Checklists, Checklists, Checklists
August 12, 2014 § 11 Comments
You can skip over this post if you’ve been paying attention to this blog for any appreciable length of time.
For you newcomers and oblivious long-timers, you need to know and appreciate that proving many kinds of cases in chancery court is a matter of proving certain factors mandated from on high by our appellate courts. I’ve referred to it as “trial by checklist.”
If you don’t put on proof to support findings of fact by the chancellor, your case will fail, and you will have wasted your time, the court’s time, your client’s money. You will have lost your client’s case and embarrassed yourself personally, professionally, and, perhaps, financially.
I suggest you copy these checklists and have them handy at trial. Build your outline of the case around them. In your trial preparation design your discovery to make sure that you will have proof at trial to support findings on the factors applicable in your case. Subpoena the witnesses who will provide the proof you need. Present the evidence at trial that will support the judge’s findings.
If the judge fails to address the applicable factors in his or her findings of fact, file a timely R59 motion asking the judge to do that. But remember — and this is critically important — if you did not put the proof in the record at trial to support those findings, all the R59 motions in the world will not cure that defect.
Here is an updated list of links to the checklists I’ve posted:
Income tax dependency exemption.
Modification of child support.
Periodic and rehabilitative alimony.
And here are two checklists that will help you in probate matters:
What has to be Re-addressed in an Equitable Distribution Remand?
August 11, 2014 § Leave a comment
When equitable distribution is reversed and remanded for a do-over, alimony has to be redone also, because the two are inextricably intertwined; as equitable distribution expands, alimony contracts, and vice versa.
But what about child support?
The COA’s decision in Rodrigue v. Rodrigue, handed down July 29, 2014, reminds us that child support and attorney’s fees have to be revisited, as well:
¶47. Deidi argues that the chancellor committed error in the computation of child support and by not awarding her attorney’s fees. As set forth above, in Lauro [v. Lauro, 847 So.2d 843, 850 (¶17) (Miss. 2003)], the Mississippi Supreme Court determined that since the case was remanded for further consideration of equitable division, the chancellor should be instructed “to revisit the awards of alimony and child support after he has properly classified and divided the marital assets.” Lauro, 847 So.2d at 850 (¶17). Thus, since this case has been remanded for further consideration of equitable division of assets and alimony, on remand, the chancellor will have all the tools of marital dissolution available: equitable division, lump-sum alimony, and periodic alimony. Likewise, the chancellor may revisit the awards of child support and attorney’s fees.
I was aware of the language in Lauro that requires the remand court to look not only at equitable distribution, but also at alimony and any child support. I was unaware that the remand also embraced attorney’s fees. It is logical, though, that the judge on remand, after completing a re-analysis of the division of the marital estate, and after the award of alimony and child support, could arrive at a different conclusion about ability to pay attorney’s fees.
An interesting feature of this case is that the chancellor did not treat a private-school debt, apparently for tuition, as a marital debt. It’s pure speculation on my part, but I will bet that stems from the chancellor’s confusion over how exactly to treat private school expenses. It’s a confused area, with cases going every which way. If we need some bright line guidance in an area, private school expenses is one.
The Laws of Stupidity
August 8, 2014 § 5 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:
- Always and inevitably each of us underestimates the number of stupid individuals in circulation.
- The probability that a given person is stupid is independent of any other characteristic possessed by that person.
- 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.
- 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.
- 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.
A Dog Bites Man Case
August 7, 2014 § 2 Comments
Charles Anderson Dana, Civil-War-era managing editor and part-owner of the New York Tribune newspaper is credited with the astute observation that “When a dog bites a man that is not news, but when a man bites a dog that is news,” or words to that effect.
So, when a particular case from our appellate courts is not news, so to speak, I guess one could call it a “Dog-bites-man case.”
Squarely in that category is the COA’s July 15, 2014, decision in McBride v. McBride, which ascended to that lofty court from a chancellor’s ruling in the midst of a contentious series of legal battles between Lindsey and Jimmie McBride, a divorced couple, over custody and visitation. Lindsey had opened a second front in the pair’s warfare by enlisting the aid of a sympathetic family court in Louisiana. Jimmie counterattacked with another round of modification pleadings in Mississippi.
