Estate of Mitchell, Matter of, 57373
| Citation | 519 So.2d 430 |
| Decision Date | 27 January 1988 |
| Docket Number | No. 57373,57373 |
| Parties | In the Matter of the ESTATE OF Thomas A. MITCHELL, Deceased. Betty Lou Bayhi ZIMMERMAN, v. Joseph C. CORLEY, Executor, Dow Mitchell, Jessie Mae Mitchell Parker, Rochelle E. Segrest, Hugh Marshall, Abigail Fincannon Casey and Michael Fincannon. |
| Court | United States State Supreme Court of Mississippi |
Knox White, William S. Boyd, III, White & Morse, Gulfport, for appellant.
Larry L. Lenoir, Richard B. Graves, Gulfport, for appellee.
Before HAWKINS, P.J., and ROBERTSON and GRIFFIN, JJ.
This case, concerning the term "cash" within a will, comes to the Court from the Chancery Court of the First Judicial District of Harrison County, which awarded four certificates of deposit under a cash bequest. We affirm.
On February 9, 1981, Thomas A. Mitchell executed a will, which read in part:
Item III
I hereby give, devise and bequeath to my brothers, sisters, or surviving children of my brothers and sisters who may predecease me, a one-fifth (1/5th) interest in all remaining cash possessed by me at the time of my death less the costs of the administration of my estate, and the One Thousand & No/100 ($1,000.00) Dollars bequested to Lois Kelley.
This bequest is hereby made as follows:
1. I hereby give, devise and bequeath 1/5th of the cash proceeds to Edward Lee Mitchell of Pensacola, Florida;
2. I hereby give, devise and bequeath 1/5th of the cash proceeds to Dow Mitchell of Atmore, Alabama;
3. I hereby give, devise and bequeath 1/5th of the cash proceeds to Jessie Mae Mitchell Parker of RFD, Dothan, Alabama;
4. I hereby give, devise and bequeath 1/5th of the cash proceeds to Rochelle Elizabeth Mitchell Segrett of Luverne, Alabama;
5. I hereby give, devise and bequeath 1/5th of the cash proceeds to be shared equally to the children of Lydia Irene Mitchell Fincannon, being Hugh Marshall, Abigail Fincannon and Michael Fincannon.
I hereby give, devise and bequeath my automobile, household furniture, personal property and any and all other property possessed by me wheresoever situated at the time of my death to Betty Lou Bayhi Zimmerman.
In March and November, 1982, Mitchell executed codicils, unrelated to this suit. On February 13, 1984, Mitchell, a widower without children, died, leaving his brothers, sisters, nephews and niece, mentioned in Item III, and his deceased wife's first cousin, Betty Lou Zimmerman, mentioned in Item IV.
From April 9 to June 1, 1982, Mitchell purchased four certificates of deposit, issued by Magnolia Federal Bank, totalling $70,806.98, plus interest. Zimmerman argues that the certificates of deposit were not "cash," subject to Item III, but constituted "other property" under Item IV. Consequently, she should take the certificates' proceeds, not Mitchell's brothers, sisters, nephews and niece, as the executor requested.
In support, Zimmerman notes that certificates of deposit can be classified as either commercial paper, Miss.Code Ann. Sec. 75-3-104(2)(c) (1972), or investment security, Miss.Code Ann. Sec. 75-8-102 (1972), within the contemplation of the Uniform Commercial Code, unlike cash. Additionally, Zimmerman maintains that the certificates are illiquid, unlike cash. Finally, since Donnie Riley, an attorney, drafted the will, the term "cash" should be read narrowly.
The appellees respond that provisions of the Uniform Commercial Code govern commercial transactions, not wills. They also contend that the certificates of deposit were liquid assets of the estate, since they were subject to withdrawal prior to maturity, without penalty, on the event of death. Finally, the appellees argue that Riley used the term "cash" properly, since other courts, confronted with a similar factual situation, have construed certificates of deposit as cash.
In Shackleford v. Dobbs, 216 Miss. 75, 82, 61 So.2d 669, 671 (1952), where the Court found that United States Savings Bonds and postal savings certificates were not "money" under a will, we favorably quoted an annotation found in 93 A.L.R. 514, 516, where it is stated, "The words 'any cash left by me' ... mean money in the possession of the testatrix or on deposit in bank." Similarly, in Davis v. Lowy, 221 Miss. 283, 291, 72 So.2d 679, 680 (1954), the Court found that " 'money' when used in a will covers only actual money, that is to say, cash on hand or on deposit in bank...."
Consistent with the above, in Duling v. Duling's Estate, 211 Miss. 465, 481, 52 So.2d 39, 46 (1951), the Court found that the testatrix's references to "any other cash that I may possess" included the balance within her checking account.
Although this Court has not specifically addressed whether certificates of deposit are cash under a will, other courts, as noted, have. In Succession of Jones, 369 So.2d 1143, 1154 (La.Ct.App.1979), the Louisiana Court of Appeals held that "all remaining cash" included currency, coins, savings and loan deposits, bank checking and savings accounts and certificates of deposit.
In Odom v. Odom, 238 Ga. 733, 734, 235 S.E.2d 29, 30-31 (1977), the Georgia Supreme Court, looking to the testator's intentions, held that "cash which I have at the time of my death in banks or otherwise" encompassed savings certificates.
In In Re Estate of O'Connell, 29 Cal.App.3d 526, 532, 105 Cal.Rptr. 590, 593 (1972), the California Court of Appeals, looking to the testatrix's intentions, held that "all cash remaining in my savings and checking accounts" included a certificate of deposit.
Similarly, in In Re Estate of Morris, 15 Ariz.App. 378, 381-82, 488 P.2d 1015, 1019-20 (1971), the Arizona Court of Appeals, looking to the testatrix's intentions, held that a certificate of deposit passed under a will's disposition of "cash."
In In Re Estate of Irwin, 25 Ohio Misc. 151, 155, 266 N.E.2d 596, 599 (1969), the Ohio Court of Common Pleas held that "cash money" included certificates of deposit.
In In Re Johnston's Estate, 190 Iowa 679, 683, 180 N.W. 740, 741 (1921), the Iowa Supreme Court held that "cash I may have on hand at the time of...
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Scott v. Wallace
...bank deposits and checking and savings accounts. See, e.g., Barnes v. Evans, 102 N.C.App. 428, 402 S.E.2d 164 (1991); In re Mitchell's Estate, 519 So.2d 430 (Miss.1988); Kortz v. American National Bank of Cheyenne, 590 P.2d 1338 (Wyo.1979); In re Storm's Will, 205 Misc. 1109, 130 N.Y.S.2d 5......