In re Estate of Horrigan, 1998-CA-01787-SCT.

• Decision Date: 16 December 1999
• Docket Number: No. 1998-CA-01787-SCT.,1998-CA-01787-SCT.
• Citation: 757 So.2d 165
• Parties: In the Matter of the ESTATE OF Richard D. HORRIGAN, Deceased. Eunice Horrigan, Eunice LeBlanc and Roy Horrigan v. Christine Ladner and Theodore Bilbo, Jr.
• Court: Mississippi Supreme Court

757 So.2d 165

In the Matter of the ESTATE OF Richard D. HORRIGAN, Deceased.

Eunice Horrigan, Eunice LeBlanc and Roy Horrigan v. Christine Ladner and Theodore Bilbo, Jr.

No. 1998-CA-01787-SCT.

Supreme Court of Mississippi.

December 16, 1999.

Rehearing Denied March 16, 2000.

Lucien M. Gex, Jr., Waveland, Attorney for Appellants.

Carter O. Bise, Gulfport, Attorney for Appellees.

BEFORE PRATHER, C.J., BANKS AND McRAE, JJ.

McRAE, Justice, for the Court:

¶ 1. A judgment by the Hancock County Chancery Court awarding an interest in a house is partially affirmed in that we affirm the constructive trust of $22,178¹ plus interest from the date the last payment was made by the decedent's grandchildren, but we reverse as to awarding any interest in the house and property.

¶ 2. This case is a perfect example of how at times, blood is not thicker than water. This Court is presented with the challenge of determining whether an alleged agreement between several family members some ten years ago should be enforced. The agreement at issue was between Richard D. Horrigan, II ("Horrigan") and his two grandchildren ("Christy and Ted"). The agreement provided that if Christy and Ted invested their funds into the renovation of Horrigan's house and garage they would be willed the entire property after both he and his wife died. The widow of the deceased, and the will, provide otherwise. Finding that there was in fact such an agreement and that Christy and Ted invested $22,178 into the renovation project, we affirm the chancellor's finding that the Horrigans are estopped from denying such and a constructive trust must be declared. However, as the law does not permit specific performance in such circumstances, we reverse the findings of the chancellor that Christy and Ted are entitled to recover any interest in the house or apartment. The Horrigans are instead responsible to Christy and Ted for the entire $22,178 plus interest in order to have the trust dissolved. As life tenant to the property, Sue Horrigan may realize the rents of the house if she so chooses up to the amount of $600 per month retroactive to November 1998.

I.

¶ 3. On March 5, 1996, Richard D. Horrigan II ("Horrigan") died testate. Horrigan was survived by his wife, Eunice Landry Horrigan ("Sue"), and by his children, Roy Horrigan, Eunice Horrigan LeBlanc and Richard D. Horrigan, III, (son from a previous marriage), and two grandchildren, Christine Bilbo Ladner and Theodore Bilbo, II (children of Jewel Horrigan Bilbo).

¶ 4. On September 20, 1996, Horrigan's daughter, Eunice LeBlanc, filed a Petition for Probate of Will and Letters Testamentary in the Chancery Court of Hancock County, Mississippi. The will named Sue as the legatee of all of his estate. The home and remaining land not granted to Sue was to be divided among the following heirs of Jewel Bilbo; one-half to be given to Christine Ladner and her three children, Anthony Ladner, Dillon Ladner and Jewel Ladner (share and share alike); and one-half to be given to Ted Bilbo, Jr., and any children he might have had at the time of Horrigan's death. The remaining assets including, but not limited to, the contents of the home were to be divided equally with Sue receiving one-half, Christine Ladner and her three children receiving one-fourth, and Ted Bilbo, Jr. and any children he might have had at the time of Horrigan's death, receiving one-fourth. The will further provided that if Sue predeceased Horrigan (which she did not), a portion of his homestead property would be left to his daughter, Eunice LeBlanc.

¶ 5. On October 25, 1996, Christine Ladner filed a Caveat to Probate alleging that the will was in fact not the last will and testament of Horrigan and that it was executed at a time during which the decedent lacked the requisite mental capacity to make a will, or alternatively, that the will was the product of undue influence.

¶ 6. Nevertheless, four days later the will was admitted to probate and Letters Testamentary were issued under the will to Eunice LeBlanc. On November 12, 1996, Christine Ladner ("Christy") and Theodore Bilbo, Jr. ("Ted"), filed a Motion to Vacate the Order Admitting the Will to Probate in Common Form for failure to consider Ladner's previously filed caveat.

¶ 7. On November 27, 1996, Eunice Le-Blanc filed a Motion for Direction from the Court. As the executrix under the will, LeBlanc notified the court that no rent was being collected on the home or real property which was occupied by the grandchildren and therefore no income from the assets was being earned.