The chancellor’s ruling was this:
Jimmie’s “[p]etition for [m]odification of [v]isitation/[c]ustody shall be stayed for thirty (30) days from the date of entry of this order upon condition that within said thirty (30) days the Louisiana [c]ourt, on [Lindsey’s] motion, set aside [its] May 17, 2012 [o]rder, and allow [Jimmie] to answer the Rule to Show Cause filed on March 9, 2012[,] in the Louisiana [c]ourt. In the event that does occur, counsel for each party shall notify [the chancery c]ourt at which time [the chancery c]ourt shall recognize that a proceeding concerning the custody of the child is pending in [Louisiana], and [the chancery c]ourt will consider whether or not it should transfer jurisdiction to [Louisiana] . . . . In the event the Louisiana court does not set aside [its] May 17, 2012 [o]rder within said thirty (30) days, [Jimmie] may set for hearing his [p]etition for [m]odification of [v]isitation/[c]ustody.”
Not particularly satisfied with this ruling, Lindsey appealed. She did not request to file an interlocutory appeal.
Now, if you have been paying even scant attention to this blog in the past year or so, I think you’ll guess correctly where this is heading.
The chancellor’s ruling left Jimmie’s modification action pending, and the chancellor did not certify his order under MRCP 54(b). Result = Appeal dismissed. Not really news. Happens every time … and quite frequently.
This has been a slow chancery-news summer, so a dog-bites-man case was newsworthy enough to merit a post. But, a man-bites-dog case … now there’s some real news. I’ll be waiting for one to report on.
A Few Random Thoughts About Pre-Nups
August 6, 2014 § 3 Comments
If you’ve practiced law for any length of time, you have been confronted with this scenario:
Mr. X, a client for whom you likely have done some agreeable work before, enters your office accompanied by a pleasant woman, Miss Y, who is introduced as his fiancée.
After the initial pleasantries, Mr. X informs you that the happy couple is being married tomorrow, and they need you to prepare an antenuptial agreement. It should not be any big problem, because they have agreed, after much discussion, to the terms upon the piece of notebook paper that Mr. X pulls out of his wallet and lays on your desk. If you will have it typed up, they will sign it and go forth to embark on an ensuing lifetime of marital bliss, they tell you while gazing lovingly into each other’s eyes (eyelashes batting furiously).
Now, let’s stop right there before you hand it to your secretary to type up. Let’s consider a few points:
- Antenuptial agreements are enforceable, if they are fair in their execution and a full disclosure of assets and liabilities has been made. Smith v. Smith, 656 So.2d 1143 1147 (Miss. 1995). If the parties agree to language that a full disclosure has been made, that creates a presumption that it was done. See, Kitchens v. Estate of Kitchens, 850 So.2d 215, 217 (Miss. App. 2003). The presumption may, however, be overcome by proof of fraud, misconduct, or overreaching. Id. In a case I had recently, both parties testified that neither had the benefit of any financial disclosures of the other, and neither had any clue as to the financial situation of the other, effectively negating the language in their own agreement.
- Just as in an irreconcilable differences divorce, you can not ethically represent both parties. You need to make it clear that you can only represent one, and my suggestion is that it be the one with whom you had a previous attorney-client relationship. In a case where you represented neither or both before, they will have to choose.
- You need to confer separately with your client about the content of the agreement, and you need to inform the other party that (s)he should seek and obtain independent legal advice. This is critical. Laypeople do not understand the intricacies and nuances of marital property, alimony, and divorce, and the seemingly innocuous provisions they jotted down on that paper may have far-reaching and even drastic repercussions for either or both later in the context of a divorce or estate.
- Whom you represent, and the fact that you have not provided legal advice to the the other party, and that the other party is aware of the need to consult with independent counsel, all need to be spelled out in the agreement you draft
- And while I am on that point, fastidiously avoid saying or doing anything that can be construed as legal advice to the unrepresented party. I can guarantee that that will come back and bite you in your nether regions.
- Seriously consider whether you even want to touch this with the virtual ten-foot pole. Can all the bases be covered in the brief twenty-four hour period? Who will be held responsible if it all blows up in your client’s face? Do you have time to do the investigation and consultation with your client necessary to protect him?
It’s for another post to talk about the ingredients of an effective, successful pre-nup. My advice is, unless you have a tried-and-proven form in which you have complete confidence based on its being upheld in other cases, you should not even attempt to do one. I also suggest that you never do a pre-nup at the eleventh hour, as was the case here.
