PROBATE OF WILL IN COMMON FORM
June 30, 2010 § 2 Comments
[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]
Admission of will to probate:
- Original will must be presented and filed, if available.
- Petition must have copy of the will attached. Uniform Chancery Court Rule 6.15.
- Will must be proven by at least one subscribing witness, usually through affidavit attached to self-proving will, or by proof of will executed later. §91-7-7, MCA.
- Will may not be probated in common form if there is a previously-filed written objection to probate. §91-7-21, MCA.
Executor appointed and Letters Testamentary Granted:
- Court appoints executor named in the will, if appropriate.
- Executor must be over 18 years of age, of sound mind, and not a convict of felony.
- If no person qualifies or agrees to act as executor, court may appoint one. §§91-7-35 and 91-7-39.
Oath and Bond:
- At the time that Letters Testamentary are granted, executor must take and subscribe the oath set out in §91-7-41, MCA.
- At the time that the executor takes the oath, the executor must also post bond equal to the full value of the estate, unless bond is waived by the terms of the will. Even so, the court has authority to require a bond. §91-7-41, MCA.
Notice to Creditors:
Executor has the responsibility to give notice to creditors in the prescribed form and in the proper order set out in §91-7-145, MCA, as follows:
- Executor to make reasonable effort to identify creditors having a claim against the estate and to mail them actual notice of the 90-day time period in which to file a claim.
- Executor must file an affidavit of known creditors and attest to having served actual notice on them.
- Executor must publish notice in newspaper publsihed in the county informing creditors that they have 90 days in which to file a claim against the estate; publication to run 3 times, once per week for 3 consecutive weeks.
- Executor is required to file proof of newspaper publication in the court file.
- Publication may be waived by the court in very small estates having value not more than $500.
Inventory and Appraisal:
- If not specifically waived in the will, the executor is required to complete and file inventory and appraisal within 90 days from the grant of Letters Testamentary. §91-7-45, MCA.
- The court may require inventory and appraisal eben if waived in the will.
- Held as necessary to resolve interlocutory conflicts between the parties.
- Accountings are required annually and upon closing the estate.
- All parties may agree to waive final accounting, and by custom also annual accountings.
Petition to Close Estate and Discharge Executor:
- Final account must be filed with petition to close unless excused by the court.
- All parties in interest must be summoned to hearing on final account and petition to close. §91-7-295, MCA.
- Any party may enter an appearance by consent and waiver.
- If approved, the court enters its final judgment for final distribution of any property remaining in the executor’s care. §91-7-297, MCA.
CHANCERY COURT IN DAYS OF YORE, PART ONE
June 29, 2010 § 3 Comments
Last week in Clarke County I took the bench one day in a dark suit and dispatched the day’s business in that attire because my robe was in chambers with a Circuit Judge whom I did not wish to bother. The Chancery Clerk pointed out later that the younger lawyers were abuzz about it. They had never seen such a thing. Imagine — a judge adjudicating sans black robe.
Down through the decades it was a hallmark of our courts that the Chancery Judge did not wear a robe. The Chancellor presided in his (yes, in those days there were few female Chancery Judges) dark suit, dispensing equity like an ancient Titan loosing thunderbolts.
Long after Circuit Judges donned the robe, Chancellors continued unrobed. It was not until the late 80’s, as far as I recall, that Chancellors donned robes in our part of the state, and then not every Chancellor did. Judge John Clark Love in District Six never wore a robe until the day he retired in 2005. Neither did his counterpart, Judge Ed Prisock.
The philosophy behind the robe is that it instantly lends authority and recognition of office to the wearer, but Chancellors in those pre-robe days didn’t really need a cloak to lend them weight. Authority emanated from them like deadly radiation from a chunk of uranium. For those of us who practiced before some of the really great old lions of the Chancery bench, there was no question of authority. A wilting glance or stabbing remark could inflict a wound in one’s case that would bleed to a fateful conclusion. Heaven help the unprepared lawyer.
Billy Neville of Meridian was the commander of his court room. He sat on the bench, pipe jutting MacArthur-like out of his face, whittling on a cedar plug until he carved an eye-shaped piece — rounded in the middle and sharp on each end — whence he would start another. A lying witness never escaped his ire. “Suh!” he would thunder, “Do you expect me to believe that?” You knew that was coming because only a few questions before he had begin running his hand across his forehead and then over his scalp as first his cheeks and then his temples and then his forehead changed hues from peach to crimson to scarlet. “Mr. Bailiff, suh! Take this man upstairs!”
