Banks v. Junk

• Decision Date: 19 June 1972
• Docket Number: No. 46744,46744
• Citation: Banks v. Junk, 264 So.2d 387 (Miss. 1972)
• Parties: John F. BANKS v. Mrs. Renza Taussig JUNK, Executrix of the Estate of Mrs. Renza Brown Banks.
• Court: Mississippi Supreme Court

Page 387

264 So.2d 387

69 A.L.R.3d 1070

John F. BANKS v. Mrs. Renza Taussig JUNK, Executrix of the Estate of Mrs Renza Brown Banks.

No. 46744.

Supreme Court of Mississippi.

June 19, 1972.

Adams, Forman, Truly, Ward, Smith & Bramlette, Natchez, for appellant.

R. L. Netterville, Natchez, for appellee.

SUGG, Justice.

Mrs. Renza Brown Banks, a resident of Adams County, Mississippi, hereinafter referred to as decedent, died on January 26, 1968 leaving her last will and testament dated July 20, 1966.

She left her only child, Mrs. Renza Taussig Junk, by specific devise and bequest, all of her Louisiana property, her home in Adams County including all furnishings, furniture, silver, china, linen and other objects therein owned by her, subject to the right of her husband, John Francis Banks, to use, occupy and enjoy the home and contents, rent free as long as he lived and remained unmarried. She also devised to her husband, out of the property not theretofore devised, an undivided one-half interest not to exceed in value the sum of $15,000 granting the executrix the option of paying the devise in cash. She also devised and bequeathed to her daughter the residue of her estate.

On February 21, 1968 appellant renounced the will and thereafter Mrs. Renza Taussig Junk, executrix of the estate, hereinafter referred to as appellee, filed a petition to appoint commissioners to ascertain the net value of the properties belonging to the estate of testatrix in Mississippi and to ascertain and evaluate the separate estate of appellant, and alleged that appellant owned an estate equal in value to an undivided one-half interest in the Mississippi property of decedent.

Appellant filed a response to the petition in which he prayed that the court appoint commissioners to ascertain the value of decedent's estate and the value of appellant's separate estate and that the commissioners be instructed to include in their evaluation the property of decedent located both within and without the State of Mississippi.

Thereafter appellee furnished an inventory of the Mississippi property of decedent and claimed in the inventory certain articles of personal property as her individual property by virtue of a gift inter vivos made to her by decedent.

Appellant then filed a petition to compel appellee to file a perfect inventory, and denied that any of the property claimed by appellee had been given to her by decedent before her death except certain personal property which was admitted to be the property of appellee by virtue of a gift from decedent.

The trial court held that the appellee had the burden of proving a valid gift inter vivos of the articles claimed by her; that she failed to sustain the burden of proof and was ordered to include in the inventory of the property of the estate all of the articles of personal property claimed by her as gifts.

With respect to the Louisiana real property, the court held that it was not affected by the renunciation of the will; that the court had no jurisdiction over the Louisiana real property and had no authority to appoint commissioners to act beyond the territorial jurisdiction of the State of Mississippi; that the Louisiana real property should not be included in the evaluation of the estate in Mississippi so as to increase the total estate to effectuate an increase in the share of appellant by his renunciation of the will in Mississippi.

The court held that it had no authority to award appellant more rights by renouncing the will than would have accrued to him had decedent died intestate.

The court ordered that all estate taxes due the United States and the State of Mississippi, all debts of decedent and all costs of administration in Mississippi be paid out of the residue of the estate in Mississippi, and that the Louisiana inheritance tax, together with all costs of administration in Louisiana, be paid by appellee individually and not from any funds of the estate being administered in the Mississippi court.

The decree further found that by agreement of the parties and with the approval of the court, all controverted issues of fact and law were submitted to the court at one hearing in order to conserve time and expense, and granted an interlocutory appeal in order to settle the controlling principles of law in the case.

Appellant assigns as error the following:

(1) The court erred in not ordering that the Louisiana property of Mrs. Renza Brown Banks be included in the evaluation of her estate for the purpose of determining the share of the estate to go to Appellant under his renunciation of the Will.

(2) The court erred in holding that there was a residue in Mississippi from which all United States Federal estate taxes must be paid.

