, though in the form of an acknowledgment, and on a separate sheet and not physically attached to the will. In Armstrong v. Walton, 105 Miss. 337, it was expressly held that a will which was sufficient under the English statute of frauds, was a good will in this state under our statute, and that where the name of the testator, at his request, is written into a blank form of a will in the caption thereof, the same, upon being [139 Miss. 340] properly attested and being understood by all parties as a will, is a valid will. There is no requirement that each page of a will be separately published. The will containing 14 pages was published to the witnesses and none stated there were fewer pages nor did they state that the "9 th page" was not there. The affidavits do not exclude the existence of the entire will being there at the time they executed the will. The witnesses state they do not remember; not the page was not present. It is a 60f14

8 question of fact to be determined by ajury. Did the will contain the number of pages indicated by the testatrix in her own hand or some number to be determined by summary judgment? The court was obligated to give the will validity subject to a trial of the issue devisit vel non. Edgington v. Mabry, 71 So. 801, 111 Miss. 492 (Miss. 1916) A careful examination of this record convinces us that two things happened on the trial of the issue devisavit vel non, i. e.: (a) The proponents were not adequately represented at the trial; (b) there was sufficient evidence before the jury to warrant a finding in fav9r ofthe will. The probate of the will by the clerk was alone primafacie [111 Miss. 496] evidence of the validity of the will, and this, together with the other evidence, should have been submitted to the jury, Code 1906, section We think that the instrument had many earmarks of a will, indeed, we are of opinion that the language of the instrument pretty clearly indicates that the signers intended to make a will. Of course, the objectors were entitled to whatever advantage the skill of their counsel gave them, but when the court undertakes to represent the proponents, as was done in this case, it seems to us that he should have seen to it that the formal evidence, the probate proceedings, were introduced in evidence. It is not entirely clear how much, if any, of the proceedings went to the jury. Counsel for the objectors insist that only the testimony ofthe witnesses delivered orally, and taken down by the stenographer, should be considered on this appeal. The entire probate proceedings are in this record, and should have been submitted to the jury. Inasmuch as courts are organized to try controversies on their merits, and because, if appellees are to be believed, this case was not so tried, we will reverse this cause and remand for a trial de novo ofthe issue devisavit vel non. Has the opponent identified any other interpretation of 14 pages? No, they just raise a question. A fact question. Clearly the opponents concede that the will was published to the witnesses. The will contained 14 pages; by its terms. The will was admitted to probate. The witnesses have not denied the contents of the will. The witnesses don't know what was contained therein. The question for the jury is, what 70f14

9 were the 14 pages? Did the testatrix leave blanks on the page beginning "ARTICLE III, DISPOSITION OF PROPERTY", without making any provision other than the residue paragraph, or did she include with and as a part of the 14 pages the instructions disposing of her property? A question of fact, for a jury. There is no rebuttal to the premise that the witnesses are not required to examine the will or know the contents. There is likewise no authority for publication of each page of a will submitted to be witnessed. The opponents cite, Miller v. Miller, 51 So. 210, 96 Miss. 526 (Miss. 1910); Austin v. Patrick, 176 So. 714,179 Miss. 718 (Miss. 1937) and Kennard v. Evans, 65 So.2d 285, 218 Miss. 176 (Miss. 1953), to say the testatrix should have signed an individual page of her will before the witnesses. In fact these cases indicate the testatrix need not sign the will before the witnesses at all; only that she exhibit the will and that the witnesses know they are witnessing her will. Miller v. Miller, 51 So. 210, 96 Miss. 526 (Miss. 1910) The testimony in this case shows clearly that the testator exhibited his will to Cox and Phillips, two of the subscribing witnesses, stating to them that this was his will, that the signature to it was his signature, and that he had signed it. The testimony also clearly shows that M. E. Davis, another subscribing witness, wrote the signature of Calvin Miller for him, and [96 Miss. 533] at his direction, and that this was the signature adopted and acknowledged by Calvin Miller when he stated the above facts to Cox and Phillips. This was a good attestation of his signature. It is not essential to a valid attestation of the testator's signature, under our statute, that the subscribing witnesses shall see the testator sign the will. It is enough ifhe shall produce the will, declare it to be his will, and state that the signature appended to the will is his, and that he wrote it. The testimony offered to show declarations of the testator, to the effect that he would not make a will, was clearly incompetent, as more hearsay. Wigmore on Evidence, vol. 3, f14

