Collins by Smith v. McMurry, 58209

• Decision Date: 01 February 1989
• Docket Number: No. 58209,58209
• Citation: 539 So.2d 127
• Parties: Calhoun Clay COLLINS, by Martha SMITH, Conservator; Carlton Torrey Collins and John Terrey Collins, Individually and by Martha Smith, Trustee; and by Martha Smith, Individually v. Jerry L. McMURRY, et al.
• Court: Mississippi Supreme Court

Page 127

539 So.2d 127

Calhoun Clay COLLINS, by Martha SMITH, Conservator; Carlton Torrey Collins and John Terrey Collins Individually and by Martha Smith Trustee; and by Martha Smith Individually v. Jerry L. McMURRY, et al.

No. 58209.

Supreme Court of Mississippi.

Feb. 1, 1989.

Marvin Oates, Bay Springs, for appellant.

P.E. Stevens, Leonard B. Melvin, Jr., Melvin & Melvin, Richard L. Yoder, Gilchrist, Sumrall, Thaxton & Yoder, Laurel, E. Gregory Snowden, Bourdeaux & Jones, Meridian, Denton Gibbes, Gibbes, Graves, Mullins, Bullock & Ferris, Laurel, for appellees.

Before DAN M. LEE, P.J., and PRATHER and PITTMAN, JJ.

PRATHER, Justice, for the Court:

The central issue of this appeal addresses the effect of dictum contained in a former opinion of this Court upon the result reached in the instant appeal.

Plaintiffs below brought this action in the Chancery Court of the Second Judicial District of Jones County to quiet and confirm what they considered to be their remainder interest in a 400 acre tract of land and to cancel as clouds on their title the various claims of fee simple ownership asserted by the defendants below. From a decision by the chancellor favoring the defendants, the plaintiffs now perfect this appeal and assign as error the following:

(1) The trial court erred in disregarding:

(a) the oral and written evidence submitted for and on behalf of the appellants regarding the facts and circumstances surrounding the testator and his relation to the parties in interest at the time of making his will, the facts and circumstances under which the will was made, the intent and purpose of the testator in making devises of his property, and the fact that the scrivener of the will was a layman and not a lawyer, and

(b) the testimony of the two attorney-adverse witnesses and the appellants' expert witness with respect to construing the testator's will.

(2) The trial court erred in disregarding the opinion of the Supreme Court of Mississippi in construing the testator's will in the case of Gardner v. Pan-American Petroleum Corp., 243 So.2d 399 (Miss.1971), and relying instead on the testimony of the appellees' expert witnesses, legal treatises and case law to reconstrue the will.

(3) The trial court erred in refusing to allow into evidence the answers and responses of the appellees to the appellants' second and third requests for admission marked for identification as exhibits 7 and 8.

I.

The source of dispute in this case is the interpretation which is to be given to a certain clause in the last will and testament of William Torrey Smith, namely the devise going to his daughter Rosalind Smith Collins. The appellants in this case are Rosalind Smith Collins' three children, Carlton Torrey Collins, John Terrey Collins and Calhoun Clay Collins. ¹

The will in question was admitted to probate following the testator's death in 1951, and devised to Rosalind Smith the following described land to-wit:

The North Half (N 1/2) of Section thirty-one (31) Township Ten (10) N, Range Eleven (11) W, (320 acres).

and the North Half (N 1/2) of North Half (N 1/2) of South Half (S 1/2) of Section thirty-one (31), Township Ten (10) N, Range Eleven (11) W, (80 acres).

Rosalind Smith later married Carlos Collins and gave birth to three children, the appellants in this case. Rosalind and Carlos mortgaged the real property in dispute here to the Hattiesburg Production Credit Association (HPCA), but later defaulted on their loan, resulting in an equitable foreclosure in the Jones County Chancery Court. The appellants claim that the HPCA, the purchaser at the foreclosure sale, acquired only a life estate interest in the land. Some four years later the land was sold by the HPCA to appellees, J.C. and Helen Grace Sharp, the brother-in-law and sister of HPCA employee John L. Bullock, also one of the appellees.

The Sharps then sold 160 acres in the land to John L. Bullock and his wife Alice Ruth Bullock. The Bullocks then sold the land they purchased to the appellees Jerry L. McMurry, Paul H. McMurry, Bobby Dickins and John H. Rayborn, first selling 80 acres, and later the remaining 80 acres to which they claimed ownership. It was then that an attempt was made by some of the appellees to develop the land they had purchased into a residential subdivision.

