In re High v. Cobb
| Docket Number: | 2008-CA-00799-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-27-2009 Opinion Author: MAXWELL, J. Holding: REVERSED AND REMANDED |
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| Additional Case Information: |
Topic: Wills & estates - Probate of lost foreign will - M.R.C.P. 12(b)(6) - M.R.C.P. 56 - Section 91-1-1 - Section 91-7-33 - Jury trial - Section 91-7-19 Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - WILLS, TRUSTS, AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 04-11-2008 Appealed from: PONTOTOC COUNTY CHANCERY COURT Judge: Jaqueline Mask Disposition: GRANTED MOTION FOR SUMMARY JUDGMENT Case Number: 03-223-58-M |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | IN THE MATTER OF THE ESTATE OF ARTIS HIGH, DECEASED: ARBELLA HIGH WATT |
LUCIUS EDWARDS |
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| Appellee: | GRACIE COBB, JOE HIGH AND DAVID HIGH | SIDRA PATTERSON WINTER | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wills & estates - Probate of lost foreign will - M.R.C.P. 12(b)(6) - M.R.C.P. 56 - Section 91-1-1 - Section 91-7-33 - Jury trial - Section 91-7-19 |
| Summary of the Facts: | Following the death of Artis High, Arbella Watt, the proponent, who is his sister and the sole living beneficiary under the will, filed a petition to open an intestate estate. However, she later sought to probate the alleged copy of High’s 1987 will. This petition included as exhibits a photocopy of High’s will and photocopies of sworn affidavits of two attesting witnesses to the will. Gracie Cobb, High’s niece and one of the contestants, filed an answer objecting to the probate of the will. Several months later, David High and Joe High, also contestants who, respectively, are the nephew and brother of the deceased, filed a separate complaint contesting the will. The separate actions were consolidated and set for a jury trial. The contestants filed a motion for summary judgment. The chancellor determined that High had only intended to remain in Mississippi temporarily and was a resident of Missouri when he died. Based upon this finding, the chancellor granted the contestants’ motion for summary judgment and held that Watt was unable to proceed with probate of an “unauthenticated” copy of a foreign will. Watt appeals. |
| Summary of Opinion Analysis: | Issue 1: Probate of lost foreign will The record shows that the contestants’ motion to dismiss was based upon M.R.C.P. 12(b)(6) although this specific rule is not cited in the record or the parties’ briefs. The chancellor granted the Rule 12(b)(6) motion rather than their motion for summary judgment. However, the chancellor considered matters outside the pleadings in reaching her decision on the contestants’ motion. Therefore, the contestants’ motion is reviewed as a motion for summary judgment under M.R.C.P. 56. The chancellor held that Mississippi law prohibited a lost foreign will from being initially probated in Mississippi where the testator was domiciled elsewhere at his time of death. The contestants claim the photocopy of the alleged will cannot be probated in Mississippi unless and until it has first been probated in Missouri. Because the will was not submitted for probate within Missouri’s one-year statute of limitations, the contestants argue that the will simply cannot ever be probated, and the testator’s estate must instead pass through intestate succession. Mississippi law, including section 91-1-1, is clear that property situated in Mississippi descends according to Mississippi law, regardless of where the decedent resided or was domiciled. This is true whether the property is real or personal, and whether the estate is testate or intestate. The proponent argues that the chancellor erred in determining that Mississippi’s foreign-will statute, section 91-7-33, allows originals or authenticated copies of foreign wills to be probated in Mississippi but prohibits the probate of lost foreign wills. In Mississippi a foreign will is defined as a will that is executed by a testator domiciled in a state other than Mississippi at his or her time of death. The supreme court has interpreted the language from section 91-7-33 to allow a foreign will which disposes of property located in Mississippi to be probated by either of two methods. The first method is to probate the will in Mississippi before doing so elsewhere. The second method is to probate the will elsewhere and then to probate an authenticated copy of the will in Mississippi. In the present case, the proponent of the will attempted to probate the foreign will by the first of these methods, that is, by probating the will initially in Mississippi. Here, however, the will sought to be probated is not an original, but a photocopy. If the would-be testator made a will, last known to have been in its maker’s possession prior to his death, but not found after death despite diligent search, there arises a rebuttable presumption that the testator revoked his will by destroying it. Generally, there must be clear and convincing evidence to overcome the presumption of revocation. The presumption can be defeated with slight evidence when it can be shown that contestants of the will had access to it. Here, the chancellor held that where the testator was domiciled in another state, and the will was a lost will, the will could not be probated in Mississippi until it was first probated in the state of domicile. In the chancellor’s order dismissing the case, she stated that the options available to the proponent were to either produce the original will for probate in Mississippi, or probate the will in the state of domicile and then produce an authenticated copy for probate in Mississippi. This was error. Section 91-7-33 permits the proponent of a lost foreign will that disposes of property in Mississippi to be given an opportunity to probate the will as a lost will in Mississippi before being required to probate such a will in the jurisdiction of the testator’s domicile. Refusing to allow the will to be probated initially in Mississippi would also result in altogether denying the proponent any opportunity to probate the will since its probate is time-barred in Missouri. The chancellor thus erred in granting the contestants’ motion for summary judgment. Issue 2: Jury trial The proponent argues that since she timely requested a jury trial, the chancellor was required to grant her request. Under section 91-7-19, either party to a will contest has an automatic right to a jury trial unless no genuine issues of material fact have been presented in the pleading stage and a motion for summary judgment is properly granted. Whether the testator destroyed or revoked his will is an issue for the jury to decide. Given the existence of genuine issues of material fact regarding the validity of the testator’s will, the chancellor should have proceeded with the will contest and impaneled a jury to decide the will’s validity. |
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