In re Estate of Kelly
| Docket Number: | 2005-CT-00011-SCT Linked Case(s): 2005-CT-00011-SCT ; 2005-CT-00011-SCT ; 2005-CA-00011-COA ; 2005-CA-00011-COA |
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| Supreme Court: | Opinion Link Opinion Date: 01-18-2007 Opinion Author: Cobb, P.J. Holding: THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE HANCOCK COUNTY CHANCERY COURT IS AFFIRMED |
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| Additional Case Information: |
Topic: Wills & estates - M.R.C.P. 81 summons - Time bar - Subject matter jurisdiction Judge(s) Concurring: Smith, C.J., Waller, P.J., Easley, Carlson, Dickinson and Randolph, JJ. Non Participating Judge(s): Graves, J. Concurs in Result Only: Diaz, J. Procedural History: Bench Trial Nature of the Case: CIVIL - WILLS, TRUSTS, AND ESTATES Writ of Certiorari: Yes Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 12-02-2004 Appealed from: Hancock County Chancery Court Judge: Margaret Alfonso Disposition: The trial court found that the will of the decedent was a foreign will governed by Miss. Code Ann. Section 91-7-33 (Rev. 2004) which authorizes the probate of a foreign will in Mississippi courts if it affects or disposes of property within this state. The trial court concluded it had jurisdiction based upon personal property the decedent was presumed to have had in Mississippi at the time of his death. Case Number: 2000-882 |
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| Note: | The court found that the Court of Appeals and the trial court applied the incorrect law and the court granted certiorari and reviewed all issues. The court concluded that the decedent’s will was not a foreign will, but rather was a domestic will, sounding in Mississippi law, executed by the decedent in 1992 in Hancock County, Mississippi. As such, it was duly admitted for probate in common form and all statutory requisites were met. The court found there was no question that the trial court had subject matter jurisdiction. | |
| Party Name: | Attorney Name: | |||
| Appellant: | William Kelly |
FLOYD J. LOGAN |
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| Appellee: | Sarah D. Cuevas | NICHOLAS M. HAAS |
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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 - M.R.C.P. 81 summons - Time bar - Subject matter jurisdiction |
| Summary of the Facts: | In 1960, Alvarado Kelly was declared mentally incapacitated and was committed to a Veterans’ Administration medical facility in Florida. In 1961, he was transferred to Gulfport, and in 1975, came to reside at a V.A.-approved residential care home operated by Sarah Cuevas. Payments for Cuevas’s services were made monthly out of a guardianship account that has at all times remained in Florida. Kelly lived in Cuevas’s care home in Hancock County until his death in 2000. After his death, Cuevas filed a complaint, the decedent’s will, and the various documents required for admitting the will for probate in common form. The will instructed that Cuevas be appointed executrix, and stated in part: “I give, devise and bequeath all my property real, personal, and mixed to: Sarah D. Cuevas . . . [m]ore specifically, my personal property located in the Sun Trust Bank, P.O. Box 1498, Tampa Florida 33601.” Seven weeks later, the decedent’s brother filed a petition for intestate administration of the decedent’s estate with the clerk of the Circuit Court for Hillsborough County, Florida. Kelly’s complaint included sworn allegations that the decedent was domiciled in Hillsborough County until the date of his death. Additionally, the complaint asserted that all of the decedent’s assets were located in Florida, other than clothing and personalty of nil value. Kelly did not contest the common form proceedings already filed in the Mississippi chancery court. There is no question, however, that he had actual knowledge of the will, as he attached a copy to his petition. Cuevas filed a complaint to admit the decedent’s will to probate in solemn form in the Hancock County Chancery Court. Kelly was personally served with a Rule 4 summons. He did not file a response to the complaint and the chancery court entered a judgment ruling that Cuevas was the decedent’s sole devisee and legatee. The Hillsborough County Circuit Court entered an order finding that the Florida courts had jurisdiction over the administration of the decedent’s estate, as he was domiciled in Florida at the time of his death, and his bank accounts were located in Florida. The Florida District Court of Appeal, however, reversed the decision, holding that full faith and credit should be given to the judgment of the Mississippi chancery court. Kelly then made a special appearance in the Hancock County Chancery Court and filed a motion to dismiss for lack of jurisdiction. The chancery court found that jurisdiction was proper under section 91-7-33, denied the motion to dismiss and granted Cuevas’s motion for judgment on the pleadings. The Court of Appeals affirmed the chancery court’s judgment, but remanded for a specific finding as to what personal property was located in the state. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | In order to probate a will in solemn form, all interested parties must be properly served with an M.R.C.P. 81 summons. Because Cuevas served Kelly with an M.R.C.P. 4 summons, the Court of Appeals properly found the solemn form proceeding void for lack of notice. Further, pursuant to Rule 81(d)(3), complaints filed to probate wills in solemn form shall not be taken as confessed, so the judgment entered by the trial court was defective. The will was probated in the Hancock County Chancery Court as the last will and testament of a Mississippi resident. Although the decedent’s domiciliary status could have been challenged by Kelly, it was not, and now is time-barred. Subject matter jurisdiction is therefore proper. In a common form probate proceeding, a proponent makes a prima facie case by simply producing the will and affidavits from the two attesting witnesses verifying that the will was duly executed and the decedent had testamentary capacity. Cuevas submitted these documents to the court along with the will. Since there is no foreign will involved in this case and the fact that the decedent was a resident of Hancock County at the time of his death was not timely disputed, both the trial court and the Court of Appeals erred to the extent that they found the decedent’s will to be a foreign will. |
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