Blackburn v. Richards

• Decision Date: 13 August 2020
• Docket Number: NO. 2018-CA-01052-SCT,2018-CA-01052-SCT
• Citation: 299 So.3d 781
• Parties: In the MATTER OF the ESTATE OF Barry C. BLACKBURN, Sr., Deceased: June Holley Olin, Executrix of Barry C. Blackburn, Jr. v. Ginger RICHARDS and Kimberly Archer, Co-Executrix and Co-Trustees of the Barry C. Blackburn, Sr., Revocable Living Trust and Harpeth Presbyterian Church, Inc., Nashville Christian School, Inc., The University of Mississippi and Boykin Spaniel Rescue, Inc. v. Ginger Richards and Kimberly Archer, Co-Executrix and Co-Trustees of the Barry C. Blackburn, Revocable Living Trust, June Holley Olin, Executrix of Barry C. Blackburn, Jr., Rebecca Lowry, Guardian Ad Litem Debra Pace Branan, for Minors David Williams Lowry, Eleanor Rebecca Lowry and Phoebe Elizabeth Lowry
• Court: Mississippi Supreme Court

299 So.3d 781

In the MATTER OF the ESTATE OF Barry C. BLACKBURN, Sr., Deceased: June Holley Olin, Executrix of Barry C. Blackburn, Jr.

v.Ginger RICHARDS and Kimberly Archer, Co-Executrix and Co-Trustees of the Barry C. Blackburn, Sr., Revocable Living TrustandHarpeth Presbyterian Church, Inc., Nashville Christian School, Inc., The University of Mississippi and Boykin Spaniel Rescue, Inc.

v.Ginger Richards and Kimberly Archer, Co-Executrix and Co-Trustees of the Barry C. Blackburn, Revocable Living Trust, June Holley Olin, Executrix of Barry C. Blackburn, Jr., Rebecca Lowry, Guardian Ad Litem Debra Pace Branan, for Minors David Williams Lowry, Eleanor Rebecca Lowry and Phoebe Elizabeth Lowry

NO. 2018-CA-01052-SCT

Supreme Court of Mississippi.

REVERSED AND REMANDED - August 13, 2020

ATTORNEYS FOR APPELLANT: JOHN THOMAS LAMAR, III, Senatobia, TAYLOR ALLISON HECK

ATTORNEYS FOR APPELLEES: HARRIS H. BARNES, III, Flowood, MICHAEL KEVIN GRAVES, Hernando, GORDON CHARLES SHAW, JR., JAMES WILLIAMS JANOUSH, Flowood, J. CAL MAYO, JR., Oxford, SARAH KATHERINE EMBRY, D. PACE BRANAN

BEFORE KITCHENS, P.J., BEAM AND ISHEE, JJ.

BEAM, JUSTICE, FOR THE COURT:

¶1. This appeal arises from the DeSoto County Chancery Court's reformation of a trust based on the court's finding that a scrivener's error had occurred in drafting the trust instrument, which rendered the trust's language ambiguous and thwarted the grantor's intent. The estate of Barry Christopher Blackburn, Jr., along with four nonprofit groups named in the trust appeal from the chancery court's decision, claiming that the trust's language is not ambiguous and that the chancery court erroneously disregarded the grantor's intent as stated in the trust.

¶2. We affirm the chancery court's reformation of the trust. We reverse and remand for further proceedings, however, the chancery court's award of attorneys’ fees in this case.

FACTS AND PROCEEDINGS

¶3. Barry Christopher Blackburn, Sr. (Barry), an estate-planning attorney, died on March 21, 2014, from cancer

. Ten days before he died, Barry executed "The Barry C. Blackburn, Sr. Revocable Living Trust" to provide income and principal to himself during his lifetime and then income to his only son, Barry Christopher Blackburn, Jr. (Christopher), during Christopher's lifetime.

¶4. Kimberly Archer and Ginger Richards were made co-trustees (Trustees) of Barry's trust. Both Archer and Richards worked for Barry. Richards initially worked as Barry's paralegal, but became Barry's personal assistant. Archer worked for a Barry as a paralegal since 1999, and she drafted the trust.

¶5. The trust provision (referred to as Section 2.3(D)(3)) at issue in this case was drafted as follows:

Upon the death of [Christopher], the undistributed balance shall be divided equally among his then living issue, per stirpes, subject to the same trust provisions herein. It is the Grantor's specific intent and request that his family farms, trust principal and properties vest with the Grantor's grandchildren upon the youngest grandchild attaining forty-five (45) years of age. If [Christopher] shall predecease the Grantor prior to the complete distribution of the trust principal and has no living issue, then the remaining trust principal shall be retained for the benefit of Rebecca Lowry's children (Grantor's nieces and nephews) subject to the same trust provisions herein specified for the Grantor's grandchildren. Upon the death of a child of Rebecca Lowry prior to the complete distribution of the trust principal, then the remaining trust principal shall be distributed to the remaining surviving niece or nephew, per capita. If the Grantor has no surviving beneficiaries as specified herein, then any remaining trust principal shall be distributed as follows: one-fourth (1/4) to Nashville Christian School; one-fourth (1/4) to Harpeth Presbyterian Church in Nashville, Tennessee; one-fourth (1/4) to the Ole Miss Law School (to fund an estate planning program); and one-fourth (1/4) to the Boykin Spaniel Rescue.

