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McSWEYN SHATTUCK & FRED W. PATHMANN, SR., EXECUTORS OF THE ESTATE OF RUTH McSWEYN TYSON, EXECUTRIX v. ESTATE OF R. A. TYSON

MAY 20, 1987

McSWEYN SHATTUCK & FRED W. PATHMANN, SR., EXECUTORS OF THE ESTATE OF RUTH McSWEYN TYSON, EXECUTRIX
v.
ESTATE OF R. A. TYSON



BEFORE WALKER, C.J., DAN LEE AND PRATHER, JJ.

PRATHER, JUSTICE, FOR THE COURT:

Co-executors of the estate of Ruth McSweyn Tyson brought this action to renounce the last will and testament of Ruth's husband, Robert Alexander Tyson, whose will was probated in 1953. In the Chancery Court of Marshall County, the chancellor granted summary judgment in favor of the estate of R. A. Tyson. The co-executors perfect this appeal and assign the granting of summary judgment as their only error. This Court affirms.

Rule 56 (b) of the Mississippi Rules of Civil Procedure provides," A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. "

 Rule 56 allows summary judgment where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Brocato v. Mississippi Publishers Corp., 503 So. 2d 241, 243 (Miss. 1987); Modling v. Balley Homes & Insurance, 490 So. 2d 887, 891 (Miss. 1986); Brown v. Credit Center Inc., 444 So. 2d 358, 362 (Miss. 1983). The facts of the instant case are not disputed.

 II.

 In 1951, Robert Alexander Tyson (Robert) married his third wife, Ruth McSweyn (Ruth). Robert was 64 years old and Ruth was 43. Robert's daughter from a previous marriage, Harriet, was 7 years old. The family resided in Robert's

 home in Holly Springs, Mississippi. On February 26, 1953, Robert entered a hospital in Florence, Alabama for surgery. While hospitalized, Robert was visited by his attorney, Glenn Fant, and J. F. Daniels, now deceased. At Robert's request, Fant drew a last will and testament for Robert and one for Ruth. Robert's will provided in part:

 Well knowing that my beloved wife will adequately care for my daughter Harriet Tyson and make provisions for her, by this expression not creating any trust, charge, or other restraint, I give devise and bequeath to my beloved wife, Ruth McSweyn Tyson all my property of every nature and wherever situated, To her own use for ever in fee simple.

 Ruth's will provided in part:

 I give devise and bequeath all property which was devised and bequeathed to me by my beloved husband Robert A. Tyson to the daughter of the said Robert A. Tyson whether I shall have lawfully adopted her as now is my intention as my own daughter or not, Harriet Tyson to her own use for ever in fee simple. *fn1

 Before the wills were executed, Ruth made an oral promise to Robert that she would devise and bequeath to Harriet all the remaining property she received from Robert's estate. Ruth's oral promise was witnessed by Fant and Daniels. Afterward, the wills were executed contemporaneously.

 Robert died May 22, 1953 and his will was probated in the Chancery Court of Marshall County, Mississippi. Ruth was executrix and sole legatee and devisee. Robert's estate included real property in Marshall County, an antebellum home, valuable furnishings, stock in the Bank of Holly Springs, and other valuable property.

 Sometime after the execution of Ruth's 1953 will, an error was discovered in the attestation clause. The error was corrected by Ruth's execution of another will dated July 30, 1954. Between the execution of her first and second wills, Ruth adopted Robert's daughter, Harriet. *fn2

 During the years that followed, Harriet and Ruth became estranged from one another. In 1965, Ruth executed a new will, revoking her former wills. In her 1965 will, Ruth

 devised and bequeathed the Robert Tyson property to co- trustees of a testamentary trust. Under the testamentary trust, Harriet was to receive one-half the income derived from her father's property while Kathryn McSweyn ...


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