Cuba Travelogue

May 26, 2017 § 1 Comment

Click any smaller photo for a slide show. If the picture is not sharp, reload your page. For more Cuba photos, click on this link.

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Does Mississippi Need Class Actions?

May 23, 2017 § 1 Comment

When the idea of Mississippi rules of court first took flight, the drafters modelled the MRCP on the federal rules. For the most part, anyway. When it came to class actions — FRCP 23, 23.1, and 23.2 — the MRCP counterparts read, “Omitted.”

Now the MSSC has posted proposed MRCP 23, 23.1, and 23.2. You can read the proposed rule at this link. Your comments and suggestions are solicited.

I don’t really have a position on this one way or the other. I do note that Mississippi is the only state that does not have class-action practice. We leave it to the federal courts to do class-action work in cases arising in our state that meet the Erie criteria for federal jurisdiction.

 

Bell Seminar

May 22, 2017 § Leave a comment

As I have said here many times, if you are going to practice family law in Mississippi, there is no better way to keep up with the developing case law than to attend Professor Deborah Bell’s seminars.

This year’s venues and dates are: Jackson, Downtown Marriott, July 21, 2017; Oxford, Oxford Conference Center, July 28, 2017; Biloxi, Imperial Palace, August 4, 2017. (Note that a brochure already mailed has the Jackson and Oxford dates transposed). You can verify the correct seminar info and register online at this link.

While you’re at it, the very best reference resource available to you for family law is Professor Bell’s Bell on Mississippi Family Law. Click the link for more information.

My only interest in encouraging you to attend the seminar and purchase the book is that lawyers who do their research and keep up with this ever-changing area of law tend to run circles in court and in negotiations around those who do not. This seminar and this book will help you with that.

Dispatches from the Farthest Outposts of Civilization

May 19, 2017 § Leave a comment

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A Contempt Potpourri

May 18, 2017 § 4 Comments

Every now and then a case wafts its way down from the exalted appellate stratosphere to us mortals down here at ground level and blesses us with a veritable potpourri of legal points that we can use in our mundane chancery existence.

A recent example is the case of Carter v. Davis, handed down by the COA on April 4, 2017.

Deveaux Carter had sued her ex-husband, Allen Davis, for contempt based on non-payment of child support. She contended that he owed $23,682 in child support arrearage, plus interest in the amount of $35,599, plus $88,664 for the children’s college expenses, plus $13,703 for unpaid medical expenses of the children, plus one-half the cost of the children’s vehicles, plus attorney’s fees and costs.

Following a trial, the chancellor determined that Allen owed $201,187, but the chancellor gave him credit for: (1) direct payments to the children during their time in college; (2) amounts paid to Deveaux and the children even after their emancipation; and (3) amounts paid by Allen’s mother. All three categories of payments combined totalled $197, 911, leaving a difference of $3,276, for which Deveaux was awarded a judgment. Allen was assessed a $7,500 attorney’s fee and costs.

Deveaux appealed, complaining about the credits. Allen cross-appealed, unhappy with the attorney’s fee award.

Judge Fair wrote the opinion for a unanimous court. Here are the points you can use:

  • It’s discretionary with the chancellor whether to grant credit for direct payments to the children (¶13).
  • It is proper to allow credit for direct payments to the children where to hold otherwise would unjustly enrich the other parent (¶13).
  • The credit may only be allowed when the payments by the payor were for matters contemplated by the original support order, such as food, shelter, or clothing (¶13).
  • Payments made by a grandparent may properly be credited to a parent if they are not restricted to some non-support purpose (¶11-12).
  • In order to support an award of attorney’s fees against a party, that party must be found in “willful” contempt. It is not enough to find that the action was made necessary by the conduct of that party (¶15).
  • The appellate court will not award appellate attorney’s fees when the trial court award of attorney’s fees is reversed (¶16).