¶ 8. The Chancery Court, on December 23, 1996, issued an order on setting aside Horrigan's will to probate and appointed the Chancery Clerk of Hancock County, Mississippi, Timothy Kellar, as Administrator of the Estate.

¶ 9. Six months later, on May 16, 1997, Christy and Ted filed a Petition for Specific Performance and Other Relief. The two claimed that in 1989 the decedent Horrigan had promised to leave realty in Bay St. Louis, Mississippi, to them in his will if they would invest funds for the completion of an apartment and for improvements to the existing house. Ted and Christy argued that a fiduciary duty was owed to them by Horrigan which was breached. Sue, Eunice and Roy each filed Answers and Affirmative Defenses to Petition for Specific Performance on June 17, 1997, denying the existence of any such contract and requesting the court assess reasonable rent against the grandchildren for the occupancy of the property since the date of Horrigan's death.

¶ 10. In the course of discovery, it was revealed that the Horrigans had conveyed one of the two lots making up the property at issue to Eunice LeBlanc. As a result, on October 30, 1997, a Petition to Set Aside Conveyance was filed. The petition was later answered and Amended Petition for Specific Performance and for Other Relief was filed on August 10, 1998, alleging that a constructive trust was effectively created and they were entitled to relief in the form of quantum meruit or for goods and/or monies had and received. Before proceeding to trial, Ted and Christy withdrew the previously filed caveat, and the court ordered the will originally filed for probate to be reinstated.

¶ 11. The cause was tried on October 19 and 20, 1998, in the Chancery Court of Hancock County, Mississippi, before the Honorable Thomas W. Teel, Chancellor. Chancellor Teel entered his judgment in the case on November 16, 1998, granting the Petition for Specific Performance, setting aside the conveyance to Eunice LeBlanc, and directing that Ted and Christy pay rent at $600 per month for the house from the day of the judgment, but not the apartment.

¶ 12. A Notice of Appeal was filed from the Judgment by Sue, Eunice and Roy Horrigan and a Cross Appeal was filed by Christy and Ted. The court thereafter granted the Petition for Specific Performance and directed the Estate of Richard D. Horrigan to convey parcels A and B to Christy and Ted, reserving a life estate for Sue Horrigan. The estate was held to be estopped from collecting any past due rents for the use of the property. However, Sue was allowed to either move into the apartment or allow Christy and Ted the use of it for free or for a rent of up to $600 per month.

II.

¶ 13. An appellate court employs a limited standard of review on appeals from the chancery court. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). We will not disturb the findings of the chancellor unless he was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Goode v. Village of Woodgreen Homeowners Ass'n, 662 So.2d 1064, 1070 (Miss.1995). If a chancellor's findings are supported by substantial, credible evidence, this Court will not reverse. Branton v. Branton, 559 So.2d 1038, 1042 (Miss. 1990). With regard to issues of fact as to which the chancellor did not make a specific finding, this Court is required to assume that the chancellor resolved all such factual issues in favor of the appellee. Bryant v. Cameron, 473 So.2d 174, 179 (Miss. 1985).

III.

I. DID THE TRIAL COURT ERR IN HOLDING THAT DECEDENT RICHARD HORRIGAN EXECUTED A HOLOGRAPHIC WILL AND THAT THE APPELLANTS WERE EQUITABLY ESTOPPED FROM ASSERTING THE STATUTE OF FRAUDS WITH REGARD TO SAID WILL?

¶ 14. The Chancery Court of Hancock County, Mississippi, sitting as fact finder, and having the opportunity to observe the demeanor of the witnesses, was convinced an oral agreement did take place between Horrigan and Christy and Ted. By the terms of that promise, Christy and Ted were to invest their funds into the renovation of their grandparent's property and, in exchange, Horrigan was to execute a will leaving the land to Christy and Ted, reserving a life estate in his wife Sue. In citing Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730 (1946) the Court held that once the will was provided by Horrigan, the Statute of Frauds no longer applied and the contract to will became irrevocable, although the will could not be produced.

¶ 15. The Horrigans argue that the court was incorrect in holding that the decedent executed a holographic will which Christy and Ted relied on as there was never any evidence of such a writing. The Horrigans point out that the only witness who purportedly saw the will was Ted Bilbo, Sr. who could not recall at trial any words contained in the document. The Horrigans distinguish the Johnston case by pointing out that it did not involve an oral promise to convey land, but to execute a will and that in the case at hand there is no substantial proof of such a will.

¶ 16. The Horrigans further argue that the majority of cases in Mississippi hold a contract to devise or bequeath property by will to be enforceable but ordinarily, pursuant to the Statute of Frauds, must be in writing. Estate of McKellar v. Brown, 404 So.2d 550 (Miss.1981). Even if proven, an oral agreement to convey land by will is within the Statute of Frauds, and specific performance of...