Estate of Homburg, Matter of

• Decision Date: 17 July 1997
• Docket Number: No. 95-CA-01346-SCT,95-CA-01346-SCT
• Parties: In the Matter of the ESTATE OF Mary Elizabeth HOMBURG, Deceased. MISSISSIPPI STATE UNIVERSITY FOUNDATION, INC. v. Ruthella CLARK and Lydia Quarles, Co-Executors.
• Court: Mississippi Supreme Court

Page 1154

697 So.2d 1154

In the Matter of the ESTATE OF Mary Elizabeth HOMBURG, Deceased MISSISSIPPI STATE UNIVERSITY FOUNDATION, INC. v. Ruthella CLARK and Lydia Quarles, Co-Executors.

No. 95-CA-01346-SCT.

Supreme Court of Mississippi.

July 17, 1997.

Stacy E. Thomas, James K. Dossett, Jr., Baker Donelson Bearman Bearman & Caldwell, Jackson, for appellant.

Christine A. Arians, Metairie, for appellees.

Before DAN LEE, C.J., and PITTMAN and JAMES L. ROBERTS, Jr., JJ.

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

STATEMENT OF THE CASE

¶1 This case comes before this Court on appeal from a Declaratory Judgment entered in the Chancery Court of Lowndes County filed November 14, 1995. This Judgment was entered in response to a petition filed on March 23, 1995, by Lydia Quarles and Ruthella Clark, Co-Executors of Mary E. Homburg's estate in order to determine the proper distribution of the bequests of her will. The issue on appeal is the legal effect of a provision in Ms. Homburg's will. The provision bequeathed $100,000 to a testamentary trust for the benefit of Albert Corder during his life, with the remainder to Mississippi State University (Foundation) and Mandy Spraggins, in equal shares. Memoranda of Law were filed by both the Co-Executors and the Foundation. After hearing oral arguments, the chancellor made findings of fact and conclusions of law. The chancellor refused to give effect to the provision in the Will finding that the gift in trust to Corder had lapsed and would devolve to the residue.

¶2 The Foundation, a remainder beneficiary of the testamentary trust held invalid, duly perfected this appeal. The Court is asked to reverse the decision of the chancellor and render a judgement in the Foundation's favor by directing the Co-Executors to comply with the provisions in the Will. This

would require the distribution of one half of the remainder of the funds bequeathed under Item IV of the Will to the Foundation and Spraggins, which is $50,000 respectively.

STATEMENT OF THE FACTS

¶3 Before her death on September 30, 1994, Ms. Homburg resided in Lowndes County, Mississippi. She died testate with a will dated March 31, 1989. Ms. Homburg had a half-sister as her primary heir-at-law. The Will made several specific bequests, leaving $100,000 in trust to Corder, a former servant, and left the residue of the estate to be divided among two named individuals and a named charitable institution, Auburn University. A Petition for Probate of Will was filed in the Lowndes County Chancery Court on November 8, 1994, by the Co-Executors. Also on November 8, 1994, the Will was admitted to probate, and the Co-Executors received the letters testamentary after taking the appropriate oaths.

¶4 On March 23, 1995, the Co-Executors filed with the court a Petition for Declaratory Judgment. The Petition was filed in order to seek the court's guidance because a number of beneficiaries had pre-deceased the testatrix and the need to interpret some of the language in the Will. The Co-Executors requested a Declaratory Judgment as to the legal and proper distribution of the bequests in the Will. The Petition provided, in part, the following:

3. Due to the advanced age of the deceased at her death, there are several lapsed legacies in her will. Additionally, a number of these lapsed gifts were shared jointly under the Will with other legatees. Therefore, the Executors would request that the Court rule on the proper and legal recipients of the shared lapsed gifts.

¶5 The only issue on this appeal arises from the lower court's ruling as to the effect of Item IV of Ms. Homburg's will. That item provides as follows:

ITEM IV.

I devise One Hundred Thousand Dollars ($100,000) to Robert C. Clark, Ruth Clark, and W.C. Thomas, in trust, for Albert Corder. Should one or more of the individuals so named as co-trustees become unwilling or unable to serve as a co-trustee of this trust for Albert Corder, then it is my desire that the remaining co-trustees or trustee serve alone. It is my desire that so long as Albert Corder is able to live independently or with the aid of his family (outside of institutional care), he be paid over $1,000.00 a month from the interest and the corpus by my trustees. In addition thereto, I grant my co-trustees broad discretion to pay over to Albert Corder, from interest or corpus, any sums they believe reasonable to make his life more comfortable. Should Albert Corder find it necessary to place himself in full time nursing care, then I direct that my trustees to undertake to provide him such care as he may need, and to invade corpus to the extent necessary to provide him with medical treatment that may be meaningful to him. Upon the death of Albert Corder, this trust shall cease to exist and I hereby direct my trustees to pay over one-half of any remaining corpus and interest to the daughter of Albert L. Corder, namely Mandy, and the remaining one-half to the Mississippi State University School of Veterinary Medicine, to be utilized by the school to establish an endowment in my name for the provision of medical services to stray domesticated animals and an adoption program upon the animal's rehabilitation by the school.