Judge Neville was also a master at communicating subtly to the attorney the futility of one’s case. “Yes, suh, I will sustain the objection because this has nothing to do with the case, and even if it did there is no law in Mississippi that would permit me to do what the Complainant has prayed for. Now you may proceed, suh.” Okay, how do you frame the next question when the judge has just let all the air out of your case?
Judge Ed Cortright of Yazoo City was a gentleman of the first order and a scholar of note in his long career on the bench. He was reversed on appeal only once that I know of, and that by Frank Coleman, now County Judge Coleman, of Meridian. As gentlemanly as he was, there was a steely side to Judge Cortright, and he could communicate his displeasure at a lawyerly gaffe in no uncertain terms. His disdain for the illogical argument or a position unsupported by the law was unmistakable.
Judge Mike Sullivan of Columbia was so revered and respected that he was elevated to the Supreme Court, where he made his mark as a voice for Chancery Court in the appellate court. His calm demeanor and measured speech left no doubt who was in control of his court room.
Judge John Clark Love of Kosciusko had a way of eviscerating lawyers who wandered ill-prepared into his lair.
Judge Ray Montgomery of Canton could shrink your head two to three sizes from his tirade if you wound up on his wrong side or if your case did not impress him.
There were many robeless Chancellors, too many to mention, some great and some forgettable. We sometimes quaked in their presence, but in the crucible of their courtrooms we were molded into better lawyers.
CLARKE COUNTY’S OLD COURT HOUSE
June 28, 2010 § 3 Comments
I ran across these two old post cards depicting the Clarke County Court House that preceded today’s building. You can click on the pictures to see a larger version with more detail. My guess is that the pictures were taken in the 1890’s to early 1900’s, judging from the buggies parked around the building. The current court house does not have a cornerstone that I could find in a very brief saunter around the outside last week, but it does have the names of the Board of Supervisors 1912-1916, which would indicate to me that the building was built during their term.
I showed these to Gilford Dabbs, and he told me that he had heard that the old court house was located on what is now a vacant lot next to First Baptist Church in Quitman. By the way, Gilford is old, but he’s not old enough to remember this old building himself.
Does anyone know why this court house was replaced? Was there a fire like there had been in Meridian that precipitated the building of the new version? Does anyone have any other pics of it, inside or out? Does anyone know what happened to the eagle?
That object dangling in front of the building in the bottom picture is a street light suspended on wires.
These photos, along with around 4,600 others showing scenes from all around Mississippi during the period from 1892 to the 1940’s, are available at the Mississippi Department of Archives and History’s website here.
WAIVING ACCOUNTING IN ESTATES
June 28, 2010 § 2 Comments
[This information comes from the outline of a presentation made by Bob Williford to the Chancery Judges Spring Conference earlier this year. Used with his permission.]
- An Administrator is required to file an annual account and a final account. §§ 91-7-277 and 291, MCA.
- Although the statute does not provide an exception to the filing of a final account, a final accounting may be waived “on good cause shown.” § 91-7-291, MCA.
- The Administrator may be relieved of the duty of accounting by waiver of all parties interested in the estate of their right to an accounting. 34 C.J.S. Executors and Administrators, § 834.
- If all of the heirs of the estate join in a request to waive annual account, the court would seem to have discretion to do so, but the court does have statutory authority to waive the final account.
- An Executor is required to file annual accounts and a final account. §§ 91-7-277 and 291, MCA.
- case law, however, recognizes that a testator may waive the requirement of both annual and final accounts. Harper v. Harper, 491 So.2d 189 (Miss. 1986); Will of McCaffrey v. Fortenberry, 592 So.2d 52 (Miss. 1991); Matter of Holt v. Scott, 806 So.2d 296 (Miss. App. 2001). BUT consider the following case: Where accounting was waived in the Will, it was held that administration of the esatte was removed from jurisdiction of the court. Bryan v. Bryan, 167 So.2d 56 (Miss. 1936).
- It is customary to waive accounting even if the Will does not expressly so provde, assuming all of the residuary beneficiaries join in the rtequest.
- The court may require an account even if waived in the Will. In re Estate of Carter, 912 So.2d 138 (Miss. 2005).
FINDING WHAT YOU’RE LOOKING FOR
June 27, 2010 § Leave a comment
You don’t have to scroll back through all the posts to find the one you’re looking for. Click on the “Topics of Conversation” button below on the right and a list of subjects will drop down. For example, to find that post that sets out what you need to include in a child support provision in a PSA, click on child support and it should appear in a list of other posts on the same subject.
NEW LEGISLATION THAT MAY AFFECT YOUR CHANCERY PRACTICE
June 25, 2010 § 6 Comments
A number of bills passed in the 2010 Regular Session of the Legislature that you may find will have some effect on your practice in Chancery Court. Below is a bulleted list with a brief description of the pertinent portions of each bill. You can read the full text of the bills here. Thanks to Steve Horne, Representative in District 81 for providing me with the summaries. I will provide more detailed summaries of some of the bills in later posts.
