ABA Blawg 100

July 28, 2016 § Leave a comment

The ABA Journal every year publishes its list of the top 100 legal blogs (“Blawgs” in their terminology).

If you think this blog is worthy of being listed, you can submit a nomination by clicking on this link. Deadline is August 7, 2016.

[I am republishing this once each week until August 7]

A Caveat for Affidavits of Known Creditors

July 26, 2016 § 2 Comments

Your client is going to be appointed executor of an estate. So it makes perfect sense that, when he comes in to sign the petition, at the same time you have him sign the oath, affidavit of known creditors, and notices to those known creditors. Why should he have to make more than one trip to your office, right? Then, after the order appointing him is signed by the judge, you go ahead and file the pre-signed oath, affidavit, and notices.

But is that effective? Does it comply with the statute?

As far as the oath is concerned, I see no problem. The oath is taken in his capacity as an individual, and is only effective once the order appointing him is signed by the judge and the oath is thereafter filed.

But the notice and affidavit requirements are a different matter. MCA 91-7-45(1) specifically requires the “executor or administrator” to make reasonable and diligent efforts to identify and give notice to creditors. Only the executor or administrator can do this function, and there is no executor or administrator until the judge signs the appointing order, and a bond (if required) and oath are filed.

Likewise, MCA 91-7-45(2) requires the “executor or administrator” to file the affidavit of known creditors that must be on file before the Notice to Creditors is published. Only the executor or administrator can do this. Signing the affidavit before one is appointed and qualified is not signing in the capacity of executor or administrator.

I am not aware of any case law specifically addressing these points, but the many cases construing probate statutes are emphatic that the specific language of the statutes control, and that substantial or nominal compliance is not enough.

Another post discussing the right way and order to do the notice and affidavit is here.

An Order is Not a Judgment …

July 25, 2016 § 1 Comment

… and vice versa.

Chancellors are presented with all manner of documents to sign as acts of the court. They are styled variously such as Order, Judgment, Decree, and others. But there are really only two forms of court actions provided for in the MRCP: judgments, and orders.

A judgment is different from an order.

R54(a) states that a judgment is “a final decree and any order from which an appeal lies.”

R6(b)(1) states that an order is made upon an application to the court by motion.

So a judgment is appropriate when it concludes or finally adjudicates the case.

An order is appropriate while the case is pending and the court is addressing matters brought before it by motion.

Correct: Final Judgment of Divorce; Judgment Closing Estate; Judgment Quieting and Confirming Title; Temporary Order; Order Granting Authority to Pay Expenses of the Ward; Order Compelling Answers to Interrogatories, Order Granting Divorce, etc.

Incorrect: Temporary Judgment; Order Approving Final Accounting and Closing Conservatorship; Judgment on Motion to Compel Answers to Discovery, etc.

The term “Decree” is the ancient, traditional term for a final judgment in chancery, especially in a divorce. I think it is still an appropriate term to use for a chancery court judgment, particularly since R81 specifies that the MRCP has “limited applicability” in some chancery matters.

Dispatches from the Farthest Outposts of Civilization

July 22, 2016 § Leave a comment

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ABA Blawg 100

July 20, 2016 § 2 Comments

The ABA Journal every year publishes its list of the top 100 legal blogs (“Blawgs” in their terminology).

If you think this blog is worthy of being listed, you can submit a nomination by clicking on this link. Deadline is August 7, 2016.

[Note: I’m going to republish this every week until August 7]

Payment of Funeral Expenses in an Estate

July 19, 2016 § 3 Comments

You represent the administratrix in an estate (or she could be an executrix). She paid the funeral expenses and would like to be reimbursed. Does she have to probate a claim?

This is a frequent question, and the answer is pretty clear. No, she does not.

Here is your authority:

¶ 9. The Mississippi Supreme Court established in 1938 that a claim for funeral expenses is not required to be probated because funeral expenses are considered to be part of the cost of the administration of an estate. Tom E. Taylor Undertaking Co. v. Smith’s Estate, 183 Miss. 45, 46, 183 So. 391, 391 (1938). The supreme court noted that the requirement to probate a claim “applies alone to obligations incurred by the decedent in his lifetime.” Id. The case has never been overruled or modified. The holding and the general notion was, in fact, discussed and upheld as recently as 2010 by the United States District Court for the Southern District of Mississippi, and later affirmed by the United States Court of Appeals for the Fifth Circuit in 2012. Bell v. Texaco, Inc., No. 5:09cv192KS-MTP, 2010 WL 1490144, at *1 (S.D.Miss. April 13, 2010); Bell v. Texaco, Inc., 493 Fed.Appx. 587, at 592 (5th Cir.2012).

