Chapter 1. Descent and Distribution

§ 91-1-1. What law to govern.

All personal property situated in this state shall descend and be distributed according to the laws of this state regulating the descent and distribution of such property, regardless of all marital rights which may have accrued in other states, and notwithstanding the domicile of the deceased may have been in another state, and whether the heirs or persons entitled to distribution be in this state or not. The widow of such deceased person shall take her share in the personal estate according to the laws of this state.

HISTORY: Codes, 1857, ch. 60, art. 110; 1871, § 1950; 1880, § 1270; 1892, § 1542; 1906, § 1648; Hemingway’s 1917, § 1380; 1930, § 1401; 1942, § 467.

Cross References —

Computation of relationship according to civil law, see §§1-3-71,1-3-73.

Refund of federal and state taxes to survivor of deceased, see §27-73-9.

Petition to establish title of property acquired by descent, see §§91-1-27 et seq.

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. Application.

3. —Particular personalty.

1. In general.

Courts cannot ingraft exceptions on the statute. Williams v. Lee, 130 Miss. 481, 94 So. 454, 1922 Miss. LEXIS 225 (Miss. 1922).

Wife not estopped by silence with knowledge of pretended second marriage to assert right of inheritance. Williams v. Lee, 130 Miss. 481, 94 So. 454, 1922 Miss. LEXIS 225 (Miss. 1922).

Payment of debt having situs in Mississippi to foreign administrator is no defense against heirs. Richardson v. Neblett, 122 Miss. 723, 84 So. 695, 1920 Miss. LEXIS 472 (Miss. 1920).

The effect of the statute is to abolish ancillary administrations in this state altogether. Carroll v. McPike, 53 Miss. 569, 1876 Miss. LEXIS 118 (Miss. 1876); Partee v. Kortrecht, 54 Miss. 66, 1876 Miss. LEXIS 12 (Miss. 1876).

The statute makes the local law the rule of distribution. Wilson v. Cox, 49 Miss. 538, 1873 Miss. LEXIS 142 (Miss. 1873).

2. Application.

Although the Uniform Commercial Code may govern whether a certificate of deposit passes to the estate or under a presumed joint tenancy, it does not determine who takes a certificate of deposit once it is in the estate. Matter of Zimmerman v. Corely, 519 So. 2d 430 (Miss. 1988).

But where the owner of the debt so deals with it as to establish an intention to locate it here, or if the debt arose as an incident to a business conducted in this state, the statute applies. Jahier v. Rascoe, 62 Miss. 699, 1885 Miss. LEXIS 127 (Miss. 1885).

The statute does not per se localize here all debts which are due by residents of this state to persons domiciled out of it. Speed v. Kelly, 59 Miss. 47, 1881 Miss. LEXIS 73 (Miss. 1881).

The statute applies in cases of partial intestacy. Wilson v. Cox, 49 Miss. 538, 1873 Miss. LEXIS 142 (Miss. 1873).

The statute applies only to the estates of intestates. The renunciation of a will by a widow will not make the statute applicable. Slaughter v. Garland, 40 Miss. 172, 1866 Miss. LEXIS 60 (Miss. 1866).

3. —Particular personalty.

Stock in Mississippi corporation, owned by person domiciled in Minnesota at the time of death, has its situs in Mississippi, and distribution is controlled by law of the state. Ewing v. Warren, 144 Miss. 233, 109 So. 601, 1926 Miss. LEXIS 342 (Miss. 1926).

Money, deposited in a bank within the state, belonging to person domiciled in another state at time of death, will be distributed under Mississippi law. Ewing v. Warren, 144 Miss. 233, 109 So. 601, 1926 Miss. LEXIS 342 (Miss. 1926).

Rent on land in Mississippi is a debt governed by its laws. Richardson v. Neblett, 122 Miss. 723, 84 So. 695, 1920 Miss. LEXIS 472 (Miss. 1920).

Descent of the leasehold interest in school lands situated within the state, owned by testatrix domiciled outside of the state, is to be governed by the laws of the state, and of legacy of such interest lapses on the death of the legatee without children, though under the statute of the domicile of testatrix it would not lapse. Neblett v. Neblett, 112 Miss. 550, 73 So. 575, 1916 Miss. LEXIS 145 (Miss. 1916).

Stock of Mississippi bank owned by nonresident had situs in Mississippi and was liable to claims of creditors of estate, and was not exempt to widow. Jane v. Martinez, 104 Miss. 208, 61 So. 177, 1913 Miss. LEXIS 20 (Miss. 1913).

The personal estate of a young unmarried man who leaves his parental home in another state and in search of health, or a suitable field of labor, acquires a domicile in this state but abandons it and returns to his original domicile, is not distributable according to the laws of this state. Mayo v. Equitable Life Assurance Soc., 71 Miss. 590, 15 So. 791, 1893 Miss. LEXIS 123 (Miss. 1893).

RESEARCH REFERENCES

ALR.

Conflict of laws regarding election for or against will, and effect in one jurisdiction of election in another. 69 A.L.R.3d 1081.

Am. Jur.

23 Am. Jur. 2d, Descent and Distribution §§ 12, 13.

CJS.

26B C.J.S., Descent and Distribution §§ 7, 8.

Law Reviews.

1987 Mississippi Supreme Court Review, Wills and estates. 57 Miss. L. J. 542, August, 1987.

1987 Mississippi Supreme Court Review, Trusts. 57 Miss. L. J. 555, August, 1987.

Weems and Evans, Mississippi law of intestate succession, wills, and administration and the proposed Mississippi Uniform Probate Code: a comparative analysis. 62 Miss. L. J. 1, Spring, 1992.

Practice References.

Bickel and Flannery, Living Trusts: Forms and Practice (Matthew Bender).

Burke, Friel, and Gagliardi, Modern Estate Planning, Second Edition (Matthew Bender).

Christensen, International Estate Planning, Second Edition (Matthew Bender).

Mobley, Robinson and Hedrick, Pritchard on the Law of Wills and Administration of Estates, Seventh Edition (Michie).

Rapkin, Planning for Large Estates (Matthew Bender).

Schoenblum, Estate Planning Forms and Clauses with CD Rom (Matthew Bender).

Wyatt, Trust Administration and Taxation (Matthew Bender).

LexisNexis® CD – Estate Planning Package (CD-ROM) (LexisNexis).

Murphy’s Will Clauses: Annotations and Forms with Tax Effects (Matthew Bender).

§ 91-1-3. Descent of land.

When any person shall die seized of any estate of inheritance in lands, tenements, and hereditaments not devised, the same shall descend to his or her children, and their descendants, in equal parts, the descendants of the deceased child or grandchild to take the share of the deceased parent in equal parts among them. When there shall not be a child or children of the intestate nor descendants of such children, then to the brothers and sisters and father and mother of the intestate and the descendants of such brothers and sisters in equal parts, the descendants of a sister or brother of the intestate to have in equal parts among them their deceased parent’s share. If there shall not be a child or children of the intestate, or descendants of such children, or brothers or sisters, or descendants of them, or father or mother, then such estate shall descend, in equal parts, to the grandparents and uncles and aunts, if any there be; otherwise, such estate shall descend in equal parts to the next of kin of the intestate in equal degree, computing by the rules of the civil law. There shall not be any representation among collaterals, except among the descendants of the brothers and sisters of the intestate.

HISTORY: Codes, Hutchinson’s 1848, ch. 44, art. 2 (50); 1857, ch. 60, art. 110; 1871, § 1948; 1880, § 1271; 1892, § 1543; 1906, § 1649; Hemingway’s 1917, § 1381; 1930, § 1402; 1942, § 468; Laws, 1952, ch. 252, § 1.

Cross References —

Computation of relationship according to civil law, see §§1-3-71,1-3-73.

Fraudulently producing child with intent to intercept inheritance, see §97-19-45.

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. Construction and application in general.

2. Application in particular circumstances.

3. —Relatives of half blood.

4. —Exempt property.

1. Construction and application in general.

Under Miss. Code Ann. §91-1-3, since decedent had no spouse or children, his heirs at law were his brother, sisters, mother and the descendants of his deceased brother and sister in equal parts; the decedent’s illegitimate children, having failed to file suit to determine legitimacy within the limitation period, had made moot any consideration of whether or not they were legitimate heirs. In re Estate of Thomas, 881 So. 2d 257, 2003 Miss. App. LEXIS 996 (Miss. Ct. App. 2003), rev'd, 883 So. 2d 1173, 2004 Miss. LEXIS 1269 (Miss. 2004).

Collateral heirs, under statute of descent and distribution for real property, may take only if there is no surviving spouse or child. Daniel v. Snowdoun Asso., 513 So. 2d 946, 1987 Miss. LEXIS 2840 (Miss. 1987).

The nephews and nieces of an intestate decedent, who were children of his whole-blood brothers, succeeded to his entire estate to the exclusion of his half-blood sister, under §§91-1-5 and91-1-3, since his whole-blood brothers would have been his sole and only surviving legal heirs to the exclusion of his half-blood sister, and their children occupied the same position as their parents, by right of representation. Jones v. Stubbs, 434 So. 2d 1362, 1983 Miss. LEXIS 2741 (Miss. 1983).

A claim of inheritance based upon an alleged oral contract of adoption made many years prior to the death of the intestate, will not be recognized. Brassiell v. Brassiell, 228 Miss. 243, 87 So. 2d 699, 1956 Miss. LEXIS 509 (Miss. 1956).

Husband is heir of wife, but not of wife’s parents, and he inherits no interest in lands of wife’s parents where wife predeceased parents, children of wife inheriting share of their mother. Dunaway v. McEachern, 37 So. 2d 767 (Miss. 1948).

The statutes on descent and distribution are not suspended by, and have no application to, the refusal of a court to set aside a divorce decree in an action brought by the surviving party to the divorce action. Stanley v. Stanley, 201 Miss. 545, 29 So. 2d 641, 1947 Miss. LEXIS 418 (Miss. 1947).

The right of an heir to the estate of a deceased person does not originate in the lifetime of the decedent. Covington v. Frank, 77 Miss. 606, 27 So. 1000, 1900 Miss. LEXIS 45 (Miss. 1900).

In a suit by the creditor of a deceased person to foreclose a mortgage, persons whose heirship is denied are competent witnesses to prove relationship. Covington v. Frank, 77 Miss. 606, 27 So. 1000, 1900 Miss. LEXIS 45 (Miss. 1900).

An equitable right to a cause of action on a debt accruing to two or more persons by descent from the creditor is a joint right. Stauffer v. British & American Mortg. Co., 77 Miss. 127, 25 So. 299, 1899 Miss. LEXIS 46 (Miss. 1899).

Preference is not given by the statute to relations of one side over those of the other. Doe ex dem. Hickey v. Gilbert, 2 Miss. 32, 1834 Miss. LEXIS 8 (Miss. 1834).

2. Application in particular circumstances.

Brother clearly had standing to challenge the transfer of the family farm from their mother to a revocable trust on the basis of undue influence because he was one of his mother’s heirs at law; if the conveyance of the property from his mother to the trust was set aside, the brother presumptively stood to inherit a child’s share of the property. Hodnett v. Hodnett, 269 So.3d 317, 2018 Miss. App. LEXIS 189 (Miss. Ct. App.), cert. denied, 258 So.3d 287, 2018 Miss. LEXIS 527 (Miss. 2018).

Although grandfather of two deceased children qualified as a “statutory heir” under Miss. Code Ann. §91-1-3, he did not qualify as a listed relative under Miss. Code Ann. §11-7-13, and would not have standing as such to bring a wrongful-death action. Burley v. Douglas, 26 So.3d 1013, 2009 Miss. LEXIS 538 (Miss. 2009).

Chancery court did not err in ruling that appellee was entitled to two shares of a decedent’s estate; while Miss. Code Ann. §91-1-3 preserved appellee’s right to inherit his mother’s portion of the decedent’s estate as his mother’s sole descendant, Miss. Code Ann. §93-17-13 provided that appellee would be treated as the decedent’s adopted brother for inheritance purposes. Jenkins v. Jenkins, 990 So. 2d 807, 2008 Miss. App. LEXIS 557 (Miss. Ct. App. 2008).

Question of whether party asserting interest in property, which had been inherited through Mississippi laws of descent and distribution, should be prohibited in equity from doing so was not appropriate matter for decision on motion for summary judgment, where heir at law did not intend to relinquish any inherited rights by signing final estate decree and signed for sole purpose of settling will contest between children and widow, where evidence existed that persons taking under estate decree also knew of and recognized interest of heir at law in property, and he took action to assert his interest in that property. Sumrall v. Doggett, 511 So. 2d 908, 1987 Miss. LEXIS 2612 (Miss. 1987).

When a person dies intestate his or her property passes in the manner provided by this section [Code 1942, § 468], unless there has been a statutory adoption of the child claiming the right of inheritance, and in the manner provided by the statute of adoption then in force. Brassiell v. Brassiell, 228 Miss. 243, 87 So. 2d 699, 1956 Miss. LEXIS 509 (Miss. 1956).

Where a testator bequeathed a portion of his estate to his brothers and sisters, with a share of any of brother or sister predeceasing the testator to go to his surviving child living at the time of the testator’s death, but provided also that where a brother or sister left no children the share should go to surviving brothers and sisters in equal shares, and where none of his brothers and sisters survived the testator, a bequest to his sister who left no children surviving her, lapsed. Meyers v. Teichman, 219 Miss. 860, 70 So. 2d 17, 1954 Miss. LEXIS 395 (Miss. 1954).

Where the grantor conveyed land to his daughter for and during her natural life and after her death the remainder in fee simple of children of her body, and the daughter had two children who predeceased her, but left children of her own surviving them, and the daughter died intestate, the grandchildren of the daughter took fee simple estate per stirpes and not per capita. Rodgers v. Rodgers, 218 Miss. 655, 67 So. 2d 698, 1953 Miss. LEXIS 584 (Miss. 1953).

A chart sets forth relationships and degrees of kindred according to the civil law. Owen v. State, 255 Ala. 354, 51 So. 2d 541, 1951 Ala. LEXIS 2 (Ala. 1951).

Title remained in grantor after executing deed of trust, and, on his death, property descended to his heirs. Wright v. Wright, 160 Miss. 235, 134 So. 197, 1931 Miss. LEXIS 202 (Miss. 1931).

Where land was devised by will to a husband for life and he died before the testatrix, there being no life estate in the property at the time of her death, it vested at once on her death in her legal heirs. Harvey v. Johnson, 111 Miss. 566, 71 So. 824, 1916 Miss. LEXIS 339 (Miss. 1916).

Where an intestate decedent left surviving uncles and aunts and cousins the descendants of aunts, who had died in his lifetime, the uncles and aunts inherited his property to the exclusion of his cousins, under this section [Code 1942, § 468]. Grantham v. Statham, 83 Miss. 176, 35 So. 423, 1903 Miss. LEXIS 28 (Miss. 1903).

3. —Relatives of half blood.

Second cousins of the whole blood and a first cousin of the half blood were collateral kindred to the intestate, as against the contention that descendants of first cousins of the whole blood should take to the exclusion of a first cousin of the half blood. Toomey v. Turner, 184 Miss. 831, 186 So. 301, 1939 Miss. LEXIS 54 (Miss. 1939).

Surviving parent of an unmarried intestate dying without issue inherited his real estate to the exclusion of his half-blood kindred. Aycock v. Aycock, 119 Miss. 641, 81 So. 482, 1919 Miss. LEXIS 42 (Miss. 1919).

Illegitimate son of sister of whole blood took intestate’s personalty to exclusion of children of sister of half blood. Davidson v. Brownlee, 114 Miss. 398, 75 So. 140, 1917 Miss. LEXIS 45 (Miss. 1917).

4. —Exempt property.

Bill attempting partition of exempt lands without widow’s consent, not demurrable where it also asks accounting for timber cut by widow. Gavin v. Gavin, 116 Miss. 197, 76 So. 879, 1917 Miss. LEXIS 307 (Miss. 1917).

Homestead not subject to an execution for alimony. Jackson v. Coleman, 115 Miss. 535, 76 So. 545, 1917 Miss. LEXIS 230 (Miss. 1917).

Consent of widow without which exempt property cannot be partitioned, being without consideration, may be withdrawn in the absence of intervening estoppel, any time before the property has been divided. Tiser v. McCain, 113 Miss. 776, 74 So. 660, 1917 Miss. LEXIS 152 (Miss. 1917).

Exempt property of decedent descending to the widow with others is used by her so long as its income is used for her support, whether or not she resides on it. Tiser v. McCain, 113 Miss. 776, 74 So. 660, 1917 Miss. LEXIS 152 (Miss. 1917).

Bill for partition, alleging land not homestead nor exempt, held good against demurrer. Tiser v. McCain, 113 Miss. 776, 74 So. 660, 1917 Miss. LEXIS 152 (Miss. 1917).

RESEARCH REFERENCES

ALR.

Descent and distribution to and among cousins. 54 A.L.R.2d 1009.

Descent and distribution to and among uncles and aunts. 55 A.L.R.2d 643.

Descent and distribution from stepparents to stepchildren or vice versa. 63 A.L.R.2d 303.

Right of heir or devisee to have realty exonerated from lien thereon at expense of personal estate. 4 A.L.R.3d 1023.

Am. Jur.

23 Am. Jur. 2d, Descent and Distribution § 18.

Am. Jur. 2d, Desk Book, Document No. 184, Tables of descent and distribution – computation of degrees of kindred.

8A Am. Jur. Pl & Pr Forms (Rev), Descent and Distribution, Forms 1 et seq. (petition or application – determination of heirship).

CJS.

26B C.J.S., Descent and Distribution §§ 7, 8.

§ 91-1-5. Half-bloods.

There shall not be, in any case, a distinction between the kindred of the whole and half-blood, except that the kindred of the whole-blood, in equal degree, shall be preferred to the kindred of the half-blood in the same degree.

HISTORY: Codes, Hutchinson’s 1848, ch. 44, art. 2 (50); 1857, ch. 60, art. 110; 1871, § 1949; 1880, § 1271; 1892, § 1544; 1906, § 1650; Hemingway’s 1917, § 1382; 1930, § 1403; 1942, § 469.

Cross References —

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. Applicability to illegitimates.

1. In general.

The nephews and nieces of an intestate decedent, who were children of his whole-blood brothers, succeeded to his entire estate to the exclusion of his half-blood sister, under §§91-1-5 and91-1-3, since his whole-blood brothers would have been his sole and only surviving legal heirs to the exclusion of his half-blood sister, and their children occupied the same position as their parents, by right of representation. Jones v. Stubbs, 434 So. 2d 1362, 1983 Miss. LEXIS 2741 (Miss. 1983).

Under the rule of the civil law, a first cousin, although of the half-blood, is nearer in degree of kindred to an intestate than a second cousin of the whole-blood. Mississippi State Highway Dep't v. Meador, 184 Miss. 381, 185 So. 816, 186 So. 642, 1939 Miss. LEXIS 47 (Miss. 1939).

Term “brothers and sisters” embraces brothers and sisters of whole and half-blood. Darrow v. Moore, 163 Miss. 705, 142 So. 447, 1932 Miss. LEXIS 85 (Miss. 1932).

Surviving parent of unmarried intestate took his real estate to the exclusion of half-blood kindred. Aycock v. Aycock, 119 Miss. 641, 81 So. 482, 1919 Miss. LEXIS 42 (Miss. 1919).

The descendants of the brothers and sisters of the whole-blood take in exclusion of the brothers and sisters of the half-blood. Scott v. Terry, 37 Miss. 65, 1859 Miss. LEXIS 4 (Miss. 1859).

By the common law, the kindred of the half-blood could not inherit real property. The object of the statute was to change that rule. Those of the whole-blood are preferred to those of the half-blood; but if there be none of the whole-blood, then those of the half-blood inherit. Fatheree v. Fatheree, 1 Miss. 311, 1828 Miss. LEXIS 4 (Miss. 1828); Hulme v. Montgomery, 31 Miss. 105, 1856 Miss. LEXIS 41 (Miss. 1856).

2. Applicability to illegitimates.

Where proponents of a will never denied that contestants were the natural grandchildren of the testator, and where, although there was no record of a divorce between the testator’s son, through whom the grandchildren sought to inherit, and his first wife, there was a ceremonial marriage between the son and his second wife, from which union the grandchildren were born, there was no impediment to their inheriting as lawful heirs-at-law of the testator’s son. Webster v. Kennebrew, 443 So. 2d 850, 1983 Miss. LEXIS 3056 (Miss. 1983).

This section [Code 1942, § 469] and Code 1942, § 474, are in pari materia and should be construed together. Taylor v. Jackson, 194 Miss. 441, 12 So. 2d 144, 1943 Miss. LEXIS 62 (Miss. 1943).

This statute is applicable to illegitimates as well as to legitimates when determining blood relationship for the purpose of inheritance, and permits the rights of illegitimates inter sese to be determined on the same basis as if they were legitimate and some of them were related to the intestate as of the whole-blood and some of the half-blood. Taylor v. Jackson, 194 Miss. 441, 12 So. 2d 144, 1943 Miss. LEXIS 62 (Miss. 1943).

Where it appeared that the father of an intestate and the mothers of several groups of claimants to intestate’s property were all illegitimate children of the same mother, but that the mother of one group had the same father as the intestate’s father, the latter group was entitled to take the property to exclusion of the other groups of claimants, since, although children of an illegitimate, they were kindred of the whole-blood to the intestate, while the other groups, also being children of illegitimates, were kindred of the half-blood by reason of their mothers having a different father. Taylor v. Jackson, 194 Miss. 441, 12 So. 2d 144, 1943 Miss. LEXIS 62 (Miss. 1943).

The legitimate children of an illegitimate father were entitled to inherit from the half-sister of their father, who died intestate, regardless of whether such half-sister was legitimate or illegitimate, where the intestate had no kindred of the whole-blood. Malone v. Pope, 189 Miss. 46, 196 So. 319, 1940 Miss. LEXIS 109 (Miss. 1940).

Illegitimate son of sister of whole-blood took intestate’s personalty to exclusion of children of sister of half-blood. Davidson v. Brownlee, 114 Miss. 398, 75 So. 140, 1917 Miss. LEXIS 45 (Miss. 1917).

RESEARCH REFERENCES

ALR.

Descent and distribution: rights of inheritance as between kindred of whole and half blood. 47 A.L.R.4th 561.

Am. Jur.

23 Am. Jur. 2d, Descent and Distribution §§ 71, 104-106.

9 Am. Jur. Proof of Facts, Pedigree, Proof No. 1 (establishing family relationship – testimony of party whose pedigree is in issue).

9 Am. Jur. Proof of Facts, Pedigree, Proof No. 2 (establishing family relationship – testimony of third person).

§ 91-1-7. Descent of property as between husband and wife.

If a husband die intestate and do not leave children or descendants of children, his widow shall be entitled to his entire estate, real and personal, in fee simple, after payment of his debts; but where the deceased husband shall leave a child or children by that or a former marriage, or descendants of such child or children, his widow shall have a child’s part of his estate, in either case in fee simple. If a married woman die owning any real or personal estate not disposed of, it shall descend to her husband and her children or their descendants if she have any surviving her, either by a former husband or by the surviving husband, in equal parts, according to the rules of descent. If she have children and there also be descendants of other children who have died before the mother, the descendants shall inherit the share to which the parent would have been entitled if living, as coheirs with the surviving children. If she have no children or descendants of them, then the husband shall inherit all of her property.

HISTORY: Codes, Hutchinson’s 1848, ch. 44, art. 3, 4; 1857, ch. 17, art. 1; 1871, § 1788; 1880, § 1771; 1892, § 1545; 1906, § 1651; Hemingway’s 1917, § 1383; 1930, § 1404; 1942, § 470.

Cross References —

Provision in will for husband or wife, see §91-5-23 et seq.

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general; legality of marriage.

2. Rights of widow.

3. Rights of widower.

4. Rights of children.

5. Divorce or separation as affecting rights of surviving spouse.

1. In general; legality of marriage.

No right to property vests by virtue of the marriage relationship alone prior to entry of a judgment or decree granting equitable or other distribution pursuant to dissolution of the marriage; thus, the rights of alienation and the laws of descent and distribution are not affected by the recognition of marital assets. Ferguson v. Ferguson, 639 So. 2d 921, 1994 Miss. LEXIS 352 (Miss. 1994).

While this statute [Code 1972, §91-1-7] controls the general descent of property as between husband and wife, the statute is not applicable to the descent of exempt property; Code 1972, §91-1-19 specifically controls the descent of exempt property. Weaver v. Blackburn, 294 So. 2d 786, 1974 Miss. LEXIS 1828 (Miss. 1974).

In the absence of proof of a subsequent bigamous marriage which could work an estoppel, one spouse is not barred from inheriting from the other on account of his or her abandonment, desertion, nonsupport, or adultery, and evidence of a wife’s adulterous conduct did not preclude her from taking her deceased husband’s estate as his sole heir at law. Rowell v. Rowell, 251 Miss. 472, 170 So. 2d 267, 1964 Miss. LEXIS 365 (Miss. 1964).

Where testator’s intention was that a class described as his heirs should be ascertained at the termination of a life estate given his widow, she does not take in virtue of this section [Code 1942, § 470]. Dailey v. Houston, 246 Miss. 667, 151 So. 2d 919, 1963 Miss. LEXIS 492 (Miss. 1963).

One who enters into a ceremonial marriage with another without obtaining a divorce from a former spouse is estopped from asserting a right to inherit from such former spouse. Harrison v. G. & K. Inv. Co., 238 Miss. 760, 115 So. 2d 918, 1959 Miss. LEXIS 546 (Miss. 1959), cert. denied, 363 U.S. 844, 80 S. Ct. 1614, 4 L. Ed. 2d 1728, 1960 U.S. LEXIS 822 (U.S. 1960).

Third ceremonial wife of deceased and his only child, the child of first ceremonial wife, are entitled to share deceased’s estate equally under laws of descent and distribution in this state, when presumption that all prior marriages of deceased had been dissolved prior to third ceremonial marriage is not overcome by competent evidence to contrary. Wallace v. Herring, 207 Miss. 658, 43 So. 2d 100, 1949 Miss. LEXIS 377 (Miss. 1949).

Marriage between white person and Negro valid in the State of Illinois where it was contracted and the parties continued to live, will be recognized in this state to the extent of permitting one spouse to inherit property from the other in this state. Miller v. Lucks, 203 Miss. 824, 36 So. 2d 140, 1948 Miss. LEXIS 325 (Miss. 1948).

Code of 1892, §§ 4496, 1545 (Code 1942, §§ 668, 470), must be construed together in determining rights of widow renouncing will. Callicott & Norfleet v. Callicott, 90 Miss. 221, 43 So. 616, 1907 Miss. LEXIS 83 (Miss. 1907).

Where testator had portioned off to and accepted releases from 3 of his 6 children, widow upon renouncing will was entitled to a one-fourth part of the estate. Callicott & Norfleet v. Callicott, 90 Miss. 221, 43 So. 616, 1907 Miss. LEXIS 83 (Miss. 1907).

2. Rights of widow.

The recording of a deed from the defendants’ predecessor’s widow to the complainants’ predecessor was the equivalent of actual knowledge by the defendant heirs that the complainants’ predecessor claimed adversely to them, where by its terms the deed purported to convey the entire interest, and the legal presumption that one cotenant holds property for the benefit of his cotenants as well as for himself was refuted and an ouster was affected. Hardy v. Lynch, 258 So. 2d 414, 1972 Miss. LEXIS 1495 (Miss. 1972).

Where a cotenant’s widow in possession claimed the property to the exclusion of the other cotenants for more than 10 years after the death of her husband, who had claimed the entirety of the property, and during such period the widow had received all benefits flowing from the land and had made all expenditures without accounting to anyone, there was the equivalent of an ouster of the other cotenants and she had clear full title by adverse possession, the fiduciary relationship usually presumed to exist between cotenants having no application here; since the circumstances surrounding the widow’s acquisition of title completely negated any such relation to the extent that it was the equivalent of an ouster of the other cotenants. Bayless v. Alexander, 245 So. 2d 17, 1971 Miss. LEXIS 1349 (Miss. 1971).

Where a husband and wife lived together for approximately 40 years, had no children, and where the husband predeceased the wife by approximately eight years, the wife became the owner of the property of her husband and had every right to devise it in any manner that she desired so long as the devise was not contrary to public policy, and the fact that her holographic will referred to a request of her husband, was no more than an explanation as to her reason for devising the property as she did, and was not an expression of the testamentary intent of the husband. Carlisle v. Carlisle, 233 So. 2d 803, 1970 Miss. LEXIS 1680 (Miss. 1970).

Evidence of a wife’s adulterous conduct did not preclude her from taking her deceased husband’s estate as his sole heir at law. Rowell v. Rowell, 251 Miss. 472, 170 So. 2d 267, 1964 Miss. LEXIS 365 (Miss. 1964).

A Tennessee court decree adjudging complainant to be the widow of the deceased and awarding her $6,000 in full settlement of any and all rights in the decedent’s estate and all rights to dower and homestead in the decedent’s real property, and which vested out of complainant all interest in the described Tennessee real property, but made no mention of decedent’s real property located in Mississippi, did not deprive complainant of her fee simple title to the Mississippi property, which she had acquired upon the death of a life tenant since the decedent left no children. Gillum v. Gillum, 230 Miss. 246, 92 So. 2d 665, 1957 Miss. LEXIS 364 (Miss. 1957).