The COA affirmed as to the chancellor’s credits, but reversed on the award of attorney’s fees, finding that the chancellor specifically held that Allen was not in willful contempt, but assessed the attorney’s fee solely because Deveaux was forced to bring the action. Since the attorney’s fee award at trial was reversed, the COA refused Deveaux’s request that she be awarded the customary one-half of the trial court’s award as an appellate attorney’s fee.

Ex Parte Communication with a Treating Physician in an Estate Matter

May 16, 2017 § Leave a comment

Most of us are familiar with the prohibition in MRE 503(f) against ex parte communication with the treating physician of an opposing party, even when that party has put his own physical, mental, or emotional condition in issue.

Does that prohibition apply in a will contest where both parties claim to be personal representatives of the deceased?

In a case of first impression, the MSSC answered that it does not.

At the trial level, in a will contest involving Katherinne Lyons’ estate, between the testator’s brother (Larry Lyons) and nephew (Anthony Lobred), counsel for Lobred had ex parte communication with the testator’s treating physician before her depostion. Lyons filed a motion to strike the depostion testimony, which the chancellor granted. In the case of Estate of Lyons v. Lyons, handed down April 6, 2017, the MSSC reversed and remanded. Justice Coleman’s wrote for a unanimous court:

¶17. Although the facts surrounding Katherine’s testamentary capacity and Larry’s alleged undue influence are hotly disputed, the facts pertinent to the narrow issue before the Court on interlocutory appeal are not in dispute. It is undisputed that Lobred’s counsel communicated with Dr. Clement regarding Katherine’s medical condition prior to Dr. Clement’s deposition. The specific issue before the Court today is whether the testimony of the testator’s treating physician should be excluded based on contact between the treating physician and a party without the opposing party’s consent in a will contest wherein both parties are personal representatives of the deceased.

¶18. A panel of the Court ordered Larry to file a response to Lobred’s petition for permission to appeal addressing “whether the rule prohibiting ex parte communication with a treating physician applies in an estate matter.” The Court has held that the rule prohibiting ex parte communications under Mississippi Rule of Evidence 503(f) applies in the context of personal injury and medical malpractice cases. Scott v. Flynt, 704 So. 2d 998, 1000-01 (Miss. 1996). The comment to Rule 503 states that the “primary impact of subdivision (f) will be in personal injury actions, although the exception by its terms is not so limited.” According to the comment, the ex parte rule contained in Rule 503(f) could apply in estate matters. Thus, the question initially framed by a panel of the Court may be answered in the affirmative. However, the inquiry does not end here because the Court has yet to address how or if the rule prohibiting ex parte communications would apply in the context of a will contest where both parties can claim to be personal representatives of the deceased.

¶19. At the time of the trial court’s order on Larry’s motion to strike Dr. Clement’s testimony, Rule 503(f) provided:

(f) Any party to an action or proceeding subject to these rules who by his or her pleadings places in issue any aspect of his or her physical, mental or emotional condition thereby and to that extent only waives the privilege otherwise recognized by this rule. This exception does not authorize ex parte contact by the opposing party.

Miss. R. Evid. 503(f) (2015). Amended Rule 503(f) [Fn omitted] now provides:

(f) Waiver by Pleadings; Ex Parte Contact. A party whose pleadings place in issue any aspect of that party’s physical, mental, or emotional condition thereby–and to that extent only–waives the privilege. The exception in this subdivision (f) does not authorize ex parte contact by an opposing party.

Miss. R. Evid. 503(f) (2016).

¶20. In Scott, the trial court ordered the plaintiff in a medical-malpractice case to execute an unconditional medical waiver and permit ex parte conferences by the defendants with any medical provider of the plaintiff. Scott, 704 So. 2d at 999. On interlocutory appeal from the trial court’s order, the Scott Court addressed “two interrelated questions of law[,]” which were framed as “(1) the scope of the medical waiver as contemplated by Mississippi Rule of Evidence 503 and (2) whether or not ex parte contacts with medical providers are permissible under the rules of discovery in the Mississippi Rules of Civil Procedure.” Id. at 1000.

