A devise so made, or any clause thereof, shall not be revocable but by the testator or testatrix destroying, canceling, or obliterating the same, or causing it to be done in his or her presence, or by subsequent will, codicil, or declaration, in writing, made and executed. Every last will and testament made when the testator or testatrix had no child living, wherein any child he or she might have is not provided for or not mentioned, if at the time of his or her death he or she have a child, or if the testator leave his wife enceinte of a child who shall be born, shall have no effect during the life of any such after-born child and shall be void unless the child die without having been married, or without leaving issue capable of inheriting, and before he or she shall have attained twenty-one years. The estate, both real and personal, so devised shall descend to such child in the same manner as if the testator or testatrix had died intestate, subject, nevertheless, to the bequests made in the last will and testament in case of the death of such child before marriage, or without issue capable of inheriting, and under the age of twenty-one years. When a testator shall leave children born and his wife enceinte, the posthumous child or children, if unprovided for by settlement and neither provided for nor disinherited, but only pretermitted, by the last will and testament, shall succeed to the same portion of the father's estate as such child or children would have been entitled to if the father had died intestate, towards raising which portion the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament.
Codes, Hutchinson's 1848, ch. 49, art. 1 (15); 1857, ch. 60, art. 35; 1871, § 2389; 1880, § 1263; 1892, § 4489; 1906, § 5079; Hemingway's 1917, § 3367; 1930, § 3551; 1942, § 658.
Notes of Decisions
Cited in
22
cases, 1977–2017 · leading case:
Hinders v. Hinders, 828 So. 2d 1235 (Miss. 2002).
Hinders v. Hinders, 828 So. 2d 1235 (Miss. 2002).
· cites it 6× “In Rasco, this Court, inter alia, (1) acknowledged that revocation of wills in Mississippi is governed by statute ( Miss. Code Ann. § 91-5-3 ); (2) acknowledged that in certain cases the facts may bring about "an implied revocation by operation of law"; [6] acknowledged that…”
Ramsey v. Robinson, 346 So. 2d 379 (Miss. 1977).
· cites it 6× “Code section 91-5-3 (1972) provides in part as follows: A devise so made, or any clause thereof, shall not be revocable but by the testator or testatrix destroying, canceling, or obliterating the same, or causing it to be done in his or her presence or by subsequent will,…”
Lillian Hunt Chaney v. Josephine Chaney, 235 So. 3d 120 (Miss. Ct. App. 2017).
· cites it 5× “See Miss. Code Ann. § 91-5-3 . ¶ 19. The terms of the property-settlement agreement were unambiguous.”
Ankrom v. State, 152 So. 3d 397 (Ala. 2013).
“2-302 (2012); Miss. Code Ann. §§ 91-5-3 , 91-5-5 (1999); Mo.”
In Re Est. of Woodfield, 968 So. 2d 421 (Miss. 2007).
· cites it 4× “A testator who wishes to revoke a will may do so by either: (1) destroying, canceling, or obliterating the will, or (2) "by subsequent will, codicil, or declaration, in writing, made and executed.”
Trotter v. Trotter, 490 So. 2d 827 (Miss. 1986).
· cites it 2× “Miss. Code Ann. § 91-5-3 (1972) provides the only means by which a will may be expressly revoked.”
Dixon v. Jones, 138 So. 3d 205 (Miss. Ct. App. 2014).
· cites it 2× “Miss.Code Ann. § 91-5-3 (Rev.2013). We find the antenuptial-agreement provision leaving Bonnie the home was a devise, or testament, that Johnnie intended to revoke by the subsequent will.”
Rasco v. Est. of Rasco, 501 So. 2d 421 (Miss. 1987).
· cites it 3× “Miss. Code Ann. § 91-5-3 , in pertinent part provides: A devise so made, or any clause thereof, shall not be revocable but by the testator or testatrix destroying, canceling, or obliterating the same, or causing it to be done in his or her presence, or by subsequent will,…”
In Re Will & Est. of Varvaris, 477 So. 2d 273 (Miss. 1985).
“LAW WAS REVERSIBLE ERROR COMMITTED IN NOT HAVING A JURY TRY THE ISSUE Although his trial counsel filed no request therefor, and indeed never once hinted at any desire to have a jury try any factual issue, different counsel for Steve has urged on appeal the chancellor…”
Hudson v. Moon, 732 So. 2d 927 (Miss. 1999).
“MCF alleged in the trial court, as an alternative defense, that mortmain, as embodied in § 270 and § 91-5-3, was unconstitutional. ¶ 23. Although there was no notice to the Attorney General as required by § 7-5-1 and Rule 24(d), the chancellor ruled the mortmain unconstitutional.”
Est. of Lyles, 615 So. 2d 1186 (Miss. 1993).
· cites it 2× “See Miss. Code Ann. § 91-5-3 (1972) [1] . Cancellation, as interpreted by this Court, is "accomplished by the drawing of lines over or across words with the intent to nullify them and the form and extent of the lines are totally unimportant as long as they are a physical token…”
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