Reprise: Probating an Unoriginal Will

May 25, 2018 § Leave a comment

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

LOST WILLS

January 5, 2011 § 4 Comments

Does it ever happen to you that an heir shows up in your office and says something to the effect that “Mom says you kept the original of dad’s will. All we have is this [dogeared, coffee-stained, footprinted] copy,” and hands you a bedraggled handful of papyrus?  Well, if it hasn’t, it will.

Of course, you did not retain the original [for you younger attorneys: NEVER keep the original of your client’s will]. So what will you do with this forlorn sheaf?

You will probate it. Yes, probate it.  But it’s only a copy, you say; and the original will is required to be produced (See, MCA § 91-7-5, -7 and -31).  True.  But it is possible to probate a lost or destroyed will.

In the case of Estate of Mitchell, 623 So.2d 274, 275 (Miss. 1993), the court said:

The law regarding admission into probate of a lost will is discussed at length in Warren v. Sidney’s Estate, 183 Miss. 669, 184 So. 806 (1938). Sidney’s Estate sets forth the elements necessary to probate a copy of a lost will are: (1) the proof of the existence of the will; (2) evidence of its loss or destruction; and (3) proof of its contents. Sidney’s Estate, 183 Miss. at 675-76, 184 So. at 807. A fourth element has been added: (4) that the testator did not destroy the will with the intent to revoke it. Robert A. Weems, Wills and Estates § 7-17, p. 216 (1983). This last element, which is most central to this case, arose from the theory that when a will cannot be found following the death of a testator and it can be shown that the testator was the last person in possession of the will, there arises a rebuttable presumption of revocation.

Where a will which cannot be found following the death of the testator is shown to have been in his possession when last seen, the presumption is, in the absence of other evidence, that he destroyed it animo revocandi … 57 Am.Jur., Wills, § 551.  Adams v. Davis, 233 Miss. 228, 237, 102 So.2d 190, 193 (1958); Phinizee v. Alexander, 210 Miss. 196, 200, 49 So.2d 250, 252 (1950); Horner, Probate Prac. & Est. § 79 (4th ed.). This presumption extends to all duplicate copies, even executed duplicates. Adams, 233 Miss. at 237, 102 So.2d at 194; Phinizee, 210 Miss. at 199, 49 So.2d at 252; Horner § 79.

The proponent of the will must prove each of these elements by clear and convincing evidence. See Estate of Leggett v. Smith, 584 So.2d 400, 403 (Miss.1991); Estate of Willis v. Willis, 207 So.2d 348, 349 (Miss.1968); Adams, 233 Miss. at 237-38, 102 So.2d at 194. (“The intent to revoke must appear clearly and unequivocally.” Sidney’s Estate, 183 Miss. at 676, 184 So. at 807. “The policy of the law requires such contents to be established by the clearest, most convincing and satisfactory proof.” Robert A. Weems, Wills and Estates § 7-17, p. 216 (1983).

Your petition will have to recite on personal knowledge of the petitioner, or supported by affidavits on personal knowledge, all four of the required factors.

You should probate the lost or destroyed will in solemn form.  To do otherwise gives an unfair advantage to the proponent of the missing document.  Probate in solemn form also seals off the protests of other interested parties and, as a practical matter, takes you directly to the hearing with notice that you will likely wind up in anyway.

At hearing, you will need to prove your four elements by clear and convincing evidence.

  • Proving the existence of the will is not usually much of a problem.  You will have that copy, or, if no copy is available, someone with personal knowledge can testify that the will did exist.  MRE 1001-1008 would appear to govern the issue.  As Rule 1008 states, the issue is for the trier of fact to determine.
  • Loss of the will can be proven by testimony that the decedent kept his or her papers in a particular place and that an exhaustive search has not turned it up, or that the cabinet where the will was kept was destroyed by fire, or that it was in a repository that has now vanished.
  • The “Dead Man’s Statute” has been supplanted by MRE 803(3), so proof of its contents should not be a major obstacle, so long as there is a witness with personal knowledge.
  • And the same hearsay exception would apply to the testator’s destruction or intended revocation.

An interesting wrinkle appears in an ancient case, Vining v. Hall, 40 Miss. 83 (Miss. Err. & App. 1866), that is still good law.  In Vining, there was conflicting and inconclusive testimony about the contents of the lost or destroyed will, but no disagreement that it included a revocation clause expressly revoking all prior wills.  The court held that the revocation clause was effective despite the fact that the dispositive terms of the will could not be determined.  See, Weems, Wills and Administration of Estates in Mississippi, Third Ed., § 7.15.