¶21. The Scott Court recognized that a “significant argument about ex parte interviews revolves around who is the holder of the privilege.” Id. at 1004. Before answering the question of how or if the ex parte rule would apply in the context of a will contest, the Court must determine who holds the medical privilege of the testator in a will contest. One of the two permitted methods stated by the Scott Court for obtaining relevant medical information ex parte from a treating physician is through “voluntary consensual disclosure by the patient who is the holder of the privilege.” Id. at 1007. Here, the patient is deceased, so consent would have to be obtained from whoever holds the privilege of the deceased. We hold that in the instant case both parties were personal representatives of the deceased and, therefore, under either the rule or the statute, no prohibited ex parte contact occurred. Because the result is the same whether we employ the rule or the statute, we do not today address any argument or disseminate any holding addressing which governs over the other.

¶22. Mississippi Code Section 13-1-21(1) provides:

(1) All communications made to a physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor by a patient under his charge or by one seeking professional advice are hereby declared to be privileged, and such party shall not be required to disclose the same in any legal proceeding except at the instance of the patient or, in case of the death of the patient, at the instance of his personal representative or legal heirs in case there be no personal representative, or except, if the validity of the will of the decedent is in question, at the instance of the personal representative or any of the legal heirs or any contestant or proponent of the will. (Emphasis added.)

¶23. Under Section 13-1-21(1), “the personal representative or any of the legal heirs or any contestant or proponent of the will” may waive the medical privilege. However, Rule 503(c) identifies the “personal representative” only as an individual who may waive the general medical privilege of a deceased patient. Rule 503(c) [Fn omitted] states:

(c) Who May Claim the Privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have the authority to claim the privilege but only on behalf of the patient. Miss. R. Evid. 503(c).

¶24. Under Rule 503(c), a deceased patient’s “personal representative” may claim the medical privilege. Black’s Law Dictionary defines a “personal representative” as: “Someone who manages the legal affairs of another because of incapacity or death, such as the executor of an estate. Technically, an executor is a personal representative named in a will, while an administrator is a personal representative not named in a will.” Personal representative, Black’s Law Dictionary (10th ed. 2014).

¶25. Katherine unequivocally stated in her 2005 will: “I hereby nominate, constitute, and appoint my nephew, Anthony Lobred, Executor of this my Last Will and Testament and I authorize and empower my said Executor to do any and all things which in his opinion are necessary to complete the administration and settlement of my estate, including full right, power and authority, without the necessity of obtaining an order from any Court and upon such terms and conditions as my said Executor shall deem best for the settlement of my estate, to bargain, sell at public or private sale[,] convey, transfer, deed, mortgage, lease, exchange, pledge, manage and deal with any and all property belonging to my estate.” Here, Lobred carried out his duty as Katherine’s personal representative by probating her 2005 will as muniment of title. Katherine’s 2012 will contained a similar provision designating Larry as executor. As a result, both Lobred and Larry hold the general medical privilege as Katherine’s “personal representative” under the plain language of Rule 503(b).

¶26. Lobred argues that there is no conflict because Rule 503 is silent regarding will contests, whereas Section 13-1-21(1) specifically addresses the medical privilege in the context of will contests and provides rights not otherwise provided for by the rules of evidence. While we agree with the result urged by Lobred, we disagree that the result stems only from the combination of the statute and the silence of the rule. Rather, because Rule 503 provides that the personal representative may claim the privilege on behalf of a deceased person, and in Scott we held that the party who may claim the privilege may waive the privilege, it is not the silence of Rule 503 but its content that undergirds our holding.

