Torian's Estate, In re, 48377

• Decision Date: 03 November 1975
• Docket Number: No. 48377,48377
• Citation: 321 So.2d 287
• Parties: In re ESTATE of Lula S. TORIAN. Ralph CRUM et al. v. FIRST NATIONAL BANK OF MEMPHIS, Executor and Dorothy Hope Sullivan, et al.
• Court: Mississippi Supreme Court

Page 287

321 So.2d 287

In re ESTATE of Lula S. TORIAN Ralph CRUM et al. v. FIRST NATIONAL BANK OF MEMPHIS, Executor and Dorothy Hope Sullivan, et al.

No. 48377.

Supreme Court of Mississippi.

Nov. 3, 1975.

Butler, Snow, O'Mara, Stevens & Cannada, Lawrence J. Franck, Jay A. Travis, III, Jackson, for appellants.

Holcomb, Dunbar, Connell, Merkel & Tollison, Clarksdale, for appellees.

Before PATTERSON, INZER and WALKER, JJ.

INZER, Justice:

This is an appeal by Ralph Crum and others, the residuary legatees of the will of Lula S. Torian, from a decree of the Chancery Court of DeSoto County denying the petition of the executor to withdraw the original will and to transfer jurisdiction to the state of the domicile of the deceased, and from an adjudication that the estate tax is to be paid out of the residue of the estate. We affirm.

Mrs. Lula B. Sullivan Torian died on October 24, 1972, leaving a last will and testament executed on February 17, 1970, and two codicils, one dated March 26, 1970, and the other dated January 27, 1971. The will and codicils were executed in DeSoto County. The codicil dated March 26, 1970, appointed the First National Bank of Memphis as executor and directed that the executor use the law firm to which Joel Walker belonged in Hernando, Mississippi, as attorneys for the executor because of his long association with the family.

At the time of her death and at the time the wills and codicils were executed, Mrs. Torian's legal domicile was in West Memphis, Arkansas. After her death, the executor filed a petition to probate the original will in DeSoto County. The petition alleged that the testatrix was a resident of Arkansas, that at the time of her death she owned no real property in Arkansas, and that she owned approximately 900 acres of land in DeSoto County, and that the probate of the will in DeSoto County, Mississippi, where the bulk of her estate was situated was necessary and desirable. On November 3, 1972, an order was entered admitting the will to probate and appointing the First National Bank of Memphis executor without bond. The executor qualified and letters testamentary were issued to it. Notice to creditors was published as required by law.

Clause I of the will as amended by the second codicil dated January 27, 1971, devised to Mrs. Torian's husband and the nine appellants herein all of her stock in Schlering-Plough Corporation to be shared equally. Clause II of the will devised to Ralph Crum, one of the appellants herein, nine or ten acres of land in DeSoto County, known as part of the 'Old Cheatum Place.' Clause III of the will bequeathed to her husband H. G. Torian $10,000 cash. Clause IV of the will devised $200 to the Methodist Children's Home in Jackson, and $2,000 to the Methodist Hospital in Memphis.

Clause V of the will devised to Dorothy Hope Sullivan, Robert Lamb Sullivan, David Sullivan and Warren Ware Sullivan all the remainder of decedent's land in DeSoto County consisting of 920 acres to be shared equally.

In Clause VII the testatrix provided that all the rest, residue and remainer, including any lapsed legacies in cash that she had left, was devised and bequeathed to the appellants, share and share alike.

On July 26, 1973, the executor filed a petition styled 'Petition of Executor for Permission to Withdraw Original Will.' The executor alleged that an authenticated copy of the will of Mrs. Torian had been probated in the Probate Court of Crittenden County, Arkansas, and that the bank had been appointed executor by the Arkansas Court. However, the executor alleged that there was some question about the validity of probate of the authentic copy of the will executed by a resident of Arkansas and that no authority appeared to exist to probate a copy of an original will of a resident of Arkansas.

The reasons given in the petition for the request that the original will be transferred to Arkansas was that decedent's will and codicil both stated that she was a resident of Arkansas, that at the time of her death she was married to Mr. Torian who was and still is a resident of Arkansas and that she died in Arkansas. Furthermore, the testatrix and her husband resided on property in West Memphis, Arkansas, to which reference was made in her will. All parties in interest were made parties defendant to the petition and process was issued for them.

