Estate of McClerkin, Matter of

• Decision Date: 09 March 1995
• Docket Number: No. 91-CA-01169-SCT,91-CA-01169-SCT
• Citation: 651 So.2d 1052
• Parties: In the Matter of the Last Will and Testament and ESTATE OF Mrs. Clara P. McCLERKIN, Deceased. Miguel PADRON, Carmetta Padron and Caridad Romero v. Hortensia MARTELL, Genevieve Brown and Flo Evans; and Trustmark National Bank, Executor of the Last Will and Testament of Mrs. Clara P. McClerkin, Deceased.
• Court: Mississippi Supreme Court

Page 1052

651 So.2d 1052

In the Matter of the Last Will and Testament and ESTATE OF Mrs. Clara P. McCLERKIN, Deceased Miguel PADRON, Carmetta Padron and Caridad Romero v. Hortensia MARTELL, Genevieve Brown and Flo Evans; and Trustmark National Bank, Executor of the Last Will and Testament of Mrs. Clara P McClerkin, Deceased.

No. 91-CA-01169-SCT.

Supreme Court of Mississippi.

March 9, 1995.

Richard E. Stratton, III, Brookhaven, for appellant.

Donald B. Patterson, Owen Roberts, Brookhaven, for appellee.

Before PRATHER, P.J., and PITTMAN and SMITH, JJ.

SMITH, Justice, for the Court:

This case comes to this Court on appeal from the Chancery Court of Lincoln County concerning the estate of Clara P. McClerkin who died on October 15, 1987. The petition to probate her will in common form was entered on October 20, 1987, and the decree to admit the will to probate was filed October 21, 1987. The beneficiaries named in the will were two friends and a cousin, the latter bequeathed the entire residual estate. The executor of McClerkin's estate was Brookhaven Bank and Trust Company, now Trustmark National Bank (hereinafter "executor").

The executor filed a petition to probate the will in solemn form on August 5, 1988. The petition did not list the named beneficiaries as interested parties. On September 9, 1988, Miguel Padron, Carmetta Padron (brother and sister), and Caridad Romero (niece and sole heir of Cheo Padron another brother to McClerkin) (hereinafter "contestants") filed a Motion For Enlargement of Time requesting On October 5, 1988, the contestants filed a Caveat Against Probate in Solemn Form of McClerkin's will. The caveat stated the will was the result of undue influence, and McClerkin lacked testamentary capacity to execute and dispose of her property. The contestants also filed an Answer to the Petition for Probating of Will in Solemn Form on October 5, 1988.

thirty days to plead, answer, demur or respond to the Petition for Probate of Will in Solemn Form.

Both the executor and the beneficiaries under the will filed motions to dismiss claiming that the will was not contested within two years from and after the date of October 21, 1987, as required by Miss.Code Ann. Sec. 91-7-23 (1972). Thus, the action was barred.

The chancellor sustained the motions to dismiss the Caveat, Amendment to Caveat and Answer of the contestants with prejudice. Aggrieved by the ruling the contestants appealed to this Court presenting the following single issue:

I. THE LOWER COURT WAS IN ERROR IN ITS APPLICATION OF CASES OF MOORE v. JACKSON AND IN RE THE ESTATE OF STANBACK RATHER THAN RULES 3 AND 4 MISSISSIPPI RULES OF CIVIL PROCEDURE.

The chancellor, referencing MRCP Rule 3(a), held that the action began with the October 5, 1988, filing of the caveat by the contestants, and that this action defeated the two-year statute of limitations even though the beneficiaries were not mentioned. The interested parties did not receive process until November and December of 1990, three years after the will was probated in common form and over two years after the will was probated in solemn form.

The chancellor's ruling was based upon the case of Estate of Estella D. Stanback, 222 So.2d 660 (Miss.1969). Within one month of the learned chancellor's ruling this Court overruled Stanback in the case of Estate of Schneider, 585 So.2d 1275 (Miss.1991). In Schneider, the Court held that the "Mississippi Rules of Civil Procedure supersede all previous court decisions as well as all statutes on procedure to the contrary," and that the parties must be treated as necessary parties governed by Rules 19 and 21 of the Mississippi Rules of Civil Procedure. The Schneider Court also reviewed the case of Moore v. Jackson, 247 Miss. 854, 157 So.2d 785 (1963), stating that "Moore remains good law insofar as it holds trial proceedings must be held in abeyance until all necessary parties are joined in a suit contesting a will." Id. at 1277. In Perry v. Aldrich, 251 Miss. 429, 169 So.2d 786 (1964), the Court held that "the probate of a will in common form is not a final adjudication of the validity of the will, but rather was an 'incipient step' to help the court execute the will." Id. 169 So.2d at 789 citing Austin v. Patrick, 179 Miss. 718, 176 So. 714 (1937); Murray v. Murphy, 39 Miss. 214 (1860); Kelly v. Davis, 37 Miss. 76 (1859).