Coming Soon: No Estate Necessary for Most Wrongful Death Actions

May 23, 2018 § 1 Comment

House Bill 1091, which has been signed by the Governor and takes effect July 1, 2018, amends the wrongful death statute (MCA § 11-7-13) as follows:

Any widow, husband, child, father, mother, sister or brother of the deceased or unborn quick child, or interested party may bring an action pursuant to the provisions of this section outside an estate, regardless of whether there are real or personal assets of an estate.

That should be welcome news to you PI lawyers out there who would prefer to take blood thinners and then dive into a swimming pool full of hungry leeches rather than have to deal with a chancellor.

It is equally welcome news to us chancellors who too often wind up having to chase PI lawyers all over kingdom come to try to get them to tend to their usually delinquent probate matters.

Answers to RFA’s

May 22, 2018 § 6 Comments

MRCP 36 Requests for Admission are quite useful in domestic litigation. Following is the language of the rule dealing with answers, annotated with my comments:

“(a) … The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of forty-five days after service of the summons upon him. If objection is made, the reasons therefor shall be stated.”

CommentSubject to the language below in Paragraph b, you have to get your response filed within 30 days. The rule says that the attorney can sign for the client, but I don’t recommend that because often the answering party is literally stuck with and by the response. When the client signs it’s hard for him to maintain later that he never intended to admit that fact. Note that the reasons for an objection must be stated; remember that you and your client are bound by what you state. If you don’t assign a particular reason, you likely have waived it, subject to Paragraph b.

“The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter.”

Comment: I suggest that you repeat the language of the request in the denial so that there is no doubt as to what is admitted (e.g., “Defendant admits that he was at the home of Francine Jones at 3 a.m. on June 9, 2017” rather than “Admitted.” This may sound fussy, but unless you can give me a persuasive reason not to do it my way, I stand my ground.

“A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder.”

Comment: Here is where the advice immediately above becomes clear. By saying only “denied,” in the above example, you are denying every word. But the answer, “Defendant denies that he was at the home of Francine Jones at 3 a.m. on June 9, 2017” leaves no doubt whatsoever what exactly he is denying. And that is what the rule requires. The rule also clearly requires that if you are admitting in part and denying in part you have to specify (e.g., “Defendant admits that he was at the home of Francine Jones, but denies that he was at the home of Francine Jones at 3 a.m. on June 9, 2017”).

“An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny.”

Comment:  This requirement is seldom met, in my experience. If you are going to seek refuge behind lack of information, you are going to have to take a further step and make reasonable inquiry to obtain that information. Only after making “reasonable inquiry” may you then state that the information known or readily obtainable is insufficient to enable an admission or denial complying with the rule. The requirement of reasonable inquiry is a good reason always to require your client to sign the responses. Oh, and keep in mind that your failure to answer with the reasonable inquiry language may provoke a motion to take the matter as admitted, which means that you will have an uphill climb to convince the judge to let you amend, as provided in Paragraph b.

“A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to Rule 37(c), deny the matter or set forth reasons why he cannot admit or deny it.”

Comment:  No matter how inane the request, you have to answer the substance of the request. It’s never adequate to respond like “This is a modification action, after all, and adverse effect on the child has been pled.”

“The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served.”

Comment:  If the court determines that an objection is unjustified, then it must order than an answer be served. You get another shot at an answer. This is why an objection is better than an unresponsive answer.

“If the court determines that an answer does not comply with the requirements of this section, it may order either that the matter is admitted or that an amended answer be served.”

Comment:  Here is where your chickens come home to roost if you don’t properly answer with “reasonable inquiry” or make some kind of unresponsive answer. You run the risk that the judge will merely order that the matter be taken as admitted. There are no factors for the judge to apply; it’s within the judge’s discretion whether to order that it be taken as admitted or that you may file an amended answer.

“The court may, in lieu of these orders, determine that final disposition of the request be made at a pre-trial conference or at a designated time prior to trial. Rule 37(a)(4) applies to the award of expenses incurred in relation to the motion.”

Comment:  Self-explanatory.

“(b) Effect of Admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.”