Where the husband, as devisee under his mother’s will, had been vested at the time of his death with a fee simple title to a one-fourth interest in a plantation, his wife succeeded to that interest. Martin v. Eslick, 229 Miss. 234, 90 So. 2d 635, 1956 Miss. LEXIS 604 (Miss. 1956).

Wife as devisee of the usufruct of land under husband’s will, which made no further disposition, held entitled to absolute estate as heir upon death of husband without children or descendants. Lemon v. Rogge, 11 So. 470 (Miss. 1892).

3. Rights of widower.

Decedent’s husband was entitled to inherit an interest in land owned by his wife, even though he had entered into a consent decree in Michigan in which he relinquished his rights as heir of his wife, where the parties did not intend the Michigan decree to cover Mississippi lands; the testimony of husband that he shot his wife accidentally was properly admitted in evidence as an exception to the dead man’s statute; insofar as the shooting was not wilful, the husband was not barred from inheriting by statute. Bianchi v. Scott, 363 So. 2d 289, 1978 Miss. LEXIS 2191 (Miss. 1978).

Devise of a life estate in the whole of the property to husband does not militate against his inheriting a fraction of the remaining fee simple title which was not disposed of by the will. Williams v. Gooch, 208 Miss. 223, 44 So. 2d 57, 1950 Miss. LEXIS 241 (Miss. 1950).

Where testatrix devised a life estate in land to her husband then gave 50 per cent of the remainder in fee to two others leaving 50 per cent undisposed of, the undevised 50 per cent in fee descended to husband as sole heir at law of testatrix. Williams v. Gooch, 208 Miss. 223, 44 So. 2d 57, 1950 Miss. LEXIS 241 (Miss. 1950).

Husband is heir of wife, but not of wife’s parents, and he inherits no interest in lands of wife’s parents where wife predeceased parents, children of wife inheriting share of their mother. Dunaway v. McEachern, 37 So. 2d 767 (Miss. 1948).

Estate by curtesy abolished in 1880, and subsequent to that date land of wife passed to husband and children as tenants in common, and conveyance by husband vested grantee with an undivided interest. Hauer v. Davidson, 113 Miss. 696, 74 So. 621, 1917 Miss. LEXIS 147 (Miss. 1917).

4. Rights of children.

Son, one of ten adult heirs of deceased father, who paid to his mother $400 which was owing to father on purchase of homestead, there being no administrator and no agent appointed by heirs authorized to receive payment, is not entitled to be credited with $250 paid to mother as allowance to widow, as widow had only a one-tenth interest in this $400, in suit in which heirs claim balance due them on purchase price of land. Davis v. Davis, 205 Miss. 794, 39 So. 2d 486, 1949 Miss. LEXIS 465 (Miss. 1949).

Unadopted illegitimate child of deceased veteran who, while in army, declared in writing that child was his in order to obtain allotment for her, held not entitled to inherit share payable under veteran’s war risk policy as “heir” within World War Veterans’ Act construed in connection with Mississippi laws of descent and distribution, there being no conflict between federal and state laws. Moyse v. Laughlin, 177 Miss. 751, 171 So. 784, 1937 Miss. LEXIS 153 (Miss. 1937).

Word “child” means child with right to share in estate of intestate father; it does not include children portioned off or who have released their interest in the estate. Callicott & Norfleet v. Callicott, 90 Miss. 221, 43 So. 616, 1907 Miss. LEXIS 83 (Miss. 1907).

Children cannot have partition of exempt property while occupied or used by widow, nor an accounting by her for its use. Stevens v. Wilbourn, 88 Miss. 514, 41 So. 66, 1906 Miss. LEXIS 167 (Miss. 1906).

5. Divorce or separation as affecting rights of surviving spouse.

A decree of divorce from an insane wife, obtained by a husband who had previously entered into a ceremonial marriage with another, will not be disregarded in determining whether the husband may inherit because obtained to avoid a prosecution for bigamy. Harrison v. G. & K. Inv. Co., 238 Miss. 760, 115 So. 2d 918, 1959 Miss. LEXIS 546 (Miss. 1959), cert. denied, 363 U.S. 844, 80 S. Ct. 1614, 4 L. Ed. 2d 1728, 1960 U.S. LEXIS 822 (U.S. 1960).

Where the husband had legally married the intestate and they had lived together as man and wife in a home owned by the wife from the time of the marriage until two months prior to the wife’s death when the husband left the home because of fear of the wife’s brother, who had shot and driven the husband from the home, the husband was not estopped from asserting title to the home. Parsons v. Butler, 230 Miss. 830, 94 So. 2d 320, 1957 Miss. LEXIS 428 (Miss. 1957).

Contract between husband and wife in contemplation of divorce, whereby wife released all claims for alimony or property adjustment, held not to have affected rights of wife as widow where divorce was not granted before husband’s death. Kirby v. Kent, 172 Miss. 457, 160 So. 569, 1935 Miss. LEXIS 151 (Miss. 1935).

RESEARCH REFERENCES

ALR.

Validity and effect of will clause disinheriting children if surviving spouse elects to take against will. 32 A.L.R.2d 895.

Right of illegitimate child to take under testamentary gift to “children”. 34 A.L.R.2d 4.

Effect of divorce, separation, desertion, unfaithfulness, and the like, upon right to administer upon estate of spouse. 34 A.L.R.2d 876.

Separation agreement as barring rights of surviving spouse in other’s estate. 34 A.L.R.2d 1020.

Abandonment, desertion, or refusal to support on part of surviving spouse as affecting marital rights in deceased spouse’s estate. 13 A.L.R.3d 446.

Adultery on part of surviving spouse as affecting marital rights in deceased spouse’s estate. 13 A.L.R.3d 486.

Validity of inter vivos trust established by one spouse which impairs the other spouse’s distributive share or other statutory rights in property. 39 A.L.R.3d 14.

Conflict of laws regarding election for or against will, and effect in one jurisdiction of election in another. 69 A.L.R.3d 1081.

Effect of invalidity of provision conditioning testamentary gift upon divorce of beneficiary, on alternative provision conditioning gift upon spouse’s death. 74 A.L.R.3d 1095.

Devolution of gift over upon spouse predeceasing testator where gift to spouse fails because of divorce. 74 A.L.R.3d 1108.

Rights in decedent’s estate as between lawful and putative spouses. 81 A.L.R.3d 6.

Estoppel or laches precluding lawful spouse from asserting rights in decedent’s estate as against putative spouse. 81 A.L.R.3d 110.

Am. Jur.

23 Am. Jur. 2d, Descent and Distribution § 109 et seq.

CJS.

26B C.J.S., Descent and Distribution §§ 67, 68 et seq.

Law Reviews.

1978 Mississippi Supreme Court Review: Criminal Law and Procedure. 50 Miss. L. J. 59, March 1979.

§ 91-1-9. Descent of trust estates.

If any cestui que trust shall die leaving a trust in lands, tenements, or hereditaments in fee simple or in freehold, the trust shall descend as real estate if not disposed of by will, or if not inconsistent with the declaration of the trust.

HISTORY: Codes, 1880, § 1272; 1892, § 1546; 1906, § 1652; Hemingway’s 1917, § 1384; 1930, § 1405; 1942, § 471.

Cross References —

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81.

§ 91-1-11. Personal estate to descend as real estate.

When any person shall die possessed of goods and chattels or personal estate not bequeathed, the same shall descend to and be distributed among his or her heirs in the same manner that real estate not devised descends.

HISTORY: Codes, Hutchinson’s 1848, ch. 44, art. 2 (52); 1857, ch. 60, art. 111; 1871, § 1951; 1880, § 1273; 1892, § 1547; 1906, § 1653; Hemingway’s 1917, § 1385; 1930, § 1406; 1942, § 472.

Cross References —

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

The assignment to an insurance company by the widow of a claim for the destruction of an automobile owned by her deceased husband does not give the assignee any claim in preference to the creditors of the estate of the decedent. Potts v. Montgomery, 237 So. 2d 124, 1970 Miss. LEXIS 1505 (Miss. 1970).

Where no administrator is appointed, personalty descends to heir as if realty. Richardson v. Neblett, 122 Miss. 723, 84 So. 695, 1920 Miss. LEXIS 472 (Miss. 1920).

Illegitimate son of sister of whole-blood took intestate’s personalty to exclusion of children of sister of half-blood. Davidson v. Brownlee, 114 Miss. 398, 75 So. 140, 1917 Miss. LEXIS 45 (Miss. 1917).

The representatives of deceased heirs are entitled to share with the living heirs a sum of money appropriated by Congress to the administrator of their common ancestor in payment of a claim against the government. Nutt v. Forsythe, 84 Miss. 211, 36 So. 247, 1904 Miss. LEXIS 28 (Miss. 1904).

An equitable right to a cause of action on a debt accruing to two or more persons by descent from the creditor is a joint right. Stauffer v. British & American Mortg. Co., 77 Miss. 127, 25 So. 299, 1899 Miss. LEXIS 46 (Miss. 1899).

RESEARCH REFERENCES

Am. Jur.

23 Am. Jur. 2d, Descent and Distribution §§ 20, 22.

CJS.

26B C.J.S., Descent and Distribution §§ 7, 8, 16.

§ 91-1-13. Estate of testator not disposed of by will to descend.

All estate, real and personal, not devised or bequeathed in the last will and testament of any person shall descend and be distributed in the same manner as the estate of an intestate; and the executor or administrator shall administer the same accordingly.

HISTORY: Codes, 1857, ch. 60, art. 112; 1871, § 1952; 1880, § 1274; 1892, § 1548; 1906, § 1654; Hemingway’s 1917, § 1386; 1930, § 1407; 1942, § 473.

Cross References —

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. Application in particular circumstances.

1. In general.

Devise of a life estate in the whole of the property to husband does not militate against his inheriting a fraction of the remaining fee simple title which was not disposed of by the will. Williams v. Gooch, 208 Miss. 223, 44 So. 2d 57, 1950 Miss. LEXIS 241 (Miss. 1950).

Where testatrix devised a life estate in land to her husband then gave 50 per cent of the remainder in fee to two others leaving 50 per cent undisposed of, the undevised 50 per cent in fee descended to husband as sole heir at law of testatrix. Williams v. Gooch, 208 Miss. 223, 44 So. 2d 57, 1950 Miss. LEXIS 241 (Miss. 1950).

In suit to confirm title to land, seeking construction of will to effect that it did not convey title to the land because it was devised to no named legatees, all the beneficiaries should have been under valid process. Dorsey v. Sullivan, 199 Miss. 602, 24 So. 2d 852, 1946 Miss. LEXIS 231 (Miss. 1946).

When no administrator is appointed, or necessary, personal property descends directly to heir the same as real property. Richardson v. Neblett, 122 Miss. 723, 84 So. 695, 1920 Miss. LEXIS 472 (Miss. 1920).

2. Application in particular circumstances.

Property that a Chapter 13 debtor inherited from her mother, pursuant to Miss. Code Ann. §91-1-3, before the debtor declared bankruptcy was part of the debtor’s bankruptcy estate. The property passed to the debtor and her siblings when their mother died, the debtor lived on the property, and she had a possessory interest in the property that was sufficient to satisfy the requirements of 11 U.S.C.S. § 541. Jackson v. Priority Trs. Servs. of Miss. L.L.C. (In re Jackson), 392 B.R. 666, 2008 Bankr. LEXIS 2239 (Bankr. S.D. Miss. 2008).

§ 91-1-15. Descent among illegitimates; definitions.

  1. The following terms shall have the meaning s ascribed to them herein:
    1. “Remedy” means the right of an illegitimate to commence and maintain a judicial proceeding to enforce a claim to inherit property from the estate of the natural mother or father of such illegitimate, said claim having been heretofore prohibited by law, or prohibited by statutes requiring marriage between the natural parents, or restrained, or enjoined by the order or process of any court in this state.
    2. “Claim” means the right to assert a demand on behalf of an illegitimate to inherit property, either personal or real, from the estate of the natural mother or father of such illegitimate.
    3. “Illegitimate” means a person who at the time of his birth was born to natural parents not married to each other and said person was not legitimized by subsequent marriage of said parents or legitimized through a proper judicial proceeding.
    4. “Natural parents” means the biological mother or father of the illegitimate.
  2. An illegitimate shall inherit from and through the illegitimate’s mother and her kindred, and the mother of an illegitimate and her kindred shall inherit from and through the illegitimate according to the statutes of descent and distribution. However, if an illegitimate shall die unmarried and without issue, and shall also predecease the natural father, the natural mother or her kindred shall not inherit any part of the natural father’s estate from or through the illegitimate. In the event of the death of an illegitimate, unmarried and without issue, any part of the illegitimate’s estate inherited from the natural father shall be inherited according to the statutes of descent and distribution.
  3. An illegitimate shall inherit from and through the illegitimate’s natural father and his kindred, and the natural father of an illegitimate and his kindred shall inherit from and through the illegitimate according to the statutes of descent and distribution if:
    1. The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or
    2. There has been an adjudication of paternity or legitimacy before the death of the intestate; or
    3. There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under Sections 91-1-27 and 91-1-29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child. This one-year limitation shall be self-executing and may not be tolled for any reason, including lack of notice. If an administrator is appointed for the estate of the intestate and notice to creditors is given, then the limitation period shall be reduced to ninety (90) days after the first publication of notice, if less than one (1) year from the date of the intestate’s death; provided actual, written notice is given to all potential illegitimate heirs who could be located with reasonable diligence. No claim of inheritance based on an adjudication of paternity, after death of the intestate, by a court outside the State of Mississippi shall be recognized unless:
      1. Such court was in the state of residence of the intestate at the time of the intestate’s death;
      2. The action adjudicating paternity was filed within ninety (90) days after the death of the intestate;
      3. All known heirs were made parties to the action; and
      4. Paternity or legitimacy was established by clear and convincing evidence.
    4. The natural father of an illegitimate and his kindred shall not inherit:
      1. From or through the child unless the father has openly treated the child as his, and has not refused or neglected to support the child.
      2. Any part of the natural mother’s estate from or through the illegitimate if the illegitimate dies unmarried and without issue, and also predeceases the natural mother. In the event of the death of an illegitimate, unmarried and without issue, any part of the illegitimate’s estate inherited from the mother shall be inherited according to the statutes of descent and distribution.

      A remedy is hereby created in favor of all illegitimates having any claim existing prior to July 1, 1981, concerning the estate of an intestate whose death occurred prior to such date by or on behalf of an illegitimate or an alleged illegitimate child to inherit from or through its natural father and any claim by a natural father to inherit from or through an illegitimate child shall be brought within three (3) years from and after July 1, 1981, and such time period shall run notwithstanding the minority of a child.

      The remedy created herein is separate, complete and distinct, but cumulative with the remedies afforded illegitimates as provided by the Mississippi Uniform Law on Paternity; provided, however, the failure of an illegitimate to seek or obtain relief under the Mississippi Uniform Law on Paternity shall not diminish or abate the remedy created herein.

  4. The children of illegitimates and their descendants shall inherit from and through their mother and father according to the statutes of descent and distribution.
  5. Nothing in this section shall preclude the establishment of paternity solely for the purpose of the illegitimate receiving social security benefits on behalf of the illegitimate’s natural father after one (1) year following the natural father’s death.

HISTORY: Codes, Hutchinson’s 1848, ch. 35, art. 2 (4); 1857, ch. 60, art. 115; 1871, § 1955; 1880, § 1275; 1892, § 1549; 1906, § 1655; Hemingway’s 1917, § 1387; 1930, § 1408; 1942, § 474; Laws, 1924, ch. 162; Laws, 1981, ch. 529, § 1; Laws, 1983, ch. 339; Laws, 2005, ch. 543, § 1; Laws, 2008, ch. 388, § 1, eff from and after July 1, 2008.

Editor’s Notes —

The Preamble to Chapter 339, Laws, 1983, provides as follows:

“WHEREAS, The Mississippi Legislature passed an act amending Section 91-1-15, Mississippi Code of 1972, and other sections of said code pertaining to the rights and claims of illegitimates, during the 1981 Regular Session, said amendment being effective from and after July 1, 1981; and

“WHEREAS, Section 91-1-15 was so amended to provide for intestate succession among an illegitimate and the natural father and his kindred with certain limitations, and to afford unto all illegitimates without classification a remedy whereby they could enforce their substantive rights and claims of intestate succession as provided for in said amendment; and

“WHEREAS, the Legislature recognized that the decisions and statutes of this state existing prior to said amendment placed an insurmountable barrier to inheritance by illegitimates when compared to the rights of a legitimate person, and that said decisions and statutes effectively barred an unnecessarily large number of illegitimates from inheritance through their natural father as a result of certain classifications into which the illegitimate may be categorized in violation of equal protection under the law; and

“WHEREAS, it now appears that there is confusion as to the legislative intent in amending Section 91-1-15, Mississippi Code of 1972, and said section is now interpreted by some segments of the judiciary to mean that the Legislature did not intend to create a new, separate and distinct remedy for the benefit of all illegitimates without any classification and said amendment as now codified in Section 91-1-15, Mississippi Code of 1972, is interpreted by some segments of the judiciary to be prospective only rather than retrospective and prospective in effect and is interpreted not to have created a new, separate and distinct remedy for the claims of all illegitimates without classification; and

“WHEREAS, the Legislature recognized at the time it was considering said amendment, that by creating said remedy the Legislature was opening the door to the possible litigation of stale or fraudulent claims and that a further effect of bestowing said remedy upon all illegitimates would possibly be to create a certain amount of confusion and uncertainty as to the status of titles to real property; however, the Legislature intended to bestow upon illegitimates a new and additional remedy whereby such illegitimates could maintain their rights of inheritance notwithstanding such interests of the state in preventing stale and fraudulent claims and avoiding uncertainty as to the titles of real property and, accordingly, the Legislature enacted appropriate periods of limitations within which illegitimates could bring their claims;.

“NOW, THEREFORE, in order to eliminate any ambiguity in Section 91-1-15, Mississippi Code of 1972, and to conform said section to express the true legislative intent,

“BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:”

Amendment Notes —

The 2005 amendment inserted the third sentence in (3)(c).

The 2008 amendment substituted “marriage of said” for “marriage to said” in (1)(c); added the next-to-last sentence of the introductory paragraph of (3)(c); added (5); and made a minor stylistic change.

Cross References —

Computation of relationship according to civil law, see §§1-3-71,1-3-73.

Effect of establishment of right to inherit from deceased under this section on right to maintain action for injuries producing death, see §11-7-13.

Mississippi Uniform Law on Paternity generally, see §§93-9-1 through93-9-49.

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. Legitimation of children born out of wedlock.

3. Inheritance by illegitimates.

4. Inheritance through illegitimates.

1. In general.

Individual overcame a presumption that a man married to his mother when he was born was his biological father as his mother testified the decedent was his father, and his aunts and other documentary evidence supported that conclusion. Smith v. Bell, 876 So. 2d 1087, 2004 Miss. App. LEXIS 611 (Miss. Ct. App. 2004).

Father’s claim against his unborn child’s estate was barred by his failure to comply with Miss. Code Ann. §91-1-15(3)(c); the father had taken no action to be declared the father of the child within one year of her death and there was no evidence that the administratrix took any action as an administratrix de son tort prior to May 31, 2000. Tew v. Estate of Doe, 859 So. 2d 347, 2003 Miss. LEXIS 599 (Miss. 2003).

Deceased musician’s half-sister became executrix de son tort of decedent’s unprobated estate by entering agreement, in which she purported to be sister and only surviving heir of decedent, for assignment of decedent’s works, photographs, and materials in exchange for share of royalties. Johnson v. Harris (In re Estate of Johnson), 705 So. 2d 819, 1997 Miss. LEXIS 381 (Miss. 1997), cert. denied, Harris v. Johnson, 522 U.S. 1109, 118 S. Ct. 1037, 140 L. Ed. 2d 104, 1998 U.S. LEXIS 888 (U.S. 1998).

Status as executrix de son tort, in favor of alleged illegitimate child of deceased musician, was assumed when irrevocable power of attorney was accepted from decedent’s half-sister after half-sister had assigned all rights to musician’s copyrights, as well as by later accepting appointment as personal representative of half-sister’s estate. Johnson v. Harris (In re Estate of Johnson), 705 So. 2d 819, 1997 Miss. LEXIS 381 (Miss. 1997), cert. denied, Harris v. Johnson, 522 U.S. 1109, 118 S. Ct. 1037, 140 L. Ed. 2d 104, 1998 U.S. LEXIS 888 (U.S. 1998).

Since personal representative of decedent was expressly authorized by statute to commence wrongful death action for benefit of all heirs entitled to recover, personal representative had sufficient standing to determine heirship of testator’s reputed illegitimate children for purposes of wrongful death statute. Jones v. Estate of Richardson (In re Estate of Richardson), 695 So. 2d 587, 1997 Miss. LEXIS 240 (Miss. 1997).

The administrator of an estate is required to provide actual notice to known or reasonably ascertainable legitimate children who are potential heirs and whose claims would be barred by the running of the 90-day period from the notice of publication to creditors under the nonclaim statute, §91-1-15(3)(c). To hold otherwise would encourage administrators and executors to benefit as heirs at law by setting in motion the shortest filing period which, unbeknownst to the potential heir, has significantly shortened the time for the potential heir to meet with the statutory requirements to inherit as an heir. Smith v. Estate of King, 579 So. 2d 1250, 1991 Miss. LEXIS 250 (Miss. 1991).

A claimant’s timely filing, 3 days after the decedent’s death, of a sworn Petition for Letters of Administration in which he alleged that he was the son and sole surviving heir of the deceased, sufficiently complied with the provisions of §§91-1-15,91-1-27 and91-1-29 and therefore his claim of heirship was not barred by the statute of limitations of §91-1-15(3)(c). The fact that the claimant did not precisely state that he was the “illegitimate” or “born-out-of-wedlock” son, as opposed to simply declaring himself to be “the son,” was a matter of semantics which made no difference; the indication that he was the sole surviving heir was sufficiently clear. Wash v. McIntosh, 566 So. 2d 1208 (Miss. 1990).

A party may combine a suit to determine heirship with a suit to contest a will. Dees v. Estate of Moore, 562 So. 2d 109, 1990 Miss. LEXIS 257 (Miss. 1990).

Section91-1-15(3)(c), which requires that an action seeking adjudication of paternity be filed within 90 days after the first publication of notice to creditors, does not require that notice be given within the 90-day period. An out-of-wedlock child who brought a claim for heirship after her father’s death complied with the filing requirement by petitioning to be appointed administratrix and seeking to be declared the sole and only heir-at-law, where other persons, who would inherit from the decedent, had actual knowledge of the claim of heirship as evidenced by their hiring of an attorney, and, before the estate was closed, were properly allowed by the court to file their claim. The summons by publication requirement of §91-1-29 was met, and all parties were given their day in court. This procedure sufficiently complied with the notice requirements of §91-1-27 and §91-1-29, and the filing requirements of §91-1-15(3)(c). Perkins v. Thompson, 551 So. 2d 204, 1989 Miss. LEXIS 360 (Miss. 1989).

The six-year statute of limitations is inapplicable to suits brought by illegitimates under §91-1-15 whose cause of action accrued prior to July 1, 1981. Re In re Estate of Smiley, 530 So. 2d 18, 1988 Miss. LEXIS 333 (Miss. 1988).

A prior action on a petition to determine heirship, in which the petitioners sought to establish that they were the children of the deceased from a common law marriage, did not bar, under the doctrine of res judicata, the children’s action to share in the decedent’s estate pursuant to §91-1-15 since that statute as amended in 1981 created a totally new cause of action in favor of illegitimate children. In re Estate of Stutts, 529 So. 2d 177, 1988 Miss. LEXIS 352 (Miss. 1988).

When mother of decedent’s alleged illegitimate child moved to intervene in case brought under Federal Employers Liability Act, it was incumbent on her to file petition in chancery court under §91-1-27 and proceed under §91-1-29, and intervention should have been denied because these statutes had not been followed; where parties agreed for circuit judge to hear issue of paternity on merits, case would not be reversed because wrong court decided issue; on merits, circuit judge was correct in dismissing proposed intervention because there was no clear and convincing evidence that decedent was child’s natural father. Ivy v. Illinois C. G. R. Co., 510 So. 2d 520, 1987 Miss. LEXIS 2619 (Miss. 1987).

Mississippi law compels equal treatment of legitimates and illegitimates, and illegitimate child is therefore entitled to social security benefits. Jones v. Heckler, 754 F.2d 519, 1985 U.S. App. LEXIS 13727 (4th Cir. Md. 1985).

Under the terms of §91-1-15, the Department of Welfare, which had the authority under §§43-19-31 and43-19-35 to institute paternity proceedings to obtain repayment for support of a dependant child under the Aid to Dependent Children program (ADC) from the person legally obligated to pay that support, would be held to a standard of proof by preponderance of the evidence where the proceeding was brought prior to the death of the putative father, rather than the standard of clear and convincing evidence that applies to an adjudication after the death of the father to establish heirship. Ivy v. State Dep't of Public Welfare, 449 So. 2d 779, 1984 Miss. LEXIS 1694 (Miss. 1984).

In a proceeding to determine heirship, the trial court erred in declaring §91-1-15 unconstitutional of its own volition, where appellee, in his pleadings, did not claim that he was entitled to inherit from the decedent as his illegitimate son, and did not attack the constitutionality of the statute. Witt v. Mitchell, 437 So. 2d 63, 1983 Miss. LEXIS 2859 (Miss. 1983).

The chancellor erred in passing upon the constitutionality of the statute where the issue of constitutionality had not been specially pleaded. Estate of Miller v. Miller, 409 So. 2d 715, 1982 Miss. LEXIS 1862 (Miss. 1982).

A Section of the Illinois Probate Act barring illegitimate children to inherit by intestate succession from their fathers violated the Equal Protection Clause, although not a “suspect classification”, a statutory classification based on illegitimacy must, at minimum, bear some rational relationship to a legitimate state purpose, in view of which the provision in question could not be justified on the ground that it promotes legitimate family relationships since a state may not attempt to influence the actions of men and women by imposing sanctions on children born of their relationships, nor do the difficulties of proving paternity in some situations justify the total statutory disinheritance of illegitimate children whose fathers die intestate. The fact that an illegitimate child’s father could have provided for her by making a will did not save the provision from invalidity. Finally, the provision could not stand validated on the theory that it represents the legislature’s attempt to mirror the intent of the state’s decedents. Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31, 1977 U.S. LEXIS 77 (U.S. 1977).

A state’s intestate succession statutes which provide that an illegitimate child, acknowledged but not legitimated by the father, cannot claim the right of a legitimate child and may take the father’s property only to the exclusion of the state when the father has left no descendants, ascendants, collateral relatives, or surviving wife, while legitimate children have a right of forced heirship in the father’s estate, which statutes have the effect of barring an acknowledged illegitimate child from sharing in the father’s estate with surviving collateral relatives, are not violative of constitutional due process and equal protection provisions, such statutes having a rational basis in the state’s interest in promoting family life and in directing the disposition of property left within the state. Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31, 1977 U.S. LEXIS 77 (U.S. 1977).

This section [Code 1942, § 474], being in derogation of the common law, must be strictly construed. Akers v. Estate of Johnson, 236 So. 2d 437, 1970 Miss. LEXIS 1493 (Miss. 1970).

This section [Code 1942, § 474] and Code 1942, § 469, are in pari materia and should be construed together. Taylor v. Jackson, 194 Miss. 441, 12 So. 2d 144, 1943 Miss. LEXIS 62 (Miss. 1943).

2. Legitimation of children born out of wedlock.

Chancery court did not err in determining an illegitimate child was the natural daughter of a decedent who died intestate because there was evidence the putative father openly acknowledged and treated the child as his natural daughter, as exhibited by declarations the putative father made to others outside the family and by the fatherly conduct he bestowed on the child since the time she was a young girl; the weight to be given the DNA results, which were inconclusive as to paternity, was for the chancellor. In re Estate of Kendrick v. Gorden, 46 So.3d 386, 2010 Miss. App. LEXIS 585 (Miss. Ct. App. 2010).

Although an intestate decedent acknowledged an illegitimate daughter by spoken words and actions, this acknowledgment of possible paternity was insufficient under Miss. Code Ann. §91-1-15(3) where the paternity was never adjudicated by a court of law within the appropriate time limits. Prout v. Williams, 55 So.3d 195, 2011 Miss. App. LEXIS 21 (Miss. Ct. App. 2011).

There is no statutory requirement that putative father acknowledge child in order for child to establish its right to inherit, although open acknowledgment has great bearing in determining factual issue of paternity. Ivy v. Illinois C. G. R. Co., 510 So. 2d 520, 1987 Miss. LEXIS 2619 (Miss. 1987).

Under former provisions of the statute, in an action by an illegitimate child demanding that she be declared the heir of her natural father, capable of inheriting from him under the Mississippi laws of descent and distribution, the order entered in favor of the illegitimate daughter would be reversed and the suit dismissed where the time for bringing the action was six years from the date of the daughter’s majority (§15-1-49) but the action was not commenced until 18 years after that date. Knight v. Moore, 396 So. 2d 31, 1981 Miss. LEXIS 1984 (Miss.), cert. denied, 454 U.S. 817, 102 S. Ct. 95, 70 L. Ed. 2d 86, 1981 U.S. LEXIS 3122 (U.S. 1981).

Any child legitimized by Code 1972, §91-1-15 is a child of the marriage within the meaning of Code 1972, §93-11-65. Harper v. Harper, 300 So. 2d 132, 1974 Miss. LEXIS 1602 (Miss. 1974).