¶27. Section 13-1-21(1), on the other hand, specifically addresses waiver of the medical privilege in the context of a will contest. Under both Rule 503 and Section 13-1-21(1), the medical privilege belongs to both Lyons and Lobred. Under Section 13-1-21(1), the medical privilege may be waived by the personal representative, any legal heir, or any proponent or contestant of a will. Thus, Section 13-1-21(1) authorizes Lobred to waive the entire medical privilege as a personal representative and contestant of the 2012 will. Because Rule 503(c) and Section 13-1-21(1) both authorize Lobred to waive the entire privilege, the ex parte rule of Rule 503(f) does not operate to bar his attorney from speaking alone with the physician witness.

Best Interest and Grandparent Visitation

May 15, 2017 § Leave a comment

Tier One grandparent visitation, which is provided in MCA 93-16-3(1), allows grandparents to petition for visitation when either (a) one or both of the parents have their parental rights terminated; or (b) one or both of the parents dies.

I think it’s fair to say that most of us have construed 93-16-3(1) to mean that visitation in the specified cases is automatic, and that the real issue at such hearings is the amount and frequency of visitation, based on the trial judge’s analysis of the factors in Martin v. Coop

In the recent case of Smith v. Martin, handed down April 20, 2017, the MSSC granted cert. to address the question whether the language of the statute requires a more thorough analysis. Appellants Smith argued that the provision in MCA 93-16-5 that the court “may, in its discretion, if it finds such visitation rights would be in the best interest of the child, grant to a grandparent reasonable visitation rights with the child,” requires the court to use Martin v. Coop not only for a frequency and amount analysis, but also for a best interest analysis.

Justice Kitchens wrote for a unanimous court:

 ¶14. As the Smiths argue, the Martin Court did not take into account Mississippi Code Section 93-16-5, which states that the chancery court “may, in its discretion, if it finds that such visitation rights would be in the best interest of the child, grant to a grandparent reasonable visitation rights with the child.” Miss. Code Ann. § 93-16-5 (Rev. 2013). Section 93-16-5 obligates the chancellor to consider the best interest of the child(ren), even if the statutory elements of Section 93-16-3(1) are met. This Court has held that “[n]atural grandparents have no common-law ‘right’ of visitation with their grandchildren. Such right must come from a legislative enactment.” Settle v. Galloway, 682 So. 2d 1032, 1035 (Miss. 1996) (citing Matter of Adoption of a Minor, 558 So. 2d 854, 856 (Miss. 1990)). “Although the Mississippi Legislature created this right by enacting § 93-16-3, it is clear that natural grandparents do not have a right to visit their grandchildren that is as comprehensive to the rights of a parent.” Settle, 682 So. 2d at 1035.

¶15. The Martin Court erred by instructing chancellors to consider the best interest of the child(ren) only in the context of the amount of visitation, after finding an entitlement to grandparent visitation under Section 93-16-3(1). See Martin, 693 So. 2d at 916 (“The chancellor in this case found that under [Section 93-16-3(1)] the petitioners are in fact the grandparents of [the child] and that their son is deceased. Thus, all the proof necessary under § 93-16-3(1) was present and, therefore, the grandparents should be awarded visitation.”) The Martin Court ignored the requirement of Section 93-16-5 that the best interest of the child(ren) be considered in determining the grandparents’ entitlement to grandparent visitation rights. The Martin Court stated the following: “In determining the amount of visitation that grandparents should be granted in this situation, some guidelines by this Court may be helpful. As always, the best interest of the child must be the polestar consideration.” Id. (emphasis added). But, under Section 93-16-5, the best interest of the child(ren) must be considered, even if Section 93-16-3(1) is found to apply, since Section 93-16-3(1) states that “either parent of the child’s parent may petition the court . . . and seek visitation rights with the child.” Miss. Code Ann. § 93-16-3(1) (emphasis added). Section 93-16-3(1) only permits the grandparents to seek visitation; it does not entitle them to receive it. [Emphasis in original]