Comment:  Conclusively established means exactly that. “Any admission that is not amended or withdrawn cannot be rebutted by contrary testimony or ignored by the court even if the party against whom it is directed offers more credible evidence.” DeBlanc v. Stancil, 814 So. 2d 796, 801 (Miss. 2002).

“Subject to the provisions governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”

Comment:  Although the rule appears to provide that you will be allowed to amend or withdraw a response if you can show (a) that presentation of the merits will be subserved, and (b) the other side can not show prejudice, the MSSC has held that the trial court “may,” but is not required, to consider the two prongs of the rule in denying a motion to withdraw or amend. Young v. Smith, 67 So. 3d 732, 740 (Miss. 2011).

“Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.”

Comment:  Don’t expect to use those old admissions from your opposing party’s first divorce in this second one.

No Class Actions in Mississippi

May 21, 2018 § 1 Comment

The MSSC entered an order en banc on May 17, 2018, denying a motion to adopt a class-action rule. The order, signed by Presiding Justice Randolph, reads in its entirety as follows:

Now before the en banc Court is the Motion to Amend Rule 23 of the Mississippi Rules of Civil Procedure, filed by Richard T. Phillips.

Phillips proposed amending Rule 23 to provide a class-action procedure in Mississippi. The motion was posted for comment from May 16, 2017, to October 2, 2017. Numerous comments were filed by individuals, law firms, businesses, and organizations.

The motion was also referred to this Court’s Advisory Committee on Rules. The Committee’s minutes reflect that, after careful consideration, it voted (with one member abstaining) not to recommend adoption of the proposed amendments [sic] to Rule 23.

After due consideration, we find the motion should be denied.

The court then ordered that the motion be denied. Waller, Randolph, Coleman, Maxwell, Beam, Chamberlin, and Ishee voted to deny. Kitchens and King voted to grant.

Before I am flooded with comments along the lines of “Mississippi is the only state without a class-action rule,” and “We are out of step again,” let me point out that I am a member of the MSSC’s Advisory Committee on Rules, and have been since 2010. The committee membership includes plaintiffs’ and defense lawyers, an assistant AG, a public defender, 2 each circuit and chancery judges, a county-court judge, and an appellate judge. I am on the subcommittee that exhaustively studied the proposal, including reading scholarly articles on the subject and studies of other states’ rules. We even interviewed proponents of each side of the debate, something we have not done before during my time on the committee. The proposal was discussed in depth. The unanimous conclusion of the subcommittee (with one abstention) was that the federal Class Action Fairness Act of 2005 (CAFA) has had the effect of making almost all class-action suits removable to federal court, obviating the need for a state rule. The full committee voted unanimously (with one abstention) that the proposed rule not be adopted.

 

Dispatches from the Farthest Outposts of Civilization

May 18, 2018 § Leave a comment

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What it Takes to be a Judge

May 16, 2018 § 1 Comment

In my 45 years in the legal profession, I have never seen so many contested judge races. There are eighteen chancellors retiring out of 52 total; that means we are losing 37% of our chancellors to retirement, among them some of the most experienced and wisest.

There are vacant chancery judge posts scattered around the state, and lawyers are vying to fill them. If you’re wanting to become a chancellor, you might want to give some thought not only to what are the duties of the job, but also what are some of the nuances.

Here are some of my personal, random thoughts on the role of a chancery court judge, first posted in May, 2015:

