Alvarez v. Coleman, 92-CA-0159

• Decision Date: 16 June 1994
• Docket Number: No. 92-CA-0159,92-CA-0159
• Citation: 642 So.2d 361
• Parties: William R. ALVAREZ, Sr., First Seventh-Day Adventist Church of Memphis, Tennessee, Andrea Boles, and Brian Boles, a Minor v. Beverly D. COLEMAN, Kathryn D. Farris, Lucille S. Kruser, Louvie S. Land, Louise S. Milam, and Fred Coleman.
• Court: Mississippi Supreme Court

Page 361

642 So.2d 361

William R. ALVAREZ, Sr., First Seventh-Day Adventist Church

of Memphis, Tennessee, Andrea Boles, and Brian Boles, a Minor v. Beverly D. COLEMAN, Kathryn D. Farris, Lucille S. Kruser,

Louvie S. Land, Louise S. Milam, and Fred Coleman.

No. 92-CA-0159.

Supreme Court of Mississippi.

June 16, 1994.

Rehearing Denied Sept. 29, 1994.

Winn Davis Brown, Jr., Southaven, for appellant.

A.L. (Joe) Pressgrove, Jr., Southaven, for appellee.

Before PRATHER, P.J., and SULLIVAN and JAMES L. ROBERTS, Jr., JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

I.

INTRODUCTION

On November 18, 1981, Vernard and Dixie Droke executed the "Droke Family Trust Agreement," and transferred all their property, including a half-interest in a 39.1 acre plot of land, to themselves as trustees, with William Alvarez as co-trustee. The trust was to support Dixie and Vernard for life; upon the death of the survivor, Alvarez was to divide the trust property in half, creating Trust A for Dixie's designees (her great grandchildren) and Trust B for Vernard's designee (the First Seventh Day Adventist Church in Memphis). The trust agreement was revocable by either Settlor until the death of either; at such point it would become irrevocable. Also that day, Vernard and Dixie executed nearly identical wills, leaving all but several dollars of their property The chancellor held that 1) the Droke Family Trust never came into existence, because it was not properly acknowledged or recorded with the Chancery Clerk; 2) there was no evidence that the 1981 wills were made pursuant to any agreement; 3) upon Dixie's death, Vernard became the sole record owner of the half-interest in land; 4) Vernard's revocation was unnecessary, because no trust existed; 5) Alvarez was barred from seeking relief because the six-year statute of limitations had run; 6) the Coleman parties were the sole owners of the half-interest in the land. Alvarez, representing Dixie's great grandchildren, appealed, citing the following errors:

to the Droke Family Trust. After Dixie's death in 1982, Vernard revoked the trust, and in 1987, executed a will leaving his estate to five of his nieces. Upon Vernard's death in 1988, his 1981 will was offered into probate by Alvarez, and his 1987 will was offered by Beverly Coleman, one of the nieces. Trial was had to determine whether the Alvarez or Coleman parties were entitled to the half interest in the 39.1 acres of land.

I. THE CHANCELLOR'S DECISION WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND CONTRARY TO THE LAW OF THE STATE OF MISSISSIPPI.

II. THE WORKING NOTES OF ATTORNEY JAMES PURPLE SHOULD HAVE BEEN ACCEPTED AS EVIDENCE OF THE DROKE'S INTENTIONS REGARDING THE DOCUMENTS OF NOVEMBER 18, 1981.

III. THE WILL OF DIXIE DROKE, AS AN AUTHENTICATED, STIPULATED DOCUMENT WAS ADMISSIBLE INTO EVIDENCE AS SUCH UNDER M.R.E. 901A AND M.R.E. 402 AS EVIDENCE OF ITS EXECUTION AND CONTENT.

IV. THE CHANCERY COURT ACTED IMPROPERLY BY FAILING TO APPLY EQUITABLE PRINCIPLES IN THIS CASE.

V. THE TRIAL COURT WAS BOUND BY THE APPELLEE'S ADMISSION THAT THE DROKES FORMED A JOINT OR MUTUAL TESTAMENTARY PLAN.

VI. MR. DROKE'S 1981 WILL BECAME IRREVOCABLE AFTER FULL PERFORMANCE BY MRS. DROKE IN RELIANCE UPON THAT WILL.

VII. THE COURT SHOULD HAVE FOUND FOR APPELLANTS ON THEIR CLAIM FOR BREACH OF CONTRACT TO MAKE A WILL.

VIII. THE CHANCELLOR WAS INCORRECT IN HOLDING THE SIX-YEAR STATUTE OF LIMITATIONS APPLICABLE TO THE TRUST.

IX. SECTION 89-5-3 M.C.A. (1972) IS APPLICABLE TO THE DROKE FAMILY TRUST AS AN UNRECORDED DEED.

We find that under contract principles, and under a constructive trust theory, the Alvarez parties are entitled to ownership of one-half of the marital estate, including the one-half interest in the 39.1 acre plot of land. We reverse and remand this case for an equal division of the marital estate according to the Trust agreement.

II.

FACTS AND PROCEDURAL HISTORY

This case concerns the ownership of a half-interest in a 39.1 acre plot of land in DeSoto County. Said half interest was the major, or at least the most coveted asset of Dixie Drokes and her husband Vernard Drokes. Dixie died in 1982, and Vernard in 1988. Their respective heirs both claim title to the half-interest.