The Calculating Judge
August 5, 2014 § 10 Comments
I don’t think I’m overstating when I say that the sum of case law requires chancellors to be at times mindreaders, engineers, valuation experts, tax experts, soothsayers, sages, interpreters, accountants, astrologers, psychologists, geneticists, mathematicians, theologians, and, always, legal scholars. I am sure, with a little research, I could add some more roles that our jurisprudence has conferred on chancery judges.
As for the role of mathematician, it has long been the law in Mississippi that the judge may do calculations to arrive at her conclusions. That almost goes without saying, since many cases we hear involve piles of bank statements, appraisals, balance sheets, general ledgers, financial statements, tax returns, and all kinds of other data that require number-crunching.
But how far does that computational authority extend?
That was the question posed in the COA case of Pruitt v. Pruitt, decided July 29, 2014. In Pruitt, the chancellor had less than ideal proof of the value of the parties’ respective PERS accounts in an equitable distribution/alimony case. He requested further proof to support his decision, but the parties told him, in essence, that such proof was unavailable. In other words, “Judge, you’re on your own.”
Faced with what he apparently considered a dearth of proof, the chancellor found information in a PERS handbook and website that he used to calculate the value of the husband’s PERS account. Based on the figures he derived from his computations, the judge ordered Mr. Pruitt to pay Mrs. Pruitt alimony (or division of PERS benefits; it’s not clear to me which), and he awarded her a judgment for more than $90,000, which was his calculation of the difference in their estates.
Mr. Pruitt appealed. Judge Roberts, for the COA, addressed his issues:
¶9. Ira’s issue on appeal stems from the fact that after the parties went to trial, the chancellor found information from a PERS handbook and the PERS website and determined a value for Ira’s PERS retirement account. Ira argues that the chancellor erred by considering evidence outside the record. We agree.
¶10. In Dunaway v. Dunaway, 749 So. 2d 1112, 1121 (¶28) (Miss. Ct. App. 1999), a chancellor was faced with proof of valuation that was “something less than ideal.” Consequently, the chancellor “made valuation judgments” that had at least some evidentiary support in the record. Id. This Court stated that “[t]o the extent that the evidence on which the chancellor based his opinion was less informative than it could have been, we lay that at the feet of the litigants and not the chancellor.” Id. Accordingly, this Court found that the chancellor had not abused his discretion. Id.
¶11. Although a chancellor may value assets based on evidence that is based on something less than ideal, the chancellor’s valuation must be based on at least some evidentiary support in the record. In other words, we must draw a distinction between less-than-ideal evidence presented by parties to the litigation, and information outside of the record that neither party presented. Despite the chancellor’s clear and thorough attempt to resolve the issue in an equitable manner, under the precise circumstances of this case, we must find that it was an abuse of discretion to consider evidence that was outside the record. It follows that we remand this case for further proceedings.
Having said that, the COA’s remand instructions help illuminate the scope and approach that applies:
¶12. On remand, the chancellor may exercise his considerable discretion when calculating the manner in which Ira’s PERS retirement benefits should impact the equitable distribution of Ira’s and Lena’s marital assets and liabilities. We are aware of no restriction on the chancellor’s right to calculate Ira’s income based on the monthly payments he receives from his PERS annuity – at least to the extent that such income impacts Ira’s ability to pay Lena alimony. But we caution the chancellor to remain mindful that Ira cannot exercise any option to pay Lena a lump-sum figure from his PERS retirement account. Essentially, a lump-sum payment from Ira’s PERS account would operate as a qualified domestic relations order (QDRO). A QDRO is permissible in the context of a retirement account governed by the Employment Retirement Income Security Act (ERISA). See Parker v. Parker, 641 So. 2d 1133, 1137 (Miss. 1994). But ERISA does not apply to retirement plans that are “established and maintained for its employees by . . . the government of any State . . . .” 29 U.S.C. § 1321(b)(2) (2012). PERS was established “for the purpose of providing retirement allowances and other benefits . . . for officers and employees in the state service and their beneficiaries.” Miss. Code Ann. § 25-11-101 (Rev. 2010). Furthermore, accrued PERS benefits are “exempt from levy and sale, garnishment, attachment or any other process whatsoever, and shall be unassignable except as specifically otherwise provided in this article . . . .” Miss. Code Ann. § 25-11-129(1) (Rev. 2010). Therefore, a lump-sum payment from an accrued PERS retirement account is not permissible by way of a QDRO. We recognize that the chancellor’s order did not specifically attempt to award Lena any figure by way of a QDRO – at least not in name. When the chancellor denied Ira’s motion for reconsideration, he noted Ira’s claim that the lump-sum judgment was a “masked” QDRO “under another name.” The chancellor found no merit to Ira’s claim, but he did not discuss his reasoning. Notwithstanding the name used to describe the lump-sum judgment, the mechanics involved operate no differently than a QDRO. Most importantly, it is legally impossible for Ira to transfer a lump-sum figure from his PERS account. A legally impossible option is not an option at all.