  • The judge’s first duty is to the law. The judge has to be blind to who the parties are, and to who represents them, and let the facts lead him to a decision consistent with the applicable law. That sounds obvious, but it can be difficult to do.
  • The judge has to be dispassionate, but understanding of the foibles of human nature. A wrathful judge who hurls moralistic thunderbolts at the parties is, in my opinion, an ineffective judge. It’s better to craft an effective solution to a problem than to dispense punishment with judgmental platitudes. People come to court hoping for a pragmatic, wise solution, not another layer of problems laid on by the court.
  • What lawyers and the public want most is a judge who is fair and follows the law. Fail on either count, and you fail as a judge. A chancellor can never pick a side or a conclusion and reason back through the facts and law to get to that preconceived notion. The facts and law of the case dictate a ruling, not vice versa.
  • It takes a sure, confident, competent command of the rules of evidence to be a judge. If you have tried enough cases, you know what I mean. In fact, if you have little or no trial experience, I really don’t see how you could pull off being a chancellor. Lack of evidentiary skills will show in the work product. A judge who is usually wrong in evidentiary rulings or who waffles on every ruling will lose respect of the lawyers, and probably develop a history of reversals.
  • Speaking of reversals, two things apply. One is that a consistent history of reversals is a symptom of not following the law and/or not paying attention to the facts. Two is that the chancellor must rule based on what the facts and law dictate, and never with a concern to avoid reversal.
  • Those two may sound inconsistent, but the common thread is to follow the law and to apply it appropriately to the facts in evidence.
  • The judge must always be vigilant to see that justice is done. That may require a sua sponte appointment of a GAL, or inquiring behind a PSA, or scrutinizing actions of executors, guardians, conservators, and lawyers.
  • The judge must make sure that probate matters are being handled diligently, and free of any misconduct.
  • The chancellor must not let lawyers, particularly old lions, push him or her around. The judge controls the conduct of the case, and absolutely controls the courtroom. That does not mean that the judge is a tyrant, but firm, assertive behavior is required, and when the lawyers get accustomed to it, respect ensues.
  • Ethics are critically important. Even the appearance of impropriety is forbidden. It requires a thorough knowledge and observance of the Canons of Judicial Conduct to be a successful judge.
  • One of the side-effects of ethical behavior is isolation. The old camraderie with lawyers comes to an end.
  • A crucial thing to remember is that demeanor is vitally important. A judge should be rational, wise, kind, understanding, respectful, and even-handed. A judge should try never to be impatient, rude, sarcastic, or erratic. Lawyers who appear before you are still your colleagues who deserve your respect. The lawyer you mistreat and humiliate in the courtroom may likely be your next opponent.
  • Another reason that demeanor is important is that people in the courtroom are observing you closely. There is not a judge’s frown, grimace, smile, nod, sigh, or rolling of the eyes that someone does not note.
  • One of the hardest things to do consistently is to be patient. That is not easy when a lawyer is stumbling and fumbling through some routine matter, or must be shown the proper way to handle estate matters time and again.
  • Dishonesty can never be tolerated, and must be dealt with swiftly and decisively.

Other judges may have a different take, and I welcome their input.

Contested Appellate Races

May 15, 2018 § Leave a comment

There are three contested appellate judiciary races, all for seats on the Court of Appeals.

In District 2. (Tunica, Panola, Quitman, Coahoma, Bolivar, Sunflower, Leflore, Carroll, Humphreys, Washington, Sharkey, Issaquena, Holmes, Yazoo, Warren, Claiborne, Jefferson, and parts of Tallahatchie, Panola, Grenada, Montgomery, Attala, Leake, Madison, and Hinds). Place 1 (being vacated by the retirement of Presiding Judge Tyree Irving) Eric Charles Hawkins, Ceola James, and Deborah McDonald.

In District 4. Copiah, Simpson, Adams, Wilkinson, Franklin, Amite, Lincoln, Pike, Walthall, Lawrence, Jefferson Davis, Marion, Covington, and parts of Jones and Hinds. Place 2 (being vacated by retirement of Chief Judge Joe Lee) Byron Carter, Brad Clanton, Laura McKinley Glaze, David McCarty, and Jeff Weill, Sr.

In District 5. Wayne, Lamar, Forrest, Perry, Greene, Pearl River, Stone, George, Hancock, Harrison, and Jackson. Place 1 (being vacated by the retirement of Judge Eugene L. Fair, Jr.) Anthony N. Lawrence, III and Michael W. McPhail.

Contested Chancery Races

May 14, 2018 § 5 Comments

The qualifying deadline for chancery judge races was this past Friday. Here are the races, including any unopposed for replacement of a retiring chancellor:

District One (Alcorn, Itawamba, Lee, Monroe, Pontotoc, Prentiss, Tishomingo, and Union). Place 1 (being vacated by retirement of Chancellor John A. Hatcher, Jr.) Nathaniel Clark, Lisa Ann Koon, William Smith, Brad Tennison, and Daniel K. Tucker.

District Two (Jasper, Newton, Scott) (being vacated by retirement of Chancellor H. David Clark, II) Robert M. Logan, Jr. is unopposed.

District Five (Hinds).

Sub 5-2 (being vacated by retirement of Chancellor Patricia D. Wise) Reginald Harrion and Crystal Wise Martin.