In a proceeding on a petition by an alleged son seeking to be declared the sole heir of a decedent, where the decedent and the petitioner’s mother were married and the alleged father acknowledged that the petitioner, born out of wedlock, was his son, and the alleged father was subsequently adjudicated non compos mentis and had a guardian appointed for his estate not long after the marriage and acknowledgment, the petitioner became the alleged father’s sole heir at time of his death. Nickles v. Nickles, 247 So. 2d 836, 1971 Miss. LEXIS 1461 (Miss. 1971).

Where proof is clear, convincing, and unambiguous that the decedent acknowledged and believed over a long period of time that a child, conceived by a woman whom he subsequently married, was his daughter, she is entitled to be regarded as one of his heirs at law and to participate in his estate. Crosby v. Triplett, 195 So. 2d 69, 1967 Miss. LEXIS 1427 (Miss. 1967).

Where evidence clearly shows a decedent’s recognition and acknowledgment of plaintiff as his child over a long period of time, by statements, acts, and abiding belief that she was his daughter, it was incumbent upon the defendant to contradict or refute by credible, clear, and convincing evidence that no such acknowledgment ever took place, and in the absence of such a refutation the child is entitled to be acknowledged as one of decedent’s heirs at law. Crosby v. Triplett, 195 So. 2d 69, 1967 Miss. LEXIS 1427 (Miss. 1967).

Where a decree of chancery court annulled a marriage between an employee and mother of child who was born out of wedlock before such marriage, and the decree made the marriage void ab initio, on the ground that it had been entered into as result of coercion and duress and the parties had not lived together as man and wife, the child could not claim it was legitimate under the provisions of this section [Code 1942, § 474]. Stanford v. Stanford, 219 Miss. 236, 68 So. 2d 275, 1953 Miss. LEXIS 385 (Miss. 1953).

Under a former version of this statute, for one born out of wedlock in another state to become a lawful heir as the child of a decedent in this state, it must be shown first that such person was the natural child of decedent, that both parents were later lawfully married and that the father acknowledged such person as his child in this state. Thomas v. Thomas, 200 Miss. 96, 25 So. 2d 710, 1946 Miss. LEXIS 271 (Miss. 1946), and see In re Estate of Stutts, 529 So. 2d 177, 1988 Miss. LEXIS 352 (Miss. 1988).

Under former provisions of this statute, in a suit by appellee to establish sole heirship by reason of being the legitimate daughter of deceased, evidence was insufficient to show that appellee, born in another state prior to marriage of her mother with decedent, was the natural child of deceased or that he ever acknowledged her as his own daughter. Thomas v. Thomas, 200 Miss. 96, 25 So. 2d 710, 1946 Miss. LEXIS 271 (Miss. 1946), and see In re Estate of Stutts, 529 So. 2d 177, 1988 Miss. LEXIS 352 (Miss. 1988).

Where decedent and his alleged surviving widow, in good faith and with the bona fide intention of becoming man and wife, had entered into a ceremonial marriage in 1896 under a regular license, thinking that his first wife was dead, when, in fact, she did not die until 1923, such marriage became lawful and valid upon the death of the first wife, without any new or different understanding or intention between them, so that second wife was his lawful widow and their offspring became and were legitimate children, entitled to share in his estate with the offspring of the first marriage. Johnson v. Johnson, 196 Miss. 768, 17 So. 2d 805, 1944 Miss. LEXIS 255 (Miss. 1944).

3. Inheritance by illegitimates.

Deceased child’s father could not recover wrongful death benefits from the child because the father failed to establish the requirements of the statute; the father never met child or introduced the child to his family, he was not listed on the child’s birth certificate, he neglected to support the child, and he denied paternity and challenged the mother’s efforts to obtain child support and social security benefits from him. Perkins v. Nelson (In re Estate of Nelson), 266 So.3d 1008, 2018 Miss. App. LEXIS 350 (Miss. Ct. App. 2018).

Chancellor did not err in determining that a father’s children could not recover wrongful death benefits from his deceased child because the father did not meet the requirements of the statute; the deceased child’s sole wrongful death beneficiary was his mother, and she was entitled to the settlement proceeds deriving from his wrongful death. Perkins v. Nelson (In re Estate of Nelson), 266 So.3d 1008, 2018 Miss. App. LEXIS 350 (Miss. Ct. App. 2018).

Miss. Code Ann. §91-1-15(3)(c)’s 90-day limitations period for an illegitimate child to seek a determination of paternity was tolled while the child did not have notice of the estate proceeding, but it began to run when he filed a motion to remove the administrator and expired 90 days later, over a month before he sought a paternity determination. In re Estate of Elmore, 150 So.3d 709, 2013 Miss. App. LEXIS 795 (Miss. Ct. App. 2013), aff'd on other grounds, 150 So.3d 700, 2014 Miss. LEXIS 547 (Miss. 2014).

Where an illegitimate daughter of an intestate decedent did not follow the plain language of Miss. Code Ann. §91-1-15(3), she had no claim to the decedent’s estate even though the decedent executed a delayed birth certificate because the birth certificate did not meet the requirements for adjudication of paternity under §91-1-15(3). Prout v. Williams, 55 So.3d 195, 2011 Miss. App. LEXIS 21 (Miss. Ct. App. 2011).

Miss. Code Ann. §91-1-15 does require certain criteria, including an option to prove paternity of any illegitimate children within a restricted period after the putative father’s death, Miss. Code Ann. §91-1-15 (2004); these requirements place a higher burden on illegitimate children to inherit from their fathers than legitimate children. However, the State has a legitimate interest in protecting the family and the estates of the deceased by requiring adjudication of paternity within a reasonable timeframe; the purpose of § 91-1-15 in the context of intestate succession is to (1) avoid litigation of stale or fraudulent claims, (2) cause fair and just disposal of property, and (3) facilitate repose of title to real property. In re Estate of McCullough v. Yates, 32 So.3d 403, 2010 Miss. LEXIS 82 (Miss. 2010).

It is true that illegitimate children do have the right to inherit from their natural fathers; nonetheless, the illegitimate child must prove paternity by clear and convincing evidence, Miss. Code Ann. §91-1-15(3)(c) (1994). Further, the child must make his claim to the estate of his father within one year from the time of his father’s death, Miss. Code Ann. §91-1-15 (1994). In re Estate of McCullough v. Yates, 32 So.3d 403, 2010 Miss. LEXIS 82 (Miss. 2010).

Appellants failed properly to adjudicate themselves as the illegitimate children of their putative father in the time prescribed by Miss. Code Ann. §91-1-15 and as such, the petition to be determined heirs of the decedent was barred by the time provision of §91-1-15; additionally, § 91-1-15 did not violate the Equal Protection Clause or the Due Process Clause of the United States Constitution. Further, appellants were not deprived of either their procedural or substantive due process rights as Mississippi had a legitimate state interest in the legislation propounded in § 91-1-15, therefore, the statute did not violate any substantive due process rights; in addition, appellants had notice of the putative father’s death and would have been afforded a hearing for adjudication of paternity, however, they failed to make such a petition within the statutory limits of § 91-1-15. In re Estate of McCullough v. Yates, 32 So.3d 403, 2010 Miss. LEXIS 82 (Miss. 2010).

Language of Miss. Code Ann. §93-9-28 satisfies the requirements of Miss. Code Ann. §91-1-15(3)(a), such that the minor can inherit from his natural father where the father has executed an acknowledgment of paternity; therefore, substantial evidence supported a finding that a decedent’s illegitimate minor son was his sole heir at law because, although the son’s mother did not institute paternity proceedings within the required time under Miss. Code Ann. §91-1-15, the father acknowledged paternity pursuant to Miss. Code Ann. §93-9-28 before his death. In re Estate of Farmer, 964 So. 2d 498, 2007 Miss. LEXIS 516 (Miss. 2007).

Decedent’s administratrix’s failure to notify decedent’s illegitimate children of the administration of their father’s estate resulted in tolling of the 90-day statute. In re Estate of Thomas, 883 So. 2d 1173, 2004 Miss. LEXIS 1269 (Miss. 2004).

Illegitimate children’s claim that the administratrix’s failure to provide them with actual notice tolled the running of the one-year statute of limitations could not be supported and they were barred from recovery under the decedent’s estate. In re Estate of Thomas, 881 So. 2d 257, 2003 Miss. App. LEXIS 996 (Miss. Ct. App. 2003), rev'd, 883 So. 2d 1173, 2004 Miss. LEXIS 1269 (Miss. 2004).

Claim for heirship was barred because the alleged illegitimate son filed the claim more than 18 years after the father’s death. Delaying out of respect for the widow did not excuse failing to take timely action to establish paternity. Mann v. Mann, 853 So. 2d 1217, 2003 Miss. LEXIS 412 (Miss. 2003).

The plaintiff’s claim that she was the illegitimate child and sole heir of the decedent was barred by the statute where she failed to assert her claim until 14 years after the death of the decedent, notwithstanding her assertion that she was too young at the time of his death and that she did not know any better than to wait to stake any claim she might have had until after the death of his alleged common law wife. In re Estates of Davidson, 794 So. 2d 261, 2001 Miss. App. LEXIS 75 (Miss. Ct. App. 2001).

Evidence was sufficient to support a chancellor’s determination that the appellee was the illegitimate son of a jazz musician who died in 1938. Harris v. Johnson (In re Estate of Johnson), 767 So. 2d 181, 2000 Miss. LEXIS 151 (Miss. 2000), cert. denied, 532 U.S. 959, 121 S. Ct. 1489, 149 L. Ed. 2d 376, 2001 U.S. LEXIS 2752 (U.S. 2001).

The appellants failed to meet their burden of proof by clear and convincing evidence that they were the illegitimate twin children of the decedent where the chancellor considered both genetic evidence of paternity as well as non-genetic or social evidence. In re Estate of Grubbs v. Woods, 753 So. 2d 1043, 2000 Miss. LEXIS 25 (Miss. 2000).

The administratrix of an estate had sufficient actual knowledge of the potential right of heirship of a child to have required her, within a reasonable time after the child’s birth, to comply with the formalities of §§91-1-27 and91-1-29 by making the child a party to the administration proceeding; therefore, the administratrix was precluded from raising the 90 day time bar set out in subsection (3)(c) of this section. Balsara v. Adams (In re Estate of Brewer), 755 So. 2d 1108, 1999 Miss. App. LEXIS 255 (Miss. Ct. App. 1999).

Evidence that both executrixes de son tort held themselves out as representatives of deceased musician’s estate and took actions to chill interest of copyright purchasers in locating musician’s rightful heirs waived three-year statutory bar to claim by musician’s alleged illegitimate son; executrixes de son tort breached duty to act for rightful heirs of musician, rather than for themselves. Code 1972, §91-1-15(d)(ii). Johnson v. Harris (In re Estate of Johnson), 705 So. 2d 819, 1997 Miss. LEXIS 381 (Miss. 1997), cert. denied, Harris v. Johnson, 522 U.S. 1109, 118 S. Ct. 1037, 140 L. Ed. 2d 104, 1998 U.S. LEXIS 888 (U.S. 1998).

To be declared heirs, illegitimate children of testator were required to establish paternity by clear and convincing evidence. Jones v. Estate of Richardson (In re Estate of Richardson), 695 So. 2d 587, 1997 Miss. LEXIS 240 (Miss. 1997).

Chancery court was required to hold hearing regarding personal representative’s petition to determine heirship of testator’s reputed illegitimate children. Jones v. Estate of Richardson (In re Estate of Richardson), 695 So. 2d 587, 1997 Miss. LEXIS 240 (Miss. 1997).

Chancellor abused his discretion in failing to set aside order determining heirship of testator’s reputed illegitimate children, which was entered without formal hearing on matter. Jones v. Estate of Richardson (In re Estate of Richardson), 695 So. 2d 587, 1997 Miss. LEXIS 240 (Miss. 1997).

The failure of the illegitimate children of a decedent to assert any claim in the decedent’s estate until after the expiration of 90 days from the date of the first publication of notice to creditors did not bar their claim of heirship or wrongful action where the petition for letters of administration specifically named the illegitimate children as the natural children of the decedent and the administratrix failed to give them notice of the letters’ issuance. Leflore v. Coleman, 521 So. 2d 863, 1988 Miss. LEXIS 170 (Miss. 1988).

A minor seeking to be declared an heir of the decedent as an illegitimate daughter and to share in the estate should have been allowed to amend her complaint to allege that the widow and former executrix knew of the existence of the minor as an illegitimate child of the decedent, but fraudulently failed to so inform the court, notwithstanding that the minor’s petition was filed more than 90 days after the publication of notice to the creditors of the estate. Smith v. Estate of King, 501 So. 2d 1120, 1987 Miss. LEXIS 2287 (Miss. 1987).

Illegitimate child could inherit from their natural father, who died intestate in 1969. Holloway v. Jones, 492 So. 2d 573, 1986 Miss. LEXIS 2527 (Miss. 1986).

Illegitimate grandson is entitled to interest in estate of paternal grandmother where grandson’s answer to petition filed by daughter of grandmother seeking to be adjudicated sole heir at law alleges that grandson is illegitimate son of grandmother’s deceased son and where parties have stipulated that illegitimate grandson is indeed such and that grandson and daughter are only parties interested in estate. Miller v. Watson, 467 So. 2d 672, 1985 Miss. LEXIS 2022 (Miss. 1985).

Action by illegitimate to be adjudicated son of deceased and to be allowed to share in estate which is brought within 3 years of July 1, 1981, date of enactment of amendment of §91-1-15 is timely, notwithstanding fact that suit is brought 14 years after death of deceased, so long as death occurred prior to July 1, 1981. Berry v. Berry, 463 So. 2d 1031, 1984 Miss. LEXIS 1830 (Miss. 1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 73, 1985 U.S. LEXIS 3348 (U.S. 1985).

The Supreme Court would not answer a certified question concerning the rights of illegitimate children of deceased fathers to certain social security benefits where it was asked to assume that §91-1-15 was unconstitutional, and the constitutionality of that statute had not been squarely presented to, and litigated by, a court of competent jurisdiction. Jones ex rel. Jones v. Harris, 460 So. 2d 120, 1984 Miss. LEXIS 2002 (Miss. 1984).

An illegitimate daughter’s petition to determine heirship was not a paternity action, and therefore was not barred by §15-1-49 when she failed to file suit within six years of reaching majority, since under §91-1-15, the determination of heirship could not be made prior to the decedent’s death, and, until then, her cause of action did not accrue. Estate of Kidd v. Kidd, 435 So. 2d 632, 1983 Miss. LEXIS 2600 (Miss. 1983).

The phrase, “children of illegitimates”, as used in this section [Code 1942, § 474] applies only to legitimate children of illegitimates. Akers v. Estate of Johnson, 236 So. 2d 437, 1970 Miss. LEXIS 1493 (Miss. 1970).

Illegitimate children inherit mother’s share in the estate of her intestate brother, who left no wife or children surviving him. McDaniel v. McDaniel, 123 Miss. 401, 85 So. 113, 1920 Miss. LEXIS 35 (Miss. 1920).

Illegitimate son of sister of whole-blood took intestate’s personalty to exclusion of children of sister of half-blood. Davidson v. Brownlee, 114 Miss. 398, 75 So. 140, 1917 Miss. LEXIS 45 (Miss. 1917).

Word “children” in constitution and bylaws of benefit association held not to exclude illegitimate child of female member. Shelton v. Minnis, 107 Miss. 133, 65 So. 114, 1914 Miss. LEXIS 60 (Miss. 1914).

Under former provisions, this chapter made an innovation on the common law in favor of illegitimates in regard to inheritance, but it nowhere made rights in action for torts, transmissible by descent, and at common law they were not so transmissible. Illinois C. R. Co. v. Johnson, 77 Miss. 727, 28 So. 753, 1900 Miss. LEXIS 59 (Miss. 1900).

4. Inheritance through illegitimates.

Doctrine of unclean hands was inapplicable because a mother’s failure to give a father notice of a wrongful death acton did not amount to a willful act that transgressed equitable standards of conduct; the mother and the father were never married, the father consistently denied paternity of the deceased child, and the father failed to meet the statutory requirements to constitute a wrongful death beneficiary of the child. Perkins v. Nelson (In re Estate of Nelson), 266 So.3d 1008, 2018 Miss. App. LEXIS 350 (Miss. Ct. App. 2018).

Father and his children failed to provide the Attorney General with notice of their constitutional challenge at the trial level because they first notified the Attorney General of their challenge to the constitutionality of the statute in their notice of appeal; thus, the father and children did not comply with the requirements of Miss. R. Civ. P. 24(d), and their challenge to the constitutionality of the wrongful death statute’s incorporation of §91-1-15(3) was procedurally barred. Perkins v. Nelson (In re Estate of Nelson), 266 So.3d 1008, 2018 Miss. App. LEXIS 350 (Miss. Ct. App. 2018).

Deceased child’s biological father was not entitled to inherit from his daughter’s estate and to receive proceeds from a wrongful death suit because to permit the father to inherit from the decedent’s estate would result in a financial windfall to the father; the evidence supports a conclusion that the father refused or neglected to support the child under Miss. Code Ann. §91-1-15(3) where the father failed to provide any financial support to the child’s mother before he went to prison the month before the child was born and instead permitted the mother to support him and where, although the father received money from friends and relatives while he was in prison, he failed to direct any of those funds to the care and support of his child. Estate of McCoy v. McCoy, 988 So. 2d 929, 2008 Miss. App. LEXIS 407 (Miss. Ct. App. 2008).

Parent could inherit from an illegitimate child under Miss. Code Ann. §91-1-15 if he had openly treated the child as his and had not refused or neglected to support the child; however, the father made no effort to be a parent to the child, suffered no loss as the result of the demise of the child, and any part of the settlement received by the father and his kindred could only have been termed a windfall and unjust enrichment. Williams v. Farmer, 876 So. 2d 300, 2004 Miss. LEXIS 760 (Miss. 2004).

Court erred in finding that an administratrix had unclean hands in the administratrix’s action to disinherit the deceased’s biological father; before filing the petition, the administratrix had not stated in any prior pleading or action that the father had openly treated and supported the deceased as a child, nor had the administratrix waived the provisions of Miss. Code Ann. §91-1-15(3)(d), which would have entitled the father to inherit from the deceased. In re Estate of Richardson v. Cornes, 905 So. 2d 620, 2004 Miss. App. LEXIS 448 (Miss. Ct. App. 2004), rev'd, in part, aff'd in part, 903 So. 2d 51, 2005 Miss. LEXIS 114 (Miss. 2005).

In the absence of a clear, unequivocal, and unambiguous waiver of the requirements of Miss. Code Ann. §91-1-15(3) by the maternal heirs of an illegitimate child, the natural father, who has not fulfilled obligations to acknowledge and support the child during the child’s lifetime, is prevented from enjoying the benefits of inheritance. In re Estate of Richardson v. Cornes, 905 So. 2d 620, 2004 Miss. App. LEXIS 448 (Miss. Ct. App. 2004), rev'd, in part, aff'd in part, 903 So. 2d 51, 2005 Miss. LEXIS 114 (Miss. 2005).

The father of an illegitimate child failed to establish his right to inherit from the child where he never met the child, failed to support the child, and failed to acknowledge the child as his own during the child’s lifetime, notwithstanding that he did not receive the results of a blood test that established his paternity until just four days before the child’s death. In re Estate of Patterson v. Patterson, 798 So. 2d 347, 2001 Miss. LEXIS 11 (Miss. 2001).

In an action by the kindred of the natural father of an illegitimate daughter to inherit from her estate, the claimants had the burden of proving by a preponderance of the evidence that the father openly recognized the illegitimate daughter as his child and that he did not refuse or neglect to support her when she was a child. Woodall v. Johnson, 552 So. 2d 1065 (Miss. 1989).

Claim by natural father of illegitimate child, that he, the father, was entitled to the proceeds of a proposed settlement for the wrongful death of that child, was properly denied where the father had not supported the child and was therefore not the lawful heir. Alexander v. Alexander, 465 So. 2d 340, 1985 Miss. LEXIS 1967 (Miss. 1985).

Daughter of an illegitimate may sue to determine her heirship descending from the father of her illegitimate mother. In re Estate of Kimble, 447 So. 2d 1278, 1984 Miss. LEXIS 1661 (Miss. 1984).

An action brought by the daughter of decedent’s illegitimate daughter to establish her heirship was timely filed, where it was brought within the three year period prescribed by §91-1-15(3)(d)(ii) paragraph 2, which regulates the limitation period for claims accruing to any legitimate child as the result of the death of an intestate prior to July 1, 1981, and where the decedent died prior to that date. In re Estate of Kimble, 447 So. 2d 1278, 1984 Miss. LEXIS 1661 (Miss. 1984).

Where it appeared that the father of an intestate and the mothers of several groups of claimants to intestate’s property were all illegitimate children of the same mother, but that the mother of one group had the same father as the intestate’s father, the latter group was entitled to take the property to exclusion of the other groups of claimants, since, although children of an illegitimate, they were kindred of the whole-blood to the intestate, while the other groups, also being children of illegitimates, were kindred of the half-blood by reason of their mothers having a different father. Taylor v. Jackson, 194 Miss. 441, 12 So. 2d 144, 1943 Miss. LEXIS 62 (Miss. 1943).

The legitimate children of an illegitimate father were entitled to inherit from the half-sister of their father, who died intestate, regardless of whether such half-sister was legitimate or illegitimate, where the intestate had no kindred of the whole-blood. Malone v. Pope, 189 Miss. 46, 196 So. 319, 1940 Miss. LEXIS 109 (Miss. 1940).

RESEARCH REFERENCES

ALR.

Inheritance from illegitimate. 48 A.L.R.2d 759.

Inheritance by illegitimate from mother’s legitimate children. 60 A.L.R.2d 1182.

Inheritance by illegitimate from or through mother’s ancestors or collateral kindred. 97 A.L.R.2d 1101.

Inheritance by illegitimate from mother’s other illegitimate children. 7 A.L.R.3d 677.

Eligibility of illegitimate child to receive family allowance out of estate of his deceased father. 12 A.L.R.3d 1140.

Discrimination on basis of illegitimacy as denial of constitutional rights. 38 A.L.R.3d 613.

Legitimation by marriage to natural father of child born during mother’s marriage to another. 80 A.L.R.3d 219.

Right of illegitimate grandchildren to take under testamentary gift to “grandchildren”. 17 A.L.R.4th 1292.

Am. Jur.

41 Am. Jur. 2d, Illegitimate Children § 112 et seq.

CJS.

10 C.J.S., Bastards §§ 24-28, 24-30.

Law Reviews.

1981 Mississippi Supreme Court Review: Miscellaneous. 52 Miss. L. J. 481, June, 1982.

1982 Mississippi Supreme Court Review: Civil Procedure: Judicial Decisions. 53 Miss L. J. 130, March, 1983.

1982 Mississippi Supreme Court Review: Miscellaneous. 53 Miss. L. J. 179, March, 1983.

Paternal inheritance rights of illegitimates under Mississippi law: greater than equal protection? 53 Miss. L. J. 303, June, 1983.

1989 Mississippi Supreme Court Review: Wills (Rights of Illegitimates and Heirship). 59 Miss. L. J. 909, Winter, 1989.

§ 91-1-17. Advancement to be brought into hotchpot.

When any of the children of a person dying intestate, or their descendants, shall have received from such intestate, in his lifetime, any real or personal estate by way of advancement, and shall choose to come into the partition and distribution of the estate with the other parceners and distributees, such advancement, both of real and personal estate, shall be brought into hotchpot with the whole estate, real and personal, descended. Such party bringing such advancement into hotchpot shall thereupon be entitled to his or her proper portion of the whole estate descended, both real and personal; but such advancement shall be valued according to its value at the time said distributee received it.

HISTORY: Codes, Hutchinson’s 1848, ch. 44, art. 2 (51); 1857, ch. 60, art. 113; 1871, § 1953; 1880, § 1276; 1892, § 1550; 1906, § 1656; Hemingway’s 1917, § 1388; 1930, § 1409; 1942, § 475.

Cross References —

Sale of personal estate for division, see §91-7-301 et seq.

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Inasmuch as this section [Code 1942 § 475] is applicable only in the case of a person dying intestate, where decedent died testate, conveyances of property to two children did not constitute an advancement. Mills v. Mills, 279 So. 2d 917, 1973 Miss. LEXIS 1495 (Miss. 1973).

Book accounts kept by father against children during minority, without anything to show intention to charge them as advancements, will not be held advancements. Greene v. Greene, 145 Miss. 87, 110 So. 218, 1926 Miss. LEXIS 2 (Miss. 1926).

To constitute “advancement,” donor must irrevocably part with title, which must be vested in donee, in lifetime of donor; where no estate which can be alienated is given donee, no advancement is made. Greene v. Greene, 145 Miss. 87, 110 So. 218, 1926 Miss. LEXIS 2 (Miss. 1926).

Land given by father to son as advancement should be valued for partition as of date of gift. Greene v. Greene, 145 Miss. 87, 110 So. 218, 1926 Miss. LEXIS 2 (Miss. 1926).

Mere gift of money to a son is not presumed an advancement, but money advanced to son to purchase real estate is presumed an advancement. Kemp v. Turman, 104 Miss. 501, 61 So. 548, 1913 Miss. LEXIS 56 (Miss. 1913).

The widow is not within the statute. Whitley v. Stephenson, 38 Miss. 113, 1859 Miss. LEXIS 100 (Miss. 1859).

The value of the property at the time of the advancement must govern in the distribution, and interest is not to be charged thereon. Jackson v. Jackson, 28 Miss. 674, 1855 Miss. LEXIS 10 (Miss. 1855).

The party bringing an advancement into hotchpot does not relinquish his interest in the particular property. The title to it was derived from the gift and cannot be affected by the distribution. Jackson v. Jackson, 28 Miss. 674, 1855 Miss. LEXIS 10 (Miss. 1855).

A child who does not claim anything by inheritance cannot be compelled to bring the property received from the father in his lifetime into hotchpot. Phillips v. McLaughlin, 26 Miss. 592, 1853 Miss. LEXIS 142 (Miss. 1853).

The advancements must have been received from the intestate himself. Callender v. McCreary, 5 Miss. 356, 1840 Miss. LEXIS 24 (Miss. 1840).

RESEARCH REFERENCES

ALR.

Presumption and burden of proof with respect to advancement. 31 A.L.R.2d 1036.

Check as evidencing advancement. 74 A.L.R.5th 491.

Am. Jur.

1A Am. Jur. Legal Forms 2d, Advancements § 10:10 et seq. (particular agreements and provisions).

35 Am. Jur. Proof of Facts 2d 357, Decedent’s Gift to Heir as Advancement.

CJS.

26B C.J.S., Descent and Distribution § 114 et seq.

§ 91-1-19. Descent of exempt property.

The property, real and personal, exempted by law from sale under execution or attachment shall, on the death of the husband or wife owning it, descend to the survivor of them and the children and grandchildren of the decedent, as tenants in common, grandchildren inheriting their deceased parent’s share; and if there be no children or grandchildren of the decedent, to the surviving wife or husband; and if there be no such survivor, to the children and grandchildren of the deceased owner. Where the surviving husband or wife shall own a place of residence equal in value to the homestead of the decedent, and the deceased husband or wife have no surviving children or grandchildren of the last marriage but have children or grandchildren of a former marriage, the homestead of such decedent shall not descend to the surviving husband or wife, but shall descend to the surviving children and grandchildren of the decedent by such former marriage, as other property.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 17 (2); 1857, ch. 60, art. 172; 1871, § 1956; 1880, § 1277; 1892, § 1551; 1906, § 1657; Hemingway’s 1917, § 1389; 1930, § 1410; 1942, § 476; Laws, 1900, ch. 89.

Cross References —

Payment to estate as intestate property of actuarial equivalent of remaining payments on reduced retirement allowance annuity, see §25-11-115.

Exempt property generally, see §85-3-1 et seq. and §89-1-29.

Homestead allotment, see §85-3-29 et seq.

Appraiser’s duty to set aside exempt property, see §§91-7-117,91-7-135,91-7-137.

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. Construction and application in general.

2. Exempt property not part of estate to be administered.

3. Date for determining value of property.

1. Construction and application in general.

This statute [Code 1972, §91-1-19] specifically controls the descent of exempt property, and those entitled thereto under the statute inherit the exempt property in fee simple free of decedent’s debts; only when the decedent leaves no surviving spouse or children or grandchildren does the exempt property become liable for the decedent’s debts under Code 1972, §91-1-21. Weaver v. Blackburn, 294 So. 2d 786, 1974 Miss. LEXIS 1828 (Miss. 1974).

Undivided interest in homestead descended to decedent’s wife and children. Jones v. Jones, 249 Miss. 322, 161 So. 2d 640, 1964 Miss. LEXIS 393 (Miss. 1964).

A widow, children and grandchildren are tenants in common subject to the right by the widow to undisturbed possession of the exempt homestead. Bonds v. Bonds, 226 Miss. 348, 84 So. 2d 397, 1956 Miss. LEXIS 406 (Miss. 1956).

The fact that a widow was given a right under the statute to have the undisturbed possession of the exempt homestead following the death of the husband does not have the effect of destroying the tenancy in common, which arose in the property upon the death of the husband, merely because of the fact that the right of possession of the other heirs is postponed pending the widowhood of the wife. Bonds v. Bonds, 226 Miss. 348, 84 So. 2d 397, 1956 Miss. LEXIS 406 (Miss. 1956).

