Minor v. Russell , 126 Miss. 228 ( 1921 )

Holden, J.,

delivered the opinion of the court.

This case presents a contest of the will of J. D. Minor, deceased, by the appellants, who filed a caveat against the probate. A demurrer to the caveat was sustained by the court, from which decree this appeal is prosecuted. No point is made with reference to this unusual method of pleading; and’, assuming the facts to be true as set up in the caveat, the question for our determination is whether or not the will Avas “revoked by implication.” AVe here set out the caveat, Avhich by the pleadings is taken to be true: “That said purported Avill is null and void, and is not the last Avill and testament of the said J. D. Minor, because, after said purported will was made, and about one day and a half before the death of said J. D. Minor, the said J. D. Minor called said Minor Russell to him, and told him to1 get said will for him, as he desired to change said will; ■that just at this time Dr. O. L. Bailey, the family physician of said J. D. Minor, appeared on the scene, and ordered all proceedings Avith reference to changing said Avill stopped; and that said Dr. Bailey, by his said conduct in ordering said proceedings stopped Avith reference to changing said Avill forcibly prevented said J. D. Minor fr.om changing his said will; that said J. D. Minor was then sick and physically not able to override his said physician’s orders and directions not to proceed with reference to changing his said Avill, and said J. D. Minor about a day and a half later died without having made any change in his said purported will. That, therefore, by implication, the said will of said J. D. Minor, deceased, is revoked, because said J. D. Minor, as aforesaid, was forcibly prevented by his physician’s orders from proceeding to change his said will as he stated he desired to do.

“AVherefore, these caveators, to-wit: Alma Minor Farmer, Hall Minor, Frank Minor, and Mallory Minor, do hereby allege and assert that the said purported last will and testament of said J. D. Minor, deceased, of which a copy is made Exhibit A hereto, and Avhich is now being attempted to be probated as aforesaid, ought not to be probated as the last will and testament of said J. D. Minor, deceased for the reason that, by operation of law, it is revoked because the decedent was forcibly prevented as aforesaid from changing said will.”

Taking the case as stated in the caveat in the most favorable light for the appellants, it appears that the family physician of the deceased forcibly prevented the testator from changing his will in some respect, but to what extent is not shown. We are familiar with the common-law doctrine of “revocation by implication,” which appears to have been followed and reannounced in Garrett v. Dabney, 27 Miss. 335, and subsequently recognized and discussed as late as Hoy v. Hoy, 93 Miss. 732, 48 So. 903, 23 L. R. A. (N. S.) 182, 136 Am. St. Rep. 548, 17 Ann. Cas. 1137, but the case before us now does not come within the rule, for obvious reasons; the principal one being that the testator here attempted to expressly revoke the will, or change it in some particular, which he was forcibly prevented from doing; consequently there can be no “revocation by implication” under this state of facts. Furthermore the change in the will alleged to have been attempted by the testator, if accomplished, may not have been a revocation. Section 5079, Code of 1906 (section 3367, Hemingway’s Code), provides the sole method of expressly revoking a will, which was not followed in this case.

The decree of the lower court is affirmed.

Affirmed.