Sub 5-4 (being vacated by retirement of Chancellor William H. Singletary) Monique Brown-Barrett, Ottawa E. Carter, Tiffany Grove, and Steven P. Nixon.

District Six (Attala, Carroll, Choctaw, Kemper, Neshoba, Winston) Place 2 (being vacated by retirement of Chancellor Edward C. Fenwick) Rosalind H. Jordan and Kiley Kirk.

District Seven (Bolivar, Coahoma, Leflore, Quitman, Tallahatchie, Tunica) Sub 7-2 (being vacated by retirement of Chancellor Jon Barnwell) Katherine Tackett Mills, Willie J. Perkins, Sr., and Richard W. Ryals.

District Eight (Hancock, Harrison, Stone) Place 3 Incumbent Chancellor Sandy Steckler is facing Diane Herman Ellis and Margaret Alfonso.

District Nine (Humphreys, Issaquena, Sharkey, Sunflower, Warren, Washington)

Sub 9-1 (being vacated by retirement of Chancellor Marie Wilson) Bennie L. Richard is unopposed.

Sub 9-2 Incumbent Chancellor Jane R. Weathersby is opposed by Debra M. Giles.

District Ten (Forrest, Lamar, Marion, Pearl River, Perry)

Place 3 (being vacated by retirement of Chancellor Johnny L. Williams) Bob Marshall and Sheila H. Smallwood.

Place 4 (being vacated by retirement of Chancellor M. Ronald Doleac) Stacy S. Barber, Christopher M. Howdeshell, Vanessa Jones, Harry R. Lane, Chad Smith, and Joseph L. Turney.

District Twelve (Lauderdale, Clarke) Place 1 (being vacated by retirement of Chancellor Jerry G. Mason) Charles E. Smith and Frances S. Stephenson.

District Thirteen (Covington, Jefferson Davis, Lawrence, Simpson, Smith) Place 1. Incumbent Chancellor David Shoemake is facing John Allen Bufington.

District Fourteen (Chickasaw, Clay, Lowndes, Noxubee, Oktibbeha, Webster)

Place 1 (being vacated by retirement of Chancellor Kenneth M. Burns) Elizabeth Fox Ausbern, Gene Barton, R. Todd Bennett, Rodney Faver, and Lee Ann Turner.

Place 2 (being vacated by retirement of Chancellor H. James Davidson) Gary S. Goodwin, Carrie A. Jourdan, and Joseph N. “Joe” Studdard.

Place 3 (being vacated by retirement of Chancellor Dorothy W. Colom) Paula Drungole-Ellis and Roy A. Perkins.

District Fifteen (Copiah, Lincoln) (being vacated by retirement of Chancellor Edward E. Patten) Renee H. Berry and Joseph Durr.

District Sixteen (George, Greene, Jackson)

Place 2 (being vacated  by retirement of Chancellor Jaye A. Bradley) Robert “Bob” Briggs, Tanya Hasbrouck, Gary L. Roberts, and Ashlee C. Trahern.

Place 3 (being vacated by retirement of Chancellor Michael L. Fondren) David C. Frazier, Mark A. Maples, and Stacie E. Zorn.

District Eighteen (Benton, Calhoun, Lafayette, Marshall, Tippah) Place 1 (being vacated by retirement of Chancellor V. Glenn Alderson) Carnelia Fondren, Sarah J. Liddy, and Lawrence L. Little.

District Twenty ( Rankin) Place 2 (being vacated by retirement of Chancellor John S. Grant) Tameika C. Bennett, Mel Coxwell, and Troy F. Odom.

May 11, 2018 § 3 Comments

Reading and Watching

Reading

The Cotton Kingdom by Frederick Law Olmsted. It’s not widely known that the author, who became America’s first and most prominent landscape architect and designer of masterpieces such as Central Park in New York and Biltmore Estate, was for years a correspondent for the New York Times. In the 1850’s he undertook a solo tour through the backwoods of the southern states to report on slavery, life in the south, and the plantation economy. This book compiles his reportage, and presents a contemporary panorama of the small landowners, slaves, plantation owners, and their ways of life.

Worse than Slavery by David Oshinsky. From slavery, through reconstruction, through white resurgency, through Jim Crow, through convict labor-for-hire, through the law used as oppression. Oshinsky traces the history of Parchman Farm from its roots in slavery to its founding and evolution through phases of Mississippi history. The author does a masterful job of depicting Mississippi’s brutal racial history.

