In re Estate of Hudson


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Docket Number: 2006-CA-01046-COA

Court of Appeals: Opinion Link
Opinion Date: 07-31-2007
Opinion Author: CARLTON, J.
Holding: Affirmed

Additional Case Information: Topic: Wills & estates - Statute of limitations - Section 91-7-309 - Fraud - M.R.C.P. 9
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ.
Concurs in Result Only: IRVING, J.
Procedural History: Dismissal
Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES

Trial Court: Date of Trial Judgment: 05-24-2006
Appealed from: Harrison County Chancery Court
Judge: Sanford R. Steckler
Disposition: MOTION TO SET ASIDE ORDER TO REOPEN ESTATE AND FOR AN ACCOUNTING GRANTED; MOTION TO DISMISS PETITION TO REOPEN ESTATE AND FOR AN ACCOUNTING GRANTED.
Case Number: C2401-01-105

  Party Name: Attorney Name:  
Appellant: IN THE MATTER OF THE ESTATE OF CORRINE L. HUDSON, DECEASED: AUDREY MCCLENDON AND JAMES MCCLENDON




MELVIN G. COOPER



 

Appellee: LAWRENCE J. HUDSON, JR. APRIL DAWN TAYLOR  

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Topic: Wills & estates - Statute of limitations - Section 91-7-309 - Fraud - M.R.C.P. 9

Summary of the Facts: After Corrine Hudson passed away, Lawrence Hudson, Jr. was appointed as the administrator of the estate. At the time of her death, Corrine’s heirs included her three living children, Shirley McGee, Lawrence Hudson, Jr., and Audrey McClendon, and the three surviving heirs of Corrine’s already deceased child, James Hudson. The chancery court entered an order approving the waiver of a final accounting for the estate and discharged Hudson as the administrator. All of the heirs at law, including Audrey, joined in the petition to close the estate and to approve the waiver of final accounting. Three years later, Audrey’s son, James McClendon, filed a petition to reopen his grandmother’s estate and for an accounting of the estate’s distributed assets. The chancery court granted the petition, reopened the estate, and ordered the administrator to account for and explain the distribution of all of the funds of both the estate and conservatorship. Hudson filed a motion to dismiss McClendon’s petition. Hudson also filed a motion to set aside the order granting McClendon’s petition. McClendon then filed a motion to remove Hudson as the administrator of the estate, to revoke the previously issued letters of administration, and to appoint a new administrator and new letters of administration. Audrey filed a document purporting to join McClendon’s petitions. The chancellor granted Hudson’s motion to set aside the order granting the reopening of the estate and for an accounting. The chancellor also granted the motion to dismiss. McClendon appeals.

Summary of Opinion Analysis: McClendon argues that the two-year statute of limitation is tolled because fraud was specifically alleged in the petition and that Audrey was under a disability which allowed for the tolling of the statute of limitation. Section 91-7-309 provides that the statute of limitation to open the account of the administrator of the estate is two years from the date the estate was closed. McClendon’s petition was filed nearly three years after the estate was closed. The record demonstrates, that other than a mere allegation, no evidence was advanced that Audrey was ever suffering from a disability. Therefore, the issue of whether the statute of limitations was tolled due to a disability is not applicable to this appeal. Fraud may constitute a bar to this statute of limitation. In accordance with M.R.C.P 9, fraud will not be inferred or presumed and may not be charged in general terms. The circumstances of the alleged fraud such as the time, place and contents of any false representations or conduct must be stated. McClendon failed to set out in the pleading basic available information such as the time of the conduct and the particular land involved. His allegation of fraud against Hudson was not stated with the required particularity to overcome the statute of limitations. Therefore, the two-year statute of limitations bars McClendon from pursuing this action.


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