Schneider mandates MRCP Rules 19 and 21 apply. All parties in this case are necessary parties entitled to notice. We must reverse and remand.

FACTS

McClerkin died on October 15, 1987 with her last will and testament dated February 25, 1985. The petition to probate her will in common form was entered on October 20, 1987, and the decree to admit the will to probate was filed October 21, 1987. The beneficiaries named in the will were Flo Evans of Lawrence County, Mississippi, a friend who received $10,000.00; Genevieve Brown of Brookhaven, Mississippi, a friend who received $2,000.00; and the entire residual estate was bequeathed to McClerkin's cousin, Hortensia Martell, a resident of Florida.

The executor filed a petition to probate the will in solemn form on August 5, 1988. The petition did not name the beneficiaries as interested parties. It did include McClerkin's last will and testament, affidavits of the attesting witnesses, and the decree admitting the will to probate in common form. The petition stated that the following persons and parties in interest were entitled to notice, and should be made parties respondent: Rebecca Carbonnet and Hortensia Padron of Miami, Florida (addresses unknown), and the Miguel Padron and Carmetta Padron are brother and sister to McClerkin. Caridad Romero is McClerkin's niece and sole heir at law to Cheo Padron, another brother to McClerkin. On September 9, 1988, these contestants filed a Motion For Enlargement of Time asking the court for thirty days to plead, answer, demur or respond to the Petition for Probate of Will in Solemn Form.

unknown heirs of McClerkin. The petition requested proper process be issued by publication to the named parties and/or unknown parties who should be required to respond within the time permitted by law. The papers were signed by Scott M. Farnsworth, Vice President and Trust Officer of Trustmark National Bank, Brookhaven Branch, a/k/a Executor.

On September 13, 1988, the executor filed an application for default pursuant to Rule 55(b) of the Mississippi Rules of Civil Procedure against Rebecca Carbonnet, Hortensia Padron, the unknown heirs of Clara P. McClerkin, and all persons interested in McClerkin's estate. This did not include the contestants or the beneficiaries to McClerkin's will. The request was made because the named defendants Rebecca Carbonnet and Hortensia Padron, failed to plead, answer or defend the affidavit. The record reflects that publication in the Daily Leader, the Brookhaven newspaper, of the probate in solemn form of McClerkin's will occurred August 9, 16, and 23, 1988. The chancery court entered a default judgment on September 16, 1988.

On October 5, 1988, the contestants filed a Caveat Against Probate in Solemn Form of McClerkin's will which stated the will was the result of undue influence, and McClerkin lacked testamentary capacity to execute and dispose of her property. The contestants also filed an Answer to the Petition for Probating of Will in Solemn Form on October 5, 1988. The Answer (1) denied the will represented the true and valid last will of McClerkin, (2) denied the decree to petition was not sufficient to admit the will to probate because the caveat and contest was filed, and (3) contained the contestants' statement that they did not know any other person(s) who had an interest in McClerkin's estate. The answer denied Rebecca Carbonnet was an heir at law and a party in interest to McClerkin, and stated that Carbonnet is the daughter of Miguel Padron (contestant), a brother of McClerkin.

The Answer denied Hortensia Padron is an heir at law and a party in interest to McClerkin's estate because the contestants did not know Hortensia Padron. The answer stated that McClerkin had three brothers and one sister to McClerkin, and it outlined the lineage of the Padron family as it pertained to McClerkin's estate. Neither the Answer nor Caveat designated the beneficiaries as defendants, nor did the pleading request service of process for "anyone nor set forth any facts upon which process could issue for a nonresident defendant."

The record illustrates that Donald B. Patterson was employed by Hortensia Martell on October 25, 1988. Patterson wrote Martell telling her that he informed attorney Stratton that he was representing Martell.

On July 13, 1990, the executor filed a Motion to Dismiss the Caveat of October 5, 1988, arguing that McClerkin's will was not "contested within two (2) years from and after the date of October 21, 1987, as contemplated and required by statute, particularly Secs. 91-7-23 and 91-7-25 of the Mississippi Code of 1972...." The executor argued the court's decree of October 21, 1987, is "final and conclusive" and McClerkin's will is "now the true, final, and only last will and testament" of McClerkin "not subject to further question." Therefore, the contestants are barred from contesting the validity of the will.

On November 26, 1990, the contestants amended the caveat against probate alleging undue influence and that McClerkin did not have testamentary capacity because she was diagnosed with "Organic Brain Syndrome" by a Dr. Manuel M. Morlote of Hollywood, Florida. The amendment correctly stated that the petition to admit the will to probate in solemn form did not include the beneficiaries as interested parties. The amendment requested process be served upon these parties requiring them to answer, plead or respond to the caveat and will contest already On December 14, 1990, the beneficiaries filed a motion to dismiss the contestants' Caveat and Amendment because neither the Petition for...