 ¶ 10. The law is clear that the ninety-day time limit in which creditors must probate claims against an estate does not apply to claims for reimbursement of funeral expenses …

In re Estate of Whitley: Whitley v. Love, 129 So.3d 260, 261 (Miss. App. 2013).

Who You Gonna Believe?

July 18, 2016 § 1 Comment

In the hilarious comedy, Duck Soup, Groucho Marx is caught by his lady-friend in flagrante delicto with another woman. When she accuses him of the obvious, he retorts, “Who you gonna believe, me or your lyin’ eyes?”

That popped into my head when I read the COA’s decision in Stuckey, Conservator of Waid v. Waid, decided June 28, 2016. Stuckey, who was special conservator of Lila Waid, an end-stage Altzheimer’s victim, became convinced that Lila’s husband Herman Waid was having an affair with an old flame. At the time of trial, Herman was 84 years old and was suffering from Parkinson’s Disease. The plaintiff presented proof that Herman and his lady-friend, JK, were seen lying together in Herman’s hospital bed, and they spent time together at each other’s homes, often in the bedroom. They were seen being affectionate toward one another. In defense, they denied any sexual relations. Herman contended that he was impotent, and suffered from erectile dysfunction. JK stated that she wished that the relationship were more than friendship.

The chancellor issued a 12-page opinion denying the divorce, and Lila appealed. The COA affirmed. What I want to call to your attention is how it is up to the judge to choose who to believe, and how much weight to give to the evidence presented. Here is how Judge Fair, for the court, stated it:

¶16. We find there was substantial evidence to support the chancellor’s finding. Herman and J.K. both testified that their relationship was not romantic. They admitted to staying together overnight, but there was no evidence of a sexual relationship. See Atkinson [v. Atkinson], 11 So. 3d at 176-77 (¶19) [(Miss. App. 2009)](finding that cohabitation does not prove adultery by clear and convincing evidence). None of the conduct described in the eyewitness testimony meets the definition of adultery. See Owen [v. Gerity], 422 So. 2d at 287 [(Miss. 1982)]. Further, the chancellor was presented with uncontradicted evidence of Herman’s impotence, which would make it impossible for him to satisfy any inclination.

¶17. As the judge of credibility, the chancellor is entitled to choose between reasonable interpretations of the evidence and the inferences that may be drawn therefrom. Bowen v. Bowen, 982 So. 2d 385, 395 (¶42) (Miss. 2008). The evidence of record is facially sufficient to support a finding of adultery, as stated in the dissent. But the evidence is, likewise, facially sufficient to support a finding that adultery did not take place. The trier of fact is not this court but the chancellor, who heard the testimony of the witnesses, determined their credibility, weighed that and other evidence, and made a decision within her discretion. After viewing the record, we are therefore satisfied that the chancellor did not abuse that discretion, was not manifestly wrong, was not clearly erroneous, and applied the proper legal standard in making her decision. We thus affirm.

Nothing really earth-shaking there, but it’s a good reminder that the chancellor has broad power to choose whom to believe and how much weight to assign to the evidence. As long as the chancellor’s decision is supported by substantial evidence and applies a proper legal standard, the result will be an affirmance on appeal. That is even true, as in this case, where there was substantial evidence to support an opposite result.

Reprise: The Laws of Stupidity

July 15, 2016 § 1 Comment

Reprise replays posts from the past that you may find useful today.

The Laws of Stupidity

August 8, 2014 § 2 Comments

My posts have taken on a somewhat sententious tone lately, so I am going to temper that for a while. But before I do, I want to address a subject that lawyers and judges deal with every day: stupidity.

One might expect that stupidity is a force that ricochets through human nature unconstrained by the basic principles of physics and rationality that underlie the affairs of humankind.

Not so, says Italian Economic Historian Carlo Maria Cipolla (1922 – 2000), who came up with the idea that there are actually laws that govern the operation of stupidity. By stupidity in this context, we are talking about conduct that involves unthinking and irrational behavior, willful ignorance, brutishness, obtuseness in the face of overwhelming evidence that such a course of action is self-destructive or destructive to others, and senseless activity.

Cipolla posited five fundamental Laws of Stupidity:

  1. Always and inevitably each of us underestimates the number of stupid individuals in circulation.
  2. The probability that a given person is stupid is independent of any other characteristic possessed by that person.
  3. A person is stupid if they cause damage to another person or group of people without experiencing personal gain, or even worse causing damage to themselves in the process.
  4. Non-stupid people always underestimate the harmful potential of stupid people; they constantly forget that at any time anywhere, and in any circumstance, dealing with or associating themselves with stupid individuals invariably constitutes a costly error.
  5. A stupid person is the most dangerous type of person there is.

