Estate of Mason, Matter of, 90-CA-1070

Decision Date01 April 1993
Docket NumberNo. 90-CA-1070,90-CA-1070
Citation616 So.2d 322
PartiesIn the Matter of the ESTATE OF Susan Sawyer MASON, Deceased. J.F. Hans TOMSCHE v. Margaret Bosley FORT, American Society for the Prevention of Cruelty to Animals (ASPCA), Emma Rogillio, Adele Drummonds, Heirs of Cornelia Haas, and Estate of S.E. Dudley.
CourtMississippi Supreme Court

Robert Koestler, Vicksburg, for appellant.

Bobby D. Robinson, Vicksburg, David K. Udall, Mesa, AZ, J. Allen Derivaux, Jr., Teller Martin Chaney & Hassell, Vicksburg, for appellee.

Before DAN M. LEE, P.J., and SULLIVAN and BANKS, JJ.

SULLIVAN, Justice, for the Court:

J.F. Hans Tomsche, executor of the estate of Susan Sawyer Mason, filed a complaint in the Chancery Court of Claiborne County in May, 1988, alleging that Mason's will was ambiguous and requesting an interpretation by the court. The chancellor found, inter alia, that the will was ambiguous and scheduled a hearing. Following the hearing, the chancellor entered a judgment interpreting the will. It is from these decrees that Tomsche appeals, citing the following as error:

1. Under Mississippi statutes, pretermitted spouses are entitled to fifty percent (50%) of decedent's estate where there are no children, the remaining fifty percent (50%) to be handled according to the will;

2. The lower court incorrectly ruled that the will had no residuary clause;

3. The lower court incorrectly applied the laws of Mississippi to both realty (immovables) and personal property (movables) when the laws of Florida should have been applied to personal property, thereby allowing Tomsche to receive all personal property;

4. The lapsed portion of the bequest to the ASPCA should not have been spread among those in the residuary clause, but to Tomsche, Mason's sole heir at law;

5. Other lapsed legacies and devises should have gone to Tomsche, Mason's sole heir at law; and

6. The first order of the lower court did not disburse one hundred percent (100%) of Mason's estate and the subsequent order of the court was arbitrarily made to arrive at a one hundred percent (100%) disbursement of the estate.

The ASPCA cross-appealed, assigning the following as error:

1. The lower court erred in ruling that Item Two of the will was ambiguous and that a hearing was needed to ascertain Mason's intent;

2. The lower court erred in ruling that the words "in care of" as used in Item Two of the will intended to create a life estate in Margaret Bosley Fort; and

3. The lower court erred in ruling that the value of the estate vested in J.F. Hans Tomsche by Susan Mason shall not be considered part of his separate estate under Mississippi law.

THE FACTS

The Circuit Court of Hillsborough County, Florida, entered an order in October, 1986, finding the following: Susan Sawyer Mason died testate on April 21, 1986, a resident of Hillsborough County, Florida. Ms. Mason left her surviving spouse, J.F. Hans Tomsche, as her sole heir. No children had been born to Mason. The couple had married on September 10, 1982; Mason executed her last will and testament on May 6, 1981, and said will was duly proved in the Circuit Court of Hillsborough County, Florida. No provision was made in the will for Tomsche, therefore he was a pretermitted spouse as contemplated by F.S. 732.301 and entitled to share in Mason's estate as though Mason had died intestate. This allowed Tomsche to inherit one hundred (100%) of Mason's estate, subject to debts, claims, and costs of administration.

The holographic will consists of five items. With the first item, Mason ordered payment of all debts and funeral expenses. The second item devised one-half ( 1/2) of the "rest, residue and remainder" of her estate to the ASPCA in care of Margaret Fort. The third item is a devise of one-fourth ( 1/4) of the "rest, residue and remainder" of Mason's estate to Margaret Fort, with instructions that she give Mason's niece As Mason owned both real and personal property located in the State of Mississippi, primarily in Claiborne County, the will was admitted to probate by the Chancery Court of Claiborne County, Mississippi. Tomsche, who was appointed administrator C.T.A., filed a complaint for interpretation of the will pursuant to the laws of Mississippi. The decision of the court provided that Miss.Code Ann. Sec. 91-1-1 (1972) controlled and monies on deposit in the State of Mississippi would be subject to the laws of Mississippi. The court also found item two of the will, which attempted to give one-half ( 1/2) of the rest, residue and remainder of Mason's estate to the ASPCA, sufficiently ambiguous to require a hearing to ascertain the true intent of Mason.

