Cooper v. Crabb

Decision Date11 September 1991
Docket NumberNo. 89-CA-1345,89-CA-1345
Citation587 So.2d 236
PartiesEtma R. COOPER v. Clifford CRABB, Executor, De Bonis Non of the Will of Jetta Robison Bethay; Timothy Allen Cooper, Maria Denise Cooper Wallace, Leonard Kirk Cooper, a Minor, Melinda Annette Cooper, a Minor, Orman Robison Cooper, II, a Minor, and Angela Ione Cooper, a Minor, By and Through Their Guardian Ad Litem, Roy O. Parker.
CourtMississippi Supreme Court

Edward O. Pearson, Fulton, for appellant.

Roy O. Parker, Roy O. Parker & Associates, Tupelo, for appellee.


ROBERTSON, Justice, for the Court:


Once again we see the sad spectacle of a family rent asunder, its members in bitter battle over a loved one's modest estate, and to what sensible end? Here it is a grandmother against her six grandchildren; the deceased, the grandmother's older sister. The grandmother claims under will substitutes, the survivorship clauses on three certificates of deposit. The grandchildren claim under the will, arguing that the funds represented by the CDs are a part of decedent's estate.

The Chancery Court held for the grandchildren but on grounds that do not pass legal muster. Because that Court did not adjudge the grandchildren's claim that their grandmother unduly influenced her older sister and thus abused a confidential and fiduciary relationship with her, we must remand for further proceedings, as will presently appear.



Jetta Robison Bethay departed this life on January 28, 1985, in her eighty-eighth year, a citizen of Itawamba County, Mississippi. Immediately prior thereto, Bethay held an estate said to consist of a residence, various items of personal property, and an interest in certificates of deposit with the Bank of Mississippi reflecting funds which had by the time of trial grown to $43,276.95.

Bethay had made a Last Will and Testament dated September 29, 1983, leaving her entire estate, with an exception not relevant here, 1 to and for the benefit of her six grandnephews and grandnieces--three of each. The problem is that, beginning October 27, 1983--twenty-eight days after she made her will--Bethay began executing will substitutes, substantially eviscerating the plan of her will. These took the form of certificates of deposit Bethay purchased, reflecting that the funds represented thereby were owned by Bethay and her younger sister, Etma Robison Cooper, as joint tenants with right of survivorship. Cooper claimed these funds at her sister's death.

There can be no doubt that in her last year or so Bethay experienced difficulties frequently afflicting the elderly. She suffered arthritis. After several wrecks, she was forced to give up driving. She suffered cancer of the colon. Toward the end, she increasingly needed assistance in attending to her physical needs, and in the Fall of 1984, some several months before Bethay's death, her sister, Etma Cooper, and Cooper's husband moved into the house with Bethay to care for her.

Our concerns are Bethay's transactions at the bank. Documentary evidence reflects that as early as October 27, 1983, Bethay renewed a $15,000.00-plus Certificate of Deposit and had it placed in her name jointly with her sister. Covering this Certificate of Deposit and others subsequent, Bethay and Cooper executed will substitutes reflecting in relevant part:


The undersigned agree and declare that all funds now or hereafter deposited in this account are, and shall be, our joint property and owned by us as joint tenants with the right of survivorship, and not as tenants in common; and upon the death of either of us, any balance in said account shall become the absolute property of the survivor. The entire account or any part thereof may be withdrawn by, or upon the order of, either of us or the survivor. It is especially agreed that withdrawals of funds by the survivor shall be binding upon our heirs, next of kin, legatees, assigns, and personal representatives.

/s/Mrs. F.K. Bethay

/s/Etma R. Cooper


Bethay's September, 1983, will named her sister, Etma Cooper, and Cooper's son, O.R. Cooper, as Co-Execut(rix/or), 2 and on November 7, 1986, they offered the will for probate in the Chancery Court of Itawamba County. It soon became apparent not much passed under the will if the survivorship clauses controlled the CDs, and, no doubt because of this, the six grandnieces--Mary Denise Cooper Wallace, Melinda Annette Cooper, and Angela Ione Cooper, and their three brothers, Timothy Allen Cooper, Orman Robison Cooper, II, and Leonard Kirk Cooper--filed their complaint, challenging the will substitutes on a variety of grounds.

The Chancery Court charted a narrow course and found that Bethay, during her lifetime, took "certain Certificate of Deposit, savings and checking accounts" and placed them in joint accounts with her sister, Etma R. Cooper,

solely for the convenience of Jetta Robison Bethay without any intention by Jetta Robison Bethay of Etma R. Cooper having any rights of survivorship in said accounts.

The Court then held Cooper a fiduciary for her sister and ultimately trustee for her grandnieces and grandnephews. The Chancery Court's bottom line is that Bethay's entire estate passed under her will to her grandnieces and grandnephews, share and share alike.

Cooper now appeals to this Court.