That last paragraph is something you should clip and paste into your notebook of useful chancery information.
Keep in mind that it’s up to the lawyers, and not the judges, to marshal and get into evidence the proof that will support their client’s case. It’s frustrating in the extreme for a judge to have an incomplete and inadequate record which the chancellor is required to analyze applying two, three, four, or more sets of appellate-court-mandated factors.
One point about this case has me scratching my head, though. MRE 201 specifically states that “[a] court may look to any source it deems helpful and appropriate, including official public documents, records and publications …” Unless I am missing sosmething, I would guess that a PERS handbook and the agency’s website would come within that definition. I wonder whether the COA took into account or even considered the broad scope of judicial notice that the MSSC has allowed judges. I posted about the rather breathtaking scope of it here. Three points from that post:
- In Witherspoon v. State ex rel. West, 138 Miss. 310, 320, 103 So. 134, 136-37 (1925), the court held that it was within the judge’s diecretion to ” … resort to … government publications, dictionaries, encyclopedias, geographies, or other books, periodicals and public addresses. (citing, inter alia, Puckett v. State, 71 Miss. 192, 195, 14 So. 452, 453 (1893)). Nothing in Rule 201 casts doubt on Witherspoon.”
- In Enroth v. Mem’l Hosp. at Gulfport, 566 So. 2d 202, 205 (Miss. 1990), the chancellor’s decison was upheld, notwithstanding that he took judicial notice, without advising the parties in advance, of: (1) numerous newspaper articles discussing the nature, operation and funding of Memorial Hospital, (2) conversations with physicians, (3) conversations with the Chancery Judge’s own niece who was an employee at the hospital, (4) conversations with a lawyer not involved with this particular case but who was familiar with the matter, and (5) the fact that, before becoming Chancery Judge and in his prior capacity as a lawyer, he had been involved in a lawsuit regarding the hospital in which its legal status had been an issue.
- In neither of these cases, nor in the more contemporary case cited in my previous post, to my knowledge, did the judges give advance notice of the matters of which they took judicial notice in their rulings.
Why was it error for the chancellor in Pruitt to consult with official publications in making his calculations, but it was not error in the cases cited above for the judges to range far beyone the record in making their findings?
Was it the computation in Pruitt that was the offending act, or was it going outside the record? I’ll leave it to you to calculate.
Publication Process When the P.O. Address of the Defendant is Stated
August 4, 2014 § 3 Comments
It can’t be overstated that the process requirements of MRCP 4 must be satisfied in every particular in order for the court to have personal jurisdiction over a defendant. There is no such thing as “close is good enough.” There are plenty of cases that hold that even if you can prove that the absent party knew of the proceedings, unless that party was properly served with process, the court has no jurisdiction.
MRCP 4(4)(A) allows you to obtain process by publication if you allege by sworn complaint or petition, or by affidavit, that the defendant is a non-resident, or is not to be found in this state, after diligent inquiry.
If the party’s post office address is unknown, you can proceed from there.
But, if you have a last-known address, there are some technical requirements that trip up many lawyers.
R4(4)(C) says expressly: ” … Where the post office address of the absent defendant is stated, it shall be the duty of the clerk to send by mail (first class mail, postage prepaid) to the address of the defendant, at his post office, a copy of the summons and complaint and to note the fact of issuing the same and mailing the copy, on the general docket, and this shall be the evidence of the summons having been mailed to the defendant.”