The appellants then filed suit in chancery court to protect their alleged remainder interests against the appellees' assertion of fee simple ownership of the property. Named as defendants in the chancery suit were the following:

Jerry L. McMurry; Paul H. McMurry; Bobby Dickens; John H. Rayborn; John L. Bullock and wife, Alice Ruth Bullock; Harry F. Beacham, Trustee for The Federal Land Bank of New Orleans; P.E. Stevens, Trustee for John L. Bullock and Alice Ruth Bullock; Thomas T. Buchanan, Trustee for Southeastern Savings And Loan Association of Laurel; Scotch Plywood Company, d/b/a Old Line Land & Timber Co.; Jerry McMurry, Attorney in Fact for Paul H. McMurry, Bobby Dickens, and John H. Rayborn; Southeastern Savings And Loan Association of Laurel; Tommy L. Cotten and wife, Donna B. Cotten; James E. Bush and wife, Sharon K. Bush; Richard L. Yoder, Trustee for The Commercial National Bank And Trust Company of Laurel; William R. Shedd and wife, Carolyn L. Shedd; M.B. Weems, Trustee for Merchants And Manufacturers Bank; J.C. Sharp and wife, Helen Grace Sharp.

The appellees filed a motion at the chancellor's suggestion, requesting a bifurcated trial on the issue of the will's construction. This motion was granted. The lower court held on the issue in question concerning the will's construction that the testator had devised a fee simple defeasible title to his daughter Rosalind. The appellants then perfected their appeal to this Court.

II.

DID THE TRIAL COURT ERR IN DISREGARDING THE ORAL AND WRITTEN

EVIDENCE SUBMITTED FOR AND ON BEHALF OF THE APPELLANTS

REGARDING THE FACTS AND CIRCUMSTANCES SURROUNDING THE

TESTATOR IN HIS RELATION TO THE PARTIES IN INTEREST AT THE

TIME OF THE MAKING OF HIS WILL, THE FACTS AND CIRCUMSTANCES

UNDER WHICH THE WILL WAS MADE, THE INTENT AND PURPOSE OF THE

TESTATOR IN MAKING DEVISES OF HIS PROPERTY, THE FACT THAT

THE SCRIVENER OF THE WILL WAS A LAYMAN, NOT A LAWYER AND IN

DISREGARDING THE TESTIMONY OF THE TWO ATTORNEY--ADVERSE

WITNESSES AND THE APPELLANTS' EXPERT WITNESS WITH RESPECT TO

CONSTRUING THE TESTATOR'S WILL?

Under this first assignment of error, the appellant alleges that the chancellor failed to properly consider various testimony presented on the appellants' behalf by lay witnesses. An examination of the record in this case leads this Court to conclude that there is no merit to this claim.

The standard of review used by this Court when examining findings of fact as made by the chancellor has been stated many times. In Richardson v. Riley, 355 So.2d 667 (Miss.1978), it was stated thusly:

The principle of law with which we are concerned has been repeated by this Court many times. It is that where the chancellor was the trier of facts, his findings of fact on conflicting evidence cannot be disturbed by this Court on appeal unless we can say with reasonable certainty that these findings were manifestly wrong and against the overwhelming weight of the evidence. Even if this Court disagreed with the lower court on the finding of fact and might have arrived at a different conclusion, we are still bound by the chancellor's findings unless manifestly wrong, as stated above.

Id. at 668. See also Matter of Estate of Varvaris, 528 So.2d 800, 802-803 (Miss.1988). (Involving the interpretation of a will).

More specifically, this Court has also addressed the proper scope of review for judging the credibility of witnesses. In Pellegrin v. Pellegrin, 478 So.2d 306 (Miss.1985) the Court wrote:

The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of facts. The issue here was a factual one and the chancellor's decision will not be disturbed since it was not manifestly wrong.

Id. at 308. See also Johnson v. Brewer, 427 So.2d 118, 126-127 (Miss.1983); McKay v. McKay, 312 So.2d 12, 13-14 (Miss.1975).

These cases make clear that this Court is to give great deference to the decisions of the chancellor concerning findings of fact and especially to the credibility of witnesses. Therefore, it has generally been held by this Court that unless we are of the firm opinion that the chancellor's decision was incorrect or "manifestly in error," the decision of the chancery court will not be overturned.

After examining the facts in this case, this Court cannot say that the chancellor's decision was in error. The record shows that the chancellor listened attentively to all testimony presented by the appellant. It is important to remember, however, that the testator drew up this will in 1950, and died in 1951. Thus, at the time of this hearing, all the witnesses were testifying to events that had happened approximately 35 years previously.

Martha Smith also testified. At the time the testator made his will out however, she was only 8 or 9 years old. The chancellor also appeared to be aware of the fact that the person who drew up the will was a layman, instead of a lawyer. As to the attorney-witnesses who testified regarding the effect, interpretation and meaning of various terms of the testator's will, a review of the record reveals once again that the chancellor listened attentively to all evidence as presented by the witnesses.

A close examination of this record simply indicates that there is no merit to the appellants' claim. The chancellor appears to have listened carefully to all testimony as presented by the appellants, and treated each witness fairly. There is nothing in the record to substantiate the appellants' claim and for that reason, this Court holds that the assignment of error...