Kathrine Sawyer, certain family heirlooms. The fourth item is a devise of one-eighth ( 1/8) of the "rest, residue and remainder" of Mason's estate to Emma Rogillio, Adele Drummonds, Cornelia Haas, Berteale Eavins and S.E. Dudley. Finally, with the fifth item Mason devised one-eighth ( 1/8) of the "rest, residue and remainder" of her estate to the persons who cared for her in the last days of her life, to be judged by the twelve persons selected by her executors.

Margaret Fort was the sole witness at the hearing on this matter. Fort was Mason's cousin who was to receive one-fourth ( 1/4) of Mason's estate and in whose care the devise to the ASPCA was made. Fort stated that Mason had visited her at her home in Arizona specifically to talk about the will. Fort recalled that this visit was in June, 1981, and that Mason told her she was to be executor of the estate. Mason said Fort was to have one quarter ( 1/4) of her estate and that the ASPCA was to get one-half ( 1/2) of her estate. Mason went on to tell Fort that she was concerned about them being old and poor, so she wanted Fort to have the income from the ASPCA funds as long as she (Fort) lived, and then the money would go to the ASPCA. Fort said she asked about Tomsche, who was not yet married to Mason, and Mason replied that she had already given him a motel.

Following Fort's testimony, the chancellor stated on the record that he found it was Mason's intent to create a life estate in Mrs. Fort, that the principal not be invaded but that Fort should be entitled to the interest or income produced from the money or real property, and that at the time of Fort's demise, the money should be delivered to the ASPCA.

In a subsequent judgment interpreting the will, the chancellor found, in pertinent part, as follows: At the time of Mason's death, Tomsche, her sole heir at law, had a separate estate in Florida valued at three thousand dollars ($3,000.00). Mason's estate consisted of bank accounts and certificates of deposit in Mississippi banks represented by passbooks and certificates located in Florida in Mason's possession at the time of her death, as well as real estate in the State of Mississippi. Item two of Mason's will created a life estate in Margaret Fort with the remainder interest to the ASPCA. The fourth item of the will left one-eighth ( 1/8) of Mason's estate to a group of her friends, one of whom (Berteale Eavins) predeceased Mason and two of whom died subsequent to Mason.

The chancellor went on to state the following conclusions of law: Tomsche, a pretermitted spouse under Mississippi law, is entitled to one-half ( 1/2) of Mason's estate, less the $3,000.00 value of his separate estate. The value of any estate he received as a result of Mason's death under Florida law did not reduce his share and was not to be considered his separate estate. The partial intestacy of the estate, due to Tomsche's status as a pretermitted spouse, was governed by Miss.Code Ann. Sec. 91-1-1 (1972), whether personal property (bank accounts and certificates of deposit) or real estate was located in Mississippi. The law of Mississippi governed administration. The lapsed bequest to Berteale Eavins would descend among the survivors named in item four of the will. The interests of those persons listed in item four who died subsequent to Mason would descend according to their wills and if no will existed, to their heirs at law. The words "in care of" in item two of the will created a life estate in Margaret Fort, giving her use of

the income from the property during her lifetime and the principal remainder would pass directly to the ASPCA at Fort's death. The Mississippi mortmain statute [Section 270 of the Mississippi Constitution of 1890 and Miss.Code Ann. Sec. 91-5-31 (1972) ], as it existed at the time of Mason's death would apply and limit the bequest to the ASPCA to no more than one-third ( 1/3) of the estate, after the reduction of the estate by the pretermitted spouse's share. Item five was a lapsed bequest and became a portion of the residuary estate, but as the will had no residuary clause these assets would be distributed among Tomsche and the remaining devisees under the will in the proportions set forth in the will. Finally, the real and personal property would descend to the following persons in the percentages noted: Tomsche--53.22096%; Fort/ASPCA under item two--26.65846%; Fort under item three--13.37772%; persons in item four--6.73658%.

THE LAW

DIRECT APPEAL

I.

UNDER MISSISSIPPI STATUTES, PRETERMITTED SPOUSES ARE

ENTITLED TO FIFTY PERCENT (50%) OF DECEDENT'S ESTATE WHERE

THERE ARE NO CHILDREN, THE REMAINING FIFTY PERCENT (50%) TO

BE HANDLED ACCORDING TO THE WILL.

Although set forth as an issue on appeal, not only did Tomsche fail to cite any authority in support of this statement, he did not address this statement at all in his brief. The failure to cite any authority in support of this assignment of error precludes us from considering this claim on appeal. R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990); Kelly v. State, 553 So.2d 517, 521 (Miss.1989), citing Brown v. State, 534 So.2d 1019, 1023 (Miss.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1643, 104 L.Ed.2d 158 (1989); Shive v. State, 507 So.2d 898 (Miss.1987), and Pate v. State, 419 So.2d 1324 (Miss.1982)....

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