¶6 Corder died before Ms. Homburg. In their Memorandum of Law the Co-Executors took the stance that the gift to the trust lapsed because Corder did not survive Ms. Homburg. The Co-Executors maintained this position even though two of the three named recipients of a beneficial interest in the $100,000 bequest, the Foundation and Mary Spraggins, were in existence at the time of death of Ms. Homburg. Two of the three named recipients of legal title to the trust property, the trustees, were also living at the time of Ms. Homburg's death.

¶7 The Co-Executors stated in their Memorandum of Law that because this was a lapsed legacy to non-descendants the trust property should pass to the residuary beneficiaries.

The surviving residuary beneficiaries under the Will are Susan Hancock Ware ( 1/8 residuary beneficiary), Auburn University ( 1/4 residuary beneficiary), and Mildred Serdahely, the decedent's half sister ( 5/8 residuary beneficiary).

¶8 The lower court entered the Declaratory Judgment on November, 14, 1995. The Foundation states the chancellor adopted the position of the Co-Executors by ruling as follows:

7. The testamentary trust to Albert Corder failed because the beneficiary predeceased the Testator [sic]. There is no properly manifested intention in the Will, as required by the Restatement of Trusts, to prevent a resulting trust for the benefit of the residuary legatees under the Will from arising. That is, there is no indication of intent on the part of the Testator [sic] that if the trust fails at the outset, the disposition should be to Mandy Spraggins and Mississippi State, instead of to the residue of her estate.... The trust was a specific gift to Albert Corder which has lapsed and shall devolve into the residue.

¶9 The Foundation states the lower court's ruling and entire analysis with respect to the legal effect of Item IV of the Will appears to be based on the identical misapprehension of the contents of the Restatement (Second) of Trusts presented in the Co-Executor's Memorandum of Law. Thereby aggrieved of the chancellor's legal conclusion, the Foundation perfected its appeal to this Court alleging the following assignment of error:

I. WHETHER THE DEATH OF THE INTENDED LIFETIME BENEFICIARY OF A TESTAMENTARY TRUST, PRIOR TO THE DEATH OF THE TESTATRIX, DEFEATS THE SPECIFIC BEQUEST OF THE REMAINDER INTEREST IN THE TRUST ASSETS TO NAMED, EXISTING REMAINDER BENEFICIARIES.

¶10 This Court has a clear standard of review in an appeal where there are legal question from a will contest.

Typically this Court will not disturb a chancellor's findings of fact unless the chancellor was manifestly wrong and not supported by substantial, credible evidence. Smith By Young v. Estate of King, 579 So.2d 1250, 1251 (Miss.1991); Bell v. Parker, 563 So.2d 594, 596-597 (Miss.1990). This rule does not apply to questions of law. When presented with a question of law, the manifest error/substantial evidence rule has no application and we conduct a de novo review. Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991); Holliman v. Charles L. Cherry & Associates, 569 So.2d 1139, 1147 (Miss.1990); Planters Bank & Trust Co. v. Sklar, 555 So.2d 1024, 1028 (Miss.1990). 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. Cooper, 587 So.2d at 239, quoting UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., 525 So.2d 746, 754 (Miss.1987).

Estate of Mason v. Fort, 616 So.2d 322, 327-28 (Miss.1993).

¶11 This Court must determine if effect was given to the testat[rix]'s intent when reviewing the decision of the chancellor. Tinnin v. First Bank of Mississippi, 502 So.2d 659, 663 (Miss.1987). "For purposes of testamentary construction, it is the responsibility of a reviewing court to determine and respect the intent of a testat[rix]. Where a will is susceptible to more than one construction, it is the duty of the court to adopt that construction which is most consistent with the intent of the testat[rix]." Estate of Williams v. Junius Ward Johnson, 672 So.2d 1173, 1175 (Miss.1996) (internal citations omitted). This Court has previously held "[t]he surest guide to testamentary intent is the wording employed by the maker of the will ... [there is] authority to give effect to a testator's intent only where that intent has received some form of expression in the will." Tinnin, 502 So.2d at 663. In determining the testat[rix]'s intent, the Court is limited to the four corners of the Will. Estate of Blount v. Papps, 611 So.2d 862, 866 (Miss.1993). The four cardinal rules of construction are First, the prime inquiry is the intention of the testatrix ...

Second, the law favors the vesting...