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KAY LEIGH RASCO v. ESTATE OF RICHARD RASCO

JANUARY 21, 1987

KAY LEIGH RASCO
v.
ESTATE OF RICHARD RASCO



BEFORE PRATHER, ROBERTSON AND SULLIVAN, JJ.

PRATHER, JUSTICE, FOR THE COURT:

This will contest examines whether a divorce accompanied by property settlement revokes, by implication, a previously executed will where the parties continue to live together after the divorce.

The Chancery Court of DeSoto County ruled that a divorce decree and property settlement entered into by Kay and Richard Rasco, revoked by implication a will executed by Richard Rasco prior to the divorce proceeding.

 Appellant Kay Rasco appeals alleging that the trial court's order was in direct contravention of the relevant Mississippi law relative to the doctrine of implied revocation of wills and contrary to the best interests of the minors involved. The Court examined the case but reverses on other grounds.

 I.

 Kay Leigh Rasco married Richard Rasco, a citizen of DeSoto County, Mississippi. She had three children by a previous marriage, Rebecca Herring, George Davis Herring, II and Frank Leon Herring. In his will dated June 29, 1981, Richard Rasco bequeathed $500.00 to George Herring and one acre of land each to Rebecca and Frank Herring. The bulk of his estate he devised to his wife, Kay Leigh Rasco, who was also named as executrix.

 On April 13, 1982, a divorce action for irreconcilable differences was granted to the parties. The property agreement was to be:

 " a full, final and complete settlement of all their property rights, and . . . full and complete settlement of the controversy over the property rights of the parties, and save the right of either party to prosecute his or her suit for complete divorce, this settlement and agreement is and forever after shall be a bar to any suit at law or otherwise for anything growing out of the marriage relation of the parties as well as the property rights of the one against the other. "

 Under the terms of the settlement, the wife was to receive frozen goods in the deepfreeze, home prepared canned goods, the organ, the sewing machine and her personal effects. She was to pay her debts and maintain her husband's hospitalization insurance until he remarried. The husband was to pay all attorneys' fees and court costs.

 Despite the divorce decree, Kay and Richard Rasco continued to live together. Richard Rasco died on November 24, 1982; Kay Rasco was appointed executrix pending the outcome of the will contest by Rasco's children - Alice Mae Robinson, Frank Rasco Jr., R. H. (Harry) Rasco, Robert Henry Rasco Jr., and Robert Allan Rasco. The contest claims that Richard Rasco revoked his purported last will and testament by way of a property settlement incorporated in the 1982 divorce decree.

 The case was tried on the stipulation of the foregoing facts, and in addition the following facts:

 (1) That Richard Rasco and Kay Rasco continued to live in the same house they were occupying at the date and time of the divorce and slept in the same bed, and were so living together at the time of the death of Richard Rasco,

 (2) That the last will and testament was found at Richard Rasco's death in his safe at the house he and ...


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