Vernard and Dixie had no children from their marriage. Dixie had one daughter, Edith Boles, who was the mother of Andrew Boles, Jr., and the grandmother of Andrea and Brian Boles. Vernard had no children.

The 39.1 acre plot of land had been conveyed by warranty deed to Dixie and her daughter Edith in 1952. Therefore, Dixie and Edith each owned an undivided half interest in the property.

On November 16, 1977, Dixie conveyed her half interest in the 39.1 acres to Vernard and Dixie Droke "as tenants by the entirety, with the right of survivorship and not as tenants in common." The deed was recorded.

On November 18, 1981, Vernard and Dixie executed nearly identical wills. Each will, after nominal bequests of one dollar, devised the remainder of the testator's estate to "the Trustee of the revocable trust created of even date herewith." William Alvarez was named executor in both wills.

Also on November 18, 1981, Vernard and Dixie executed an instrument entitled "Revocable Trust Agreement/Droke Family Trust." Under the agreement, Vernard and Dixie conveyed to themselves as trustees, with Alvarez as co-trustee, all property they owned at that time. ¹ Income from the trust, as well as any portion of its principal, was to be used by Vernard and Dixie during their lives. Following their deaths, co-trustee Alvarez was to divide the trust property in half, creating two separate trusts, "A" and "B." Trust A would be held for the use of Dixie's two great grandchildren, Andrea and Brian Boles, and ultimately divided between them. Trust B would be distributed to the First Seventh-day Adventist Church in Memphis. The agreement provided that either Settlor (Dixie or Vernard) could revoke or amend the instrument "until the death of either of the Settlors," at which time it would become "both irrevocable and unamendable." The wills and the trust agreement were witnessed by three individuals and certified by a Tennessee notary.

Dixie died on May 29, 1982. Her 1981 will was apparently never filed for probate. On August 12, 1982, Vernard executed an instrument entitled "Revocation of Droke Family Trust." Therein, Vernard stated that he was revoking the trust agreement. He directed the trustees to distribute all assets in the trust to him immediately. Vernard mailed a copy of this notarized revocation to Alvarez.

On August 26, 1987, Vernard executed a will devising most of his estate to five of his nieces in equal shares. One of the nieces, Beverly Coleman, was named as executrix. ²

Vernard died on October 29, 1988. Alvarez offered Vernard's November 18, 1981, will into probate. Beverly offered Vernard's August 1987 will. The chancellor admitted both wills to probate.

The devisees of Vernard Droke's August 1987 will (identified as "the Coleman parties" or "Coleman") filed suit to quiet title in the DeSoto County Chancery Court on August 9, 1989. The complaint named as defendants the First Seventh-Day Adventist Church, and Dixie's great grandchildren, Andrea and Brian Boles. ³ The Coleman parties claimed title to the real property under Vernard's 1987 will.

On December 4, 1989, Alvarez, the First Seventh-Day Adventist Church, and the Boles (identified as "the Alvarez parties" or "Alvarez") filed an answer, counterclaim, and third-party complaint. The Alvarez parties claimed title to the real estate as beneficiaries of the trust. ⁴

On October 17, 1990, the Coleman and Alvarez parties entered into stipulations as to

the authenticity of Vernard's 1987 will, Vernard's trust revocation and trust revocation letter to Alvarez, Vernard's and Dixie's 1981 wills, and the Droke Family Trust Agreement. The stipulations were entered into evidence at trial held October 18, 1990. Testimony is summarized below.

Edith Boles

Dixie's daughter Edith testified that she had visited her mother and stepfather (Vernard) about every two months during the last year of her mother's life, and that Vernard "seemed to resent the fact that he had the care" of Dixie. She stated that her mother required a lot of care; Vernard cared for her part of the time, as did Edith and one of the nieces. Edith stated that Vernard resented her (Edith) as well; the resentment stemmed from Dixie having placed some Tennessee property she owned (in which Vernard had no interest) in trust for her grandchildren, and also from Dixie having deeded Edith's father's estate to Edith. Edith stated a will of her mother's made prior to November of 1981 had left her something more than $1.00.

Edith testified that Vernard had expressed concern that "everything is in your's and your mother's name; you will kick me out when she dies." Edith stated that she had assured him that she would "leave him completely alone" if Dixie died before he did. Edith stated that she had known nothing of the November 1981 wills and trust agreement until after her mother's death.

Ann Alvarez

William Alvarez's wife Ann testified that she and her husband had been present on November 18, 1981, when the wills and trust agreement had been executed. She stated that the drafting attorney, James Purple, ⁵ had reviewed the documents with Dixie and Vernard, and that Purple and the Drokes discussed the effect of the trust; specifically, that it was revocable while both were living, but would become irrevocable upon the death of either. Ann further testified that Dixie had expressed concern for her great-grandchildren, and wanted to be sure that her wishes concerning them would be carried out after her death. Vernard had stated that he wanted his share to go to the church. Ann testified that she had heard Dixie express this concern for her great-grandchildren on several other occasions. Ann stated that three other friends of the Drokes (Mr....