Son, one of ten adult heirs of deceased father, who paid to his mother $400 which was owing to father on purchase of homestead, there being no administrator and no agent appointed by heirs authorized to receive payment, is not entitled to be credited with $250 paid to mother as allowance to widow, as widow had only a one-tenth interest in this $400, in suit in which heirs claimed balance due them on purchase price of land. Davis v. Davis, 205 Miss. 794, 39 So. 2d 486, 1949 Miss. LEXIS 465 (Miss. 1949).

This section [Code 1942, § 476] lays down general rule that upon death of a husband or wife, his or her exempt property shall descend to the survivor and to the children of the owner as tenants in common, but the section concludes with an exception thereto. Reed v. Reed, 197 Miss. 261, 19 So. 2d 745, 1944 Miss. LEXIS 294 (Miss. 1944).

A bill to establish widow’s right to possession and occupancy of the homestead of her deceased husband need not negative the exception contained in this section [Code 1942, § 476]. Reed v. Reed, 197 Miss. 261, 19 So. 2d 745, 1944 Miss. LEXIS 294 (Miss. 1944).

The status of cotenancy is recognized in statutory provisions that a decedent’s widow shall share in the homestead property as a tenant in common with the children, and that there shall be no partition during her widowhood, or while she continues to occupy or use it, but the usual rights thereunder are made subordinate to the widow’s right of use and occupancy during her life. Bohn v. Bohn, 193 Miss. 122, 5 So. 2d 429, 1942 Miss. LEXIS 77 (Miss. 1942).

In line with the purpose of and under the statutory provisions that a decedent’s widow shall share in the homestead property as a tenant in common with the children, and that there shall be no partition during her widowhood, or while she continues to occupy or use it, the immunity from partition, being personal to the widow, is not extended to her grandniece. Bohn v. Bohn, 193 Miss. 122, 5 So. 2d 429, 1942 Miss. LEXIS 77 (Miss. 1942).

The right of the widow has the attributes and incidents of a life estate, and the other heirs are vested with a future estate which takes effect in possession at the termination of the preceding estate or interest. Bohn v. Bohn, 193 Miss. 122, 5 So. 2d 429, 1942 Miss. LEXIS 77 (Miss. 1942).

Where deceased share tenant left nothing except exempt property, administration was unnecessary; hence widow and children having unsuccessfully demanded tenant’s share from landlord could recover in replevin. Williams v. Sykes, 170 Miss. 88, 154 So. 267, 154 So. 727, 1934 Miss. LEXIS 100 (Miss. 1934).

Complainant in partition suit, claiming interest as tenant in common through ancestor, was not required to prove that ancestor died intestate. Smith v. Stanley, 159 Miss. 720, 132 So. 452, 1931 Miss. LEXIS 68 (Miss. 1931).

Exempt property, real or personal, left by a deceased husband descends to his widow and children as tenants in common, the grandchildren taking per stirpes the share of deceased children, but the widow has the right to occupy and use the same free from liability for rent or hire and from partition during her widowhood. Martin v. Martin, 84 Miss. 553, 36 So. 523, 1904 Miss. LEXIS 56 (Miss. 1904).

If the widow renounces the will disposing of exempt property, she is only entitled to share in the estate generally and is not entitled to the specific exempt property so disposed of. Nash v. Young, 31 Miss. 134, 1856 Miss. LEXIS 48 (Miss. 1856).

In case the exempt property be disposed of by will, the statute does not apply. Turner v. Turner, 30 Miss. 428, 1855 Miss. LEXIS 114 (Miss. 1855); Norris v. Callahan, 59 Miss. 140, 1881 Miss. LEXIS 87 (Miss. 1881); Osburn v. Sims, 62 Miss. 429, 1884 Miss. LEXIS 98 (Miss. 1884).

2. Exempt property not part of estate to be administered.

Executrix did not waive the homestead exemption by entering into a contractual relationship with the Mississippi Division of Medicaid on behalf of a decedent because the record did not support the idea that the decedent had any knowledge of the benefits a homestead exemption provided, nor that he intentionally waived his right to the benefit of that exemption since the contract did not provide any information pertaining to, or even mention, the significance of any exemption; there was no evidence of the decedent’s intent to waive any of his rights because by entering into the contract, the decedent merely acknowledged Medicaid as a creditor of his estate, which estate had no property against which Medicaid could recover. State v. Stinson (In re Estate of Darby), 68 So.3d 702, 2011 Miss. App. LEXIS 96 (Miss. Ct. App.), cert. denied, 69 So.3d 767, 2011 Miss. LEXIS 419 (Miss. 2011).

Trial court did not err in granting an executrix summary judgment and in determining that the claim of the Mississippi Division of Medicaid was not valid against a decedent’s property because the decedent predeceased his children and a grandchild to whom he devised all of his property, and pursuant to the unambiguous language of Miss. Code Ann. §§85-3-21,91-1-19, and91-1-21, coupled with case law, the homestead, with its exemption, passed from the decedent to his children and grandchildren free of his debts; thus, Medicaid was not entitled to pursue a claim against the exempted property as it was not a part of the estate. State v. Stinson (In re Estate of Darby), 68 So.3d 702, 2011 Miss. App. LEXIS 96 (Miss. Ct. App.), cert. denied, 69 So.3d 767, 2011 Miss. LEXIS 419 (Miss. 2011).

This is so whether the estate be solvent or insolvent. Mason v. O'Brien, 42 Miss. 420, 1869 Miss. LEXIS 8 (Miss. 1869); De Baum v. Hulett Undertaking Co., 169 Miss. 488, 153 So. 513, 1934 Miss. LEXIS 66 (Miss. 1934).

Under Code 1892, § 1551 [Code 1942, § 476], $1,000 of life insurance, being exempt, inures to the heirs and forms no part of the estate to be administered. Equitable Life Assurance Soc. v. Hartfield, 87 Miss. 548, 40 So. 21, 1905 Miss. LEXIS 175 (Miss. 1905).

The exempt personal property is no part of the estate to be administered, but descends directly under the statute. Whitley v. Stephenson, 38 Miss. 113, 1859 Miss. LEXIS 100 (Miss. 1859); Holliday v. Holland, 41 Miss. 528, 1867 Miss. LEXIS 25 (Miss. 1867); Wally v. Wally, 41 Miss. 657, 1868 Miss. LEXIS 16 (Miss. 1868); De Baum v. Hulett Undertaking Co., 169 Miss. 488, 153 So. 513, 1934 Miss. LEXIS 66 (Miss. 1934).

3. Date for determining value of property.

If at the death of the owner of a homestead it does not exceed the full limit of value allowed, a subsequent appreciation in value, no matter how great, does not give creditors of the decedent any right to subject to their claims the excess over the full amount allowed. Moody v. Moody, 86 Miss. 323, 38 So. 322, 1905 Miss. LEXIS 34 (Miss. 1905).

The value of the property claimed as a homestead must be as of the time of decedent’s death. Parisot v. Tucker, 65 Miss. 439, 4 So. 113, 1888 Miss. LEXIS 14 (Miss. 1888).

RESEARCH REFERENCES

ALR.

Rights of surviving spouse and children in proceeds of sale of homestead in decedent’s estate. 6 A.L.R.2d 515.

Effect of divorce, separation, desertion, unfaithfulness, and the like, upon right to administer upon estate of spouse. 34 A.L.R.2d 876.

Separation agreement as barring rights of surviving spouse in other’s estate. 34 A.L.R.2d 1020.

Am. Jur.

40 Am. Jur. 2d, Homestead §§ 142, 143, 151 et seq.

CJS.

40 C.J.S., Homestead § 95 et seq.

§ 91-1-21. Exempt property liable for debt of decedent.

If there shall not be either a surviving wife or husband or children or grandchildren of the decedent, the exempt property shall be liable for the debts of the decedent and be disposed of in all respects as other property of such decedent.

HISTORY: Codes, 1871, § 1956; 1880, § 1277; 1892, § 1552; 1906, § 1658; Hemingway’s 1917, § 1390; 1930, § 1411; 1942, § 477; Laws, 1900, ch. 89.

Cross References —

Exempt property generally, see §§85-3-1 et seq.,89-1-29.

What are considered assets of estate, see §91-7-91.

Sale of property for payment of debts, see §91-7-183 et seq.

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Executrix did not waive the homestead exemption by entering into a contractual relationship with the Mississippi Division of Medicaid on behalf of a decedent because the record did not support the idea that the decedent had any knowledge of the benefits a homestead exemption provided, nor that he intentionally waived his right to the benefit of that exemption since the contract did not provide any information pertaining to, or even mention, the significance of any exemption; there was no evidence of the decedent’s intent to waive any of his rights because by entering into the contract, the decedent merely acknowledged Medicaid as a creditor of his estate, which estate had no property against which Medicaid could recover. State v. Stinson (In re Estate of Darby), 68 So.3d 702, 2011 Miss. App. LEXIS 96 (Miss. Ct. App.), cert. denied, 69 So.3d 767, 2011 Miss. LEXIS 419 (Miss. 2011).

Trial court did not err in granting an executrix summary judgment and in determining that the claim of the Mississippi Division of Medicaid was not valid against a decedent’s property because the decedent predeceased his children and a grandchild to whom he devised all of his property, and pursuant to the unambiguous language of Miss. Code Ann. §§85-3-21,91-1-19, and91-1-21, coupled with case law, the homestead, with its exemption, passed from the decedent to his children and grandchildren free of his debts; thus, Medicaid was not entitled to pursue a claim against the exempted property as it was not a part of the estate. State v. Stinson (In re Estate of Darby), 68 So.3d 702, 2011 Miss. App. LEXIS 96 (Miss. Ct. App.), cert. denied, 69 So.3d 767, 2011 Miss. LEXIS 419 (Miss. 2011).

Where a decedent died leaving no surviving spouse, child or grandchild, the homestead exemption expired with her death and was not valid as against unpaid claims against her estate, even though the decedent left a will devising her previously exempt homestead property to her ex-husband; the specific language of §91-1-21 does not continue a decedent’s homestead exemption for anyone other than a surviving spouse, children or grandchildren, and consequently there was no exemptionist who could defeat the claim against the estate’s homestead property. Memorial Hosp. v. Franzke (In re Estate of Franzke), 634 So. 2d 117, 1994 Miss. LEXIS 132 (Miss. 1994).

The general rule imposing liability for the debts of the decedent upon his exempt property in the absence of wife or children, is laid down in this section [Code 1942, § 477], but there are exceptions of limitations placed thereon in cases where the proceeds of life insurance policy, in one case, are made payable to beneficiary, and in the other, made to inure to the heirs of legatees of the decedent. Coates v. Worthy, 72 Miss. 575, 17 So. 606, 1895 Miss. LEXIS 24 (Miss. 1895).

RESEARCH REFERENCES

Am. Jur.

23 Am. Jur. 2d, Descent and Distribution § 134 et seq.

CJS.

26B C.J.S., Descent and Distribution § 134 et seq.

§ 91-1-23. Exempt property not to be partitioned in certain cases.

Where a decedent leaves a widow to whom, with others, his exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during her widowhood as long as it is occupied or used by the widow, unless she consent. Likewise, where a decedent leaves a widower to whom, with others, her exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during the period of his being a widower as long as it is occupied or used by the widower, unless he consent.

HISTORY: Codes, 1892, § 1553; 1906, § 1659; Hemingway’s 1917, § 1391; 1930, § 1412; 1942, § 478; Laws, 1950, ch. 346.

Cross References —

Partition of property generally, see §11-21-1 et seq.

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. To what property applicable.

3. How title acquired immaterial.

4. —Renunciation of will.

5. Personal nature of right.

6. Effect on others’ interests.

7. “Partition.”

8. Obligation to give accounting.

9. Remarriage of widow/widower.

10. Use without occupancy.

11. Value of property.

12. Tax delinquency.

13. Insurance.

14. Practice and procedure.

1. In general.

Judgment creditor of husband and wife who together owned property as tenants by the entirety could levy execution and sell that portion of homestead property which exceeded value of statutory homestead exemption which had vested in wife following husband’s death; this section was not applicable to debt for which surviving spouse was jointly and severally liable. In re Osborne, 120 B.R. 64, 1990 Bankr. LEXIS 2184 (Bankr. N.D. Miss. 1990).

A surviving spouse’s statutory right to occupy a homestead prevails where, by will, the owner devises it to another without share to the spouse; the surviving spouse need not renounce the will of the deceased owner in order to benefit from the statutory homestead right. Rush v. Rush, 360 So. 2d 1240, 1978 Miss. LEXIS 2341 (Miss. 1978).

This section would not apply to defeat the former wife’s partition action of a home to which she had been given exclusive right of possession under the decree of divorce, where neither the former wife nor former husband were deceased. Blackmon v. Blackmon, 350 So. 2d 44, 1977 Miss. LEXIS 2207 (Miss. 1977).

Exempt homestead which descended to decedent’s wife and children was not subject to partition during the widowhood of the surviving wife, provided she remained a widow and qualified under the exemption statute. Jones v. Jones, 249 Miss. 322, 161 So. 2d 640, 1964 Miss. LEXIS 393 (Miss. 1964).

A husband in possession of realty which he and his wife held as cotenants, may, so long as he remains a widower, resist partition sought by one to whom the wife devised her interest. Biggs v. Roberts, 237 Miss. 406, 115 So. 2d 151, 1959 Miss. LEXIS 485 (Miss. 1959).

Where a widow of a landowner, who had died intestate leaving also a son and daughter, neither waived nor attempted to dispose of her homestead rights by a deed conveying her one third interest to her son reserving to herself a life estate in all the lands, a grantee of one half interest of the tract of land from the son, to whom the daughter had also conveyed her one third interest therein, was not entitled to have the exempt property partitioned over the widow’s objection. Gresham v. Clark, 231 Miss. 206, 95 So. 2d 234, 1957 Miss. LEXIS 506 (Miss. 1957).

The property of an intestate was not subject to partition or sale for partition during the widowhood, as long as it was occupied by her, unless she consented. La Blanc v. Busby, 223 Miss. 415, 78 So. 2d 456, 1955 Miss. LEXIS 397 (Miss. 1955).

Under provision widow has the right to retain the homestead as it was during her husband’s lifetime, and this is true even though he also left children surviving. Bohn v. Bohn, 193 Miss. 122, 5 So. 2d 429, 1942 Miss. LEXIS 77 (Miss. 1942).

Children cannot have partition of exempt property occupied or used by widow. Stevens v. Wilbourn, 88 Miss. 514, 41 So. 66, 1906 Miss. LEXIS 167 (Miss. 1906).

Exempt property, real or personal, left by a deceased husband descends to his widow and children as tenants in common, the grandchildren taking per stirpes the share of the deceased children, but the widow has the right to occupy and use the same freed from liability for rent or hire and from partition during her widowhood. Martin v. Martin, 84 Miss. 553, 36 So. 523, 1904 Miss. LEXIS 56 (Miss. 1904).

2. To what property applicable.

Where property is subject to partition during the lives of cotenants-husbands, the right to partition is not enjoined by the deaths of the cotenants-husbands and the survival of their wives; however, the widows should retain their houses as improvements on the land, if possible, or, in the alternative, if it is not feasible to partition the land to allow the widows to receive their respective houses as improvements, then an accounting should be had as to such improvements. Carter v. Brewton, 396 So. 2d 617, 1981 Miss. LEXIS 2055 (Miss. 1981).

Where the husband of the defendant in a partition action had never established the property in question as his homestead, his widow had no homestead interest in the land which would prevent its partition. Mathis v. Quick, 271 So. 2d 924, 1973 Miss. LEXIS 1527 (Miss. 1973).

This section [Code 1942, § 478] applies only to the property of the decedent owned at the time of his death, and does not prevent partition of the property of a deceased cotenant. Solomon v. Solomon, 187 Miss. 22, 192 So. 10, 1939 Miss. LEXIS 86 (Miss. 1939).

3. How title acquired immaterial.

A widow or widower is entitled to full use and occupancy of homestead property during widowhood whether he or she took that interest by deed, devise, or descent. Stockett v. Stockett, 337 So. 2d 1237, 1976 Miss. LEXIS 1603 (Miss. 1976).

It is not necessary to the operation of this section [Code 1942, § 478] that title should have been acquired by inheritance. Biggs v. Roberts, 237 Miss. 406, 115 So. 2d 151, 1959 Miss. LEXIS 485 (Miss. 1959).

Widow, redeeming her interest from tax sale, had right against the other tenants to occupy property as homestead while widow, regardless of source from which cotenant’s title was derived. Lackey v. Harrington, 162 Miss. 512, 139 So. 313, 1932 Miss. LEXIS 123 (Miss. 1932).

4. —Renunciation of will.

Although proper contracts not to renounce a will are enforceable even though Code 1972 §91-5-25 provides that a husband or wife may renounce the will of another, the wife’s agreement not to renounce her will constituted an unconscionable contract so as to permit the wife’s renunciation of her husband’s will, notwithstanding her prior agreement not to renounce, where the wife was taken by her husband directly from her job to the office of the husband’s attorney and persuaded to assign the contract without prior knowledge of its existence or the opportunity to read the entire contract, and where the provision in the will, giving the wife a life estate in the parties’ homestead as long as she continued to live on the property, was minimal consideration when viewed against her rights under the laws of descent and distribution including her statutory right to a life estate in the homestead under Code 1972 §91-1-23 irrespective of her living on the property. In re Will of Johnson, 351 So. 2d 1339, 1977 Miss. LEXIS 1950 (Miss. 1977).

Upon a widow’s renunciation of a testator’s will devising to her a life estate in his home with remainder to a daughter, the widow became entitled to a one-third interest to the property in fee, and the daughter to the other two-thirds interest therein, subject to the right of the widow to occupy and use it during her widowhood. Milton v. Milton, 193 Miss. 563, 10 So. 2d 175, 1942 Miss. LEXIS 131 (Miss. 1942).

Widow with one child, upon renouncing, took undivided interest in the homestead, which is not subject to partition during her widowhood as long as occupied by her, without her consent. Williams v. Williams, 111 Miss. 129, 71 So. 300, 1916 Miss. LEXIS 253 (Miss. 1916).

5. Personal nature of right.

In line with the purpose of these provisions, the immunity from partition, being personal to the widow, is not extended to her grandniece. Bohn v. Bohn, 193 Miss. 122, 5 So. 2d 429, 1942 Miss. LEXIS 77 (Miss. 1942).

The right here conferred upon the widow is purely a personal one which does not pass to a grantee of her interest in the property. Middleton v. Claughton, 77 Miss. 131, 24 So. 963, 1899 Miss. LEXIS 41 (Miss. 1899).

6. Effect on others’ interests.

The fact that a widow was given a right under the statute to have the undisturbed possession of the exempt homestead following the death of the husband does not have the effect of destroying the tenancy in common, which arose in the property upon the death of the husband, merely because of the fact that the right of possession of the other heirs is postponed pending the widowhood of the wife. Bonds v. Bonds, 226 Miss. 348, 84 So. 2d 397, 1956 Miss. LEXIS 406 (Miss. 1956).

A widow, children and grandchildren are tenants in common subject to the right by the widow to undisturbed possession of the exempt homestead. Bonds v. Bonds, 226 Miss. 348, 84 So. 2d 397, 1956 Miss. LEXIS 406 (Miss. 1956).

The status of cotenancy is recognized by the statute, but the usual rights thereunder are made subordinate to the widow’s right of use and occupancy during her life. Bohn v. Bohn, 193 Miss. 122, 5 So. 2d 429, 1942 Miss. LEXIS 77 (Miss. 1942).

Under these provisions a widow’s right has the attributes and incidents of a life estate, and the other heirs are vested with a future estate which takes effect in possession at the termination of the preceding estate or interest. Bohn v. Bohn, 193 Miss. 122, 5 So. 2d 429, 1942 Miss. LEXIS 77 (Miss. 1942).

A widow takes a child’s part in the fee with the right of undisturbed possession or use of the homestead during her lifetime, and her use thereof may not be divided with the children. Bohn v. Bohn, 193 Miss. 122, 5 So. 2d 429, 1942 Miss. LEXIS 77 (Miss. 1942).

7. “Partition.”

The partition prohibited by this section [Code 1942, § 478] means an actual division of title with the right of possession thereunder, not a mere record identification of the several interests therein without an assertion by the coparceners of their respective rights. Bohn v. Bohn, 193 Miss. 122, 5 So. 2d 429, 1942 Miss. LEXIS 77 (Miss. 1942).

8. Obligation to give accounting.

The rights of the widow are absolute, and she cannot be called upon to account for the use and occupancy, nor forced to purchase the rights of her cotenants. Bohn v. Bohn, 193 Miss. 122, 5 So. 2d 429, 1942 Miss. LEXIS 77 (Miss. 1942).

Children cannot have accounting, by widow, for her use of exempt property occupied or used by her. Stevens v. Wilbourn, 88 Miss. 514, 41 So. 66, 1906 Miss. LEXIS 167 (Miss. 1906).

9. Remarriage of widow/widower.

Upon remarriage of a widow, her rights under §91-1-23, which prevents partition of homestead property, are terminated and the entire property becomes subject to partition by any and all of the other joint owners. Cheeks v. Herrington, 523 So. 2d 1033, 1988 Miss. LEXIS 211 (Miss. 1988).

Upon remarriage of a widow, her rights under the statute are terminated and the entire property becomes subject to partition by any and all of the other joint owners. Breland v. Bryant, 402 So. 2d 838, 1981 Miss. LEXIS 2145 (Miss. 1981).

This provision ceases to operate when the widow remarries. Jefcoat v. Powell, 235 Miss. 291, 108 So. 2d 868, 1959 Miss. LEXIS 429 (Miss. 1959).

10. Use without occupancy.

Where a decedent resided on one tract of land and used this tract with another as a farm unit which consisted of less than 160 acres, the widow was entitled to claim both parcels of land as a homestead although they were not contiguous. Horton v. Horton, 210 Miss. 116, 48 So. 2d 850, 1950 Miss. LEXIS 328 (Miss. 1950).

Neither the cases dealing only with urban property and those dealing with an urban tract and a rural tract as constituting together one homestead are applicable to a case where rural lands are involved. Horton v. Horton, 210 Miss. 116, 48 So. 2d 850, 1950 Miss. LEXIS 328 (Miss. 1950).

Widow, being entitled to use and occupancy of homestead, was entitled to rents thereof, and would so continue during her life or widowhood unless she elected or consented otherwise. Miers v. Miers, 160 Miss. 746, 133 So. 133, 1931 Miss. LEXIS 135 (Miss. 1931).

Court could not order sale of homestead of widow more than 60 years of age who has moved from premises, but was being supported in part from products. Wright v. Coleman, 137 Miss. 699, 102 So. 774, 1925 Miss. LEXIS 21 (Miss. 1925).

Exempt property of decedent descending to the widow with others is used by her so long as its income is used for her support, whether or not she resides on it. Tiser v. McCain, 113 Miss. 776, 74 So. 660, 1917 Miss. LEXIS 152 (Miss. 1917).

11. Value of property.

The question of value has no place in the consideration of the rights of a surviving widow to use and occupancy of the homestead, her rights being absolute so long as she remains a widow; the limitation on the value of the homestead that is exempt from creditors’ demands, set by §85-3-21, is not applicable. Stockett v. Stockett, 337 So. 2d 1237, 1976 Miss. LEXIS 1603 (Miss. 1976).

The value of the homestead is not material in passing on the rights of the surviving widow, since it was never the intention of the legislature that “160 acres of land should be reduced in quantity, save in one instance, and that is where the rights of the creditors were involved.” Horton v. Horton, 210 Miss. 116, 48 So. 2d 850, 1950 Miss. LEXIS 328 (Miss. 1950).

Surviving widow entitled to occupy homestead of 160 acres irrespective of value, and heirs cannot have partition thereof. Dickerson v. Leslie, 94 Miss. 627, 47 So. 659, 1909 Miss. LEXIS 319 (Miss. 1909).

Under this section [Code 1942, § 478] a surviving widow is entitled to occupy the homestead as it existed in the lifetime of the husband without reference to its value, the limit of value placed by law on exempt homesteads being solely for the benefit and protection of creditors and not affecting the rights of a surviving widow to the use and occupation of the homestead against the other heirs of the deceased exemptionist. Moody v. Moody, 86 Miss. 323, 38 So. 322, 1905 Miss. LEXIS 34 (Miss. 1905).

12. Tax delinquency.

Where a widow of intestate occupied and used intestate’s tax delinquent property, she could not permit the title to mature in the state and thereafter purchase the land for her own benefit at the expense of the children and any purchase she made of the tax title was made for the joint benefit of her and the intestate’s children. La Blanc v. Busby, 223 Miss. 415, 78 So. 2d 456, 1955 Miss. LEXIS 397 (Miss. 1955).

Widow, redeeming her interest from tax sale, had right against the other tenants to occupy property as homestead while widow, regardless of source from which cotenant’s title was derived. Lackey v. Harrington, 162 Miss. 512, 139 So. 313, 1932 Miss. LEXIS 123 (Miss. 1932).

13. Insurance.

Proceeds of policy procured by widow on homestead property occupied by herself and children as cotenants, each having an undivided one-fifth interest therein, did not inure to the benefit of the children as cotenants merely because of alleged fiduciary relationship existing between them as such, notwithstanding insurance was not limited to widow’s separate interest. Collette v. Long, 179 Miss. 650, 176 So. 528, 1937 Miss. LEXIS 60 (Miss. 1937).

14. Practice and procedure.

A bill to establish widow’s right to possession and occupancy of the homestead of her deceased husband need not negative the exception contained in Code 1942, § 476. Reed v. Reed, 197 Miss. 261, 19 So. 2d 745, 1944 Miss. LEXIS 294 (Miss. 1944).

Where the defendant, a decedent’s adult son, and his family were in possession of the lower floor and part of the second floor of a two-story homestead property, the widow was properly granted a peremptory writ upon the issue of liability for rent for the portion of the homestead occupied by the son, and she was entitled to have him ejected. Bohn v. Bohn, 193 Miss. 122, 5 So. 2d 429, 1942 Miss. LEXIS 77 (Miss. 1942).

Decree in partition ordering and confirming sale of homestead, to which widow objected, should be vacated and bill dismissed. Talley v. Talley, 108 Miss. 84, 66 So. 328, 1914 Miss. LEXIS 172 (Miss. 1914).

RESEARCH REFERENCES

ALR.

Homestead Right of Cotenant as Affecting Partition. 83 A.L.R.6th 605.

§ 91-1-25. Person who has killed another not to inherit from him.

If any person wilfully cause or procure the death of another in any way, he shall not inherit the property, real or personal, of such other; but the same shall descend as if the person so causing or procuring the death had predeceased the person whose death he perpetrated.

HISTORY: Codes, 1892, § 1554; 1906, § 1660; Hemingway’s 1917, § 1392; 1930, § 1413; 1942, § 479; Laws, 1992, ch. 311, § 1, eff from and after July 1, 1992.

Cross References —

Prohibition against murderer taking under will, see §91-5-33.

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. Construction.

1. In general.

Public Employees’ Retirement System (PERS) Board of Trustees did not err in denying the claim a deceased PERS member’s sister because the member’s husband was entitled to lifetime spousal survivor benefits, notwithstanding the fact he was convicted of aggravated driving under the influence in connection with the member’s death; the husband did not willfully cause the member’s death under the slayer statutes, and he had been married to the member for over one year. Hicks v. Public Employees' Ret. Sys. of Miss., 282 So.3d 1204, 2019 Miss. App. LEXIS 479 (Miss. Ct. App. 2019).

Mississippi Supreme Court has applied the same statutory principles of the “slayer statutes” where the property at issue was life insurance proceeds rather than an inheritance; the same principles would apply to Public Employees’ Retirement System benefits for the strong public policy against allowing someone to profit from involvement in the death of another. Hicks v. Public Employees' Ret. Sys. of Miss., 282 So.3d 1204, 2019 Miss. App. LEXIS 479 (Miss. Ct. App. 2019).

Although the chancellor cited the wrong statutory section in finding that a father had no interest in his former wife’s estate, the finding was substantively correct where there was no dispute that he had murdered his former wife, and as a result, he could have no interest in the estate under Miss. Code Ann. §91-1-25 (Rev. 2013). Young v. O'Beirne, 147 So.3d 877, 2014 Miss. App. LEXIS 311 (Miss. Ct. App. 2014).

In an action in which a beneficiary filed suit against an insurance company alleging claims of tortious breach of contract, breach of fiduciary duty and duty of good faith and fair dealing, negligence, gross negligence, and intentional infliction of emotional distress, the insurance company was granted summary judgment where: (1) the insured executed a voluntary statement to police that her husband had stabbed her with a knife and a month after the knife wound, the insured died in her bed; (2) no reasonable juror could conclude that the insurance company acted with malice, gross negligence, or reckless disregard in wanting to review the autopsy report; and (3) the delay in receiving the autopsy report was due in part to the beneficiary’s failure to inform them of his address change. Washington v. Am. Heritage Life Ins. Co., 500 F. Supp. 2d 610, 2007 U.S. Dist. LEXIS 54120 (N.D. Miss. 2007).

Neither the Mississippi slayer’s statute, Miss. Code Ann. §91-1-25, or the Mississippi Uniform Simultaneous Death Act, Miss. Code Ann. §§91-3-1 through91-13-15 acted to entitle the estate of a wife who was killed by her husband in a murder-suicide to a child’s share of the husband’s estate; husband’s son by a previous marriage was the husband’s sole heir-at-law. Miller v. Miller (In re Estate of Miller), 840 So. 2d 703, 2003 Miss. LEXIS 116 (Miss. 2003).

