In re Estate of Perry v. Perry


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Docket Number: 2009-CA-01432-COA
Linked Case(s): 2009-CA-01432-COA ; 2009-CT-01432-SCT
Court of Appeals: Opinion Link
Opinion Date: 10-26-2010
Opinion Author: Maxwell, J.
Holding: Affirmed.
Additional Case Information: Topic: Wills & estates - Motion to reopen estate - Section 91-7-309 - M.R.C.P. 60(b)(6) - Equity - Subject matter jurisdiction - M.R.C.P. 12(h)(3) - Improper summons by publication
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Roberts and Carlton, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - WILLS, TRUSTS, AND ESTATES
Trial Court: Date of Trial Judgment: 08-03-2009
Appealed from: MADISON COUNTY CHANCERY COURT
Judge: Cynthia Brewer
Disposition: DENIED MOTION TO REOPEN E
Case Number: 2002-036
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: In The Matter of The Estate of Lester Perry, Deceased: Cheryl Perry




 PATRICK M. RAND



  
  • Appellant #1 Brief
    		•
    Appellee: Lee Andrew Perry PRO SE  
    Synopsis provided by:

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    Topic: Wills & estates - Motion to reopen estate - Section 91-7-309 - M.R.C.P. 60(b)(6) - Equity - Subject matter jurisdiction - M.R.C.P. 12(h)(3) - Improper summons by publication
    Summary of the Facts: Lester Perry died testate, leaving his entire estate to named beneficiaries in his will. While his estate was open, Cheryl Perry claimed to be an unspecified relative of Lester and his heir at law. But she failed to timely produce evidence she was entitled to a share of his estate. Consequently, the chancellor held Cheryl would not inherit from Lester. And by later order the chancellor closed the estate and directed Lester’s executor to distribute the estate’s assets to Lester’s beneficiaries. Cheryl filed a motion to reopen the estate. The court denied the motion, and Cheryl appeals.
    Summary of Opinion Analysis: Issue 1: Motion to reopen the estate When an interested party brings a specific challenge to the executor’s accounting prior to closing the estate, he does not have a right, under section 91-7-309, to open the account to relitigate the same issue. Because Cheryl presented her heir-at-law claim and had the opportunity to provide her birth certificate prior to the order approving the accounting, she cannot reopen the account under section 91-7-309 to relitigate this claim. Thus, Cheryl’s motion to reopen will be considered under M.R.C.P. 60(b)(6). Issue 2: Equity Cheryl argues that the estate should be reopened for equitable reasons. She argues that the balance of equities tilts in favor of reopening the estate to allow the rightful heirs to share in the estate. However, the circumstances do not justify reopening the estate. The record contains neither any evidence of excusable delay in presenting Cheryl’s birth certificate nor of the certificate’s relevance to the distribution of the estate. Further, her birth certificate does not show she is the descendant of any named beneficiaries. In addition, the executor’s alleged deficiencies are irrelevant to the circumstances she relied upon to reopen the estate. Lester died fully testate, with a will covering all his property, including any residuary. His estate passed to his named beneficiaries, the devisees (recipients of real property) and legatees (recipients of other types of property) in his will. A proceeding to determine Lester’s heirs at law was unavailable by statute and inapplicable in this case. Any failure to properly summons by publication potential unknown heirs to such proceeding is immaterial. Issue 3: Subject matter jurisdiction Cheryl argues the improper summons by publication to Lester’s unknown heirs of notice to attend the May 22 hearing voided the resulting May 22 and July 20 orders. Cheryl admits she raises this issue for the first time on appeal. Though questions of subject-matter jurisdiction may be raised for the first time on appeal pursuant to M.R.C.P. 12(h)(3) & cmt., here the chancery court clearly had subject-matter jurisdiction over Lester’s will and estate administration. Any problem with the summons by publication implicates questions of personal jurisdiction and insufficiency of process, which cannot be raised for the first time on appeal. Cheryl waived any arguments related to improper summons by publication.


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