The appellants, who are the residuary legatees, answered and joined in the prayer of the executor to be allowed to withdraw the original will so that it could be probated in Arkansas.

The appellees, all residents of Mississippi, to whom the 920 acres of land in DeSoto County was devised, answered the petition and denied that Mrs. Torian owned any land in Crittenden County, Arkansas, that was subject to probate. Appellees further alleged that the value of her personal estate in Arkansas was less than $3,000 and that under the laws of Arkansas no administration of the estate was necessary. The answer alleged that the probate of the original will in DeSoto County was proper and that Section 509, Mississippi Code 1942 Annotated, prohibited the withdrawal of the original will after probate in Mississippi. The answer was made a cross-bill against the executor and alleged that the estate of Mrs. Torian was of such size that payment of federal estate taxes was required; that such taxes had not been paid; and that the non-payment of such taxes unnecessarily encumbered the title to the cross-respondents to the land devised to them. Cross-petitioners prayed that the executor be required to pay the proper estate taxes and to allocate the burden of such taxes as required by the laws of the State of Mississippi.

In answer to the cross-bill, the executor and appellants admitted that the estate would owe federal estate taxes, but alleged that a controversy existed between the beneficiaries of the estate as to the domicile of the decedent and the related question of which state's law should determine the proration of such taxes. The executor contended that since the decedent was a resident of Arkansas, the liability of the parties for the payment of the estate taxes should be determined by the probate court of the county in which the decedent was domiciled at the time of her death.

The pleadings raised two issues: one, whether the executor should be allowed to withdraw the original will in order that it would be probated in Arkansas; and two, if not so allowed to withdraw the original will, whether the Mississippi law or Arkansas law should be applied as to the payment of federal estate taxes.

The testimony reveals that Mrs. Torian, prior to her marriage to Mr. Torian in 1960, had lived in DeSoto County for many years. She was a good business woman and was successful in operating her farming interests. She did her banking with the First National Bank in Memphis. At the time she married Mr. Torian she was 79 years of age. It was her first marriage and Mr. Torian was a widower who had retired. He evidently was a man of modest means and maintained a small residence in West Memphis, Arkansas.

After her marriage she lived with her husband in West Memphis, but continued to maintain her large home in DeSoto County and kept it staffed with two servants. Electrical and telephone service continued in the home, and some clothing and food were kept there. She also kept some of her jewelry in a safe. Until the last year before her death, Mrs. Torian came to Mississippi every week or two and would stay a day or two at a time and on occasions stayed much longer. She continued to supervise her farming interests, to keep her membership in the Methodist Church at Walls, Mississippi and to vote in Mississippi, she last voted in the two primaries and the general election in 1971. After her marriage, Mrs. Torian continued to refer to DeSoto County as her home.

At the time of her death, the only real property Mrs. Torian owned in Arkansas was an interest in the home in which she and Mr. Torian resided. The title to the property was in both parties as an estate in entirety and it passed to Mr. Torian by operation of law. She owned no personal property located in Arkansas except some personal effects and household furnishings valued less than $3,000.

Her bank accounts were all with Memphis banks and her stocks and bonds were in a lock box in the First National Bank of Memphis. After her death and after the will was probated in Mississippi, the executor took charge of these assets amounting to approximately $486,000.

The chancellor found that in view of the express provisions of Section 91-7-33, Mississippi Code 1972 Annotated, the original will was properly probated in DeSoto County, Mississippi, and that by virtue of Section 91-7-31, the original will could not be withdrawn from the clerk's office.

The chancellor further found that by virtue of her being married and living with her husband whose domicile was in Arkansas, the testatrix was legally domiciled in Arkansas at the time of her death, but in her own mind, her home and only home was in Mississippi. In the chancellor's opinion he stated that he found from the evidence that Mrs. Torian intended for her estate to be wound up in accordance with Mississippi law. As we construe his opinion, we determine that for that and other reasons, the chancellor found that the contacts of the forum state were of greater significance than those of the domiciliary state.

A decree was entered dismissing the petition to transfer jurisdiction to the probate court in Arkansas and directing that the estate taxes and all other liabilities of the estate, including administration expenses, be paid from the residuary estate.

On appeal, appellants argue two points, for reversal of this case. Point I is as follows: Although the Mississippi court had jurisdiction to admit the will of the non-resident testatrix to probate, nevertheless, since the executor probated the will in this state by mistake and thereafter...