Evidence of a guilty plea to a charge of manslaughter is not sufficient, standing alone, to enable a fact finder to conclude that one is prohibited from inheriting under §§91-1-25 and91-5-33. Hood v. VanDevender, 661 So. 2d 198, 1995 Miss. LEXIS 456 (Miss. 1995).

An action alleging that funds distributed to a decedent’s son under a prior decree which adjudicated the intestate distribution of the decedent’s estate, were “wrongfully inherited” pursuant to §91-1-25 because the decedent’s son willfully caused the decedent’s death, was barred by §91-1-31. Johnson v. Howell, 592 So. 2d 998, 1991 Miss. LEXIS 986 (Miss. 1991).

Mississippi Code §91-1-25 represents a legislatively-created exception. Roberts v. Grisham, 493 So. 2d 940, 1986 Miss. LEXIS 2588 (Miss. 1986).

Decedent’s husband was entitled to inherit an interest in land owned by his wife, even though he had entered into a consent decree in Michigan in which he relinquished his rights as heir of his wife, where the parties did not intend the Michigan decree to cover Mississippi lands; the testimony of husband that he shot his wife accidentally was properly admitted in evidence as an exception to the dead man’s statute; insofar as the shooting was not wilful, the husband was not barred from inheriting by statute. Bianchi v. Scott, 363 So. 2d 289, 1978 Miss. LEXIS 2191 (Miss. 1978).

Equitable estoppel does not and cannot authorize the exercise of a personal right which terminates with the death of a spouse, and the fact that a husband shot and killed his wife, an act which would have precluded his inheriting her estate, is no justification for permitting the deceased wife’s personal representatives to renounce the husband’s will, an act which by law can only be invoked personally by a surviving spouse. Jenkins v. Borodofsky, 211 So. 2d 874, 1968 Miss. LEXIS 1288 (Miss. 1968).

The statute requiring commencement of action to recover land ten years after right to do so accrues, did not apply to a suit to cancel as cloud on title claim asserted by husband who pleaded guilty to manslaughter in the death of his wife. Henry v. Toney, 217 Miss. 716, 64 So. 2d 904, 1953 Miss. LEXIS 484 (Miss. 1953).

In a suit to cancel as cloud on title claim asserted by husband by virtue of inheritance from his deceased spouse, where it was finally adjudicated that the husband had pleaded guilty to manslaughter in the death of his wife, the suit was not one for penalty or forfeiture on a penal statute required to be brought within one year from the date of offense. Henry v. Toney, 217 Miss. 716, 64 So. 2d 904, 1953 Miss. LEXIS 484 (Miss. 1953).

Under this section [Code 1942, § 479] it is not requisite that the wilful killing shall amount to murder but it is enough that it was wilful and without justification in law. Henry v. Toney, 211 Miss. 93, 50 So. 2d 921, 1951 Miss. LEXIS 335 (Miss. 1951).

In a suit to cancel husband’s claim to property of wife on the ground that he had feloniously slain his wife in Ohio and thereby forfeited his right to the property under this section [Code 1942, § 479], the fact that the husband pleaded guilty to manslaughter in Ohio does not admit a wilful killing but the husband should be allowed to introduce evidence to explain the circumstances of killing. Henry v. Toney, 211 Miss. 93, 50 So. 2d 921, 1951 Miss. LEXIS 335 (Miss. 1951).

Insurance beneficiary’s acts, after an assault by her husband, in running to a neighbor’s home, procuring a gun and returning to shoot her husband through the window, constituted a deliberate homicide without justification in law and precluded her, as the widow beneficiary, from claiming the proceeds of a life insurance policy. Gholson v. Smith, 210 Miss. 28, 48 So. 2d 603, 1950 Miss. LEXIS 316 (Miss. 1950).

2. Construction.

Slayer’s statutes such as Miss. Code Ann. §91-1-25 are strictly construed and narrow in purpose. Miller v. Miller (In re Estate of Miller), 840 So. 2d 703, 2003 Miss. LEXIS 116 (Miss. 2003).

The Mississippi slayer’s statute, Miss. Code Ann. §91-1-25, is a statute of exclusion, not inclusion and, when applicable, it acts to exclude a slayer from participation in the victim’s estate but it does not act to include the victim in the slayer’s estate due to the slayer’s crime. Miller v. Miller (In re Estate of Miller), 840 So. 2d 703, 2003 Miss. LEXIS 116 (Miss. 2003).

RESEARCH REFERENCES

ALR.

Felonious killing of ancestor as affecting intestate succession. 39 A.L.R.2d 477.

Killing of insured by beneficiary as affecting life insurance or its proceeds. 27 A.L.R.3d 794.

Felonious killing of one cotenant or tenant by the entireties by the other as affecting latter’s right in the property. 42 A.L.R.3d 1116.

Homicide as precluding taking under will or by intestacy. 25 A.L.R.4th 787.

Am. Jur.

23 Am. Jur. 2d, Descent and Distribution § 50 et seq.

§ 91-1-27. How title to property acquired by descent may be made.

In all cases in which persons have died, or may hereafter die, wholly or partially intestate, having property, real or personal, any heir at law of such deceased person, or any one interested in any of the property as to which he shall have died intestate, may petition the chancery court of the county in which said deceased had his mansion house or principal place or residence, or in which any part of his real estate may be situated, in case he was a nonresident, setting forth the fact that said person died wholly or partially intestate, possessed of real or personal property in the State of Mississippi, the names of the heirs at law or next of kin, and praying that the person named in said petition be recognized and decreed to be the heir at law of said deceased.

HISTORY: Codes, 1906, § 2790; Hemingway’s 1917, § 310; 1930, § 359; 1942, § 1270; Laws, 1896, ch. 93.

Cross References —

Applicability of this section to inheritances by and from illegitimates, see §91-1-15.

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

A claimant’s timely filing, 3 days after the decedent’s death, of a sworn Petition for Letters of Administration in which he alleged that he was the son and sole surviving heir of the deceased, sufficiently complied with the provisions of §§91-1-15,91-1-27 and91-1-29 and therefore his claim of heirship was not barred by the statute of limitations of §91-1-15(3)(c). The fact that the claimant did not precisely state that he was the “illegitimate” or “born-out-of-wedlock” son, as opposed to simply declaring himself to be “the son,” was a matter of semantics which made no difference; the indication that he was the sole surviving heir was sufficiently clear. Wash v. McIntosh, 566 So. 2d 1208 (Miss. 1990).

A party may combine a suit to determine heirship with a suit to contest a will. Dees v. Estate of Moore, 562 So. 2d 109, 1990 Miss. LEXIS 257 (Miss. 1990).

Section91-1-15(3)(c), which requires that an action seeking adjudication of paternity be filed within 90 days after the first publication of notice to creditors, does not require that notice be given within the 90-day period. An out-of-wedlock child who brought a claim for heirship after her father’s death complied with the filing requirement by petitioning to be appointed administratrix and seeking to be declared the sole and only heir-at-law, where other persons, who would inherit from the decedent, had actual knowledge of the claim of heirship as evidenced by their hiring of an attorney, and, before the estate was closed, were properly allowed by the court to file their claim. The summons by publication requirement of §91-1-29 was met, and all parties were given their day in court. This procedure sufficiently complied with the notice requirements of §91-1-27 and §91-1-29, and the filing requirements of §91-1-15(3)(c). Perkins v. Thompson, 551 So. 2d 204, 1989 Miss. LEXIS 360 (Miss. 1989).

When mother of decedent’s alleged illegitimate child moved to intervene in case brought under Federal Employers Liability Act, it was incumbent on her to file petition in chancery court under §91-1-27 and proceed under §91-1-29, and intervention should have been denied because these statutes had not been followed; where parties agreed for circuit judge to hear issue of paternity on merits, case would not be reversed because wrong court decided issue; on merits, circuit judge was correct in dismissing proposed intervention because there was no clear and convincing evidence that decedent was child’s natural father. Ivy v. Illinois C. G. R. Co., 510 So. 2d 520, 1987 Miss. LEXIS 2619 (Miss. 1987).

Provided paternity is established as required by §§91-1-27 and91-1-29, “children” under Federal Employers Liability Act means illegitimate as well as legitimate children. Ivy v. Illinois C. G. R. Co., 510 So. 2d 520, 1987 Miss. LEXIS 2619 (Miss. 1987).

Illegitimate child has right to inherit in father’s wrongful death claim, but such claim must be asserted and established by clear and convincing evidence under §§91-1-27 and91-1-29. Ivy v. Illinois C. G. R. Co., 510 So. 2d 520, 1987 Miss. LEXIS 2619 (Miss. 1987).

Administrator who, in his petition for administration, represented that decedent’s half-sister was the sole heir, even though he had actual knowledge that decedent had a living natural daughter, made a serious misrepresentation to the court, and, if the misrepresentation was determined to be a fraud on the court, the administrator would be removed. Campbell v. Gregory, 493 So. 2d 950 (Miss. 1986).

Although appointment of plaintiff as administrator of brother’s estate may have violated Mississippi Code Annotated §91-1-27, wrongful death action would not be dismissed where such appointment could be attacked in Chancery Court of De Soto County, Mississippi, which court appointed plaintiff as administrator. McGowan v. Riley, 628 F. Supp. 1087, 1985 U.S. Dist. LEXIS 15478 (N.D. Miss. 1985).

This section [Code 1942, § 1270] and Code 1942, § 1271 must be read as in pari materia. Shepherd v. Townsend, 249 Miss. 383, 163 So. 2d 746, 1964 Miss. LEXIS 401 (Miss. 1964).

The statute providing for the determination of the heirs of a decedent by a chancery court applies where the decedent has left a will bequeathing in part or entirely his estate to his nearest of kin according to the laws of descent and distribution. Shepherd v. Townsend, 249 Miss. 383, 163 So. 2d 746, 1964 Miss. LEXIS 401 (Miss. 1964).

Where there was no proceeding under this statute for the determination of heirs, one not a party to the administration of a decedent’s estate may question its distribution even after expiration of the two years within which the statute permits the opening of an account. Shepherd v. Townsend, 249 Miss. 383, 163 So. 2d 746, 1964 Miss. LEXIS 401 (Miss. 1964).

Adopted children of decedent are not necessary parties to suit to adjudicate heirship, unless decree of adoption made adopted children lawful heirs of adopting parent. Whitman v. Whitman, 206 Miss. 838, 41 So. 2d 22, 1949 Miss. LEXIS 305 (Miss. 1949).

In a suit under this section [Code 1942, § 1270] to have themselves declared heirs, brother and sister of deceased, allegedly insane at time of marriage, could not after his death collaterally attack marriage which was merely voidable. White v. Williams, 159 Miss. 732, 132 So. 573, 1931 Miss. LEXIS 82 (Miss. 1931).

Defendant held to have complete remedy at law relative to who was heir, in death action against it by administrator. Craft v. Homochitto Lumber Co., 141 Miss. 156, 106 So. 440, 1925 Miss. LEXIS 226 (Miss. 1925).

RESEARCH REFERENCES

Am. Jur.

23 Am. Jur. 2d, Descent and Distribution § 25 et seq.

CJS.

26B C.J.S., Descent and Distribution § 10-12 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

§ 91-1-29. Heirs to be cited to appear.

All the heirs at law and next of kin of said deceased who are not made parties plaintiff to the action shall be cited to appear and answer the same. And in addition thereto a summons by publication shall be made addressed to “The heirs at law of_______________ , Deceased,” and shall be published as other publications to absent or unknown defendants, and the cause shall be proceeded with as other causes in chancery, and upon satisfactory evidence as to death of said person and as to the fact that the parties to said suit are his sole heirs at law, the court shall enter a judgment that the persons so described be recognized as the heirs at law of such a decedent, and as such be placed in possession of his estate. And said judgment shall be evidence in all the courts of law and equity in this state that the persons therein named are the sole heirs at law of the person therein described as their ancestor.

HISTORY: Codes, 1906, § 2791; Hemingway’s 1917, § 311; 1930, § 360; 1942, § 1271; Laws, 1991, ch. 573, § 127, eff from and after July 1, 1991.

Cross References —

Publication of summons for unknown heirs, see §13-3-25.

Applicability of this section to inheritances by and from illegitimates, see §91-1-15.

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Decedent’s administratrix’s failure to notify decedent’s illegitimate children of the administration of their father’s estate resulted in tolling of the 90-day statute. In re Estate of Thomas, 883 So. 2d 1173, 2004 Miss. LEXIS 1269 (Miss. 2004).

When the individual asserting heirship claims to be an illegitimate child, the necessary parties include those blood relations of the decedent that would be the decedent’s heirs at law should the illegitimate’s claim of paternity fail; these persons are necessary parties even if they would be completely excluded from inheritance if the paternity claim is proven. Balsara v. Adams (In re Estate of Brewer), 755 So. 2d 1108, 1999 Miss. App. LEXIS 255 (Miss. Ct. App. 1999).

A claimant’s timely filing, 3 days after the decedent’s death, of a sworn Petition for Letters of Administration in which he alleged that he was the son and sole surviving heir of the deceased, sufficiently complied with the provisions of §§91-1-15,91-1-27 and91-1-29 and therefore his claim of heirship was not barred by the statute of limitations of §91-1-15(3)(c). The fact that the claimant did not precisely state that he was the “illegitimate” or “born-out-of-wedlock” son, as opposed to simply declaring himself to be “the son,” was a matter of semantics which made no difference; the indication that he was the sole surviving heir was sufficiently clear. Wash v. McIntosh, 566 So. 2d 1208 (Miss. 1990).

A party may combine a suit to determine heirship with a suit to contest a will. Dees v. Estate of Moore, 562 So. 2d 109, 1990 Miss. LEXIS 257 (Miss. 1990).

Section91-1-15(3)(c), which requires that an action seeking adjudication of paternity be filed within 90 days after the first publication of notice to creditors, does not require that notice be given within the 90-day period. An out-of-wedlock child who brought a claim for heirship after her father’s death complied with the filing requirement by petitioning to be appointed administratrix and seeking to be declared the sole and only heir-at-law, where other persons, who would inherit from the decedent, had actual knowledge of the claim of heirship as evidenced by their hiring of an attorney, and, before the estate was closed, were properly allowed by the court to file their claim, the summons by publication requirement of §91-1-29 was met, and all parties were given their day in court. This procedure sufficiently complied with the notice requirements of §91-1-27 and §91-1-29, and the filing requirements of §91-1-15(3)(c). Perkins v. Thompson, 551 So. 2d 204, 1989 Miss. LEXIS 360 (Miss. 1989).

Illegitimate child has right to inherit in father’s wrongful death claim, but such claim must be asserted and established by clear and convincing evidence under §§91-1-27 and91-1-29. Ivy v. Illinois C. G. R. Co., 510 So. 2d 520, 1987 Miss. LEXIS 2619 (Miss. 1987).

Provided paternity is established as required by §§91-1-27 and91-1-29, “children” under Federal Employers Liability Act means illegitimate as well as legitimate children. Ivy v. Illinois C. G. R. Co., 510 So. 2d 520, 1987 Miss. LEXIS 2619 (Miss. 1987).

When mother of decedent’s alleged illegitimate child moved to intervene in case brought under Federal Employers Liability Act, it was incumbent on her to file petition in chancery court under §91-1-27 and proceed under §91-1-29, and intervention should have been denied because these statutes had not been followed; where parties agreed for circuit judge to hear issue of paternity on merits, case would not be reversed because wrong court decided issue; on merits, circuit judge was correct in dismissing proposed intervention because there was no clear and convincing evidence that decedent was child’s natural father. Ivy v. Illinois C. G. R. Co., 510 So. 2d 520, 1987 Miss. LEXIS 2619 (Miss. 1987).

This section [Code 1942, § 1271] must be read as in pari materia with Code 1942, § 1270. Shepherd v. Townsend, 249 Miss. 383, 163 So. 2d 746, 1964 Miss. LEXIS 401 (Miss. 1964).

RESEARCH REFERENCES

Am. Jur.

23 Am. Jur. 2d, Descent and Distribution § 41 et seq.

CJS.

26B C.J.S., Descent and Distribution § 26 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

§ 91-1-31. Judgment as to descent of property cannot be assailed collaterally except for fraud.

A judgment so rendered as provided in Section 91-1-29 shall not be assailed collaterally, except for fraud, and shall be binding and conclusive upon all persons cited to appear from the date of its rendition, and upon all persons whomsoever from and after the expiration of two (2) years from the date on which the same was rendered, saving to minors and persons of unsound mind, the right to re-open said cause within one (1) year after attaining majority or being restored to sanity. A judgment so rendered shall thereupon be filed, recorded and indexed by the chancery clerk of the county where rendered in the general deed records of said county, just as if it were a deed of conveyance from said decedent to his heirs at law. And a certified copy of such judgment may likewise be filed, recorded and indexed in any other county where the decedent owned land at the date of his death.

HISTORY: Codes, 1906, § 2792; Hemingway’s 1917, § 312; 1930, § 361; 1942, § 1272; Laws, 1991, ch. 573, § 128, eff from and after July 1, 1991.

Cross References —

Saving of rights of infant when his real estate is sold or conveyed, see §11-5-115.

Limitation of actions on domestic judgments generally, see §§15-1-43,15-1-57.

Ratification of debt contracted during infancy, see §15-3-11.

Proceedings pertaining to trusts and estates, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

An action alleging that funds distributed to a decedent’s son under a prior decree which adjudicated the intestate distribution of the decedent’s estate, were “wrongfully inherited” pursuant to §91-1-25 because the decedent’s son willfully caused the decedent’s death, was barred by §91-1-31. Johnson v. Howell, 592 So. 2d 998, 1991 Miss. LEXIS 986 (Miss. 1991).

Judgment or decree obtained by fraud is void, and may be cancelled or enjoined in a court of equity. Weems v. Vowell, 122 Miss. 342, 84 So. 249, 1920 Miss. LEXIS 438 (Miss. 1920).

RESEARCH REFERENCES

Am. Jur.

23 Am. Jur. 2d, Descent and Distribution § 65.

CJS.

26B C.J.S., Descent and Distribution §§ 154-157.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

Chapter 3. Uniform Simultaneous Death Law

§ 91-3-1. How chapter cited.

This chapter may be cited as the Uniform Simultaneous Death Law.

HISTORY: Codes, 1942, § 479-08; Laws, 1956, ch. 214, § 8, eff from and after July 1, 1956.

Comparable Laws from other States —

Alabama: Code of Ala. §§43-7-1 through47-7-8.

Alaska: Alaska Stat. § 13.12.702.

Arizona: A.R.S. § 14-2702.

Arkansas: A.C.A. §§28-10-201 through28-10-212.

District of Columbia: D.C. Code §§ 19-501 through 19-509.

Georgia: O.C.G.A. §§53-10-1 through53-10-6.

Guam: 15 Guam Code Ann. §§ 1301 through 1309.

Idaho: Idaho Code §15-2-613.

Indiana: Burns Ind. Code Ann. §§29-2-14-1 through29-2-14-8.

Iowa: Iowa Code §§ 633.523 through 635.529.

Kansas: K.S.A. §§ 58-708 through 58-718.

Kentucky: K.R.S. §§ 397.1001 through 397.1009.

Maine: 18 A.M.R.S. § 2-805.

Maryland: Md. Courts and Judicial Proceedings Code Ann. §§ 10-801 through 10-807.

Montana: Mont. Code Anno. §72-2-712.

Nebraska: R.R.S. Neb. §§ 30-121 through 30-128.

Nevada: Nev. Rev. Stat. Ann. §§ 135.010 through 135.090.

New Hampshire: R.S.A. §§ 563:1 through 563:11.

New Jersey: N.J. Stat. §§ 3B:6-1 through 3B:6-7.

Ohio: O.R.C. Ann. § 2105.31 et seq.

Oklahoma: 58 Okl. St. §§ 1001 through 1008.

Oregon: O.R.S. §§ 112.570 through 112.590.

Rhode Island: R.I. Gen. Laws §§33-2-1 through33-2-9.

South Carolina: S.C. Code Ann. 62-1-501 through 62-1-508.

Tennessee: Tenn. Code Ann. §§31-3-101 through31-3-105.

Vermont: 14 V.S.A. §§ 621 through 627.

Virginia: Va. Code Ann. §§ 64.2-2200 through 64.2-2208.

Washington: Rev. Code Wash. § 11.05A.010 et seq.

West Virginia: W. Va. Code §§42-5-1 through42-5-10.

Wyoming: Wyo. Stat. §§2-13-101 through 2-13-107.

RESEARCH REFERENCES

ALR.

Construction, application, and effect of Uniform Simultaneous Death Act. 39 A.L.R.3d 1332.

Am. Jur.

Am. Jur. 2d Desk Book, Doc. No. 129, jurisdictions adopting Uniform Simultaneous Death Law.

Practice References.

Bickel and Flannery, Living Trusts: Forms and Practice (Matthew Bender).

Burke, Friel, and Gagliardi, Modern Estate Planning, Second Edition (Matthew Bender).

Christensen, International Estate Planning, Second Edition (Matthew Bender).

Mobley, Robinson and Hedrick, Pritchard on the Law of Wills and Administration of Estates, Seventh Edition (Michie).

Rapkin, Planning for Large Estates (Matthew Bender).

Schoenblum, Estate Planning Forms and Clauses with CD Rom (Matthew Bender).

Wyatt, Trust Administration and Taxation (Matthew Bender).

LexisNexis® CD – Estate Planning Package (CD-Rom) (LexisNexis).

Murphy’s Will Clauses: Annotations and Forms with Tax Effects (Matthew Bender).

§ 91-3-3. Construction.

This chapter shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact the Uniform Simultaneous Death Law.

HISTORY: Codes, 1942, § 479-07; Laws, 1956, ch. 214, § 7, eff from and after July 1, 1956.

§ 91-3-5. Disposition of property in absence of evidence of survivorship.

Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this chapter.

HISTORY: Codes, 1942, § 479-01; Laws, 1956, ch. 214, § 1, eff from and after July 1, 1956.

Cross References —

Presumption of death from long continued absence, see §13-1-23.

JUDICIAL DECISIONS

1. In general.

No presumption as to survivorship as between persons killed in a common disaster arises under the Mississippi Uniform Simultaneous Death Act, Miss. Code Ann. §§91-3-1 through91-3-15, nor is there a presumption of simultaneous death; the burden of proof is on the party whose claim depends on survivorship to establish the fact. Miller v. Miller (In re Estate of Miller), 840 So. 2d 703, 2003 Miss. LEXIS 116 (Miss. 2003).

Neither the Mississippi slayer’s statute, Miss. Code Ann. §91-1-5, or the Mississippi Uniform Simultaneous Death Act, Miss. Code Ann. §§91-3-1 through91-3-15 acted to entitle the estate of a wife who was killed by her husband in a murder-suicide to a child’s share of the husband’s estate; husband’s son by a previous marriage was the husband’s sole heir-at -law. Miller v. Miller (In re Estate of Miller), 840 So. 2d 703, 2003 Miss. LEXIS 116 (Miss. 2003).

RESEARCH REFERENCES

ALR.

Construction, application, and effect of Uniform Simultaneous Death Act. 39 A.L.R.3d 1332.

Am. Jur.

22A Am. Jur. 2d, Death §§ 258, 259.

Practice References.

Young, Trial Handbook for Mississippi Lawyers § 19:18.

CJS.

25A C.J.S., Death §§ 7, 16, 17.

§ 91-3-7. Beneficiaries of another person’s disposition of property.

Where two (2) or more beneficiaries are designated to take successively by reason of survivorship under another person’s disposition of property and there is no sufficient evidence that these beneficiaries have died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived.

HISTORY: Codes, 1942, § 479-02; Laws, 1956, ch. 214, § 2, eff from and after July 1, 1956.

§ 91-3-9. Joint tenants or tenants by the entirety.

Where there is no sufficient evidence that two (2) joint tenants have died otherwise than simultaneously the property so held shall be distributed one half (1/2) as if one had survived and one half (1/2) as if the other had survived. If there are more than two (2) joint tenants and all of them have so died the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.

HISTORY: Codes, 1942, § 479-03; Laws, 1956, ch. 214, § 3, eff from and after July 1, 1956.

§ 91-3-11. Insurance policies or contracts.

Where the insured and the beneficiary in a policy of life or accident insurance have died and there is insufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.

HISTORY: Codes, 1942, § 479-04; Laws, 1956, ch. 214, § 4, eff from and after July 1, 1956.

§ 91-3-13. Chapter not to apply to persons dying before effective date.

This chapter shall not apply to the distribution of the property of a person who has died before July 1, 1956.

HISTORY: Codes, 1942, § 479-05; Laws, 1956, ch. 214, § 5, eff from and after July 1, 1956.

§ 91-3-15. Provision in will, etc., rendering chapter inapplicable.

This chapter shall not apply in the case of wills, living trusts, deeds, contracts of insurance or other contracts wherein provision has been made for distribution of property different from the provisions of this chapter.

HISTORY: Codes, 1942, § 479-06; Laws, 1956, ch. 214, § 6, eff from and after July 1, 1956.

RESEARCH REFERENCES

ALR.

Wills: construction of provision as to which of two or more parties shall be deemed the survivor in case of death simultaneously, in a common disaster, or within a specified period of time. 40 A.L.R.3d 359.

Chapter 5. Wills and Testaments

§ 91-5-1. Who may execute; signature; attestation.

Every person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, of, in, or to lands, tenements, hereditaments, or annuities, or rents charged upon or issuing out of them, or goods and chattels, and personal estate of any description whatever, provided such last will and testament, or codicil, be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (14); 1857, ch. 60, art. 34; 1871, § 2388; 1880, § 1262; 1892, § 4488; 1906, § 5078; Hemingway’s 1917, § 3366; 1930, § 3550; 1942, § 657; Laws, 1970, ch. 324, § 1; Laws, 1973, ch. 314, § 1, eff from and after passage (approved March 14, 1973).

Cross References —

Definition of term “will,” see §1-3-59.

Recording of wills, see §9-5-137.

Descent and distribution generally, see §91-1-1 et seq.

Proof of wills by handwriting, see §91-7-7.

Release of powers of appointment, see §91-15-1 et seq.

Criminal offense of alteration, destruction, or secretion of wills, see §97-9-77.

Criminal offense of forgery of record of will, see §97-21-45.

Criminal offense of forgery or counterfeiting of will, see §97-21-63.

Applicability of Mississippi Rules of Civil Procedure to proceedings which are subject to the provisions of Title 91, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. What interests are devisable.

3. Establishment of lost or destroyed will.

4. Reformation or revocation.

5. Construction of wills.

6. —Lapsed or void devises; property not devised by will.

7. Effect of mistake.

8. Testamentary capacity.

9. —Determination; generally.

10. —Sufficiency.

11. —Undue influence.

12. Execution, in general.

13. —Codicil.

14. Signature or subscription.

15. Attestation.

16. —Validity; particular circumstances.

17. —Presence of witnesses.

18. Particular instruments as valid testamentary instruments.

19. Holographic wills.

20. —Date requirement.

21. —Reference to extrinsic documents.

22. —Construction.

23. —Particular instruments as valid holographic wills.

24. Probate; requirement, generally.

25. —Practice and procedure.

26. —Evidence.

27. — —Admissibility.

28. —Burden of proof.

1. In general.

Denial by a chancery court of the payment of attorney fees in a will contest was proper because testators did not have the authority in Mississippi to require unsuccessful will contestants to pay attorney fees for their adversaries, as there was no statutory law permitting it. Parker v. Benoist, 160 So.3d 198, 2015 Miss. LEXIS 113 (Miss. 2015).

Competent person may dispose of property by will in any manner not prohibited by law. Parker v. Broadus, 128 Miss. 699, 91 So. 394, 1922 Miss. LEXIS 152 (Miss. 1922).

Right to devolve property by will and rights thereunder are statutory. Woodville v. Pizzati, 119 Miss. 442, 81 So. 127, 1919 Miss. LEXIS 22 (Miss. 1919).

Statute upon wills and testaments authorizes every person sui juris to devise all his estate, real or personal, of any description whatever, and such a will unless broken by heirs or renounced by the widow governs the entire disposition of his estate. McGaughey v. Eades, 78 Miss. 853, 29 So. 516, 1901 Miss. LEXIS 132 (Miss. 1901).

2. What interests are devisable.

A testator cannot, by will, dispose of property which he or she placed, during his or her lifetime, in a validly created joint tenancy account with rights of survivorship. A subsequent will does not destroy the joint tenancy and does not terminate that tenancy and divest the corpus of it into the estate of the testator. In re Will & Estate of Strange, 548 So. 2d 1323, 1989 Miss. LEXIS 431 (Miss. 1989).

A person of sound and disposing mind whose property has been placed under conservatorship may execute a valid will and may do so without the knowledge of the conservator or the permission of the court. Lee v. Lee, 337 So. 2d 713, 1976 Miss. LEXIS 1588 (Miss. 1976).

This statute authorizes devises of all interests in real estate, whether present or future. Hemphill v. Mississippi State Highway Com., 245 Miss. 33, 145 So. 2d 455, 1962 Miss. LEXIS 529 (Miss. 1962).

A testator has the right to devise or bequeath all of the property which he may have, not only at the time the will is executed, but any that he may thereafter acquire and own at the time of his death. Milton v. Milton, 193 Miss. 563, 10 So. 2d 175, 1942 Miss. LEXIS 131 (Miss. 1942).