10 Austin v. Patrick, 176 So. 714, 179 Miss. 718 (Miss. 1937) Section 1602, Code 1930, requires that the due execution of a will must be proved by at least one of the subscribing witnesses, if alive and resident in this state, and competent to testify. The affidavits of the two subscribing witnesses were sufficient for the probate of the will in common form. And the oral testimony of the subscribing witness Peter Crossley was sufficient under the statute to probate it in solemn form, supported by that of the other witness in most of its essential features, since it was held in the case of Miller v. Miller, 96 Miss. 526, 51 So. 210, that to constitute a good attestation of the signature of the testator it is not essential that the subscribing witnesses should see the testator sign the will; that "it is enough ifhe shall produce the will, declare it to be his will, and state that the signature appended to the will is his, and that he wrote it." If the testatrix had signed the instrument prior to December 24, 1936, as stated by her to the witness Crossley on that date, then it follows that her statement to the other witness in February thereafter that the instrument [179 Miss. 726] was her will was equivalent to saying to him that it had been signed by her. Therefore, the action of the court below in admitting the will to probate was proper. Kennard v. Evans, 65 So.2d 285, 218 Miss. 176 (Miss. 1953) A reference to the will in the codicil constitutes a sufficient identification of the will, even though the instruments are deposited in different places, provided it identifies the will with reasonable certainty.' 57 Am.Jur., p. 415, Wills, par The controlling factor in this case, however, is that the evidence offered by the contestants to establish the proper execution of the alleged revocation was insufficient to show that the instrument had been executed by the testatrix and attested by the subscribing witnesses, in compliance with our own statute as construed by this Court. [218 Miss. 189] In the early case of Heatherington v. Pipes, 32 Miss. 451, it was held that publication of a will actually signed by the testator in the presence of the attesting witnesses is unnecessary under our statute. But the rule is otherwise there the will is not signed by the testator in the presence of the witnesses. In the case of Miller v. Miller, 96 Miss. 526, 51 So. 210, this Court said that it is not essential to a valid attestation of the testator's signature, under our statute, that the subscribing witnesses shall see the testator sign the will. 'It is enough ifhe shall produce the will, declare it to be his will, and state that the signature appended to the will is his, and that he wrote it.' 9 of 14

11 In the case of Maxwell v. Lake, 127 Miss. 107,88 So. 326, 328, the Court said: 'It is true that it is not necessary in this state for the witnesses to see the testator sign a will, but, ifhe does not sign it in their presence, there must be something to call the witnesses' attention to the fact that it is his will, or that it is his signature, or something to show to the witnesses the purpose for which the signing is requested. The court does not require any particular form of words to be used by the testator, but he must indicate in some way so as to inform the witnesses as to the purpose of their signing the will.' I have not been able to find a single case; nor did I detect one in the opponents brief where summary judgment was granted in a will contest where the will had been probated. Instead it is argued that the proponent should have done more. In face of a statute that indicates that a prima-facie case is made. Gordon v. Parker, 104 So. 77,139 Miss. 334 (Miss. 1925) Our court has adopted a liberal construction of our statute of wills favorable to the upholding of wills so far as their execution and the formalities attending the same are concerned the PROBATION OF THE WILL PRIMA FACIE ESTABLISHED ITS VALIDITY. Section 1999, Code The court in two cases has had under consideration the purpose and effect of this statute, and has held that the statute means exactly what it says. Edington v. Mabry, UNDER the statute, every presumption and every inference in favor of the validity of the will, except this bare fact, is and must be indulged. It is and must be presumed that the testatrix was of sound and disposing mind; that she with all due formality undertook and endeavored to execute a valid will; that she intended to so execute it, and that the requirements of section 5078, Code 1906, were literally and fully complied with, and that the will is properly executed, unless the mere fact that Jefferson signed as a witness before the testatrix signed, renders it invalid. In Miller v. Miller, 96 Miss. 526, the court again applied the liberal rule of construction, and notwithstanding the language of the statute, held that it was not necessary that the attesting witness see the testator sign the will, it was enough if the testator produced the will declared to be such, and stated the signature thereto was his. In the same case, it was held that the signature of one subscribing witness might be affixed by the other subscribing witness, if 10 of 14