On appeal this Court will not reverse a Chancery Court's findings, be they of ultimate fact or of evidentiary fact, where there is substantial evidence supporting those findings. Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987); Norris v. Norris, 498 So.2d 809, 814 (Miss.1986); Gilchrist Machinery Co., Inc. v. Ross, 493 So.2d 1288, 1292 (Miss.1986).

The errors we face are errors of law, and in such instances we proceed de novo. State of Mississippi By and Through Mississippi Ethics Commission v. Aseme, 583 So.2d 955, 957 (Miss.1991); Mississippi State Tax Commission v. Moselle Fuel Company, 568 So.2d 720, 723 (Miss.1990); Cole v. National Life Insurance Co., 549 So.2d 1301, 1303 (Miss.1989); S & A Realty Co. v. Hilburn, 249 So.2d 379, 382 (Miss.1971).

Notwithstanding our respect for and deference to the trial judge, on matters of law it is our job to get it right. That the trial judge may have come close is not good enough.

UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., 525 So.2d 746, 754 (Miss.1987).



Without doubt, our law allows competent adults to use such will substitutes with effect and thereby avoid probate. See Miss.Code Ann. Sec. 81-5-63 (1972) (joint accounts with right of survivorship); Smith v. Smith, 574 So.2d 644, 651 (Miss.1990) ("inter vivos gift"); In re Will and Estate of Strange, 548 So.2d 1323, 1325 (Miss.1989) ("joint accounts with survivorship provisions"); Anderson v. Burt, 507 So.2d 32, 36 (Miss.1987) ("inter vivos gift"); see also, Restatement (Second) of Property: Donative Transfers Sec. 32.4 and Comments and Notes thereto (Tent. Draft No. 12, March 28, 1989). We think of this when we think, over the course of the last fifteen months of her life, eighty-eight-year-old Jetta Robison Bethay executed with her five-years younger sister three writings, creating by their express terms joint tenancies with right of survivorship in certificates of deposit. These certificates evidenced deposits of funds Bethay had theretofore owned outright.

Nothing in our rules regarding inter vivos gifts precludes giving these clauses full effect. See, e.g., Matter of Estate of Holloway, 515 So.2d 1217, 1223 (Miss.1987); Ross v. Brasell, 511 So.2d 492, 496 (Miss.1987); Carter v. State Mutual Federal Savings and Loan Association, 498 So.2d 324, 327 (Miss.1986); In re Collier, 381 So.2d 1338, 1340 (Miss.1980); Stephens v. Stephens, 193 Miss. 98, 101-02, 8 So.2d 462, 463 (1942). The key is to realize that Bethay's donees are the joint tenants, herself and Cooper, as their interests may appear. Today's instruments evidence "a gift in joint tenure," Leverette v. Ainsworth, 199 Miss. 652, 657, 23 So.2d 798, 799 (1945), and are enforceable as such. Estate of Strange, 548 So.2d at 1328; cf. Miss.Code Ann. Sec. 89-1-7 (1972). They "may operate as a present and completed gift in joint ownership," Estate of Strange, 548 So.2d at 1327, quoting In re Lewis' Estate, 194 Miss. 480, 494-95, 13 So.2d 20, 25-26 (1943). They

create a right which embraces the essential elements of joint ownership and survivorship in respect to the particular ... deposit.

Thomas v. Estate of Eubanks, 358 So.2d 709, 711 (Miss.1978), quoting Leverette, 199 Miss. at 657, 23 So.2d at 799. Subject to what we say below, the rights of the parties are controlled by the instrument Bethay and Cooper executed and delivered to the bank, and it matters not whether we call that instrument a contract of deposit or a deed of gift, the formalistic distinction once recognized in Chippendale v. North Adams Savings Bank, 222 Mass. 499, 501-03, 111 N.E. 371, 373 (1916), to the contrary notwithstanding. See Commerce Trust Co. v. Watts, 360 Mo. 971, 231 S.W.2d 817 (1950); and Connor v. Temm, 270 S.W.2d 541 (Mo.App.1954).

We search for intent, but when we search for intent we accept that the law directs our search and points first and foremost to the text the parties created. Matter of Estate of Anderson, 541 So.2d 423, 428 (Miss.1989); Ford v. Hegwood, 485 So.2d 1044, 1046 (Miss.1986). Common sense suggests the parties' writings the most reliable evidence of their intent. Common law directs that, where we find survivorship clauses in the name of the account itself, Weaver v. Mason, 228 So.2d 591, 593 (Miss.1969), in the signature cards, Estate of Isaacson v. Isaacson, 508 So.2d 1131, 1134 (Miss.1987), or in a joint account agreement, Stewart v. Barksdale, 216 Miss. 760, 762, 63 So.2d 108, 109 (1953), we enforce them according to their tenor. R. Weems, Wills And Administration Of Estates In Mississippi Sec. 2-56 (Supp.1990).

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