All laws are effective July 1, 2010, unless noted otherwise.
- HB 277. Statutory method for renewing a judgment.
- HB 704. DHS may obtain income tax and sales tax information without a subpoena for individuals who are delinquent in child support payments.
- HB 886. Prohibits a deed restriction or other covenant running with the land that requires a transferee or his heirs, successors or assigns to pay a property transfer fee, and any such provision is void and unenforceable. The prohibition does not apply to certain property owners’ associations.
- HB 1400. Increases from $10,000 to $20,000 the amount of money or value of property that may be transferred to a ward without a guardianship, in the discretion of the Chancellor.
- SB 2413. Amends § 93-5-34, MCA, to clarify custody and visitation procedures when a parent receives military orders for temporary duty, deployment or mobilization.
- SB 2929. Youth Court has exclusive jurisdiction over delinquent acts committed by a child until the child’s 18th birthday. Circuit Court may assume jurisdiction when transferred to it from Youth Court.
- SB 2800. Remedies of lien laws available to suppliers and construction contractors are made available on the same basis to rental and lease equipment suppliers.
- HB 1479, effective July 1, 2011. The name of Oakley Training School is changed to Oakley Youth Development Center.
- HB 1049 and 1525. Makes many changes in the mental commitment law. The changes are too numerous to list here, and they will be detailed in a subsequent post.
June 24, 2010 § Leave a comment
WHAT’S COOKING IN COURT
June 24, 2010 § 3 Comments
Once a month the Clarke County Chancery Clerk’s office puts on a feed that is beyond rational. There are finger foods, chips, dips, salads, sanwiches, desserts in quantities that could feed Paraguay for a week. The Chancellor who is there at the time gets the benefit of the largesse.
This month the feed is scheduled for June 24, and Shirley and I will be there! I volunteered to bring a Boston butt, and it’s cooking on my Orion Cooker as I write this.
It was Henry Palmer (Head Chef Emeritus of the Lauderdale County Bar) who introduced me to the Orion. Henry is not one for contraptions for the sake of contraptions, so I was impressed at how he extolled the cooker in extravagant terms. I paid the tariff to purchase my very own, and have been so satisfied that I have one at my home in Meridian and one at my place in Oxford. I would have three, but I’ve run out of additional locations. I have been so pleased with my Orions that I have talked no less than a dozen others into buying one. I deserve some sort of commission from the company.
My Orion-cooked baby back ribs, butts, chicken, turkey and wings have gotten raves at tailgates, family get-togethers, and cookouts. The bthing is fast: 3 racks of ribs in 1 hr 15 mins; boston butt in 3 hrs 30 minutes; turkey, 7 mins per pound. Since it’s a completely closed system, the meat stays moist and tender. You light it and leave it. No fiddling with it. I haven’t cooked salmon or brisket, but those are definitely in my Orion future.
Henry has cooked combinations of meats at the same time on the different rack levels, experimenting with the upper meats basting the lower ones with their juices, and he assures me that the results have been excellent.
The Orion is not a traditional smoker or grilling cooker. It’s more of a convection cooker. For sheer flavor and tenderness, you can’t top it.
To prepare the butt to cook tonight, I rubbed it generously with white vinegar and then rubbed in my favorite seasoning. The butt sat in the refrigerator all day enjoying the vinegar and seasoning bath. Then, around 4:45, I put the butt on the bottom rack in the Orion, dropped in some hickory chips, and put on the cover.
Fill the lower and upper rings with ready-light charcoal, and VOILA. Come back in 3 and 1/2 hours and it will be done.
Tomorrow we’ll have some pics of some happy eaters.
June 23, 2010 § Leave a comment
Around 120 people gathered Tuesday afternoon to honor Judge J. Max Kilpatrick, who retires from his seat in District Six (Attala, Carroll, Choctaw, Kemper, Neshoba and Winston).
Among the crowd were elected officials from throughout the district, lawyers, court house personnel and judges.
Judges included Mississippi Supreme Court Chief Justice William Waller, Circuit Judges Clarence Morgan of Kosciusko and Vernon Cotten of Carthage, and Chancellors Ed Fenwick of Kosciusko, Ed Patten of Hazelhurst, and I, as well as incoming Chancery Judge Joey Kilgore.
June 22, 2010 § Leave a comment
Lauderdale County Deputy Clerk Cerlenza Grace is STAR OF THE WEEK in Monday’s MERIDIAN STAR. You can read all about it here.