A will does not operate as substitution of legatees as beneficiaries in testator’s life policy payable to his executors, administrators or assigns. Magee v. Bank of Hattiesburg & Trust Co., 134 Miss. 126, 98 So. 541, 1923 Miss. LEXIS 243 (Miss. 1923).

Under this section [Code 1942, § 657] one may devise land acquired after the will. McRae v. Lowery, 80 Miss. 47, 31 So. 538, 1902 Miss. LEXIS 225 (Miss. 1902).

3. Establishment of lost or destroyed will.

The evidence was sufficient to rebut the presumption that a testator revoked a will which was known to have been made and was kept in a locked drawer of the testator’s desk, but which was not found upon his death, where the testator had a close and affectionate relationship with his daughter who was the sole beneficiary under the will, he talked to people about his will and told them that he was leaving his entire estate to his daughter, there was nothing in the record suggesting that he had changed his mind, the desk in which the will was kept was subject to entry by others, and there was evidence that someone had entered the house and the desk area after the testator died and emptied the contents of filing cabinet drawers. Matter of Berry v. Smith, 584 So. 2d 400 (Miss. 1991).

The trial court properly set aside a jury verdict finding that the decedent’s lost or destroyed will had been properly executed where there was neither direct nor secondary evidence that the alleged lost or destroyed will was ever signed, witnessed, and executed according to law. Gaston v. Gaston, 358 So. 2d 376, 1978 Miss. LEXIS 2527 (Miss. 1978).

Although there was no direct proof that the testatrix had destroyed the will, proof showing that the will was in her possession when last seen and that it could not be found after her death, together with other evidence, sustained the chancellor’s finding that complainant’s proof was insufficient to establish the existence of the alleged lost or destroyed will at the time of testatrix’s death, or to overcome the presumption that the will had been destroyed by the testatrix during her lifetime with the intention of revoking it. James v. Barber, 244 Miss. 234, 142 So. 2d 21, 1962 Miss. LEXIS 443 (Miss. 1962).

Failure to locate an instrument apparently alleged to have revoked a lost will of which an admittedly true copy was produced, coupled with evidence that the devisee named had for years devoted himself to fulfillment of an oral agreement with the testator, sustained establishment of the lost will. Denson v. Denson, 203 Miss. 146, 33 So. 2d 311, 1948 Miss. LEXIS 242 (Miss. 1948).

To establish destroyed will, interested parties must establish date thereof, attesting witnesses, and whether wholly or partly written and subscribed in testator’s genuine handwriting. Didlake v. Ellis, 158 Miss. 816, 131 So. 267, 1930 Miss. LEXIS 112 (Miss. 1930).

Personal property not disposed of by will is distributed under statute of descent and distribution. Eaton v. Broaderick, 101 Miss. 26, 57 So. 298, 1911 Miss. LEXIS 95 (Miss. 1911).

4. Reformation or revocation.

Any instrument expressly revoking a will must meet the requirements of Mississippi Code §91-5-1. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

The mental capacity required to revoke a will is the same as that required to make one. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

Courts cannot add to or take from a will or make a new will for the parties. Williams v. Gooch, 208 Miss. 223, 44 So. 2d 57, 1950 Miss. LEXIS 241 (Miss. 1950).

Courts will not by construction add to the terms of the will. Jones v. Carey, 122 Miss. 244, 84 So. 186, 1920 Miss. LEXIS 432 (Miss. 1920).

Courts can no more supply defects in the execution of a will or codicil than they can add to or subtract from its words. Johnson v. Delome Land & Planting Co., 77 Miss. 15, 26 So. 360, 1899 Miss. LEXIS 55 (Miss. 1899).

No court can decree the reformation and correction of a will. Schlottman v. Hoffman, 73 Miss. 188, 18 So. 893, 1895 Miss. LEXIS 105 (Miss. 1895).

5. Construction of wills.

Where the residuary clause of a will devised the remainder of a trust to named persons, “my heirs at law, including”, following which all the testator’s heirs were named with the exception of his two older children by his first wife, and the will was carefully drawn, with gifts made to the testator’s heirs at law in other parts of the will without naming them individually, it was evident that the testator intended under the residuary clause to make a gift to certain named individuals, rather than to a class. Eubanks v. Lucius, 257 So. 2d 215, 1972 Miss. LEXIS 1451 (Miss. 1972).

A will is to be construed so as to avoid intestacy if that can be reasonably done considering the language employed in the instrument and the circumstances confronting the testator at the time of execution. Martin v. Eslick, 229 Miss. 234, 90 So. 2d 635, 1956 Miss. LEXIS 604 (Miss. 1956).

Where, at the time a testator made his will, he owned property designated in the will as the “home place,” which he afterwards disposed of, and acquired other property which answered the same description, and owned it at his death, the will must be applied thereto, unless something therein indicates that the testator does not so intend. Milton v. Milton, 193 Miss. 563, 10 So. 2d 175, 1942 Miss. LEXIS 131 (Miss. 1942).

The term “reversion” is not used in a restricted sense, but includes the right of reversion which would mature into an estate upon the happening of an uncertain future contingency the same as upon the happening of an event which at the time of the execution of a conveyance is certain to occur in the future. Ricks v. Merchants Nat'l Bank & Trust Co., 191 Miss. 323, 2 So. 2d 344, 1941 Miss. LEXIS 128 (Miss. 1941).

A possibility of reverter owned by a testatrix at the time of her death passed to her residuary devisee, and did not descend according to the laws of descent and distribution. Ricks v. Merchants Nat'l Bank & Trust Co., 191 Miss. 323, 2 So. 2d 344, 1941 Miss. LEXIS 128 (Miss. 1941).

A will does not operate as substitution of legatees as beneficiaries in testator’s life policy payable to his executors, administrators or assigns. Magee v. Bank of Hattiesburg & Trust Co., 134 Miss. 126, 98 So. 541, 1923 Miss. LEXIS 243 (Miss. 1923).

This section [Code 1942, § 657] is not qualified by Code 1942, § 700, defining the word “written.” Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 1903 Miss. LEXIS 99 (Miss. 1903).

6. —Lapsed or void devises; property not devised by will.

Under this section [Code 1942, § 657] and Code 1942, § 831, a residuary devise or bequest carries everything the testator has attempted but failed to dispose of, unless a contrary intention appears from the will. Oliphant v. Skelton, 230 Miss. 518, 93 So. 2d 181, 1957 Miss. LEXIS 392 (Miss. 1957).

Where a testatrix devised to her two daughters a life interest in certain real estate with the remainder over to their descendants, bequeathed one dollar each to her other children, and devised to the same two daughters the rest of her estate, both real and personal, the two daughters, having no children, took a fee to the realty. Oliphant v. Skelton, 230 Miss. 518, 93 So. 2d 181, 1957 Miss. LEXIS 392 (Miss. 1957).

Remainder goes to heirs, where devise thereof is void. Wheat v. Lacals, 139 Miss. 300, 104 So. 73, 1925 Miss. LEXIS 130 (Miss. 1925).

Devise lapsed because of death of devisee descends as undisposed of property. Marx v. Hale, 131 Miss. 290, 95 So. 441, 1922 Miss. LEXIS 289 (Miss. 1923).

7. Effect of mistake.

A mistaken belief of an extrinsic fact, even though it causes a testator to make a will differently than he otherwise would had he known the truth, is insufficient to avoid a will. In re Estate of Vick, 557 So. 2d 760, 1989 Miss. LEXIS 434 (Miss. 1989).

8. Testamentary capacity.

Trial court did not err in granting beneficiaries summary judgment in a will contest because they established a prima facie case that the will was valid and that the testator possessed testamentary capacity, and the son failed to rebut the prima facie case with any summary-judgment evidence that there was a genuine issue for trial; the will was admitted to probate, and the beneficiaries attached affidavits of individuals that testified as to the testator’s mental capacity. Froemel v. Estate of Froemel, 248 So.3d 876, 2018 Miss. App. LEXIS 230 (Miss. Ct. App. 2018).

The mental capacity required to revoke a will is the same as that required to make one. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

Capacity relates to time of execution; temporary insanity not presumed to continue until execution of will. Scally v. Wardlaw, 123 Miss. 857, 86 So. 625, 1920 Miss. LEXIS 89 (Miss. 1920).

Sound and disposing mind of testator is essential. Gathings v. Howard, 122 Miss. 355, 84 So. 240, 1920 Miss. LEXIS 439 (Miss. 1920).

One of testamentary capacity may execute will from any motive. Moore v. Parks, 122 Miss. 301, 84 So. 230, 1920 Miss. LEXIS 437 (Miss. 1920).

Where on an issue devisavit vel non the question is whether the testator was sane or insane the contestants are not required to prove his sanity beyond all reasonable doubt. King v. Rowan, 82 Miss. 1, 34 So. 325, 1903 Miss. LEXIS 158 (Miss. 1903).

9. —Determination; generally.

The granting of an instruction in a will contest which advised the jury that it could not return a verdict for the proponent if it found that the testatrix was in any way influenced, or guided, or directed, about, or in, or concerning the signing, publication, or the securing of attestation of the will by any person whomsoever, was reversible error, since it is undue influence that vitiates a will; a testator has the right to be directed and assisted in the preparation of his will, and may have any aid or direction which he desires. Estate of Briscoe v. Briscoe, 255 So. 2d 313, 1971 Miss. LEXIS 1284 (Miss. 1971).

In determining whether the chancellor should have granted a peremptory instruction on the question of testamentary capacity the court must assume as true all the facts which contestant’s evidence fairly tends to establish, together with all reasonable inferences to be deduced therefrom. Lowrey v. Wilkinson, 222 Miss. 201, 75 So. 2d 643, 1954 Miss. LEXIS 640 (Miss. 1954).

In a proceeding devisavit vel non involving a will which was challenged on the ground of lack of testamentary capacity and of undue influence, the submission to jury of both issues was in error where the evidence as to undue influence was insufficient. Thames v. Thames, 233 Miss. 24, 100 So. 2d 868, 1958 Miss. LEXIS 352 (Miss. 1958).

In will contest on ground of lack of testamentary capacity and existence of undue influence, it should be assumed that general verdict of jury against validity of will was on ground of want of testamentary capacity which was amply supported by evidence, where proof was insufficient to sustain verdict on ground of undue influence. Blalock v. Magee, 205 Miss. 209, 38 So. 2d 708, 1949 Miss. LEXIS 426 (Miss. 1949).

In will contest on ground of lack of testamentary capacity and existence of undue influence, judgment on general verdict against validity of will returned under instruction as to burden of proponents to establish both testamentary capacity and lack of undue influence by preponderance of evidence will not be reversed because of refusal to grant peremptory instruction on question of undue influence where there is sufficient evidence on question of want of testamentary capacity to warrant jury’s finding. Blalock v. Magee, 205 Miss. 209, 38 So. 2d 708, 1949 Miss. LEXIS 426 (Miss. 1949).

In will contest on ground of lack of testamentary capacity and existence of undue influence, general verdict of jury on issue of whether or not proponents have shown by preponderance of evidence both testamentary capacity and lack of undue influence at time of execution of will should be sustained if proponents fail to prove either or both of these necessary requirements. Blalock v. Magee, 205 Miss. 209, 38 So. 2d 708, 1949 Miss. LEXIS 426 (Miss. 1949).

It is the general rule that the nature and extent of testator’s estate may be shown on issue of testamentary capacity and undue influence. Norman v. Norman, 196 Miss. 597, 18 So. 2d 130, 1944 Miss. LEXIS 239 (Miss. 1944).

Unnatural or unreasonable provisions not sufficient to show incapacity, but may be considered with other evidence. Scally v. Wardlaw, 123 Miss. 857, 86 So. 625, 1920 Miss. LEXIS 89 (Miss. 1920).

Occasional fits of anger not connected with the will do not show incapacity. Moore v. Parks, 122 Miss. 301, 84 So. 230, 1920 Miss. LEXIS 437 (Miss. 1920).

10. —Sufficiency.

Children failed to come forward with evidence to overcome the prima facie case of their father’s testamentary capacity; the father’s physical weakness did not preclude him from making a will, and a bare and unexplained assertion that his mental state was “terrible” did not raise a jury issue as to his mental capacity. The father’s agreement that he was no longer up to the task of campaigning for elected office did not amount to an admission or even evidence that he lacked the mental capacity to sign a will, and all testimony relevant to his mental capacity on March 2, 2009, indicated that he had sufficient capacity to execute both a general power of attorney and a will. Callington v. Gardner (In re Estate of Gardner), 228 So.3d 921, 2017 Miss. App. LEXIS 95 (Miss. Ct. App.), cert. denied, 232 So.3d 785, 2017 Miss. App. LEXIS 360 (Miss. Ct. App. 2017).

Son showed a prima facie case of the son’s deceased mother’s testamentary capacity because (1) the son’s subscribing witness’s testimony to such capacity had more weight than contrary testimony of daughters who were not present at the will’s execution, and (2) further testimony on the mother’s condition rebutted the contrary testimony. Terry v. Phelps (In re Estate of Phelps), 180 So.3d 835, 2015 Miss. App. LEXIS 642 (Miss. Ct. App. 2015).

Trial court properly granted a directed verdict and a peremptory instruction in favor of will proponents on the issue of whether the testator of a will had testamentary capacity to make a will at the time it was executed as the attesting witnesses indicated that the testator had capacity at the moment of the will’s execution despite claims by the will contestants that the testator was lethargic, jaundiced, on medication, and hallucinating on days prior to signing the will. Noblin v. Burgess, 54 So.3d 282, 2010 Miss. App. LEXIS 287 (Miss. Ct. App. 2010), cert. denied, 53 So.3d 760, 2011 Miss. LEXIS 109 (Miss. 2011).

Trial court erred by giving the issue of the decedent’s testamentary capacity to the jury where there was no indication that the decedent lacked testamentary capacity; on the contrary, she left her estate to the natural objects of her bounty, the decedent was capable of determining the property disposition that she wished, and she was cognizant of the nature of her actions. McClendon v. McClendon (In re Estate of Pigg), 877 So. 2d 406, 2003 Miss. App. LEXIS 851 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 875 (Miss. 2004).

A court did not err in finding that a testator had the necessary mental capacity to make a valid will where the proponent of the will made a prima facie case of testamentary capacity by placing into evidence the will of the decedent, the affidavits of subscribing witnesses, and the judgment admitting the will to probate, and the only evidence offered by the contestant was the testimony of an adverse witness whose testimony did not indicate that the testator lacked testamentary capacity. In re Will of Wasson, 562 So. 2d 74, 1990 Miss. LEXIS 249 (Miss. 1990).

The evidence in a will contest action brought by the testator’s son was insufficient to establish testamentary incapacity where 2 witnesses stated that the testator had made statements of hostility toward his son and cursed him, neither witness could identify the reason for this attitude and expressed the belief that the son tried untiringly to please his father and obey him, and one witness testified to the testator’s drinking alcoholic beverages, “some” every day. In re Last Will & Testament of Dickey, 542 So. 2d 903, 1989 Miss. LEXIS 194 (Miss. 1989).

Chancellor’s finding that the testatrix lacked mental capacity to make a will was supported by a number of witnesses who had testified as to the testatrix’s mental and physical condition on the day before the day after the alleged execution of the will, and it further appeared that for the three days involved the testatrix’s condition was continuous. Kelker v. Jordan, 228 Miss. 847, 89 So. 2d 858, 1956 Miss. LEXIS 573 (Miss. 1956).

On issue of testamentary capacity, it is for serious consideration of jury as to whether or not it is either natural or rational that testatrix should devise to sister and nephew half interest in home occupied by husband, when testatrix has ample personal assets to provide for them to extent greater than value of undivided interest devised in residence. Blalock v. Magee, 205 Miss. 209, 38 So. 2d 708, 1949 Miss. LEXIS 426 (Miss. 1949).

It is neither unnatural nor evidence of abnormality that testatrix in her will should favor widowed sister, who was not in as good financial circumstances as other members of family and also her nephew who had lived in her home for many years. Blalock v. Magee, 205 Miss. 209, 38 So. 2d 708, 1949 Miss. LEXIS 426 (Miss. 1949).

It cannot be said that an eccentric old man was not in one of his admitted periods of calm and discretion at the time he executed a will when at that time he made intelligent and solicitous inquiry as to the contents and import of the will. Ward v. Ward, 203 Miss. 32, 33 So. 2d 294, 1948 Miss. LEXIS 227 (Miss. 1948).

Testator’s disposition of his property to certain nephews and nieces to the exclusion of other nephews and nieces and an incompetent brother, was natural and just and did not, of itself, show lack of testamentary capacity or undue influence, where beneficiaries resided near testator, worked with and assisted him in the operation of his farm, and cared for testator during illness. Norman v. Norman, 196 Miss. 597, 18 So. 2d 130, 1944 Miss. LEXIS 239 (Miss. 1944).

Chancellor’s finding of testamentary capacity reversed where will showed such capacity lacking and will made in contemplation of suicide. Johnson v. Stansell, 94 Miss. 923, 48 So. 619, 1909 Miss. LEXIS 356 (Miss. 1909).

11. —Undue influence.

In a will contest amongst siblings, the proponent and beneficiary was unable to overcome the presumption of undue influence because, inter alia, the beneficiary was substantially involved in the procurement of the will and paid the costs of the will’s execution, and the testator, who was the siblings’ mother, was not aware of her total assets and their worth, was totally dependent on the beneficiary to handle her finances, and did not seek advice from a person disconnected to the beneficiary. Thomas v. Thomas, 122 So.3d 111, 2013 Miss. App. LEXIS 512 (Miss. Ct. App. 2013).

Finding that the decedent had the requisite mental capacity when he executed his power of attorney was appropriate because the presumption of any undue influence was rebutted; although the decedent’s friend was aware of the decedent’s deteriorating health, the friend, along with his family, acted unselfishly to lend his support to the decedent. Further, the record indicated that the decedent was aware of his assets and he controlled his own finances. Mitchell v. Poynor (In re Estate of Hall), 32 So.3d 506, 2009 Miss. App. LEXIS 331 (Miss. Ct. App. 2009), cert. denied, 31 So.3d 1217, 2010 Miss. LEXIS 187 (Miss. 2010).

Where appellants’ sole evidence that a will was procured by appellee’s undue influence over his father was testimony from appellee’s ex-wife, who had no first-hand knowledge and testified only as to conversations she allegedly had with appellee, and her testimony was fully refuted by appellee, appellants failed to meet their burden to show undue influence. Hensley v. Harris, 870 So. 2d 1227, 2003 Miss. App. LEXIS 791 (Miss. Ct. App. 2003), cert. denied, 870 So. 2d 666, 2004 Miss. LEXIS 419 (Miss. 2004).

A daughter failed to overcome the presumption of undue influence arising from her father’s execution of a will devising all of his property to her where the father had previously executed a will devising the property to all of his children, the father developed a dislike of all of his children except the daughter within two years after the daughter moved in with the father to care for him after he suffered a stroke, the daughter did nothing to discourage the unwarranted ill will which her father developed towards her brothers and sisters, she took control of the father’s financial affairs and initiated the preparation of the second will by contacting a lawyer of her selection, she stayed in the waiting room of the lawyer’s office while the will was being executed, she paid the lawyer at the father’s request by writing a check from the father’s account, and the execution of the will was kept secret by the father and the daughter, though all matters concerning the father had previously been discussed by all the children and all of them had participated in making decisions which concerned his well being and financial affairs. In re Estate of Woodall, 593 So. 2d 471, 1992 Miss. LEXIS 2 (Miss. 1992).

The test for rebutting a presumption of undue influence has been modified and no longer requires the independent advice of a competent person, but instead requires a showing of the grantor’s “independent consent and action.” Marsalis v. Lehmann, 566 So. 2d 217, 1990 Miss. LEXIS 532 (Miss. 1990).

One of the many ways of effecting undue influence upon a testator is by misrepresentation of fact; the misrepresentation may be made with the deliberate intent to deceive, knowing full well that it is false, as well as recklessly made without regard to its truth or falsity. In order to set aside a will resulting solely from the misrepresentation of a beneficiary, it must first be established that the representation was not true and actually influenced the testator to make a will he or she would not otherwise have made, that but for the misrepresentation by the beneficiary, the will would have been entirely different. In re Estate of Vick, 557 So. 2d 760, 1989 Miss. LEXIS 434 (Miss. 1989).

There was sufficient evidence of undue influence exercised upon a testatrix, in the absence of which she would not have executed the will she made which left an undivided 1/2 interest in property owned by the testatrix and her husband to their daughters, where one of the testatrix’s daughters made persistent efforts to get the testatrix to secure for her some interest in the property, the daughter constantly badgered the testatrix when she was well advanced in years and in failing health, the daughter played a material part in convincing the testatrix that her husband had devised all his real property to their sons, and the testatrix’s only reason for executing the will was her conviction that her husband was devising all his property to the sons and it was her desire to treat all the children equally. In re Estate of Vick, 557 So. 2d 760, 1989 Miss. LEXIS 434 (Miss. 1989).

An attorney did not overcome the presumption of undue influence over an elderly couple with whom he had entered into an oral arrangement under which couple made the attorney a signatory of their bank account with the authority to write checks for their needs in the event they became incapacitated and with the attorney being entitled to the balance of the account upon the couples’ death where the attorney failed to advise the couple to secure independent advice and counsel, even though the arrangement was accomplished without any intent on the part of the attorney to commit any wrongful act. Lowrey v. Last Will & Testament of Smith, 543 So. 2d 1155, 1989 Miss. LEXIS 185 (Miss. 1989).

Although testatrix’ will was prepared by an independent attorney personally employed by her for that purpose, evidence established that the will under which her regular attorney was the principal beneficiary had been procured by the exercise of undue influence upon testatrix by him. Holland v. Traylor, 227 So. 2d 829 (Miss. 1969).

In the absence of proof of an actual attempt to deceive the testator, his mistaken belief that the principal devisee was his son would have been insufficient to show undue influence. Provenza v. Provenza, 201 Miss. 836, 29 So. 2d 669, 1947 Miss. LEXIS 453 (Miss. 1947).

Jury may consider disposition of property, confidential relations, and mental and physical conditions of testator in determining undue influence; jury are sole judges as to undue influence. Isom v. Canedy, 128 Miss. 64, 88 So. 485, 1921 Miss. LEXIS 293 (Miss. 1921).

Undue influence may be made out by circumstantial evidence. Jamison v. Jamison, 96 Miss. 288, 51 So. 130, 1909 Miss. LEXIS 56 (Miss. 1909).

12. Execution, in general.

Chancery court properly granted summary judgment to a testator’s siblings in their contest to the testator’s will because the ninth page of the will naming a friend of the testator as the sole beneficiary of her estate failed to meet the statutory requirements of a valid codicil or holographic will where it constituted a separate document from the first eight pages of the will (it was typed in a different font style and size than the rest of the will and contained its own separate signature line), the will failed to incorporate it by reference, and there was no evidence that the testator signed the ninth page in the presence of two credible witnesses or that she published or acknowledged it as her will in the presence of witnesses. Murakami v. Young (In re Will of Massingale), 199 So.3d 710, 2016 Miss. App. LEXIS 539 (Miss. Ct. App. 2016).

Although a testator did not affix her initials in the margins of the first two pages of her four-page will, the will was validly executed because there was evidence the testator actually signed the will in the presence of two attesting witnesses. Thomas v. Thomas, 122 So.3d 111, 2013 Miss. App. LEXIS 512 (Miss. Ct. App. 2013).

The chancery court correctly denied probate to a document offered as the will of a decedent, where the document was neither wholly written and subscribed by the testator nor attested by two or more credible witnesses in the presence of the testator as required by §91-5-1, but was entirely typewritten, signed by the decedent, and had a certificate of a notary public that it had been “sworn to and subscribed before me” followed by the signature and seal of the notary. The history of will contests in Mississippi supports the view that the requirements that there be two attesting witnesses to a will and, moreover, that it be attested by them in the presence of the testator, and that such attestation be evidenced by the affixation of their signatures to document, are indispensable safeguards of the integrity of testimentary documents. Batchelor v. Powers, 348 So. 2d 776, 1977 Miss. LEXIS 2108 (Miss. 1977).

Where a testator in his will clearly expressed a desire that his estate be held together, and it was evident that his intent could be followed only by execution of the trust recommended by the testator in his will, the form of the trust attached to the will was mandatory, and it was proper that the trust was admitted to probate and established, notwithstanding that the testator’s words in the will attaching a draft of his plans for the trust, and recommending it as a guide, were merely precatory. Farmer v. Broadhead, 230 So. 2d 779, 1970 Miss. LEXIS 1561 (Miss. 1970).

As a general rule of law, courts tend to sustain a testamentary document as having been legally executed if it is possible to do so consistent with statutory requirements. Lyle v. Shannon, 228 So. 2d 594 (Miss. 1969).

Ordinarily, substantial compliance with statutory formalities in the execution of a will is sufficient in the absence of a suggestion of fraud, deception, undue influence or mental incapacity. Lyle v. Shannon, 228 So. 2d 594 (Miss. 1969).

It is the requisite to a valid will that it be executed as prescribed by statute. Boyles Coffee Co. v. Anderson, 218 So. 2d 843, 1969 Miss. LEXIS 1621 (Miss. 1969).

No matter how earnestly one may desire and intend to make a will, a paper, although fully intended by the maker to be a will, is ineffective and invalid unless its execution meets statutory requirements. Boyles Coffee Co. v. Anderson, 218 So. 2d 843, 1969 Miss. LEXIS 1621 (Miss. 1969).

The purpose of statutes prescribing formalities for the execution of wills is not to restrict the power of testator to dispose of his property, but it is to guard against mistakes, impositions, undue influences, fraud, deception, etc., which would divert the property of the testator from those intended by him or her to inherit same. Boyles Coffee Co. v. Anderson, 218 So. 2d 843, 1969 Miss. LEXIS 1621 (Miss. 1969).

Although the intention of the testator is paramount in the construction of wills, the search for the testator’s intention does not begin until there is a will executed in accordance with the requirements of this section [Code 1942, § 657]. In re Estate of King, 203 So. 2d 581, 1967 Miss. LEXIS 1383 (Miss. 1967).

An instrument executed by a husband and wife which purported to be their last will and testament but which was not witnessed by two subscribing witnesses and was neither wholly in the handwriting of each, nor wholly in the handwriting of either, was invalid under the provisions of this section [Code 1942, § 657]. Seab v. Seab, 203 So. 2d 478, 1967 Miss. LEXIS 1373 (Miss. 1967).

A will was not executed within the requirements of this section [Code 1942, § 657] where it appeared that after the witnesses, who were in a different room, had signed the instrument and the testatrix’s name had been signed thereto, it was then carried into the room of the testatrix who merely touched the pen. Kelker v. Jordan, 228 Miss. 847, 89 So. 2d 858, 1956 Miss. LEXIS 573 (Miss. 1956).

Methods of executing will, and who may execute one, are defined by statute. Didlake v. Ellis, 158 Miss. 816, 131 So. 267, 1930 Miss. LEXIS 112 (Miss. 1930).

Publication and attestation of will may be by construction. Green v. Pearson, 145 Miss. 23, 110 So. 862, 1927 Miss. LEXIS 130 (Miss. 1927).

The writing of a will by a witness, at the request of the deceased, and embodying therein the disposition the deceased desired to make of his property, and the signing of the will by the deceased, was a sufficient declaration by the latter that the paper he had signed was his last will and testament, it being unnecessary for him to so declare in appropriate words. Green v. Pearson, 145 Miss. 23, 110 So. 862, 1927 Miss. LEXIS 130 (Miss. 1927).

Duly attested will need not be dated. Lee v. Stewart, 139 Miss. 287, 104 So. 89, 1925 Miss. LEXIS 139 (Miss. 1925).

Where there was a good faith effort to execute will, no technical construction should be allowed to defeat its purpose. Better v. Hirsch, 115 Miss. 614, 76 So. 555, 1917 Miss. LEXIS 239 (Miss. 1917).

If it appears from the face of a writing testamentary in its character that a contemplated voyage and the dangers incident thereto were merely the occasion of its execution, and that the testator’s death while on the voyage was not made a condition upon which its validity depended, it will be operative and may be probated after his return and subsequent death. In re Redhead's Estate, 83 Miss. 141, 35 So. 761 (Miss. 1904).

13. —Codicil.

Failure to execute codicil as required of will rendered it invalid but did not affect the will. Hawkins v. Duberry, 101 Miss. 17, 57 So. 919, 1911 Miss. LEXIS 140 (Miss. 1911).

14. Signature or subscription.

The Chancellor made no error in submitting the issue to the jury of whether there was compliance with §91-5-1, where contestants of a will specifically charged that the signature to the will was not the testator’s, where proponents, in their answer, denied all such allegations, where all witnesses for the proponents and all evidence offered on their behalf indicated that the testator had signed the will without assistance, and where the proponents changed their testimony only after overwhelming evidence was offered by the contestants that, at the very least, the testator, who was 88 years old at the time the will was executed, was assisted in making her signature. Webster v. Kennebrew, 443 So. 2d 850, 1983 Miss. LEXIS 3056 (Miss. 1983).

A certificate of deposit payable to a decedent “P.O.D. (two named persons)” failed as a testamentary disposition by the decedent, since, among other things, it was neither in the handwriting of the decedent, nor signed by him, and did not otherwise conform to §91-5-1. Rand v. Moore, 414 So. 2d 885, 1981 Miss. LEXIS 2466 (Miss. 1981).