Hue 1968 by Mark Bowden. Turning points in history are most often identified by historians long after the fact. Some turning points, however, are apparent immediately. Such was the case when the Tet Offensive exploded across Viet Nam in 1968. Before then the Johnson Administration had been manipulating the media, with a few notable exceptions, to promote a rosy picture of military progress in that ill-starred land. Tet proved it all to be lies, and began a u-turn in American public opinion on the nation’s involvement in Viet Nam’s civil war. Bowden’s riveting book tells the story of the invasion and month-long occupation of Hue, South Viet Nam’s cultural capital, by the North Vietnamese and Viet Cong, the Herculean effort that it took to oust them, the cost in human life and destruction, and the aftermath both in Viet Nam and in the U.S.

Prisoners of Geography: Ten Maps that Explain Everything About the World by Tim Marshall. An easy-to-digest, thoughtful explication of geopolitics. Marshall shows how geography has dictated history, how it influences current events, and how it will shape the world’s future, region by region.

The Greater Journey by David McCullough. Between 1830 and 1900, waves of Americans took up residence in Paris to study art, medicine, and life. They took what they absorbed back to their young nation and enriched it immeasurably. Through their stories two-time Pulitzer Prize and two-time National Book Award-winner McCullough weaves the history of Paris itself. What results is the mesmerizing sagas of Americans such as James Fenimore Cooper, Mary Cassat, John Singer Sargent, Augustus Saint-Gaudens, Harriet Beecher, Samuel F.B. Morse, and others, all set against war, art movements of the eras, epidemics, and the Haussmannization of the City of Light.

The Best and the Brightest by David Halberstam. America’s gradual slide into immersion in Viet Nam’s civil war, from Eisenhower, through Kennedy, and to Johnson, with an afterword about Nixon. Halberstam makes a microscopic examination, linking the loss of China to Communism during the Truman years to Kennedy’s obsession with refusing to let the same thing happen in Indochina, to Johnson’s deferral to Kennedy’s “best and brightest” brain trust that he inherited following Kennedy’s assassination. This is a fascinating analysis, done as a character study of all the major — and some minor — players.

The Last Castle by Denise Kiernan. The story of Biltmore Estate and its creator, George Washington Vanderbilt. What do you do when you have inherited more wealth than you can possibly use in twenty lifetimes? Well, if you live in America’s Gilded Age, you build the largest home in the nation, on more than 30,000 acres, for which you employ only the leading architects, craftsmen, foresters, and landscapers. This book traces the development of Biltmore manor and its estate. It’s also the story of his wife Edith’s devotion to the community and her employees, the Vanderbilts’ at-times tenuous financial situations, and the symbiotic relationship of Biltmore, the Vanderbilts, Asheville, and the Blue Ridge Mountains.

A Gentleman in Moscow by Amor Towles. Count Alexander Rostov, a Russian Aristocrat is brought before a revolutionary tribunal on charges of being an enemy of the people. He expects to face a firing squad or be imprisoned. Instead, because he is credited with once having authored a famous poem, he is ordered to be incarcerated in the Metropol Hotel for life, on pain of death if he ever sets foot outside it. His story, and that of all the interesting characters, events, and settings in the hotel with which he interacts, make for entertaining reading that one would not expect of a novel limited in scope to one square block of Moscow. Towles is a talented writer whose prose you will enjoy.

Movie Stars by Jack Pendarvis. You need to read more Pendarvis. Do it for yourself.

Watching

As for watching, I recommend Filmstruck for those of you who are cinephiles. There you will find a rotating selection of the Criterion Collection and TCM’s vault.

 

 

 

 

 

Busted

May 9, 2018 § Leave a comment

In 1972, Carroll and Susan O’Brien purchased 104 acres of land in Simpson County as joint tenants with right of survivorship. The purchase money came from Susan’s inheritance.

Fifteen years later, in 1987, the couple was divorced by judgment on the ground of irreconcilable differences. Their PSA, which was incorporated into the judgment, included the following provision:

It is agreed between the parties that all real property jointly owned by these parties shall remain as same now is, with each party owning a one-half undivided interest in all real property and that said real property cannot become community property by any future marriages by either spouse. No disposition of any land holdings may be made while both parties are alive unless by mutual agreement in writing.

It is obvious from the language above that their intent was that the ultimate survivor would become sole owner of the property.