You can reflect on these and come up with your own thoughts. Mine:

  • Law #1. As the old saying goes, “Never ascribe to malice what can be adequately explained as stupidity.” Most people who operate rationally assume that everyone else does also. That’s simply not so. Many people bumble along unthinkingly, leaving a wake of damage on themselves and others. The only way to protect yourself from stupid people is to recognize them and neutralize or protect yourself from their impact on your life as much as you can.
  • Law #2. Just because a person is suave and urbane, or shares your religion or political party, or is extremely likeable or has a forceful, commanding personality, does not mean that that person is not stupid. Also, bear in mind that there are stupid people who do stupid things, and there are non-stupid people who do stupid things. The former are dangerous; the latter are unfortunate (and, alas, include most of us).
  • Law #3. There are serious ramifications when we vest authority in stupid people. These are the people who clamor that the house needs to be burned down because it needs painting. In the name of principle or dogma or doctrine they ignore the possibility of unintended consequences and exhort their followers to embrace self-destructive ways. If reason conflicts with their convictions, reason be damned.
  • Law #4. See Law #3. Too often, we realize only in hidsight that we have made the costly error of placing our welfare in the hands of stupid people, or have allowed them to lead us into a swamp that is hard to get out of.
  • Law #5. Collateral damage from stupid people can be especially galling. Despite our best efforts to protect ourselves, the ripple effect of stupidity can blindside us, capsizing us into waters that can threaten to overwhelm us.

While we’re on the topic, it’s important to distinguish between ignorance and stupidity. Knowledge cures ignorance; knowledge is irrelevant to the stupid. Many of us make the mistake of wasting time and effort to address stupidity by elucidating facts and posing rational arguments. That approach will avail for the ignorant person, but it is absolutely ineffective on the stupid.

A grizzled, old lawyer told me in my youth that, “If they ever stop making stupid people, the legal profession will be doomed.” Cynical, yes. Inaccurate, no.

Questioning the Child Witness

July 14, 2016 § 1 Comment

Children are often called as witnesses in chancery court. It should go without saying that some children, due to various factors, have to be handled gingerly in how they are questioned. Age, emotional maturity, emotional content of the testimony, education and cognitive development, and the courtroom environment all affect a child’s effectiveness as a witness. Other factors may as well.

The Children’s Advocacy Centers of Mississippi have published a booklet entitled A Guidebook for Accommodating Children in Court that includes some helpful information on the subject. Here are some key points:

  • Use simple grammar and concrete words; the child can better understand the questions.
  • Children have a right to be asked questions they understand and should be informed that they should let the court know if they do not understand. Even so, some children may be reluctant to admit they do not understand if they think it is a question that they should understand, and some children may think they understand the question when they really do not. Every now and then a check question like “What do you think I just asked you?” may help make sure there is no misunderstanding.
  • Children use the vocabulary they have. For instance, a child may describe having been “stabbed” in an episode when there was no knife used or even present; what the child is describing is what the experience felt like, because there are no other words in his or her vocabulary for it.
  • Young children may not organize their thoughts logically, and often have limited understanding of space and time.
  • To promote more accurate answers, use common, everyday words and phrases, and avoid legal words and jargon such as attorney, deny, subsequent to, take the witness stand, court (in reference to the judge), allegation, defendant, statement, oath, testify.
  • Use names and places instead of pronouns and adverbs. Instead of “Was he there then?” ask “Was John at the apartment when you arrived?” Instead of “Were they all there?” ask “Were your mom, aunt Sue, and your brother Bill at the park with you?”
  • Negative questions are most often misinterpreted. Avoid no, not, and never in your questions. “Did you go into the house?” is better than “Did you not go into the house?” And avoid double negatives.
  • Start questions off with the main idea. “Did you hear the bell go off when you were eating with your family?” is more effective than “When you were eating with your family, did you hear the bell go off?”
  • Avoid multi-part and multi-idea questions.
  • Pausing is productive. Pausing between phrases, sentences, and after questions allows children to process their thoughts, which aids comprehension for more accurate communication.
  • Cultural and ethnic differences can lead to differences in demeanor on the witness stand. Native Americans, for instance, may have long pauses in communication that can be incorrectly interpreted negatively.

If you can get a copy of this booklet, I think you will find it helpful. CAC’s address is P. O. Box 5348, Jackson, MS, 39296. Phone 601-940-6183. Their website is at this link.

ABA Blawg 100

July 12, 2016 § 3 Comments

The ABA Journal every year publishes its list of the top 100 legal blogs (“Blawgs” in their terminology).

If you think this blog is worthy of being listed, you can submit a nomination by clicking on this link. Deadline is August 7, 2016.

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