In re the Last Will and Testament of Smith, Deceased
| Docket Number: | 2003-CA-00753-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 03-03-2005 Opinion Author: Easley, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wills & estates - Summary judgment - Affidavits - M.R.C.P. 56(c) - M.R.C.P. 6(b) - Expert’s report - Notice to heirs Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Carlson, Graves, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 03-05-2003 Appealed from: George County Chancery Court Judge: Pat Watts, Jr. Disposition: The chancellor granted Floyd’s motion for summary judgment. Case Number: 97-0333 |
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| Topic: | Wills & estates - Summary judgment - Affidavits - M.R.C.P. 56(c) - M.R.C.P. 6(b) - Expert’s report - Notice to heirs |
| Summary of the Facts: | Ernest Smith and Birtie Smith executed a joint Last Will and Testament, which appointed the surviving spouse as executor of the other’s estate. The Smiths executed three warranty deeds with reservation of life estate for both of their lives in favor of three of their twelve children, Wanda Smith, Edna Good and Floyd Smith. Ernest Smith later died testate. In a separate proceeding, Birtie was adjudicated to be in need of a conservatorship to manage her estate. Geraldine Snelgrove and Wanda Havard, two of her daughters, were appointed to serve as co-conservators. Based on the previous adjudication that Birtie was unable to manage financial affairs, Birtie executed a resignation as executor of her husband’s estate and requested the appointment of their son, Ernest Smith, Jr. The court appointed Ernest, Jr., as Executor of the Estate of Ernest Smith, Deceased. Birtie and the Executor filed a petition to investigate and set aside deeds and other relief. The petition named Floyd, Wanda and Edna. Floyd filed an answer and counterclaim to the petition. Wanda and Edna each entered a waiver of process and entry of appearance. Due to Ernest, Jr.’s death, Clifford Smith replaced Ernest, Jr., as Executor of the Estate. Clifford was appointed Administrator C.T.A., of the Estate. Bertie later died. Floyd’s counsel filed a motion for summary judgment which the court granted. The Estate appeals. |
| Summary of Opinion Analysis: | Issue 1: Summary judgment The Estate argues that the court erred by refusing to consider the affidavits of David Smith, Birtie Smith and Frank Smith and not accepting the report of a handwriting expert to defeat the motion for summary judgment. David’s affidavit was filed on the day of the hearing on the summary judgment motion. M.R.C.P. 56(c) provides that the adverse party prior to the day of the hearing may serve opposing affidavits. In addition, M.R.C.P. 6(b) prohibits a judge from receiving documents filed after the specified period unless the failure to act was the result of excusable neglect. Here, the court found that the filing of the affidavit of David Smith, on the day of the hearing, was not through excusable neglect, because it appeared that it could have been done had there been a diligent prosecution of the case. The Estate has failed to establish an abuse of the chancellor’s discretion in refusing to allow the untimely affidavit. With regard to Birtie’s affidavit, despite the fact that Birtie’s affidavit was signed after she was placed under a conservatorship, the Estate did not present Birtie’s affidavit to the court prior to or even on the day of the summary judgment hearing. Instead, the photocopy of the affidavit was presented to the court as an attachment to the Estate’s motion for reconsideration after the court granted summary judgment. The Estate never provided a reason for the late filing of the affidavit. Therefore, the court did not abuse its discretion in refusing to consider Birtie’s affidavit. With regard to Frank’s affidavit, the affidavit provided that he had been informed by his brother, Clifford, C.T.A. of the Estate, that the services of a handwriting expert had been retained. However, the expert had not rendered a final report, and no affidavit had been obtained. In addition, Frank failed to make a request for a continuance for additional time to secure an affidavit from the unidentified expert. Therefore, the court did not err in finding that Frank’s affidavit did not create a genuine issue of a material fact. The Estate attached the supplemental report of a board certified document examiner to its motion for reconsideration. The report is not in the form of an affidavit and is not sworn to by the expert. Therefore, the court did not err in denying the Estate’s motion for reconsideration based upon the report. The Estate also argues that the petition to investigate and set aside deeds and other relief executed by the Executor Ernest, Jr., creates a genuine issue of a material fact. However, the court properly granted the summary judgment in favor of Floyd. Issue 2: Notice to heirs In its motion for reconsideration, the Estate raised the issue that the heir, David, was not noticed of the hearing held on Floyd’s motion for summary judgment to the Estate’s petition to set aside deeds. The Administrator C.T.A., was acting on behalf of all the heirs to set aside the deeds in order to bring the real property back into the estate. The Estate was properly noticed of the hearing on Floyd’s motion for summary judgment. |
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