¶16. We have reversed a chancellor’s award of grandparent visitation where “[t]here is no indication from the chancellor’s statement, or anywhere else in the record, that the best interests of [the child] were considered by the chancellor in making her decision.” Morgan v. West, 812 So. 2d 987, 992 (Miss. 2002). This Court observed that the chancellor appeared to have been “more concerned with the best interests” of the grandmother because she found: “from prior testimony and testimony presented today that this grandmother was relied upon during the hard times, and at the present time the parents want to push her aside and treat her as an outsider. It is obvious to the Court they want to break the relationship between the grandchild and the grandmother . . . .” Id.

¶17. The Mississippi Court of Appeals likewise has reversed a chancellor’s award of grandparent visitation, noting that “the Legislature has outlined the steps a grandparent should take to pursue visitation” and that “because the child’s best interest is the fundamental concern, a chancellor must review all relevant factors as outlined in Martin before granting grandparent visitation.” Givens v. Nicholson, 878 So. 2d 1073, 1077 (Miss. Ct. App. 2004).

¶18. We clarify that, under Section 93-16-3(1), the chancellor’s consideration of the child’s or children’s best interest is not limited to the determination of the amount of visitation, but must be considered in determining whether the grandparents should receive visitation in the first place. The Smiths contend that the chancellor’s statements at the hearing indicate that she expected the Smiths, in order for them to prevail, to prove that the mental and emotional health of the Martins rendered them incapable of exercising grandparent visitation and that the Martins posed a threat to Cliff and Hank. But our review of the record leads us to conclude that the chancellor carefully analyzed Sections 93-16-3(1) and (2) and scrupulously weighed each Martin factor, thereby performing the correct analytical process and properly applying the right procedural, evidentiary, and statutory principles. This process led her to a fair and just resolution of a difficult and emotional case. The present case greatly differs from those in which this Court has deemed reversal the only appropriate remedy. See Morgan, 812 So. 2d at 992 (This Court reversed because the chancellor had not considered the best interest of the child at all and “the chancellor did not articulate her findings regarding the Martin factors . . . .”) Here, we can identify no manifest error which would warrant reversal, and the record before us is clear that the paramount consideration supporting the chancellor’s decision was the best interest of the children. [Emphasis mine]

This is an important decision that you need to know about when you handle a Tier One grandparent visitation case. From now on, when you represent the grandparents, you must put on proof that visitation is in the child’s best interest through the filter of the Martin v. Coop factors, as well as your case on the amount and frequency. If you fail to address best interest based on Martin v. Coop, you just might get 41(b)’d out of court.

Homecoming at Franklin Church

May 12, 2017 § 1 Comment

Franklin Church, built in 1841, is an out-of-the-way jewel in the Holmes County countryside south of Lexington. I posted about it here back in February.

A reader brought my post to the attention of Julian Watson, one of the church’s members and a leader in efforts to preserve it and the heritage of its membership. He invited my wife and me to attend and enjoy the church’s annual Homecoming on April 23, 2017.

And so we found ourselves in the embrace of this country church on the holy day of its family reunion. They made us welcome to their worship, music, food and fellowship.

As the throng gathered, Mr. Watson welcomed three students from nearby French Camp Academy.

People explored the cemetery in search of ancestors, and others studied the memorabilia in the vestibule of the church. [Click on any smaller photo to view a slide show]

Musicians rehearsed, and then played hymns that provided a segue into the service.

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Mr. Watson welcomed everyone.

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Ms. Virginia Dickinson, who worked to get the church ready for the event, addressed the congregation.

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The preacher came from French Camp and led the worship.

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Then it was time for the food. It was too cool and damp for dinner on the grounds, so the church became a dining hall. At Homecoming in a country church, communion is breaking bread together, with fried chicken, strawberry cake, macaroni and cheese, ham, cabbage, pulled pork, pecan pie, brownies, ice box pie, sweet tea, and shared abundance.