A will was not executed within the requirements of this section [Code 1942, § 657] where it appeared that after the witnesses, who were in a different room, had signed the instrument, and the testatrix’s name had been signed thereto, it was then carried into the room of the testatrix who merely touched the pen. Kelker v. Jordan, 228 Miss. 847, 89 So. 2d 858, 1956 Miss. LEXIS 573 (Miss. 1956).

This section [Code 1942, § 657] does not require the testator to sign in the presence of the witnesses. Phifer v. McCarter, 222 Miss. 415, 76 So. 2d 258, 1954 Miss. LEXIS 659 (Miss. 1954).

Any signature or mark signed by the testator, or by another in his presence and at his express direction, to the will, as and for his completed signature, and acknowledged and adopted by him as such at the time, in the presence of subscribing witnesses, is a sufficient signing. Wallace v. Harrison, 218 Miss. 153, 65 So. 2d 456, 1953 Miss. LEXIS 525 (Miss. 1953).

In a will contest, that the testatrix’s name, which appeared beside her mark, was written there at her request, did not establish the invalidity of the will. Wallace v. Harrison, 218 Miss. 153, 65 So. 2d 456, 1953 Miss. LEXIS 525 (Miss. 1953).

The words “sign” and “subscribe” in this section [Code 1942, § 657] are not synonymous but are used in different senses. Baker v. Baker's Estate, 199 Miss. 388, 24 So. 2d 841, 1946 Miss. LEXIS 208 (Miss. 1946).

The section [Code 1942, § 657] is not qualified by Code 1942, § 700. A testator, though able to write, is not required to write his name to his will, but he may sign by mark. Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 1903 Miss. LEXIS 99 (Miss. 1903).

Where the testator consents to have his hand guided by another in signing his will, it is sufficient. Watson v. Pipes, 32 Miss. 451, 1856 Miss. LEXIS 227 (Miss. 1856).

15. Attestation.

Judgment which rejected the probate of the decedent’s alleged last will and testament was affirmed because the witnesses each asserted that he had not witnessed a will, but a power of attorney; Miss. Code Ann. §91-5-1 required attesting witnesses to a will know the purpose of their attestation. In re Estate of Griffith, 30 So.3d 1190, 2010 Miss. LEXIS 159 (Miss. 2010).

The chancery court correctly denied probate to a document offered as the will of a decedent, where the document was neither wholly written and subscribed by the testator nor attested by two or more credible witnesses in the presence of the testator as required by §91-5-1, but was entirely typewritten, signed by the decedent, and had a certificate of a notary public that it had been “sworn to and subscribed before me” followed by the signature and seal of the notary. The history of will contests in Mississippi supports the view that the requirements that there be to attesting witnesses to a will and, moreover, that it be attested by them in the presence of the testator, and that such attestation be evidence by the affixation of their signatures to document, are indispensable safeguards of the integrity of testamentary documents. Batchelor v. Powers, 348 So. 2d 776, 1977 Miss. LEXIS 2108 (Miss. 1977).

Although this section [Code 1942, § 657] states that a will, not wholly written and subscribed by the testator, must be attested by two or more creditable witnesses, the section means that witnesses must be competent rather than credible. Wallace v. Harrison, 218 Miss. 153, 65 So. 2d 456, 1953 Miss. LEXIS 525 (Miss. 1953).

One of the purposes of having witnesses of the will is to determine the capacity of the testator to make the will. Cowart v. Cowart, 211 Miss. 459, 51 So. 2d 775, 1951 Miss. LEXIS 376 (Miss. 1951).

The publication and attestation of a will may be by construction. One may speak by his actions as well as by word of mouth. Green v. Pearson, 145 Miss. 23, 110 So. 862, 1927 Miss. LEXIS 130 (Miss. 1927).

Will signed by one attesting witness before signature by testatrix held valid. Gordon v. Parker, 139 Miss. 334, 104 So. 77, 1925 Miss. LEXIS 132 (Miss. 1925).

Witness must be satisfied with maker’s testamentary capacity. Smith v. Young, 134 Miss. 738, 99 So. 370, 1924 Miss. LEXIS 303 (Miss. 1924).

It was the purpose of the statute in requiring two witnesses to attest the will to have more than the mere signatures of two persons to the will. Maxwell v. Lake, 127 Miss. 107, 88 So. 326, 1921 Miss. LEXIS 193 (Miss. 1921).

It was the duty of the attesting witnesses, under the statute, to observe and see that the will was executed by the testator, and that he had capacity to execute the will. Maxwell v. Lake, 127 Miss. 107, 88 So. 326, 1921 Miss. LEXIS 193 (Miss. 1921).

“Attested” is broader than “subscribed.” Maxwell v. Lake, 127 Miss. 107, 88 So. 326, 1921 Miss. LEXIS 193 (Miss. 1921).

Word “credible” is synonymous with “competent.” Swanzy v. Kolb, 94 Miss. 10, 46 So. 549, 1908 Miss. LEXIS 2 (Miss. 1908).

16. —Validity; particular circumstances.

Chancellor erred in upholding a lease assignment that purported to convey the lessor’s rights to the assignee upon the lessor’s death because while the lease agreement acted as a testamentary document, it did not constitute a valid will and failed to validly assign the lessor’s rights to the assignee where there was no indication that the lessor was of “sound and disposing mind,” that the document represented a will, or that the lessees met any of the statutory requirements of attesting witnesses. Estate of Greer v. Ball, 218 So.3d 1196, 2016 Miss. App. LEXIS 259 (Miss. Ct. App. 2016), aff'd, 218 So.3d 1136, 2017 Miss. LEXIS 219 (Miss. 2017).

Chancery court properly determined that a decedent’s will was invalid because the will was only signed by the decedent and a notary; therefore, the will lacked the proper attestation and as a result the decedent died intestate. Lockhart (In re Estate of Thomas) v. Wilson, 962 So. 2d 141, 2007 Miss. App. LEXIS 500 (Miss. Ct. App. 2007).

In a will contest, it was error for the trial court to permit the jury to take into consideration the suspension of a license to practice law for mental aberration of the attesting witness, which occurred a little over 4 years subsequent to the execution of the last will and testament, since that matter of itself would not determine the competence of the witness, and competence, not credibility, is the test. Estate of Briscoe v. Briscoe, 255 So. 2d 313, 1971 Miss. LEXIS 1284 (Miss. 1971).

Although under Code 1942, § 498 the testimony of only one living witness is sufficient to establish a will’s proper execution, proof of two signatures of witnesses is required to prove due execution where the witnesses to a will are deceased. Estate of Willis v. Willis, 207 So. 2d 348, 1968 Miss. LEXIS 1609 (Miss. 1968).

The affidavits of two subscribing witnesses to a will were sufficient for the probate thereof in common form. Austin v. Patrick, 179 Miss. 718, 176 So. 714, 1937 Miss. LEXIS 74 (Miss. 1937).

Will was sufficiently attested where one of two witnesses took testator’s acknowledgment instead of signing as a witness. Bolton v. Bolton, 107 Miss. 84, 64 So. 967, 1914 Miss. LEXIS 53 (Miss. 1914).

Will was sufficiently attested where one witness signed on separate sheet of paper which was folded together with will. Bolton v. Bolton, 107 Miss. 84, 64 So. 967, 1914 Miss. LEXIS 53 (Miss. 1914).

Devise to witness is void, but witness is competent to establish residue of will. Swanzy v. Kolb, 94 Miss. 10, 46 So. 549, 1908 Miss. LEXIS 2 (Miss. 1908).

17. —Presence of witnesses.

Where one of the witnesses to a will, a non-lawyer, helped prepare the will, had known the testator for more than 25 years, was fully aware of the testator’s motives for disinheriting all but one of his children, and could testify as to the testator’s capacity for executing the will, and the second witness testified that the testator seemed fully capable of executing the will, it was properly held valid; that the will was prepared by a non-lawyer did not invalidate it. Hensley v. Harris, 870 So. 2d 1227, 2003 Miss. App. LEXIS 791 (Miss. Ct. App. 2003), cert. denied, 870 So. 2d 666, 2004 Miss. LEXIS 419 (Miss. 2004).

The attestation of a will that occurred outside the testator’s physical presence was invalid, notwithstanding that the attesting witness was the draftsman of the will and that his long time familiarity with the testator and his handwriting provided him with the assurances that the document was indeed the will of the testator. McDevitt v. McDevitt (In re Estate of McDevitt), 755 So. 2d 1125, 1999 Miss. App. LEXIS 273 (Miss. Ct. App. 1999).

A purported will did not meet the statutory requirements of an attested instrument where the document, which was entirely handwritten, only contained decedent’s purported signature in the opening paragraph, where none of the three witnesses to the document saw, read, or heard the entire document, where no page of the document except the last was signed by a witness, and where no evidence showed that any witness had observed decedent affix her signature on the document or had heard her acknowledge that she had at any time signed it. Jay v. Thrash, 380 So. 2d 1273 (Miss. 1980).

A telephone conversation between the testator and one of the witnesses to the will, in which the witness first asked the testator whether he had signed the will and received an affirmative reply prior to the witness’ attestation, did not constitute the necessary “presence” of the witness to the signing for purposes of validating the will; the purpose of signing in the presence of the testator is to allow the testator to know that the witnesses are attesting the testator’s will and not another document, that the witnesses will know the same, that imposition or fraud is thus prevented by precluding the substitution of another will in place of that signed by the testator, and that the witnesses will be reasonably satisfied that the testator is of sound and disposing mind and capable of making a will. In re Will of Jefferson, 349 So. 2d 1032, 1977 Miss. LEXIS 2174 (Miss. 1977).

A will was not executed within the requirements of this section [Code 1942, § 657] where it appeared that after the witnesses, who were in a different room, had signed the instrument, and the testatrix’s name had been signed thereto, it was then carried into the room of the testatrix who merely touched the pen. Kelker v. Jordan, 228 Miss. 847, 89 So. 2d 858, 1956 Miss. LEXIS 573 (Miss. 1956).

Where the testator signed his will at the end and exhibited it to two witnesses telling them it was his will and requesting them to sign, and one of the witnesses read the will in the presence of the testator and the other witness after which both witnesses attached their signatures in testator’s presence, the will was valid. Phifer v. McCarter, 222 Miss. 415, 76 So. 2d 258, 1954 Miss. LEXIS 659 (Miss. 1954).

The necessity of two witnesses in the making of a will has no application to proof of a promise to make a will. Boggan v. Scruggs, 200 Miss. 747, 29 So. 2d 86, 1947 Miss. LEXIS 358 (Miss. 1947), overruled, Talbert v. Ellzey, 203 Miss. 612, 35 So. 2d 628, 1948 Miss. LEXIS 313 (Miss. 1948).

Subscribing witnesses to wills are not required to sign in the presence of each other. Austin v. Patrick, 179 Miss. 718, 176 So. 714, 1937 Miss. LEXIS 74 (Miss. 1937).

Subscribing witnesses to wills are not required to see the testator sign the will, but is enough if testator produces the will, declares it to be his will, and states that signature appended thereto is his and that he wrote it. Austin v. Patrick, 179 Miss. 718, 176 So. 714, 1937 Miss. LEXIS 74 (Miss. 1937).

Evidence of subscribing witness that testatrix told him that instrument was her will, that she had signed it and wanted him to sign it as a witness, and that he did so in her presence, and testimony of other witness who did not sign in presence of other subscribing witness and was not present when other witness signed, that testatrix told him instrument was her will and requested him to sign it as a witness, was sufficient to authorize admission of will to probate in solemn form. Austin v. Patrick, 179 Miss. 718, 176 So. 714, 1937 Miss. LEXIS 74 (Miss. 1937).

A request to sign a will as a witness, made in the presence of the testator by one intrusted with the preparation of the will, is equivalent to a request by the testator, and it is sufficient that enough is said and done in the presence and with the knowledge of the testator to make the witnesses understand that he desires them to know that the paper is his will, and that they are to be the witnesses thereto. Green v. Pearson, 145 Miss. 23, 110 So. 862, 1927 Miss. LEXIS 130 (Miss. 1927).

Where a testator did not sign his will in the presence of one of the witnesses, did not declare his signature, did not identify the paper or signature, and did not declare it to be his will, it was improper to instruct the jury that the will as duly and legally executed. Maxwell v. Lake, 127 Miss. 107, 88 So. 326, 1921 Miss. LEXIS 193 (Miss. 1921).

Will duly attested by two witnesses is valid although third witness signed when other two were not present. Gore v. Ligon, 105 Miss. 652, 63 So. 188, 1913 Miss. LEXIS 245 (Miss. 1913).

Attestation held sufficient where testator directed another to sign his name for him to the will and then sign it as witness, and afterwards exhibited it to two other persons stating it was his will and having them sign as witnesses. Miller v. Miller, 96 Miss. 526, 51 So. 210, 1910 Miss. LEXIS 164 (Miss. 1910).

18. Particular instruments as valid testamentary instruments.

Will was properly found to be invalid because, while stating an intent to distribute the testator’s property, the will did not designate a beneficiary. Swilley v. Estate of LeBlanc (In re Estate of Regan), 179 So.3d 1155, 2015 Miss. App. LEXIS 179 (Miss. Ct. App.), cert. denied, 179 So.3d 1137, 2015 Miss. LEXIS 577 (Miss. 2015).

The words on a certificate of deposit “payable on death” were testamentary in character and constituted an attempt to make a negotiable instrument a will, thus requiring compliance with this section. In re Collier, 381 So. 2d 1338, 1980 Miss. LEXIS 1933 (Miss. 1980).

An instrument executed in the manner required by the statute with the express intent of vesting the testator’s property upon his death constitutes a valid testamentary disposition, no matter what name the testator may give it. Peebles v. Rodgers, 211 Miss. 8, 50 So. 2d 632, 1951 Miss. LEXIS 326 (Miss. 1951).

Provision in an instrument which intends to convey all the lands the grantor owns but the grantor to live on and control the land during his life time and on his death the instrument to take effect and the title to vest in the grantee, was testamentary in character. Peebles v. Rodgers, 211 Miss. 8, 50 So. 2d 632, 1951 Miss. LEXIS 326 (Miss. 1951).

A letter clearly indicating that its writer had her death in mind when writing it, and intended by it to make the gifts set forth therein effective when that event should occur, constituted all that is necessary to a will. In re Mey's Estate, 200 Miss. 548, 28 So. 2d 125, 1946 Miss. LEXIS 321 (Miss. 1946).

An instrument in the form of a deed which provided that the grantors were to retain possession, control and occupancy of the lands during their lifetime and then vest in the purported grantee, “but not until the death of both grantors herein, does the title pass,” was testamentary in character since it did not meet the requirement of a deed that it must convey some estate effective upon delivery. Coulter v. Carter, 200 Miss. 135, 26 So. 2d 344, 1946 Miss. LEXIS 274 (Miss. 1946).

Test to determine whether instrument is will or deed set forth; instrument will operate according to legal effect regardless of denomination given by maker. Knight v. Knight, 133 Miss. 74, 97 So. 481, 1923 Miss. LEXIS 112 (Miss. 1923).

Letter not containing dispositive word is not a will, in absence of evidence that it was intended to be testamentary. Sullivan v. Jones, 130 Miss. 101, 93 So. 353, 1922 Miss. LEXIS 177 (Miss. 1922).

Letter stating writer held property to protect interest of addressee, that he would later give her a deed to it, and that it was to go to her at his death, held declaration of trust and not a will. Morgan v. Hayward, 115 Miss. 354, 76 So. 262, 1917 Miss. LEXIS 206 (Miss. 1917).

Instrument in form of deed to take effect only after grantor’s death, held testamentary and not a deed. Simpson v. McGee, 112 Miss. 344, 73 So. 55, 1916 Miss. LEXIS 117 (Miss. 1916).

Letter of testatrix stating disposition to be made of her property unless she made another and more formal will, fully written and subscribed by her, was properly admitted to probate. Hewes v. Hewes, 110 Miss. 826, 71 So. 4, 1916 Miss. LEXIS 211 (Miss. 1916).

An instrument, executed by plaintiffs’ father and mother, providing that in consideration of five dollars and parental love and affection, the parents sold and granted to plaintiffs, as joint owners, certain lands in fee simple, with a reservation of possession and control in the grantors so long as they should live, was not a will, but a deed, with the reservation of a life estate to the grantors. Myers v. Viverett, 110 Miss. 334, 70 So. 449, 1915 Miss. LEXIS 45 (Miss. 1915).

Instrument executed by decedent expressing her wish as to devolution of her property in case her husband survived her was not subject to probate as her will on her surviving her husband. Du Sauzay v. Du Sauzay, 105 Miss. 839, 63 So. 273, 1913 Miss. LEXIS 268 (Miss. 1913).

Letter written by decedent to brother stating how he wished his property disposed of is a valid will, if he did not deliver it but kept it and treated it as his will. Prather v. Prather, 97 Miss. 311, 52 So. 449, 1910 Miss. LEXIS 232 (Miss. 1910).

Parol agreement by two sisters that survivor should have certain personal property is not testamentary. Marshall v. Stratton, 96 Miss. 465, 51 So. 132, 1910 Miss. LEXIS 161 (Miss. 1910).

19. Holographic wills.

A purported holographic will did not comport with the execution requirements of §91-5-1 and was therefore invalid, where the will was a one-page document with writing on the front and back, the testator’s name appeared in the first line of the will but did not appear again, and the will was not signed at the end. Amyotte v. Hollingsworth, 585 So. 2d 731 (Miss. 1991).

There is no legal requirement that signature “subscribing” holographic will must be placed on the same sheet of paper as the dispositive provisions of the will, so long as the signature is at the conclusion of the will; and the part of the will containing the signature may be mechanically attached to the other part of the will so that it may be identified as a part thereof. Lyle v. Shannon, 228 So. 2d 594 (Miss. 1969).

The intent of one to make a will, insofar as probate of a holographic will is concerned, is immaterial; for the question is whether the will actually is executed in accordance with the statute of the state. Boyles Coffee Co. v. Anderson, 218 So. 2d 843, 1969 Miss. LEXIS 1621 (Miss. 1969).

With respect to holographic wills, this section [Code 1942, § 657] has been construed to mean that such a will must be signed at the end of a document, testamentary in character, which shows on its face that the testamentary purpose therein expressed is completed, that nothing which follows the signature may be considered, and if the writing does not meet the requirements of this section the intent of the writer is immaterial. In re Estate of King, 203 So. 2d 581, 1967 Miss. LEXIS 1383 (Miss. 1967).

Holographic wills must be subscribed by testator, or another for him, and nothing can be effective which appears after and beneath such signature. In re George's Estate, 208 Miss. 734, 45 So. 2d 571, 1950 Miss. LEXIS 292 (Miss. 1950).

Unsigned postscript cannot be treated as part of dispositive provisions of letter offered as holographic will. In re George's Estate, 208 Miss. 734, 45 So. 2d 571, 1950 Miss. LEXIS 292 (Miss. 1950).

Letter constituting valid holographic will must be of testamentary character, wholly written, dated, and signed by testator. Sullivan v. Jones, 130 Miss. 101, 93 So. 353, 1922 Miss. LEXIS 177 (Miss. 1922).

Holographic will must be both written and subscribed by testator. Better v. Hirsch, 115 Miss. 614, 76 So. 555, 1917 Miss. LEXIS 239 (Miss. 1917).

A letter testatmentary in its character wholly written, dated and signed by the testator is a valid holographic will although it contains a request that the person to whom it was addressed should keep its contents private. Buffington v. Thomas, 84 Miss. 157, 36 So. 1039, 1904 Miss. LEXIS 84 (Miss. 1904).

20. —Date requirement.

An otherwise valid holographic will is not invalid for lack of a date, there being nothing in the statute which requires that a holographic will be dated. Vaughn v. General Cable Corp., 248 So. 2d 798, 1971 Miss. LEXIS 1489 (Miss. 1971).

21. —Reference to extrinsic documents.

Extrinsic document, by reference made part of will wholly written by testator, must also be so written, otherwise the whole will would not be in the handwriting of testator. Hewes v. Hewes, 110 Miss. 826, 71 So. 4, 1916 Miss. LEXIS 211 (Miss. 1916).

22. —Construction.

In giving legal effect to an instrument prepared by a lay person, the court should endeavor to ascertain what the words contained in it meant to the author, not simply what they could connote to a lawyer. Thus, where a holographic will provided that if the testator preceded his wife in death “all of my earthly possessions be received by her,” the use of the ordinary words “possessions” and “receive,” with no further qualification or restriction, indicated that the testator intended for his wife to receive and own everything he possessed and owned. In re Estate of Dedeaux, 584 So. 2d 419, 1991 Miss. LEXIS 462 (Miss. 1991).

In a will contest, requiring construction of a holographic will, in view of evidence that the testatrix’ use and enjoyment of land was not restricted and that there was no fence defining a “yard” in which a dwelling house and out buildings were located, and the testatrix had been accustomed to referring to the entire place by the term “home”, her bequest of one-half the value of the “home” was not a bequest of one-half the value of the house and “yard” but of one-half the value of the entire 58.4 acres of land on which the house was situated. Carlisle v. Estate of Carlisle, 252 So. 2d 894, 1971 Miss. LEXIS 1208 (Miss. 1971).

In construing a will, consideration must be given to all the provisions of the instrument and every part thereof taken together, rather than to any particular clause, sentence or form of words, and this is particularly true with respect to a holographic will since the words and terms are those of the testator who is also the writer and the will is not therefore as subject to mistake through misunderstanding as might be the case where the instrument is drawn by one other than the testator. Carlisle v. Estate of Carlisle, 252 So. 2d 894, 1971 Miss. LEXIS 1208 (Miss. 1971).

Fact that wife’s holographic will referred to a request of her husband was no more than an explanation as to her reason for devising the property as she did, and was not an expression of the testamentary intent of the husband. Carlisle v. Carlisle, 233 So. 2d 803, 1970 Miss. LEXIS 1680 (Miss. 1970).

A holographic will written and subscribed by the decedent which, after making certain specific bequests concluded with the statement, “I will finish this later,” was properly admitted to probate, for the testamentary purpose as far as expressed in the will was complete. Maines v. Davis, 227 So. 2d 844, 1969 Miss. LEXIS 1372 (Miss. 1969).

The intent of one to make a will, insofar as probate of a holographic will is concerned, is immaterial; for the question is whether the will actually is executed in accordance with the statute of the state. Boyles Coffee Co. v. Anderson, 218 So. 2d 843, 1969 Miss. LEXIS 1621 (Miss. 1969).

23. —Particular instruments as valid holographic wills.

A page of a scratch pad on which appeared, in the decedent’s handwriting: “Madge Do what should be done and complete my work. I will all to you.” , followed by the decedent’s signature and the abbreviation for Thursday, constituted a valid holographic will, though undated. Vaughn v. General Cable Corp., 248 So. 2d 798, 1971 Miss. LEXIS 1489 (Miss. 1971).

A holographic will written and subscribed by the decedent which, after making certain specific bequests concluded with the statement, “I will finish this later,” was properly admitted to probate, for the testamentary purpose as far as expressed in the will was complete. Maines v. Davis, 227 So. 2d 844, 1969 Miss. LEXIS 1372 (Miss. 1969).

Letter written wholly in sender’s handwriting expressing desire to give addressee interest in plantation and saying, “I want you to begin fixing things that you may get the rent for 1947,” and expressing intent to enter upon negotiations for purchase of four lots, is not testamentary or dispositive, but merely expresses desire with purpose to later effectuate it, and cannot be probated as holographic will of writer. In re George's Estate, 208 Miss. 734, 45 So. 2d 571, 1950 Miss. LEXIS 292 (Miss. 1950).

A simple statement written by the signer that she gives everything she owns without bond to her sister named, which writing is kept in the signer’s possession until the time of her death, is effective as a holographic will, even though the day of the month when executed is not specified by the signer who could not possibly have attained her majority during the particular month of the year shown by the writing. Estes v. Estes, 200 Miss. 541, 27 So. 2d 854, 1946 Miss. LEXIS 320 (Miss. 1946).

Instrument entirely in handwriting of deceased, with caption consisting of the name of deceased followed by the words “writing this,” where no signature, date or other writing appeared underneath the last paragraph of the instrument, was inadmissible to probate as a holographic will, since the instrument was not subscribed to within the meaning of this section [Code 1942, § 657]. Words appearing at top and as caption were mere words of description and identification of the person writing the instrument and did not constitute a signature in execution of the instrument. Baker v. Baker's Estate, 199 Miss. 388, 24 So. 2d 841, 1946 Miss. LEXIS 208 (Miss. 1946).

A letter testatmentary in its character wholly written, dated and signed by the testator is a valid holographic will although it contains a request that the person to whom it was addressed should keep its contents private. Buffington v. Thomas, 84 Miss. 157, 36 So. 1039, 1904 Miss. LEXIS 84 (Miss. 1904).

An holographic will complete and perfect in itself is not invalidated because the words “my will”, a mere caption, were written above it on the same sheet of paper by the hand of another than the testator. Baker v. Brown, 83 Miss. 793, 36 So. 539, 1903 Miss. LEXIS 97 (Miss. 1903).

24. Probate; requirement, generally.

Will ineffectual as instrument of title until probated. Virginia Trust Co. v. Buford, 123 Miss. 572, 86 So. 356, 1920 Miss. LEXIS 60 (Miss. 1920).

25. —Practice and procedure.

In will contest where more than one ground is asserted challenging validity of will, court should require jury to return special verdict as authorized by Mississippi Rule of Civil Procedure 49 to enable reviewing court to determine true verdict of jury and render opinion in accord. Street Medical Found. v. Watts, 475 So. 2d 819 (Miss. 1985).

Giving of jury instruction addressing issue of which nonprofit corporation is proper beneficiary under will is reversible error where primary issue presented is testatmentary capacity of testatrix, particularly where instruction is peremptory in obligating jury to find for contestant on uncontradicted facts. Matter of Street Medical Found. v. Watts, 475 So. 2d 819 (Miss. 1985).

The trial court in an action contesting a will properly refused jury instructions offered by the will proponents, where one was a “boiler plate” instruction purporting to set forth the law on who might make a will, which contained mere abstract principles of law, did not apply to the specific facts of the case, and was erroneous in that it failed to take into account §91-5-1, and where the other instruction correctly recited the law but did not apply to the specific facts of the case. Estate of Lawler v. Weston, 451 So. 2d 739, 1984 Miss. LEXIS 1757 (Miss. 1984).

Where contestants attempt to show subsequent will was valid, instruction that if contested will was not believed by jury to be the true and last will beyond a reasonable doubt, it should be held invalid, is erroneous. Williams v. Morehead, 116 Miss. 653, 77 So. 658, 1917 Miss. LEXIS 354 (Miss. 1917).

26. —Evidence.

A person contesting a will should be allowed to examine the subscribing witnesses to the will as to all matters relevant to the will’s execution and to inquire into surrounding facts and circumstances so that the court may determine if the will was properly signed and attested, if attestation be required, and if the testator was mentally competent and free of undue influence. Chapman v. Chapman, 264 So. 2d 395, 1972 Miss. LEXIS 1357 (Miss. 1972).

Presumption against intestacy is only a presumption which must yield to facts, and cannot be applied to change or write new will so as to dispose of property under a will which makes no such disposition. Williams v. Gooch, 208 Miss. 223, 44 So. 2d 57, 1950 Miss. LEXIS 241 (Miss. 1950).

In proceeding by residuary legatee to recover his share of estate, introduction in evidence of proceedings before chancery clerk in vacation admitting will to probate in common form makes out prima facie case of validity of will. Rice v. McMullen, 207 Miss. 706, 43 So. 2d 195, 1949 Miss. LEXIS 382 (Miss. 1949).

Lay witnesses are competent to testify on issue of capacity of testator to make will on date of its alleged execution where they first give facts upon which their opinions are based. Blalock v. Magee, 205 Miss. 209, 38 So. 2d 708, 1949 Miss. LEXIS 426 (Miss. 1949).

Notwithstanding transcript, in view of entire testimony, witness held not to have said will was typewritten. Watkins v. Watkins, 142 Miss. 210, 106 So. 753, 1926 Miss. LEXIS 49 (Miss. 1926).

Testimony of subscribing witness best evidence of execution. Smith v. Young, 134 Miss. 738, 99 So. 370, 1924 Miss. LEXIS 303 (Miss. 1924).

Undue influence may be made out by circumstantial evidence. Jamison v. Jamison, 96 Miss. 288, 51 So. 130, 1909 Miss. LEXIS 56 (Miss. 1909).

27. — —Admissibility.

Where testatrix, who had a daughter named Rosalind Gwin Hutton Johnson and a granddaughter named Rosalind Gwin Hutton, devised land to “Rosalind Gwin Hutton,” the will was ambiguous as to the identity of the devisee, and evidence extrinsic to the will was admissible to identify the intended devisee. Hutton v. Hutton, 233 Miss. 458, 102 So. 2d 424, 1958 Miss. LEXIS 404 (Miss. 1958).

In contest proceeding arising out of offer of letter for probate as holographic will of writer, later unsigned will prepared at writer’s suggestion, letter with reference to unsigned will, circumstances surrounding preparation of documents, their contents, and action of parties with reference thereto are competent evidence upon question of whether writer intended letter as will and so considered it, and whether, in legal effect, it was will. In re George's Estate, 208 Miss. 734, 45 So. 2d 571, 1950 Miss. LEXIS 292 (Miss. 1950).

