Carpenter v. Cosby
| Docket Number: | 2009-CA-00114-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 05-18-2010 Opinion Author: Barnes, J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Wills & estates - Handwritten additions - Section 91-5-1 - Revocation of will - Section 91-5-3 Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Griffis, Ishee, Roberts and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Dissenting Author : Myers, P.J., without separate written opinion Procedural History: Bench Trial Nature of the Case: CIVIL - WILLS, TRUSTS, AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 12-19-2008 Appealed from: Grenada County Chancery Court Judge: Vicki Cobb Disposition: JUDGMENT ON THE PLEADINGS IN FAVOR OF AUTUMN COSBY Case Number: 07-06-159VC |
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| Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | In The Matter of The Estate of Lura Foster Carpenter, Deceased: Bobby Dean Carpenter, Individually and as Executor |
WILLIAM L. MAXEY |
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| Appellee: | Autumn Cosby | CLIFF R. EASLEY, JR. | ||
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 - Handwritten additions - Section 91-5-1 - Revocation of will - Section 91-5-3 |
| Summary of the Facts: | Following the death of Lura Carpenter, her three surviving children – Bobby Dean Carpenter, Jerry Wayne Carpenter, and Nancy Lynn Carpenter Dempsey – filed a petition to probate Lura’s will, which contained several handwritten interlineations and markings. Autumn Cosby, the daughter of Lura’s deceased child, challenged the probate of the will claiming that the handwritten markings showed that Autumn was to receive a child’s share of the estate. The chancellor found that, based upon the handwritten changes to the will, Lura’s original will was totally revoked and that Autumn should inherit a child’s share through the laws of intestacy. Bobby appeals. |
| Summary of Opinion Analysis: | Issue 1: Handwritten additions Bobby argues that the handwritten additions to Lura’s will were invalid as they were not witnessed pursuant to section 91-5-1. However, as Autumn accurately contends, this argument is “misplaced” since the chancellor found the markings to be a violation of the statute and, therefore, invalid. Issue 2: Revocation of will The total or partial revocation of a will by either cancellation or obliteration is statutorily authorized under section 91-5-3. A testator who wishes to revoke a will may do so by either destroying, canceling, or obliterating the will, or by subsequent will, codicil, or declaration, in writing, made and executed. It is essential to the revocation that the testator have the intent to revoke the will. Neither party disputes that Lura intended some sort of revocation; rather, the issue is the extent of the revocation. Bobby argues that the handwritten interlineations in Lura’s will are merely evidence of her intent to partially revoke those portions of the will, not a complete revocation of the will. Autumn’s counsel argued that all of the paragraphs that contained interlineations and additions should be revoked, leaving Lura’s real property and some small portions of personal property to descend intestate. However, as the chancellor noted, the will contained a residuary clause which made no mention of Autumn. Consequently, the chancellor was concerned that if she found that all of the amended and deleted paragraphs were revoked, then the undesignated property would not descend by intestate law. Rather, Lura’s real property and any remaining personal property would go to Bobby, Jerry, and Nancy under the residuary clause in paragraph XV. The heart of the doctrine of dependent relative revocation is the idea that, given the option, the testator or testatrix would prefer the will as executed over intestacy. Nevertheless, the presumption embodied in the doctrine may be rebutted by circumstances. The revocation in this case cannot result in intestate succession. Accordingly, the chancellor erred in her holding that Lura revoked her entire will. Proper application of the doctrine of dependent relative revocation would only result in re-inserting the cancelled clauses, which might have left certain items of the estate to Autumn. It is apparent that Lura revoked some paragraphs under the mistaken assumption that Autumn would receive a devise under the invalid amendments. The case is remanded to the chancellor to determine whether Autumn would have received any bequests under the deleted portions of the original will, which should be reinstated under a proper application of the doctrine of dependent relative revocation. |
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