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And then, too soon, it was over, and we headed home to Meridian, our thoughts full of the special spirit of this place.

There is a Homecoming here every year the Sunday after Easter. It’s the only service held at Franklin Church during the year. There’s no longer any local congregation. Almost all of the member families have moved to other communities and even other states, but they strive to make Homecoming.

Homecoming happens every Sunday somewhere at churches across Mississippi. It’s in Mississippi DNA to try to keep the past from dying, to bring it into the present to look at, breathe life into it, and help others, particularly young ones, understand it. That’s what Will Faulkner of Oxford was trying to tell us when he wrote, “The past is never dead; it’s not even past.” Sometimes Mississippians romanticize and clean up the past, even when it is dark and malevolent, but always the past is respected and even revered. Some people say that Mississippians live in the past. I think that’s incorrect. I think Mississippians live in the present, but want the past to co-exist with it. That can be a beautiful thing, and sometimes not.

At Homecoming in Franklin, it’s a beautiful thing.

 

Blaming it on the Judge

May 10, 2017 § 3 Comments

I am totally comfortable with the fact that one side in nearly every case that I decide is convinced that I am: (a) a raving, total, lunatic; (b) an idiot who lacks common sense; (c) a gullible fool duped by the liars on the other side; (d) an ignoramus about the law; (d) “on the take” from the other side or from sinister, unknown vectors; or (e) any combination or all of the above.

I get that. It comes with the territory. It’s part of the reason why I get a paycheck from the state each month. It would be in my job description if I had one.

But what I do not get, and what I totally do not appreciate, is getting blamed for the lawyer’s lapses. It happens, and when I find out about it, it chaps me to no end.

One example occurred several months ago when a frustrated party called the chancery clerk and complained that she was told that I was refusing to set a case for trial. I pulled the file and found that it was a case for contempt and modification that had been pending several months. Neither lawyer had answered discovery, which was overdue. No one had filed a motion for a trial setting. There was no scheduling order. There had been no status conference. Where, then, had the unfortunate client gotten the idea that I was refusing to set the case for trial? Surely not from her lawyer, right?

A judge told me recently that he had a similar experience and set the case for the following Saturday. That nipped that bud.

When I was in practice, several times I had people wanting to hire me for contempts or modifications who had been previously represented by a particular lawyer in town. Their property settlement agreements or agreed judgments were disadvantageous to them, and I asked why they had agreed to those terms in the first place. Their answer every time was that the lawyer had asked for a conference with the court and emerged to report sorrowfully that the judge said either to agree to those terms or else. They felt they had no choice. I can tell you that no chancellor in our district ever did such a thing. I can also tell you that I carefully avoided in-chambers conferences with that lawyer afterward.

When Judge Gene Fair was a chancellor, he refused to allow in-chamber conferences with lawyers alone for that very reason. He either conducted conferences from the bench, or invited the clients into chambers along with the lawyers.

It’s okay to blame a bad outcome for your client on the judge’s bad judgment or ignorance of the law.

It’s not okay to shrug off your lack of attention, or failure to do your job, or inability to negotiate effectively as the judge’s fault.

 

Death of the Right to Renounce

May 9, 2017 § 2 Comments

In February, 1966, J.B. Ratliff executed a will that left his wife, Mavis, a life estate in an undivided one-half interest in his property, and bequeathed the residuary to a daughter by a prior marriage.

On October 2, 1966, J.B. shot Mavis in the head and then shot himself in the head. He died instantly, and Mavis died shortly thereafter.

Letters testamentary were issued in J.B.’s estate, and letters of administration were issued in Mavis’s estate. The administrator in Mavis’s estate sought court approval to file a renunciation in J.B.’s estate, which was granted. Following a hearing, the chancellor in J.B.’s estate denied the renunciation, and the administrator of Mavis’s estate appealed.

