Ross v. Brasell

Decision Date12 August 1987
Docket NumberNo. 56776,56776
Citation511 So.2d 492
PartiesPatricia Brasell ROSS v. Leslie Banks BRASELL and William Michael Brasell.
CourtMississippi Supreme Court

Ann H. Lamar, Lamar & Lamar, Senatobia, for appellant.

Briggs Smith, Smith, Phillips & Mitchell, Batesville, for appellee.

Before HAWKINS, P.J., and ROBERTSON and ANDERSON, JJ.

ANDERSON, Justice, for the Court:

This is an appeal from the Chancery Court of Panola County wherein the chancellor denied appellant's motion to compel an inventory of the estates of Juanita Banks Brasell and Leslie W. Brasell.

The Brasell family owned considerable property, including the John Deere dealership in Batesville and a 1,400 acre agricultural enterprise named Brasell Farms, Inc. Leslie W. Brasell and his wife Juanita Banks Brasell began planning their estate in 1975 with the aid of their lawyer, Robert Riser. At that time, both Mr. and Mrs. Brasell owned stock in Brasell Farms, Inc.; they decided to resell their stock to the corporation. At a meeting of the board on December 30, 1975, Mr. and Mrs. Brasell offered their shares to the corporation. They agreed to accept the corporation's note in exchange for their shares at an interest rate of 6% to be paid at the $501 per month. On January 6, 1976, the notes were executed separately in the amount of $77,000 each to Mr. and Mrs. Brasell.

On May 26, 1977, the Brasells executed separate wills. Juanita Banks Brasell died on October 24, 1980. Her widower, Leslie, was executor of her will, but died himself on October 13, 1982. His sons, Leslie Banks Brasell and William Michael Brasell, were appointed joint executors of Mr. Brasell's will. They were also appointed administrators de bonis non for the will of Mrs. Brasell. Leslie Banks Brasell, William Michael Brasell and Patricia Brasell Ross, the children of the couple, were the sole beneficiaries under both wills. Patricia filed a petition for inventory of both wills. Leslie Banks and William compiled the inventories, but Patricia objected to their approval and filed a motion to compel a perfect inventory of both estates. The joint administrators countered with a petition asking the chancellor to construe certain provisions of the will of Juanita Banks Brasell.

There are two points of controversy between Patricia and the joint administrators. One concerns whether or not Juanita Brasell owned certain silverware at the time of her death. Item III in the will of Juanita The second item of controversy in the wills concerns promissory notes. Item II of Juanita's will states: "I give and bequeath unto my sons, Leslie Banks Brasell and William Michael Brasell in equal shares such promissory note or notes from them with any accumulated interest thereon due and not paid." Item II of Leslie Brasell's will states: "I give and bequeath unto my sons Leslie Banks Brasell and William Michael Brasell in equal shares such promissory note or notes from them with any accrued interest which I may hold at the time of my death." The joint executors take the position that the promissory notes referred to in the wills are the two promissory notes executed by Brasell Farms, Inc. in 1976 and exchanged for the resale of the elder Brasells' stock to the corporation. Patricia on the other hand argues that since the wills refer to promissory notes "from them" this does not include the promissory notes executed by the corporation.

                Banks Brasell states:  "I give and bequeath unto my husband Leslie W. Brasell a life estate in and to all my personal effects and household goods, with remainder in fee simple absolute to my daughter, Patricia Brasell Ross."   In controversy are eight place settings of Rosepoint silver which were in possession of Juanita's granddaughter, Michelle Brasell at the time of Juanita's death.  Patricia contends that this silver should have been included in the estate inventory and consequently should have passed to her when Leslie Brasell's life estate terminated with his death.  The joint executors, on the other hand, contend that Mrs. Brasell made a gift of the silverware to Michelle before her death
                

In the matter of the silverware, the chancellor, after hearing testimony found that there had been a valid gift inter vivos from Juanita to her granddaughter. As to the matter of the promissory notes, the chancellor, (over the appellant's objections), admitted parol evidence to determine the testators' intent. After hearing the testimony of Riser, the lawyer who helped prepare the wills, he concluded that the testators had meant to bequeath those promissory notes from Brassel Farms, Inc. that were executed in their favor in exchange for the resale of their stock to the corporation.

LAW
I. Did the chancellor err in admitting parol evidence to determine the intent of the testators?

It is the rule in Mississippi, as elsewhere, that if the terms of a will are ambiguous, parol evidence may be admitted to determine the intent of the testator. E.g., Tinnin v. First Bank of Mississippi, 502 So.2d 659, 670 (Miss.1987); Maupin v. Estate of Perry, 396 So.2d 613, 615 (Miss.1981); Strickland v. Delta Investment Co., 163 Miss. 772, 781, 137 So. 734, 736 (1931). However, if the will is unambiguous and the intent of the testator can be discerned from the face of the document, the admission of such evidence is improper. E.g., Stovall v. Stovall, 360 So.2d 679, 681 (Miss.1978); Seal v. Seal, 312 So.2d 19, 21 (Miss.1975); In re Estate of Granberry, 310 So.2d 708, 710-12 (Miss.1975)

The chancellor allowed the attorney Riser to testify in support of the appellee's contention that the Brasells meant to include the promissory notes executed to them in exchange for their stock in the bequest referring to "promissory notes." Patricia, on appeal, takes the position that since both wills refer to promissory notes "from them" [i.e., from the joint executors] and the promissory notes in question were executed not by the brothers as individuals, but by the corporation, the wills are not ambiguous as to those promissory notes. Patricia contends that whatever promissory notes were intended by the wills did not encompass the promissory notes from the stock transaction since these notes were not "from them." Brasell Farms, Inc. was a closely held corporation in which all stock was held by family members.

Patricia further argues that even if the will were ambiguous, the chancellor did not make an explicit finding of ambiguity; she contends this is an absolute prerequisite for the admission of any parol evidence. Seal v. Seal, 312 So.2d 19, 21 (Miss.1975).

This is true, but it is also true that where a chancellor does not make explicit findings, this Court on appeal will assume that all disputed issues were resolved in favor of the appellees. This is so even in cases where the chancellor's findings "left much to be desired." Bryant v. Cameron, 473 So.2d 174, 179 (Miss.1985). This Court has recognized that a chancellor may make an implicit as well as explicit finding. Spain v. Holland, 483 So.2d 318, 320 (Miss.1986); Dungan v. Dick Moore, Inc., 463 So.2d 1094, 1100 (Miss.1985); In re Enlargement of Boundaries of Yazoo City, 452 So.2d 837, 842 (Miss.1984). In the present case the chancellor's action in admitting the parol evidence makes no sense unless he had come to the conclusion that the will was in fact ambiguous.

Where a will disposes of property, by a definite description, parol evidence is not admissible to contradict or vary that description. Barner v. Lehr, 190 Miss. 77, 199 So. 273 (1941). On the other hand, where the language of the will could apply to more than one item of property, parol evidence is admissible to determine which property the testator intended to bequeath. Carlisle v. Carlisle's Estate, 252 So.2d 894 (Miss.1971); Welch v. Welch, 147 Miss. 728, 113 So. 197 (1927). The question in the present case is whether or not the inclusion of the phrase "from them" makes the description of the promissory notes definite enough to exclude the notes executed by the corporation.

In practice, Mississippi has tended to be liberal in the admission of such evidence, even where the document on its face appears unambiguous. An excellent example is the case of Maupin v. Est. of Perry, 396 So.2d 613 (Miss.1981). This involved a will whose residuary clause specified that the testator's surviving...

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