(3) The court erred in not ordering that the lawful share of Appellant be determined before deduction of Federal and State Estate Taxes and in not ordering that his share bear no part of this tax.

(4) In the alternative, the court, after failing to hold that Appellant's share bore no part of the Estate Tax, erred in not ordering on equitable apportionment of Federal Estate Taxes between Appellant and Appellee.

Appellee assigns as error the following:

(1) The trial court erred in not holding that there was a valid gift inter vivos.

(2) The trial court erred in not holding that there was a valid delivery to the Executrix during the lifetime of the testatrix.

(3) The trial court erred in not holding that the burden was upon the contender to prove the Executrix's inventory was incorrect.

(4) The trial court erred in allowing Mr. John F. Banks to testify in violation of Section 1690 of the Mississippi Code of 1942 Ann.

After the case was tried the parties entered into a stipulation which requested the Chancery Court to determine the proper method to be adopted in distributing the assets of the estate and in computing the value of the estate. They submitted to the court the question of whether or not the value of the Louisiana real property of decedent should be included for the purpose of ascertaining the value of appellant's one-half interest in the estate less his separate estate.

The first question for determination is the effect of the renunciation of the will in Mississippi on the Louisiana property. In Doran v. Beale, et al., 106 Miss. 305, 63 So. 647 (1913) the husband who was a resident of Arkansas renounced the will of his wife who was a resident of Illinois. The testatrix owned land in Mississippi and counsel for the appellees argued that when the appellant renounced his wife's will, he thereby elected to take that portion of her estate to which he is entitled under the law of descent and distribution of the State of Illinois. We held:

It is true that appellant, by renouncing his wife's will, elected to take the portion of her estate to which he is entitled under the law of descent and distribution, but not necessarily the law of descent and distribution of the state of Illinois. His election was to take that portion of her estate to which he is entitled under the law which governs the descent and distribution of her property; and the law governing the descent of real estate is the law of the place where situated. (106 Miss. at 323, 63 So. at 650.)

In Bolton v. Barnett, 131 Miss. 802, 95 So. 721 (1923) testatrix died while a resident of Tennessee and the husband renounced the will in Prentiss County, Mississippi. The Court held that the husband had the right to renounce the will in Mississippi even though he did not have the right to renounce the will in Tennessee, the domicile of the testatrix, and that, upon renunciation he was entitled to a child's part of the real and personal property in Mississippi.

In view of our holding in Doran and Bolton, supra, involving the renunciation of the will of a non-resident owning property in Mississippi, that the rights of the renouncing spouse and the heirs, devisees and legatees in the Mississippi property are to be determined by the laws governing the descent of the property where it is situated, the rights of such persons, upon renunciation of the will of a testator residing in Mississippi who owns property in other states, are to be determined by the laws of the states where such property is situated.

We hold therefore that when appellant renounced the will of testatrix in Mississippi, the law of Louisiana governs as to the disposition of the real property situated in that state. We have not endeavored to ascertain what the law of Louisiana is relative to appellant's right to renounce a will or the effect thereof upon the descent of land therein devised. The Louisiana courts are open to the parties for determination of this question and it should be made there.

We hold that the value of the Louisiana real property should not be included in the value of the estate for the purpose of determining the lawful portion of appellant of his wife's real and personal estate in Mississippi.

Appellant argues that since we held in Myers v. Laird, 230 Miss. 675, 93 So.2d 828 (1957) that the Louisiana property of a husband who renounced his wife's will in Mississippi should be included in the value of his separate property for the purpose of determining whether his separate property was equal in value to one-half of his deceased wife's estate, it would be inconsistent, contrary to the purpose of the statutes and against public policy to exclude decedent's Louisiana real property in the valuation of her estate for the determination of his lawful portion.

This contention is governed by Sections 668 and 670 Mississippi Code 1942 Annotated (1956) which are discussed in detail later in this opinion. At this point it is sufficient to note that, upon renunciation, appellant is entitled to such part of decedent's estate as if she had died intestate, subject to certain limitations hereinafter set forth, and his 'lawful portion' is to be determined by the rule contained in Section 670, but his 'separate property' is...