Only problem is that Carroll had a different idea. In 1995, using an old power of attorney (POA) that Susan had signed back in 1970, he quitclaimed the Simpson County property to himself and his new wife, Socorro. Contrary to the express language of the PSA, Carroll had not sought or obtained Susan’s “mutual agreement in writing” to dispose of his interest in the real estate. He did not execute the deed as Susan’s attorney-in-fact. There were a couple of later conveyances in 2000 and 2007, resulting in the property being conveyed solely to Socorro.

Carroll died in November, 2012.

Susan filed suit to void the deeds and remove clouds on her title to the property. She alleged breach of fiduciary duty by his self-dealing use of the POA, lack of authority to convey, fraud, and unjust enrichment. Socorro filed a denial, along with affirmative defenses of equitable estoppel, laches, and waiver, and demanded one-half of the ad valorem taxes back to 1995.

Susan filed a motion for summary judgment. The chancellor found that no written agreement was ever made to allow Carroll to convey any interest in the property, and that all of his attempts to convey the property after the divorce would be cancelled and set aside. Socorro appealed.

The COA unanimously affirmed in the case of O’Brien, Individually and as Executrix of the Estate of O’Brien v. Westedt, handed down April 10, 2018. There are some legal points of interest to property lawyers.

Citing Mosby v. Mosby, 962 So. 2d 119, 124 (¶15) (Miss. App. 2017), the court affirmed the chancellor’s decision:

¶12. Susan responds that the Mosby case clearly stands for the principle that conveyances which thoroughly frustrate the intent of a divorce decree shall be set aside. Id. She claims that, based on the trial court’s interpretation and application of Mosby to the undisputed facts of the case, she was entitled to a judgment as a matter of law. She contends that the property settlement agreement is clear that neither she nor Carroll could dispose of any interest in the real property while both were alive without the written agreement of the other. As previously quoted, the agreement states that “[n]o disposition of any land holdings may be made while both parties are alive unless by mutual agreement in writing.”

¶13. The chancery court noted that in “Mosby, a divorced husband attempted to thwart the intent of the divorce decree by conveying his one-half interest in the property to his second wife while retaining a life-estate in himself in a scheme to avoid splitting the equity in the property with his first wife.” Id. Based on the Mosby case, the court found that the property settlement-agreement provision governed, and all attempts by Carroll to convey the property after his divorce from Susan should be canceled and set aside. We agree. See also McKinney v. King, 498 So. 2d 387, 388 (Miss. 1986) (holding that, “[i]t is fundamental law that an agent owes his principal absolute good faith and fidelity, and he cannot in the exercise
of his authority as agent acquire property or interest therein rightfully belonging to his principal without full disclosure and free consent of his principal.”).

¶14. The property-settlement agreement clearly contemplated that the property would pass by survivorship unless both parties agreed otherwise in writing. “[P]roperty settlements under divorce actions are binding on the parties if fair, equitable and supported by consideration.” Weeks v. Weeks, 403 So. 2d 148, 149 (Miss. 1981). Socorro does not claim that the property-settlement agreement entered into by Carroll and Susan was unfair, inequitable and not supported by consideration at the time Carroll and Susan executed it. The contract was enforceable, and the conveyances were void; therefore, the original joint tenancy with rights of survivorship was still intact at Carroll’s death, and Susan is entitled to the entire property.

A few thoughts:

  • I am going to presume that the concept of keeping the property jointly titled post-divorce originated with the clients, and not the lawyers. Perhaps neither had the funds to buy out the other’s interest. Whatever, I don’t think it’s usually best to leave the parties in a joint ownership arrangement after a divorce.
  • Regardless of the wisdom or lack thereof behind the property arrangement, I give full credit to the lawyer who drafted it. The provision leaves no doubt about what the parties intended, and it left no wiggle room that Carroll could have used to justify his actions.
  • This case also highlights that you need to discuss with your divorce clients how to tidy up their affairs after divorce. They need to do a credit check to make sure there are no joint credit accounts of which they were unaware. They need to cancel all previous wills. They need to execute a cancellation of all prior powers of attorney and file the cancellation with the chancery clerk among the property records. They need to check and change life insurance beneficiaries as necessary. They need to close all joint banking and securities accounts. It’s an important subject about which I’ve posted here before.
  • Righting wrongs and making sure that equity is done are core functions of chancery court.

 

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