In Jenkins v. Borodofsky, 211 So.2d 874, 875 (Miss. 1968), the MSSC affirmed:

There is only one issue to be decided in this appeal. Does the personal representative of a deceased spouse have the right to renounce the will of a predeceased spouse under Mississippi Code 1942 Annotated section 668 (1956), or is the privilege one which must be invoked personally by the surviving spouse during her lifetime?

This issue has been before this Court on a prior occasion in the case of Estate of Mullins v. Estate of Mullins, 239 Miss. 751, 125 So.2d 93 (1960). In that case we said:

In short, the right of a beneficiary to accept or renounce provisions of a will is a personal privilege which must be exercised by him during his lifetime and may not, after his death, be undertaken by his personal representative, even where death occurs prior to the expiration of the statutory period for the election. (239 Miss. at 755, 125 So.2d at 95.)

That, then, would seem to be that, except that the high court, in a more courtly era (no pun intended), tried to soften the blow:

The excellent, skillfully written briefs of appellant merit commendation, but they do not justify our modifying the rule of law set out in Mississippi Code 1942 Annotated section 668 (1956). Such is a prerogative of the legislature only and therefore should not be exercised by the judiciary. Mississippi can do as Tennessee has done and through its legislature enact a statute which would permit that which appellant earnestly urges here. Tennessee’s statute permits an election after the survivor’s death, as discussed in 83 A.L.R.2d 1073 (1962):

As already indicated, the right of election in the surviving spouse is purely statutory and a particular statute may permit an election to be made after the survivor’s death.

The statute in question in Hamilton Nat. Bank vs. Haynes (1943) 180 Tenn. 247, 174 S.W.2d 39 empowered the county court, on application of the personal representative of the surviving spouse, to declare a ‘dissent from the will’ in the event of the death of such survivor before the period allowed for the dissent had expired. (83 A.L.R.2d at 1082.)

Statutes in derogation of common law must be strictly construed, as we well know, and probate is a wholly statutory creature. The court went on to address appellant’s equitable estoppel argument:

Equitable estoppel does not and cannot authorize the exercise of a personal right which terminates with the death of a spouse. Appellee concedes that had J. B. Ratliff lived he would have been estopped from inheriting from his wife’s estate under the provisions of Mississippi Code 1942 Annotated sections 479 and 672 (1956). Appellant, however, does not seek to estop J. B. Ratliff. It is his estate, or more specifically his only daughter, Mrs. Betty Jane Ratliff Burrell, whom appellant seeks to estop. Appellant seeks to have Mrs. Burrell vicariously suffer the penalties which her father would have suffered had he survived his wife after killing her. Certainly Mr. Ratliff’s daughter, Mrs. Burrell, is guilty of no acts which would authorize and allow an equitable estoppel of her.

The court winds up with a flourish, invoking Les Misérables and the exquisitely miserable Inspector Javert:

In conclusion, we agree with appellant that Inspector Javert’s devotion to an immutable and inexorable code of laws which categorically demanded and required punishment is not the basic concept of law in this state. In passing, it was Javert’s fanatical dedication to his adamant belief which ultimately caused his self-destruction. The enactment, modification or repeal of laws, wise or foolish, is a problem for the legislature of this state. This Court has no authority in this regard.

Voilà, mes amis. So, if the spouse wishes to renounce, he or she must do so him- or herself personally “within ninety (90) days after probate” per MCA 91-5-25, unless under some legal disability for which the time is extended. It is a personal right that dies with the one holding it, and it may not be exercised later by her estate.

An attorney in this area posed an interesting, closely-related, question: In an estate opened in the 1980’s, surviving wife timely filed a renunciation of her deceased spouse’s will that was never brought to hearing. Now the renouncing wife has died. Her renunciation was timely filed and the estate has never been closed. Did her right of renunciation die with her, or did her filing open the door for her estate now to pursue it? If it survived, are further proceedings now barred by laches?