The rule puts the duty on the clerk, but let’s think about that a minute. What is the penalty if the clerk fails to mail or note on the docket? The penalty is that you have to do it over … and over again … until it’s done right. So, what do you do?
I think you have a choice between two ways to go …
- You bring your own extra copy or copies, as many as necessary, along with postage, and help the clerk get those copies into the envelopes and ready to mail, first class, postage prepaid, and then you ask the clerk — politely — to note the fact on the record. The principle being that if you want something done right, you should … well, you know the rest.
- You can whine and complain about how unjust and unfair this is. In the meantime, your client is stuck on the starting line, waiting for you to effect process.
“Quote Unquote”
August 1, 2014 § Leave a comment
“But the greatest menace to our civilization today is the conflict between giant organized systems of self-righteousness — each system only too delighted to find that the other is wicked—each only too glad that the sins give it the pretext for still deeper hatred and animosity.” — Herbert Butterfield
“For barbarism is always around civilization, amid it and beneath it, ready to engulf it by arms, or mass migration, or unchecked fertility. Barbarism is like the jungle; it never admits its defeat; it waits patiently for centuries to recover the territory it has lost.” — Will Durant
“It is lack of confidence, more than anything else, that kills a civilisation. We can destroy ourselves by cynicism and disillusion, just as effectively as by bombs.” — Kenneth Clark
The Two Types of Lawyers
July 31, 2014 § 7 Comments
There are as many ways to categorize lawyers as there are lawyers, I suppose.
Just off the top of my head, here are a few that come to mind, presented as dichotomies: professional and unprofessional; learned and ignorant; court room and office; courtly and obnoxious; prepared and unprepared; rich and poor; pit bull and diplomat; tenacious and doormat; zealous and lazy; melodramatic and understated; scholar and street smart; and so on.
Lawyers and non-lawyers alike can come up with an almost unlimited number of similar categories.
To a judge, though, there are really only two types of lawyers: those the judge can trust, and those the judge can not trust.
If you think about it, much of our legal system rests on the trustworthiness of a lawyer in his or her dealings with the court. The judge relies on the lawyer to be candid and truthful in pleadings, evidence, legal citations, and statements.
The trustworthy lawyer never knowingly makes a false representation to the court, and promptly notifies the judge when he or she discovers that something presented proves to be untrue. He or she is timely and accurate in probate and fiduciary matters, and stays in contact with the fiduciary. The trustworthy lawyer’s pleadings are in order and are accurate. When the trustworthy lawyer cites a case, it is on point. The trustworthy lawyer distinguishes unfavorable law, and acknowledges the weaknesses of his or her case, suggesting how the court can and should address them to the client’s advantage. The trustworthy lawyer is never caught in a lie because she or he never lies. If the trustworthy lawyer has overlooked a court appointment, he or she apologizes and acknowledges the mistake, rather than fabricating a half-baked, incredible excuse. The trustworthy lawyer is in control of his or her case, and never lets a client dictate strategy and tactics. He or she will withdraw from representing a client before allowing that client put him or her in a position of dishonesty, trickery, craftiness, or misrepresentation. A trustworthy lawyer’s word is his or her bond.
A lawyer who can not be trusted is one who has proven that his or her word is worthless. The untrustworthy lawyer tells the court things that prove to be untrue, and bends the truth to the client’s advantage. His or her pleadings are full of allegations that can not be supported by any facts. The untrustworthy lawyer tries to hide the truth from the court, citing only law that is favorable, suppressing what is unfavorable. When caught in a lie, he or she persists in falsehood and makes up flimsy explanations. He or she files incorrect, incomplete and false accountings in probate matters, and regularly loses contact with the fiduciary. The untrustworthy lawyer can not be relied on to be on time or prepared; the judge worries that the client is being prejudiced by poor representation. The untrustworthy lawyer does what the client wants her or him to do, even if it is underhanded and unethical.
There are lawyers who present probate matters to me whose pleadings and orders I can skim and sign off on, confident that all is in order and proper. There are other lawyers who have proven that I must read every word and carefully consider what has been presented before I sign.
I think most reasonable people would assume that a trustworthy lawyer’s client has a head start in every case, because her lawyer is not having to overcome the judge’s skepticism about her case. Vice versa for the lawyer who can not be trusted.