12 such last witness adopted the signature as his own. In Bolton v. Bolton, 107 Miss. 85, the court holds an attestation is good, though in the form of an acknowledgment, and on a separate sheet and not physically attached to the will. In Armstrong v. Walton, 105 Miss. 337, it was expressly held that a will which was sufficient under the English statute of frauds, was a good will in this state under our statute, and that where the name of the testator, at his request, is written into a blank form of a will in the caption thereof, the same, upon being [139 Miss. 340] properly attested and being understood by all parties as a will, is a valid will. Bearden v. Gibson, 60 So.2d 655, 215 Miss. 218 (Miss. 1952) [215 Miss. 220] Contestants contend that the proponents should have gone further and made the proof of the will by having one of the subscribing witnesses present to testify before the court. Section 498, Code of 1942, provides that 'due execution of the will must be proved by at least one of the subscribing witnesses, if alive and resident in the state, and competent to testify'. Section 499, Code of 1942, provides that 'The affidavit of any subscribing witness to a will, made before and certified by any officer in the state competent to administer oaths, shall be received as a substitute for the personal attendance of the affiant to prove the will where there is no contest about it.' Section 507, Code of 1942, provides that 'On the trial of an issue made up to determine the validity of a will which has been duly admitted to probate, such probate shall be primafacie evidence ofthe validity of the will.' Under this section, the prima facie case made for proponents by the introduction of the proof of probate in common form extends to every aspect of the will touching upon its validity. Without more, the proponents have introduced sufficient evidence to sustain their burden of proof. Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 35 L.R.A. 102; Gathings v. Howard, 122 Miss. 355, 84 So. 240; O'Bannon v. Henrich, 191 Miss. 815,4 So.2d 208; Hilton v. Johnson, 194 Miss. 671, 12 So.2d 524; Rice v. McMullen, 207 Miss. 706, 43 So.2d 195. This identical question was before the Court in Hilton v. Johnson, supra [194 Miss. 671, 12 So.2d 525], and the Court there held: 'On the trial the proponents of the will, his brothers and sisters, assuming the burden, which under the law devolved upon them, of making out a prima facie case of its validity, introduced the probate of the will in common form by the affidavits of the subscribing witnesses who resided in the State of Texas. The proof was in compliance with Section 1602, Code of After doing so they rested. 11 of 14

13 The widow contends that they ought to have gone further and made the proof either by having the subscribing witness or witnesses present to testify before the court or their testimony in the form of depositions. There is no merit in that contention. Section 1603, Code of 1930, provides that the affidavit of any subscribing witness to a will before and certified by any officer of the state competent to administer oaths shall be received as a substitute for the personal attendance of affiant to prove the will where there is no contest. Section 1611, Code of 1930, provides that on the trial of an issue made up to determine the validity of a will which has been duly admitted to probate, 'such probate shall be prima facie evidence of the validity of the will'. See Moore v. Parks, 122 Miss. 301, 84 So. 230; Gathings v. Howard, 122 Miss. 355, 84 So. 240; Sheehan v. Kearney, 82 Miss. 688, 702, 21 So. 41, 35 L.R.A.,N.S., 102.' Sees and 1611, Code of 1930, were carried forward in Code of 1942 as Sees. 499 and 507. The opponents allege in the brief on page 14 that "all parties present at signing, including the notary public who notarized the witnesses' signatures, have already testified about all relevant matters herein.". In fact, only affidavits presented by the opponents have been offered. There were no witnesses called. No Trial of issue of devisavit vel non, as required to set aside a will, after being admitted to probate. Had the testator used the same font as the downloaded will form the page in contested, the "Details of Johanna Massingale's wishes of her Last Will and Testament"(RE-5;R-198) would not be discernible from the remainder of the will. Does this mean the "detail" page was typed at another time? Does this mean that the "detail" page was signed before or after the other pages of her will? These are questions that must be answered, but it is for a jury to decide. These issues are jury issues. 12 of 14

14 CONCLUSION The summary judgment is improper where the prima-facie evidence of the validity of the will is established by its being admitted to probate. The will contains 14 pages inclusive of its instructions. The execution of the will is not questioned. The contestants wish to remove one page; that cannot be shown to have been absent from the executed original. Inclusion of 14 pages by the testatrix and these pages stored together, and admitted to probate establish a facts for a trial of issue devisavit vel non. 13 of 14

15 CERTIFICATE OF SERVICE I, John E. Howell, Attorney for the Appellant, hereby certify that I have this date via MEC a true and correct copy of the foregoing Reply Brief of the Appellant to the following: Hon. Stephen B. Jackson, Attorney for the Appellee. This the 14th day of December, 2015 Respectfully Submitted, lsi John E. Howell JOHN E. HOWELL, Attorney for Appellant JOHN E. HOWELL, MSB #02740 P.O. Box 5838 Meridian, MS Telephone: (601) Facsimile: (601) of 14