In re Estate of High

• Decision Date: 27 October 2009
• Docket Number: No. 2008-CA-00799-COA.,2008-CA-00799-COA.
• Parties: In the Matter of the ESTATE OF Artis HIGH, Deceased: Arbella High Watt, Appellant v. Gracie Cobb, Joe High and David High, Appellees.
• Court: Mississippi Court of Appeals

19 So.3d 1282

In the Matter of the ESTATE OF Artis HIGH, Deceased:

Arbella High Watt, Appellant v. Gracie Cobb, Joe High and David High, Appellees.

No. 2008-CA-00799-COA.

Court of Appeals of Mississippi.

October 27, 2009.

Lucius Edwards, Hernando, attorney for appellant.

Sidra Patterson Winter, Pontotoc, attorney for appellees.

Before KING, C.J., GRIFFIS and MAXWELL, JJ.

MAXWELL, J., for the Court.

¶ 1. Following a hearing on the issue of the domicile of the decedent at the time of his death, the Chancery Court of Pontotoc County granted summary judgment on behalf of the contestants of the will. The chancellor found that she was unable to proceed with probate of an "unauthenticated" copy of a foreign will. From this decision, the proponent, Arbella Watt, appeals, raising the following assignments of error:

I. The chancellor erred in granting the contestants' motion for summary judgment.

II. The chancellor erred in ruling that a lost will disposing of property located in Mississippi, but executed in another state, could not be initially probated in Mississippi.

III. The chancellor erred in failing to award a jury trial on fact issues as requested by the proponent.

¶ 2. After considering the record before us and the relevant legal authority, we find the chancellor erred in dismissing the case and should have granted the requested jury trial. Accordingly, we reverse and remand with instructions that the chancellor impanel a jury to determine the validity of the testator's will in a manner consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 3. The testator, Artis High, died on April 4, 2003, at a hospital in Tupelo, Mississippi. Because he was ill and required assistance, prior to his death, he had spent approximately two years in Mississippi living with relatives. High was predeceased by his spouse, and they had no children. It is undisputed that High had significant amounts of personal property located in Mississippi at his time of death.

¶ 4. Before his move to Mississippi, High resided in St. Louis, Missouri, where he had lived since the late 1960s. He was employed in the automobile industry until his retirement in the late 1980s. According to the proponent, in 1987, High had executed a last will and testament through the United Auto Workers' Legal Services Benefit Program. The original will has not been located since High's death.

¶ 5. Following High's death, Watt, the proponent, who is his sister and the sole living beneficiary under the will, filed a petition to open an intestate estate. However, on July 15, 2005, she sought to probate the alleged copy of High's 1987 will. This petition included as exhibits a photocopy of High's will and photocopies of sworn affidavits of two attesting witnesses to the will. On December 13, 2005, Gracie Cobb, High's niece and one of the contestants, filed an answer objecting to the probate of the will. Several months later, David High and Joe High, also contestants who, respectively, are the nephew and brother of the deceased, filed a separate complaint contesting the will. It is undisputed that all of the contestants are heirs at law of Artis High.

¶ 6. The separate actions were later consolidated and set for a jury trial in October 2007. On August 8, 2007, the contestants filed a motion for summary judgment. Before ruling on the contestants' motion, the chancellor held a hearing on the limited issue of testator High's residency at his time of death. Following the hearing, the chancellor determined that High had only intended to remain in Mississippi temporarily and was a resident of Missouri when he died. Based upon this finding, the chancellor granted the contestants' motion for summary judgment and held that Watt was unable to proceed with probate of an "unauthenticated" copy of a foreign will.

STANDARD OF REVIEW

¶ 7. In reviewing the issues from a will contest, "[t]ypically this Court will not disturb a chancellor's findings of fact unless the chancellor was manifestly wrong and not supported by substantial, credible evidence." In re Estate of Wright, 829 So.2d 1274, 1276(¶ 5) (Miss.Ct. App.2002) (citation omitted). However, when reviewing a question of law, "the manifest error/substantial evidence rule has no application[,] and we conduct a de novo review." Id.

DISCUSSION

I. Chancellor's Refusal to Allow Probate of a Lost Foreign Will

¶ 8. The relevant motion filed by the contestants was a single document, which they described as being filed under both "Rule 12" and the "Rules for Summary Judgment." The motion was slightly over one page in length, and was not supported by any affidavits, answers to interrogatories, other attachments, or supporting material. In the motion, the contestants argued that they were entitled to prevail as a matter of law because: (1) the will was barred from probate due to the statute of limitations in Missouri, the jurisdiction where the testator was domiciled at his time of death; and (2) the proponent could not produce the evidence necessary to probate a lost will.