The lawyer’s reputation with the court is built over time with hundreds of tiny building blocks of trust. One lie can destroy it, but so can a pattern of inaccuracies and questionable acts.
When a lawyer presents case after case as emergencies demanding urgent attention, and those cases prove to be anything but, that lawyer’s trustworthiness takes a hit.
When a lawyer’s accountings in probate matters are full of inaccuracies and miscalculations, and loses track of the fiduciary, that lawyer’s trustworthiness takes a hit.
When a lawyer files motion after motion asking the court to address minutiae and praying for sanctions to rain down on the opposition, that lawyer’s trustworthiness takes a hit.
When a lawyer wastes the court’s and everyone else’s time with frivolous matters that have no chance of success, that lawyer’s trustworthiness takes a hit.
Your reputation for trustworthiness with the court is like a treasure of precious gold. If you spend it wisely and build on it, it will stand good for you the length of your career. If you squander it over time on trifles, or blow it all in one monumentally bad act, it is gone, and you may never get it back. It’s your choice to make.
Blood Money
July 30, 2014 § 6 Comments
Many years ago I represented two young children whose mother had died while on an ill-fated catfishing trip to the flooded Lost Horse Creek in northeast Lauderdale County. She had been invited on the outing by her husband, who only the week before had taken out $400,000 in life insurance policies on her life, with himself as sole beneficiary. The policies had double-indemnity provisions for accidental death.
The husband claimed that the wife had slipped in the rain-soaked mud, fell into the creek and must have hit her head on a tree limb, knocking her unconscious and either killing her by the blow, or she drowned.
The coroner disagreed, finding that she had suffered more than one heavy, crushing blow to the back of the skull with a blunt object — an injury that was inconsistent with the circumstances the husband claimed — and there was no water in her lungs, indicating that she was dead before she fell in the creek.
The husband was indicted for murder, and the proof at trial included that he had offered a local bar owner $5,000 to kill her some ten months before he himself did the deed. The husband was convicted of murder. His appeal was unsuccessful. Hammond v. State, 465 So.2d 1031 (Miss. 1985).
I filed a petition in chancery court to have the husband disqualified from recovering the insurance proceeds, which had been interpled by the insurance companies. He contested the matter, but the chancellor ruled that the proceeds were property of the woman’s estate, the only heirs of whom were the two sons. There was no appeal.
The law of Mississippi is that a life insurance beneficiary who wilfully takes the insured’s life may not recover the insurance benefits. Gholson v. Smith, 210 Miss. 28, 29, 48 So.2d 603, 604 (Miss. 1950). In the case of Dill v. Southern Farm Bureau Life Ins. Co., 797 So.2d 858, 866 (Miss. 2001), the court ruled that the standard of proof is by a preponderance.
The same rule applies in inheritance.
In the recent case of Young v. O’Beirne, adm’r of the Estate of Young, decided by the COA on June 3, 2014, the COA found that Mr. Young, who indisputably had murdered Mrs. Young, could not have any interest in her estate, based on MCA 91-1-25, which provides that “[i]f any person wilfully cause[s] or procure[s] the death of another in any way, he shall not inherit the property, real or personal, of such other; but the same shall descend as if the person so causing or procuring the death had predeceased the person whose death he perpetrated.”
A similar code section is found at MCA 91-5-33, which provides that a person who has wilfully caused or procured the death of another person shall not take any real or personal property of the decedent under any will, testament or codicil, and as to any such devise the testator is deemed to have died intestate.
Note that a plea of guilty to manslaughter, standing alone, is not sufficient to support a finding that would preclude inheritance under either statute. Hood v. VanDevender, 661 So.2d 198 (Miss. 1995). That would not preclude the chancery court, however, from finding that the act rose to the level of wilfullness that would invoke either statute, because the killing need not amount to murder, but the proof only needs to establish that it was wilful and without justification in law. Henry v. Toney, 211 Miss. 93, 50 So.2d 921 (1951).
The courtly Mr. Tom Ethridge, who taught equity and chancery practice at Ole Miss Law School years ago when such things were still worthy subjects of legal academia, used to say, “Equity means do right.” Do right. That is behind these laws. I recently told a young lawyer that if you’re uncertain about what the law might be in a given situation, figure out what the most honest, forthright thing to do might be, and you’ll probably be pretty close to what the law requires. Just do right.
The Better Chancery Practice Blog 