In re Estate of Thomas
| Docket Number: | 2006-CA-00200-COA | |
| Oral Argument: | 05-22-2007 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-07-2007 Opinion Author: GRIFFIS, J. Holding: Affirmed and Remanded |
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| Additional Case Information: |
Topic: Wills & estates - Pending claims - M.R.C.P. 54(b) - M.R.A.P. 5 - Validity of will - Attestation Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Concurs in Result Only: IRVING, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 12-22-2005 Appealed from: YAZOO COUNTY CHANCERY COURT Judge: Janace Harvey Goree Disposition: GRANTED HEIRS’ MOTION FOR PARTIAL SUMMARY JUDGMENT. Case Number: 04-0417 |
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| Note: | IRVING, J., CONCURS IN PART AND IN THE RESULT. | |
| Party Name: | Attorney Name: | |||
| Appellant: | IN THE MATTER OF THE ESTATE OF BENNIE M. THOMAS, DECEASED: WALTER LOCKHART |
BILL WALLER, SR. |
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| Appellee: | BEVERLY MCNAIR WILSON, BRENDA MCNAIR, ADRIENNE MCNAIR, NICOLE PIRTLE-WILLIS, KEVIN PIRTLE, ANTIONETTE PIRTLE, ELIZABETH MCNAIR, PIERRE MCNAIR AND GAYNETHA MCNAIR | WILLIAM C. BELL |
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| Topic: | Wills & estates - Pending claims - M.R.C.P. 54(b) - M.R.A.P. 5 - Validity of will - Attestation |
| Summary of the Facts: | Walter Lockhart, Sr. commenced this action to probate the last will and testament of Bennie Thomas, and he was appointed executor for the estate. Beverly McNair Wilson, Brenda McNair, Adrienne McNair, Nicole Pirtle-Willis, Kevin Pirtle, Antoinette Pirtle, Elizabeth McNair, Pierre McNair, and Gaynetha McNair contested the will. The chancellor entered summary judgment declaring that the will was invalid and that Thomas died intestate. Lockhart appeals. |
| Summary of Opinion Analysis: | Issue 1: Pending claims It is apparent that the chancellor’s December 22, 2005 order actually granted a partial summary judgment instead of a summary judgment on all issues. A partial summary judgment is not a final appealable order unless the trial court certifies the judgment as final under M.R.C.P. 54(b) or the supreme court grants permission for an interlocutory appeal under M.R.A.P. 5. Neither occurred here. Nevertheless, the appellees challenged the appellate court jurisdiction in the motion to dismiss appeal. The supreme court considered the jurisdictional issue and rejected the appellees’ challenge. The supreme court having determined jurisdiction is appropriate, the Court will address the issues presented. There were several claims before the chancellor. First, was the will probated the lawful and proper will of the decedent? Second, if the laws of intestate succession applied, the court would have to determine the lawful and proper heirs of the decedent. Third, the court would have to determine whether there were any amounts owed to creditors of the decedent who probated their claim against the estate. Finally, the chancellor would determine the proper distribution of the estate. The December 22 order determined the first issue, that the will probated by Lockhart was void and that Thomas died intestate. As a result, the second, third and fourth issues remained before the chancellor to continue the administration of Thomas’s estate based on this determination. Thus, the December 22 order was a partial summary judgment and was not a final appealable order. The case is remanded to the chancery court to adjudicate all remaining issues. Issue 2: Validity of will Lockhart argues that a jury question remains to determine the validity of the will. Every person with testamentary capacity shall have the power to dispose of his or her property through a will, so long as that will conforms with the statutory requirements. One such requirement, is that if the will is not wholly written and subscribed by the testatrix, it shall be attested by two or more credible witnesses in the presence of the testatrix. A typewritten will that is only signed by the testatrix and a notary does not satisfy the attestation requirement. Thomas’s will was typewritten and signed only by the testatrix and notary. The chancellor correctly determined that it was void as a matter of law and that Thomas died intestate. |
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