¶ 9. The proponent then filed a response denying the contestants' allegations. In the response, the proponent argued that the Missouri statute had no bearing on the issues before the court. Watt also argued that there were genuine issues of material fact as to the probate of the lost will. The record indicates that Watt attached multiple answers to interrogatories to show the presence of genuine issues of material fact. Almost two months later, she filed a brief in which she further elaborated on this position, and attached a sworn affidavit as additional support.

¶ 10. After reviewing the record, we can find no further attempt by the contestants to show the nonexistence of genuine issues of material fact regarding the evidence necessary to probate the lost will. Rather, in their motion, the contestants simply pointed out that in Mississippi, "there is a clear presumption that [a will] has been destroyed when the original cannot be accounted for," and contended that the proponent was "unable to overcome the presumption[.]"

¶ 11. The record makes it clear that the contestants' motion to dismiss was based upon Mississippi Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, although this specific rule is not cited in the record or the parties' briefs. The record reveals that the chancellor granted the Rule 12(b)(6) motion rather than their motion for summary judgment. However, upon review, we note that the chancellor considered matters outside the pleadings in reaching her decision on the contestants' motion. Therefore, we must review the contestants' motion as a motion for summary judgment under Rule 56 of the Mississippi Rules of Civil Procedure. See Lee v. Thompson, 859 So.2d 981, 985 n. 6 (Miss.2003) (citations omitted); see also M.R.C.P. 12(b).

¶ 12. The applicable standard for reviewing the grant of a Rule 56 or Rule 12(b)(6) motion is the same—de novo. Lee, 859 So.2d at 985 n. 6. In reviewing the grant of a motion for summary judgment, the "facts are viewed in the light most favorable to the non-movant," and the trial court's judgment must be affirmed "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Germany v. Denbury Onshore, LLC, 984 So.2d 270, 275(15) (Miss.2008) (citations omitted).

¶ 13. In the present case, the chancellor held that Mississippi law prohibited a lost foreign will from being initially probated in Mississippi where the testator was domiciled elsewhere at his time of death. Thus, the chancellor found she was "unable to proceed with [the] probate of . . . [an] unauthenticated copy of the decedent's purported foreign will."

¶ 14. The proponent offers several bases upon which she claims the chancellor erred in reaching this result. We will address each argument in turn.

A. Contestant's Failure to Pursue Affirmative Defenses

¶ 15. Missouri, which is the state the chancellor determined to be the decedent's state of residency,¹ has a one-year limitation period on the probate of a will. Mo.Rev.Stat. § 473.050.3(2) (2000). Mississippi, alternatively, has "no statute of limitations on the probate of a will." Robberson v. Burton, 790 So.2d 226, 229(¶ 14) (Miss.Ct.App.2001).

¶ 16. The contestants first claim the photocopy of the alleged will cannot be probated in Mississippi unless and until it has first been probated in Missouri. Because the will was not submitted for probate within Missouri's one-year statute of limitations, the contestants argue that the will simply cannot ever be probated, and the testator's estate must instead pass through intestate succession.²

¶ 17. The contestants raised Missouri's statute of limitations in their initial pleadings and argued that it barred probate of the will. However, the proponent claims that because the contestants engaged in discovery and made multiple filings before again raising the defense in their motion for summary judgment, their failure to pursue the statute-of-limitations defense constituted an unreasonable delay, and the defense was, therefore, waived.

¶ 18. At the outset, we emphasize that Missouri's statute of limitations is not relevant to the descent of the testator's property located in Mississippi at his time of death. Mississippi law is clear that property situated in Mississippi descends according to Mississippi law, regardless of where the decedent resided or was domiciled. This is true whether the property is real or personal, and whether the estate is testate or intestate. See, e.g., Miss.Code Ann. § 91-1-1 (Rev.2004); In re Estate of Mason, 616 So.2d 322, 328 (Miss.1993); Bolton v. Barnett, 131 Miss. 802, 827, 95 So. 721, 726 (1923); Heard v. Drennen, 93 Miss. 236, 243-44, 46 So. 243, 244 (1908).

¶ 19. Although it...