January 27, 2020 § 5 Comments
Robert Johnson of Mississippi is widely credited as being one of the most influential blues guitarists ever. Eric Clapton, Keith Richards, and Jimi Hendrix, to name a few, idolized him and tried to imitate his technique. He died in Greenwood on August 16, 1938, at age 27, poisoned by another man with whose wife Johnson was romantically involved.
His estate was not opened until 1989, when his son, Claud, petitioned the court to be named executor. But Claud could not benefit from his father’s musical heritage because he had never been adjudicated Johnson’s son.
Claud retained the law firm of Kitchens & Ellis to represent him in an action to be declared Johnson’s son and heir, and in all subsequent legal matters Claud would have. They entered into a contingency fee contract that included an assignment of 40% of all revenue Johnson would receive, including royalties, commissions, profits, etc., from his father’s music. After Claud succeeded in being declared Johnson’s heir, the law firm received its 40% from Claud. Kitchens & Ellis later assigned its rights to the Kitchens Law Firm, P.A.
And then Claud died on June 30, 2015. His estate was opened, and the estate continued to receive revenue from the music of the late bluesman, but did not pay Kitchens its 40%. On October 20, 2016, Kitchens filed a motion asking the court to authorize and direct the executor to turn over the 40%, and to make an accounting. The executor responded that the claim was barred because Kitchens had not probated a claim. A special chancellor ruled that the claim was not barred, and ordered the executor to deliver the funds and to account. The estate appealed.
In Estate of Johnson v. The Kitchens Law Firm, P.A., decided by the COA on August 27, 2019, the court affirmed, holding that the claim did not have to be probated. Judge Corey Wilson wrote the unanimous opinion, Lawrence not participating:
¶13. Claud’s estate first contends that the chancery court should have dismissed Kitchens’s motion to authorize and direct executor because Kitchens’s claim is time-barred. Pursuant to section 91-7-151:
All claims against the estate of deceased persons, whether due or not, shall be registered, probated and allowed in the court in which the letters testamentary or of administration were granted within ninety (90) days after the first publication of notice to creditors to present their claim. Otherwise, the same shall be barred and a suit shall not be maintained thereon in any court, even though the existence of the claim may have been known to the executor or administrator.
(Emphasis added). Section 91-7-149 provides the requisite procedures for probating a claim against a decedent’s estate. Miss. Code Ann. § 91-7-149; In re Estate of Lingle, 822 So. 2d 320, 322 (¶12) (Miss. Ct. App. 2002).
¶14. It is undisputed that Kitchens did not register and probate any claim against Claud’s estate in accordance with the procedural requirements of section 91-7-149. It is also undisputed that Kitchens did not probate any claim against Claud’s estate within ninety days of the first publication of notice to creditors, which occurred on September 2, 2015. But Kitchens contends that it “was not required to probate a claim because the funds due [to] it, now and in the future, are not now, nor have they ever been, part of [Claud]’s estate.” We agree.
¶15. “Section 91-7-151 has no application to a suit for possession of property by virtue of ownership.” Maxwell v. Yuncker, 419 So. 2d 580, 583 (Miss. 1982). When Claud entered the contract in 1991, he agreed to
[s]et over and assign unto said firm of Kitchens & Ellis, causes of action or rights in the amount of forty percent (40%) of any and all sums of money or other benefits which they may recover or obtain for me by virtue of, or arising from, my biological relationship to the late Robert Johnson . . . .
(Emphasis added). “A valid assignment in Mississippi is a transfer of rights or property from one party (the ‘assignor’) to another (the ‘assignee’), in which the assignor intends to vest in the assignee a present right in the thing assigned.” 1 Donald Campbell, Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 7:1 (2018). Thus, pursuant to the contract, Kitchens is the rightful owner to the funds that it claims. In other words, the funds are not, and never were, part of Claud’s estate—they are merely being wrongfully withheld, contrary to the assignment, by the estate. Because the funds are not a part of Claud’s estate, Kitchens was not required to probate its claim. See Maxwell, 419 So. 2d at 583 (holding sections 91-7-149 and 91-7-151 have no application where appellant’s claim was not for a specific money demand due or to become due but rather was an inchoate and contingent claim involving the ownership of specific property). The special chancellor therefore did not err by declining to dismiss Kitchens’s claim as time-barred under section 9-71-151. This assignment of error lacks merit.
A parting thought: It costs nothing to probate a claim, even when you aren’t required to do so.
If you ever get a chance to hear Justice Kitchens tell some stories of this adventure (which is the best word that comes to my mind) you will be very entertained, both by the story and the story-teller.
On a side note my son met Claud at House of Blues in Boston when he worked there in security. Claud always asked to see “that Mississippi boy” when he visited.
Under our current statute, would not the executor/administrator of Claud’s estate be required to mail a notice to Kitchens if he wanted to later contend that the “creditor’s claim” was barred by failure to probate? I realize that the notice statute did not require this in 1989.
More information on RJ.