¶6. The language at issue in this case is contained in the provision's third sentence, as follows:

If [Christopher] shall predecease the Grantor prior to the complete distribution of the trust principal and has no living issue, then the remaining trust principal shall be retained for the benefit of Rebecca Lowry's children (Grantor's nieces and nephews) subject to the same trust provisions herein specified for the Grantor's grandchildren.

¶7. Tragically, Christopher died in July 2015 at the age of twenty-one with no children. Following Christopher's death, the Trustees notified Barry's sister, Rebecca Lowry, that her three minor children (Barry's nieces and nephew) were now the beneficiaries of the trust.

¶8. In August 2015, an attorney representing June Holley Olin (the Administratix of Christopher's estate),¹ contacted the Trustees. The attorney informed the Trustees that based on the language in Section 2.3(D)(3) of the trust, Christopher was the sole heir at law of Barry. Because Christopher did not predecease Barry as specified in Section 2.3(D)(3), the attorney argued, the trust's assets belonged to Christopher's estate.

¶9. Afterwards, the Trustees commenced the instant action in chancery court to have the court construe the trust to determine the proper beneficiaries of the trust. The Trustees claimed that a scrivener's error had occurred that rendered the trust ambiguous, and they sought to have the court construe the trust consistent with Barry's intent that the current beneficiaries should be Barry's nieces and nephew.

¶10. Lowry and the minors filed a counterclaim and a cross-claim requesting that the chancery court construe Section 2.3(D)(3) consistent with Barry's stated intent to the Trustees that the minors were the proper beneficiaries. Lowry, individually, also requested that in the event that the chancery court were to determine that the minors were not the proper beneficiaries, then she is the proper beneficiary under Section III, Paragraph 3.3, of the trust.

¶11. The nonprofits claimed that Section 2.3(D)(3) is unambiguous and that the plain language of the section establishes the non-profits as the proper beneficiaries.

¶12. Olin likewise claimed that Section 2.3(D)(3) is unambiguous, but claimed that Christopher's estate is the proper beneficiary. Olin also claimed that $200,000 of college expenses had vested in Christopher's estate.

¶13. A trial took place on October 4, 5, and 6 of 2017, and on February 8 and 9 of 2018. The Trustees and the minors called the following witnesses: Richards, Archer, Bill Richards, John St. Claire, Rob Brown, Bill Barkley, Lowry, and Thomas Davis. Olin called the following witnesses: Chanda, Olin, and James Sidney Olin. The nonprofits did not call any witnesses.

¶14. According to the testimony, both Richards and Archer worked for Barry for many years. Richards initially worked for Barry as a paralegal, and she later began doing more of Barry's administrative work, e.g., accounting, bookkeeping, working with Barry's accountant, his bankers, collecting rent, and paying the bills, until Barry's death in 2014. Richards and Barry had a "brother-sister" relationship, and she discussed Barry's personal life with him as it related to Christopher and Barrys’ ex-wife, Chanda. Richards wrote checks for Barry and while handling his finances never had written a check for the nonprofits.

¶15. Richards testified that in estate planning, Barry would instruct her and Archer on what the client wanted and they would then "cut and paste from other documents." She said Barry was very big on legacy, and he believed everybody should leave things to family generations. Legacy was family to Barry, and Barry was big on the "Blackburn Legacy." Richards, who drafted Barry's trust, was emphatic that the "predecease" language omitting the phrase "or dies" behind it, should not have been written that way. She stated that the "mistake" was likely a continuation from a previous document, "probably in the form she and [Archer] used."

¶16. Richards said that in December 2013, a few months before Barry's death, Barry went to "MD Anderson" and received the results he thought he was going to get regarding his cancer

. "That's when he began really discussing what he really wanted to do with his estate."

¶17. Barry talked to Archer specifically about the documents, and he talked to Richards about how to administer the trust and how to administer his estate. Barry wanted Richards to know how to fund the estate. Richards took handwritten notes reflecting Barry's plans and intentions, which were submitted into evidence.

¶18. Archer testified that she was the primary person to draft estate-planning documents for Barry. She "pulled forms from other existing wills and trusts" and utilized a "cut and paste" system from a "forms" folder comprised of existing estate-planning documents. Archer said that Barry did not "personally prepare a will or a trust" for anyone, and he did not pay close attention to the language and did not "read documents word for word."

¶19. Archer testified that based on her conversations with Barry, his intent was for his estate to go to his nieces and nephew if Christopher died without any children. Archer also took handwritten notes while conversing Barry about his estate and later rewrote the notes. Archer was also emphatic about Barry's desire to keep his inherited properties within the Blackburn family. She said Barry loved his nieces and nephew, and he kept pictures of them in both his office and in his condominium "at Orange Beach."

¶20. Archer testified that she drafted the 2014 Trust Agreement using both sets of her handwritten notes, specifically her notes reflecting, "if Christopher is gone, and he has no children then it goes to his nieces and nephews." Archer said she drafted the trust consistent with Barry's stated intentions, with the exception of the language she mistakenly used in Section 2.3(D)(3), which she later realized caused the...