In will contest, admission in evidence of opinions of lay witnesses as to mental incapacity of testatrix to make will on date of its alleged execution followed by statement by witnesses of facts or incidents in connection with their acquaintance, association and experience with testatrix on which opinion is based is not reversible error in absence of objection interposed by proponents to expression of these opinions by witnesses for contestants on ground that they had not previously stated facts upon which their opinions were given, objection on ground that profferred testimony involved opinion of lay witness being insufficient. Blalock v. Magee, 205 Miss. 209, 38 So. 2d 708, 1949 Miss. LEXIS 426 (Miss. 1949).

Parol evidence to effect that deceased stated that she had made her will was inadmissible on question whether alleged holographic will was intended to be and in fact was “subscribed” within the meaning of this section [Code 1942, § 657], even though parol evidence generally is competent to show whether an instrument was intended to be of testamentary character where its meaning in that behalf is not clearly shown on the face thereof, since there was no issue as to whether the instrument was testamentary in character. Baker v. Baker's Estate, 199 Miss. 388, 24 So. 2d 841, 1946 Miss. LEXIS 208 (Miss. 1946).

Evidence as to how testator acquired certain personal property about 23 years prior to making of his will is inadmissible, as too remote, on issue of testamentary capacity, especially where it is not shown that any of this property was in existence at time of testator’s death. Norman v. Norman, 196 Miss. 597, 18 So. 2d 130, 1944 Miss. LEXIS 239 (Miss. 1944).

Error by trial court in excluding evidence as to timber cruise on testator’s lands, in suit contesting will on grounds of undue influence and lack of testamentary capacity, did not constitute reversible error in view of other evidence admitted showing value and extent of testator’s estate. Norman v. Norman, 196 Miss. 597, 18 So. 2d 130, 1944 Miss. LEXIS 239 (Miss. 1944).

Exclusion of evidence of attorney drawing will held harmless in will contest where proponents granted peremptory instruction. Isom v. Canedy, 128 Miss. 64, 88 So. 485, 1921 Miss. LEXIS 293 (Miss. 1921).

Opinion evidence that testatrix was under influence of a legatee is inadmissible. Scally v. Wardlaw, 123 Miss. 857, 86 So. 625, 1920 Miss. LEXIS 89 (Miss. 1920).

Declarations of sole beneficiary of a will shortly after testatrix’s death held incompetent in will contest on ground of forgery, he being a witness in his own behalf and testifying he wrote the will. Liles v. May, 105 Miss. 807, 63 So. 217, 1913 Miss. LEXIS 252 (Miss. 1913).

Whether writing was intended as will may be shown by parol. Prather v. Prather, 97 Miss. 311, 52 So. 449, 1910 Miss. LEXIS 232 (Miss. 1910).

Declarations of testator that he would make no will held incompetent. Miller v. Miller, 96 Miss. 526, 51 So. 210, 1910 Miss. LEXIS 164 (Miss. 1910).

28. —Burden of proof.

In will contest on ground of lack of testamentary capacity and existence of undue influence, there is but a single issue-will or no will, and burden is on proponent throughout. Blalock v. Magee, 205 Miss. 209, 38 So. 2d 708, 1949 Miss. LEXIS 426 (Miss. 1949).

Burden of proof on proponents of will as to capacity and undue influence, but they make out prima facie case by introduction of record of probate in common form. Gathings v. Howard, 122 Miss. 355, 84 So. 240, 1920 Miss. LEXIS 439 (Miss. 1920).

Proponents of will have burden of giving reasonable explanation of unnatural character of will. Jamison v. Jamison, 96 Miss. 288, 51 So. 130, 1909 Miss. LEXIS 56 (Miss. 1909).

Where on an issue devisavit vel non the question is whether the testator was sane or insane the contestants are not required to prove his sanity beyond all reasonable doubt. King v. Rowan, 82 Miss. 1, 34 So. 325, 1903 Miss. LEXIS 158 (Miss. 1903).

RESEARCH REFERENCES

ALR.

Incorporation in will of extrinsic document not in existence at date of will. 3 A.L.R.2d 682.

Remedies during promisor’s lifetime on contract to convey or will property at death in consideration of support or services. 7 A.L.R.2d 1166.

Power and capacity of bank to take devise or bequest. 8 A.L.R.2d 454.

Right of an administrator with the will annexed, or trustee other than the person named in the will as such, to execute power of sale conferred by will. 9 A.L.R.2d 1324.

Taking per stripes or per capita under will. 13 A.L.R.2d 1023.

Devisability of possibility of reverter, or of right of re-entry for breach of condition subsequent. 16 A.L.R.2d 1246.

Enlarged interest acquired by testator after execution of will as passing by devise or bequest. 18 A.L.R.2d 519.

Nature of remainders created by will giving life estate to spouse of testator, with remainder to be divided equally between testator’s heirs and spouse’s heirs. 19 A.L.R.2d 371.

Place of signature of holographic wills. 19 A.L.R.2d 926.

Codicil as validating will or codicil which was invalid or inoperative at time of its purported execution. 21 A.L.R.2d 821.

Effect of testator’s attempted physical alteration of will after execution. 24 A.L.R.2d 514.

Effectiveness of nuncupative will where essential witness thereto is beneficiary. 28 A.L.R.2d 796.

Term “next of kin” used in will, as referring to those who would take in cases of intestacy under distribution statutes, or to nearest blood relatives of designated person or persons. 32 A.L.R.2d 296.

Validity and effect of promise not to make a will. 32 A.L.R.2d 370.

What passes under term “possessions” in will. 33 A.L.R.2d 550.

Codicil as reviving revoked will or codicil. 33 A.L.R.2d 922.

Interlineations and changes appearing on face of will. 34 A.L.R.2d 619.

Validity and effect of provision in will regulating or controlling beneficiary’s residence. 35 A.L.R.2d 387.

Validity of will written on disconnected sheets. 38 A.L.R.2d 477.

Letter as a will or codicil. 40 A.L.R.2d 698.

“Attestation” or “witnessing” of will, required by statute, as including witnesses’ subscription. 45 A.L.R.2d 1365.

What passes under term “personal estate” in will. 53 A.L.R.2d 1059.

Failure of attesting witness to write or state place of residence as affecting will. 55 A.L.R.2d 1053.

Sufficiency of publication of will. 60 A.L.R.2d 124.

Competency of named executor as subscribing witness to will. 74 A.L.R.2d 283.

Sufficiency, as to form, of signature to holographic will. 75 A.L.R.2d 895.

Effect of guardianship of adult on testamentary capacity. 89 A.L.R.2d 1120.

Requirement that holographic will be entirely in handwriting of testator as affected by appearance printed of matter or handwriting of another. 89 A.L.R.2d 1198.

Validity of will as affected by fact that witnesses signed before testator. 91 A.L.R.2d 737.

Validity of a will signed by testator with the assistance of another. 98 A.L.R.2d 824.

Validity of will signed by testator’s mark, stamp, or symbol, or partial or abbreviated signature. 98 A.L.R.2d 841.

Sufficiency of testator’s acknowledgment of signature from his conduct and the surrounding circumstances. 7 A.L.R.3d 317.

Wills: Testator’s illiteracy or lack of knowledge of language in which will is written as affecting its validity. 37 A.L.R.3d 889.

Effect of residuary clause to pass property acquired by testator’s estate after his death. 39 A.L.R.3d 1390.

Wills: when is will signed at “end” or “foot” as required by statute. 44 A.L.R.3d 701.

Change in stock or corporate structure, or split, or substitution of stock of corporation, as affecting bequest of stock. 46 A.L.R.3d 7.

Effect upon testamentary nature of document of expression therein of intention to make more formal will, further disposition of property, or the like. 46 A.L.R.3d 938.

Restrictions on transfer of corporate stock as applicable to testamentary dispositions thereof. 61 A.L.R.3d 1090.

Construction of reference in will to statute where pertinent provisions of statute are subsequently changed by amendment or repeal. 63 A.L.R.3d 603.

Partial invalidity of will: may parts of will be upheld notwithstanding failure of other parts for lack of testamentary mental capacity or undue influence. 64 A.L.R.3d 261.

Effect of doubtful construction of will devising property upon marketability of title. 65 A.L.R.3d 450.

Ademption of legacy of business or interest therein. 65 A.L.R.3d 541.

Measure of damages for breach of contract to will property. 65 A.L.R.3d 632.

Wills: separate gifts to same person in same or substantially same amounts, made in separate wills or codicils, as cumulative or substitutionary. 65 A.L.R.3d 1325.

Necessity that attesting witness realize instrument was intended as will. 71 A.L.R.3d 877.

Existence of illicit or unlawful relation between testator and beneficiary as evidence of undue influence. 76 A.L.R.3d 743.

Disposition of insurance proceeds of personal property specifically bequeathed or devised. 82 A.L.R.3d 1261.

Wills: Effect of gift to be disposed of “as already agreed” upon or the like. 85 A.L.R.3d 1181.

Sufficiency of evidence that will was not accessible to testator for destruction, in proceeding to establish lost will. 86 A.L.R.3d 980.

Wills: condition that devisee or legatee shall renounce, embrace, or adhere to specified religious faith. 89 A.L.R.3d 984.

Effect of testamentary gift to child conditioned upon specified arrangements for parental control. 11 A.L.R.4th 940.

Validity of testamentary exercise of power of appointment by donee sane when will was executed but insane thereafter. 19 A.L.R.4th 1002.

Liability in damages for interference with expected inheritance or gift. 22 A.L.R.4th 1229.

Word “child” or “children” in will as including grandchild or grandchildren. 30 A.L.R.4th 319.

Requirement that holographic will, or its material provisions, be entirely in testator’s handwriting as affected by appearance of some printed or written matter not in testator’s handwriting. 37 A.L.R.4th 528.

Sufficiency of evidence to support grant of summary judgment in will probate or contest proceedings. 53 A.L.R.4th 561.

Testamentary direction to devisee to pay stated sum of money to third party as creating charge or condition or as imposing personal liability on devisee for nonpayment. 54 A.L.R.4th 1098.

Proper execution of self-proving affidavit as validating or otherwise curing defect in execution of will itself. 1 A.L.R.5th 965.

Alzheimer’s disease as affecting testamentary capacity. 47 A.L.R.5th 523.

Am. Jur.

79 Am. Jur. 2d, Wills § 47 et seq.

20A Am. Jur. Legal Forms 2d, Wills § 266:1 et seq.

9 Am. Jur. Trials, Will Contests § 15 et seq.

1 Am. Jur. Proof of Facts 2d, Mistake in the Inducement of Wills, § 5 et seq. (proof of mistake in the inducement).

2 Am. Jur. Proof of Facts 2d, Mistake in Naming or Designating Beneficiary in Will, § 6 et seq. (proof of testator’s mistake in designating beneficiary in will).

6 Am. Jur. Proof of Facts 2d, Intentional Omission of Child from Will, § 8 et seq. (proof of intentional omission of child from will).

18 Am. Jur. Proof of Facts 2d 1, Mentally Disordered Testator’s Execution of Will During Lucid Interval.

36 Am. Jur. Proof of Facts 2d 109, Undue Influence in Execution of Will.

40 Am. Jur. Proof of Facts 2d 339, Lack of Testamentary Capacity by Reason of Insane Delusion.

17 Am. Jur. Proof of Facts 3d 219, Alzheimer’s and Multi-Infarct Dementia – Incapacity to Execute Will.

19 Am. Jur. Proof of Facts 3d 335, AIDS Dementia – Incapacity to Execute Will.

CJS.

95 C.J.S., Wills § 3 et seq.

Law Reviews.

1987 Mississippi Supreme Court Review, Trusts. 57 Miss. L. J. 555, August, 1987.

Weems and Evans, Mississippi law of intestate succession, wills, and administration and the proposed Mississippi Uniform Probate Code: a comparative analysis. 62 Miss. L. J. 1, Spring, 1992.

Practice References.

Bickel, Living Trusts: Forms and Practice (Matthew Bender).

Burke, Friel, and Gagliardi, Modern Estate Planning, Second Edition (Matthew Bender).

Christensen, International Estate Planning, Second Edition (Matthew Bender).

Mobley, Robinson and Hedrick, Pritchard on the Law of Wills and Administration of Estates, Seventh Edition (Michie).

Rapkin, Planning for Large Estates (Matthew Bender).

Schoenblum, Estate Planning Forms and Clauses with CD Rom (Matthew Bender).

Trust Administration and Taxation (Matthew Bender).

LexisNexis® CD – Estate Planning Package (CD-ROM) (LexisNexis).

Murphy’s Will Clauses: Annotations and Forms with Tax Effects (Matthew Bender).

§ 91-5-3. Revocations.

A devise so made, or any clause thereof, shall not be revocable but by the testator or testatrix destroying, canceling, or obliterating the same, or causing it to be done in his or her presence, or by subsequent will, codicil, or declaration, in writing, made and executed. Every last will and testament made when the testator or testatrix had no child living, wherein any child he or she might have is not provided for or not mentioned, if at the time of his or her death he or she have a child, or if the testator leave his wife enceinte of a child who shall be born, shall have no effect during the life of any such after-born child and shall be void unless the child die without having been married, or without leaving issue capable of inheriting, and before he or she shall have attained twenty-one years. The estate, both real and personal, so devised shall descend to such child in the same manner as if the testator or testatrix had died intestate, subject, nevertheless, to the bequests made in the last will and testament in case of the death of such child before marriage, or without issue capable of inheriting, and under the age of twenty-one years. When a testator shall leave children born and his wife enceinte, the posthumous child or children, if unprovided for by settlement and neither provided for nor disinherited, but only pretermitted, by the last will and testament, shall succeed to the same portion of the father’s estate as such child or children would have been entitled to if the father had died intestate, towards raising which portion the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (15); 1857, ch. 60, art. 35; 1871, § 2389; 1880, § 1263; 1892, § 4489; 1906, § 5079; Hemingway’s 1917, § 3367; 1930, § 3551; 1942, § 658.

Cross References —

Limitation upon death without issue, see §89-1-13.

Descent and distribution generally, see §91-1-1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Requirements — mental capacity.

3. —Intent to revoke.

4. By instrument of revocation.

5. By subsequent will.

6. By codicil.

7. By destruction or obliteration.

8. —Presumptive animo revocandi.

9. —Destruction of one of multiple copies.

10. —Marginal notation.

11. Implied revocation; generally.

12. —Subsequent inconsistent instrument.

13. Joint wills.

14. Pleading and practice.

15. Evidence — sufficiency.

16. —Parol.

17. Equity; promise not to revoke.

1. In general.

Chancellor, on remand, had to determine whether the decedent’s 2001 will was validly made and executed; if the chancellor found that the 2001 will was validly made and executed, the chancellor had to re-admit the 2001 will to probate; however, if the 2001 will was not valid, then the decedent’s 1973 will had to be re-admitted to probate. Woodfield v. Woodfield (In re Estate of Woodfield), 968 So. 2d 421, 2007 Miss. LEXIS 606 (Miss. 2007).

Generally, revocation of a will can be accomplished only by physical destruction of the will or by subsequent will, codicil, or declaration, in writing, made and executed. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

Mississippi Code §91-5-3 provides the only means by which a will may be expressly revoked. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

Revocation of a will is a matter of intent, except in those instances in which it occurs by operation of law from a change in circumstances subsequent to the execution of the will. McCormack v. Warren, 228 Miss. 617, 89 So. 2d 702, 1956 Miss. LEXIS 555 (Miss. 1956).

Statute pertaining to revocations of wills applies only to express revocation, and has no application to an implied revocation. Holcomb v. Holcomb, 173 Miss. 192, 159 So. 564, 1935 Miss. LEXIS 194 (Miss. 1935).

This section [Code 1942, § 658] provides sole method for expressly revoking will. Minor v. Russell, 126 Miss. 228, 88 So. 633, 1921 Miss. LEXIS 29 (Miss. 1921).

2. Requirements — mental capacity.

The execution of a will in 1982, at a time when testatrix lacked testamentary capacity, did not revoke a 1980 will. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

The mental capacity required to revoke a will is the same as that required to make one. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

Same degree of mentality is necessary for revocation as for making. Watkins v. Watkins, 142 Miss. 210, 106 So. 753, 1926 Miss. LEXIS 49 (Miss. 1926).

Burden of showing lack of capacity to revoke on party seeking to establish lost will. Watkins v. Watkins, 142 Miss. 210, 106 So. 753, 1926 Miss. LEXIS 49 (Miss. 1926).

3. —Intent to revoke.

In Mississippi, revocation of a duly executed will is governed by a statute, and in order to affect the revocation of a will, it is essential that it be shown in some competent manner that the testator or someone for him performed one or more of the acts specified in the statute of “destroying, cancelling, or obliterating” the will and that he did so with the intention of revoking the will. Griffith v. Movie Star of Collins, Inc., 233 So. 2d 760, 1970 Miss. LEXIS 1664 (Miss. 1970).

The intent to revoke a will is essential to the revocation by act of the testator. McCormack v. Warren, 228 Miss. 617, 89 So. 2d 702, 1956 Miss. LEXIS 555 (Miss. 1956).

In order for an act to have the effect of revoking a will the intention to revoke must clearly and unequivocally appear, so that a will is not revoked by any act of spoliation or destruction not deliberately done animo revocandi, and even where the statutory methods for revoking a will are followed by the testator, his act is ineffectual unless his intent thereby to revoke or alter the will appears. McCormack v. Warren, 228 Miss. 617, 89 So. 2d 702, 1956 Miss. LEXIS 555 (Miss. 1956).

4. By instrument of revocation.

Any instrument expressly revoking a will must meet the requirements of Mississippi Code §91-5-1. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

In a proceeding to annul probate of will and codicil and for decree that decedent died intestate, the question whether the instrument of revocation had been executed in compliance with the requirements of the statute was a question of fact to be determined according to the proof. Kennard v. Evans, 218 Miss. 176, 65 So. 2d 285, 1953 Miss. LEXIS 528 (Miss. 1953).

Where instrument intended to revoke a codicil, which disposed of all the property of testatrix, was not signed in the presence of one of the subscribing witnesses and the witness was not informed that the instrument was a revocation of the codicil and that signature appended to the instrument was that of the testatrix, and the witness learned only from other witness that testatrix had signed the instrument, the revoking instrument was not duly executed and attested. Kennard v. Evans, 218 Miss. 176, 65 So. 2d 285, 1953 Miss. LEXIS 528 (Miss. 1953).

5. By subsequent will.

Will unambiguously stated that the testator’s wife was to inherit a life estate in a home, and the will further revoked all prior wills and testaments, and the antenuptial-agreement provision leaving the testator’s daughter the home was a devise, or testament, that the testator intended to revoke by the subsequent will; since the antenuptial-agreement provision was revoked by the will, the provision was void and gave the daughter no claim of ownership to the home, and the will’s gift of the home to the wife controlled. Dixon v. Jones (In re Will of Jones), 138 So.3d 205, 2014 Miss. App. LEXIS 230 (Miss. Ct. App. 2014).

The execution of a will in 1982, at a time when testatrix lacked testamentary capacity, did not revoke a 1980 will. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

A validly executed will with inconsistent provisions, but no express revocation clause, revokes an earlier will. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

In a probate contest the court properly admitted testimony concerning a 1979 will, where such testimony was probative as to whether there was a statement of revocation of a 1961 will or whether there were inconsistent devises under the two wills. Deposit Guaranty Nat'l Bank v. Cotten, 420 So. 2d 242, 1982 Miss. LEXIS 2203 (Miss. 1982).

Revocation of a will by a subsequent instrument requires the document to be in writing, made and executed; execution in this context means signing. Therefore, a properly executed will that revoked a prior holographic will was not itself revoked by the testator’s re-dating of the holographic will without re-signing that will. Ramsey v. Robinson, 346 So. 2d 379, 1977 Miss. LEXIS 2528 (Miss. 1977).

A surviving wife could by a valid, subsequent will revoke her part of a joint will earlier executed with her husband. Lane v. Woodland Hills Baptist Church, 285 So. 2d 901, 1973 Miss. LEXIS 1313 (Miss. 1973).

Provision that testatrix’s daughter and her son should not inherit any of the testatrix’s property until five years after the death of the daughter’s husband was revoked by implication by two subsequent testamentary instruments, one of which devised to the daughter certain Louisiana property without provision for the postponement of the enjoyment thereof, the other of which directed the management by trustees of the interest of the daughter and her son, also without making any provision for the postponement of the enjoyment thereof. Martin v. Eslick, 229 Miss. 234, 90 So. 2d 635, 1956 Miss. LEXIS 604 (Miss. 1956).

Where a testator made a second will which had no revoking provisions but which was inconsistent with the first will and where the sole devisee and legatee was a witness to the will and therefore ineligible to take under it, the property passed as if the deceased had died intestate. Estate of Crawford v. Crawford, 225 Miss. 208, 82 So. 2d 823, 1955 Miss. LEXIS 574 (Miss. 1955).

Revocation may be worked by inconsistent provisions of subsequent will. Wheat v. Lacals, 139 Miss. 300, 104 So. 73, 1925 Miss. LEXIS 130 (Miss. 1925).

6. By codicil.

The rule that a codicil does not work a revocation except to the precise extent that it either expressly or by necessary implication modifies the former provisions in a will was applied to a separate paper in the testator’s handwriting, signed and dated after the will, found in the same envelope as the will and referring to “my formal will.” Klein v. Gaines, 203 Miss. 871, 34 So. 2d 488, 1948 Miss. LEXIS 332 (Miss. 1948).

Statute pertaining to revocations of wills held not to prevent implied revocation through codicil directing sum loaned legatee by testator to be repaid or deducted from his legacy. Holcomb v. Holcomb, 173 Miss. 192, 159 So. 564, 1935 Miss. LEXIS 194 (Miss. 1935).

Codicil to will not subscribed and attested is invalid, but does not affect validity of will. Hawkins v. Duberry, 101 Miss. 17, 57 So. 919, 1911 Miss. LEXIS 140 (Miss. 1911).

7. By destruction or obliteration.

A total or partial revocation of a will by either cancellation or obliteration is authorized by this section. In re Will of Palmer, 359 So. 2d 752, 1978 Miss. LEXIS 2267 (Miss. 1978).

In Mississippi, revocation of a duly executed will is governed by a statute, and in order to affect the revocation of a will, it is essential that it be shown in some competent manner that the testator or someone for him performed one or more of the acts specified in the statute of “destroying, cancelling, or obliterating” the will and that he did so with the intention of revoking the will. Griffith v. Movie Star of Collins, Inc., 233 So. 2d 760, 1970 Miss. LEXIS 1664 (Miss. 1970).

8. —Presumptive animo revocandi.

Will presumed destroyed animo revocandi, where traced to testator and not found after death. Watkins v. Watkins, 142 Miss. 210, 106 So. 753, 1926 Miss. LEXIS 49 (Miss. 1926).

Presumption of destruction animo revocandi is overcome by showing existence after permanent incapacity. Watkins v. Watkins, 142 Miss. 210, 106 So. 753, 1926 Miss. LEXIS 49 (Miss. 1926).

9. —Destruction of one of multiple copies.

Where a will has been executed in duplicate, the destruction by testator of that copy which he retains in his possession, with intent to revoke the will, creates a presumption that the testator intends thereby to revoke the will. Phinizee v. Alexander, 210 Miss. 196, 49 So. 2d 250, 1950 Miss. LEXIS 337 (Miss. 1950).

Where there are two copies of a will, both in possession of deceased, the presumption of law would be that by the preservation of one duplicate entire the testator did not intend a revocation of these particular devises, otherwise he would have mutilated both duplicates. Phinizee v. Alexander, 210 Miss. 196, 49 So. 2d 250, 1950 Miss. LEXIS 337 (Miss. 1950).

10. —Marginal notation.

Where credible extraneous evidence to the contrary is available, marginal notations made by a testator subsequent to the execution of his will need not necessarily constitute a revocation thereof. Wiley v. Wiley, 184 So. 2d 854, 1966 Miss. LEXIS 1483 (Miss. 1966).

11. Implied revocation; generally.

Mississippi Supreme Court declined to adopt a rule of revocation of a will by divorce and to adopt a rule that a pre-divorce will was automatically or expressly revoked by a divorce accompanied by a property settlement agreement with provisions inconsistent with the terms of the pre-divorce will; on the other hand, it did acknowledge that there may be an implied revocation of a pre-divorce will in cases where there is a divorce accompanied by a property settlement agreement with provisions inconsistent with the terms of the pre-divorce will, but any document submitted by a contestant as a subsequent declaration pursuant to Miss. Code Ann. §91-5-3 must reveal by “clear and unequivocal” evidence the testator’s intention to revoke the prior will by looking to the facts and circumstances of the particular case, the terms of the will itself, the divorce decree and the property settlement, and the conduct of the parties. Hinders v. Hinders, 828 So. 2d 1235, 2002 Miss. LEXIS 312 (Miss. 2002).

Mississippi recognizes the doctrine of revocation of wills by statute, and also, in proper cases where the facts give rise to an implied revocation, by operation of law. Rasco v. Estate of Rasco, 501 So. 2d 421, 1987 Miss. LEXIS 2274 (Miss. 1987).

The doctrine of implied revocation is carefully limited to execution of conflicting deeds or other instruments; statements of the testator that he intends to revoke the will are not enough; and, generally, such statements are inadmissible if offered to show an implied revocation. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

Mississippi recognizes that a will may be impliedly revoked. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

Revocation of a will is a matter of intent, except in those instances in which it occurs by operation of law from a change in circumstances subsequent to the execution of the will. McCormack v. Warren, 228 Miss. 617, 89 So. 2d 702, 1956 Miss. LEXIS 555 (Miss. 1956).

Revocation of a will is a matter of intent except where it occurs by operation of law from a change in circumstances subsequent to the execution of the will. McCormack v. Warren, 228 Miss. 617, 89 So. 2d 702, 1956 Miss. LEXIS 555 (Miss. 1956).

The doctrine of implied revocation has been carefully limited in Mississippi to the execution of conflicting deeds and other instruments. In re Stoball's Will, 211 Miss. 15, 50 So. 2d 635, 1951 Miss. LEXIS 327 (Miss. 1951).

This section [Code 1942, § 658] has no application to implied revocations by operation of law, but has reference alone to express revocations which are sought to be shown in the manner stated in the statute. Hilton v. Johnson, 194 Miss. 671, 12 So. 2d 524, 1943 Miss. LEXIS 77 (Miss. 1943).

Statute pertaining to revocations of wills applies only to express revocation, and has no application to an implied revocation. Holcomb v. Holcomb, 173 Miss. 192, 159 So. 564, 1935 Miss. LEXIS 194 (Miss. 1935).

Forcefully preventing testator from changing will held not such a change in conditions or circumstances as to amount to a revocation by implication. Minor v. Russell, 126 Miss. 228, 88 So. 633, 1921 Miss. LEXIS 29 (Miss. 1921).

Doctrine of implied revocation is always recognized in Mississippi. Caine v. Barnwell, 120 Miss. 209, 82 So. 65, 1919 Miss. LEXIS 79 (Miss. 1919).

This section [Code 1942, § 658] does not prevent implied revocation. Hoy v. Hoy, 93 Miss. 732, 48 So. 903, 1908 Miss. LEXIS 169 (Miss. 1908).

12. —Subsequent inconsistent instrument.

Decedent’s will was revoked by implication because the chancellor determined that the express terms of the will and the provisions of the property-settlement agreement were inconsistent; by the express terms of the property-settlement agreement, the ex-wife forfeited her interest in the Tennessee farmland; the property-settlement agreement satisfied the requirements of this statute as a subsequent declaration to the will that revoked the decedent’s predivorce will and divested the ex-wife of any interest in the farmland; and the chancellor correctly found that the parties intended to settle any and all property rights against each other and that the decedent acted by implication and intent to void the previous bequests. Chaney v. Chaney (In re Estate of Chaney), 235 So.3d 120, 2017 Miss. App. LEXIS 278 (Miss. Ct. App. 2017), cert. denied, — So.3d —, 2018 Miss. LEXIS 45 (Miss. 2018).

A divorce accompanied by property settlement did not revoke, by implication, a previously executed will where the parties continued to live together, the divorce decree or property settlement contained no proof of intent to revoke the prior testamentary instrument, and there was no showing that the property settlement was anything more than a formality to comply with the requirements of a divorce for irreconcilable differences. Rasco v. Estate of Rasco, 501 So. 2d 421, 1987 Miss. LEXIS 2274 (Miss. 1987).

Under the provisions of Code 1942, § 658 a divorce accompanied by a property settlement made by the husband to his former wife will not serve as a revocation of a prior will providing property rights or legacies for the divorced spouse, absent proof that the testator intended that the settlement should operate as a fulfillment of support rights or as an ademption of a prior-created legacy and release by the divorced spouse of all rights in the deceased’s estate. McKnight v. McKnight, 267 So. 2d 315, 1972 Miss. LEXIS 1417 (Miss. 1972).

Execution of deed to property conveying it to devisee named in prior executed will covering same property operates as pro tanto revocation of will, but only to extent of property deeded and revokes will in no other particular. Dantone v. Dantone, 205 Miss. 420, 38 So. 2d 908, 1949 Miss. LEXIS 439 (Miss. 1949).

13. Joint wills.

A surviving wife could by a valid, subsequent will revoke her part of a joint will earlier executed with her husband. Lane v. Woodland Hills Baptist Church, 285 So. 2d 901, 1973 Miss. LEXIS 1313 (Miss. 1973).

14. Pleading and practice.

Burden of showing lack of capacity to revoke on party seeking to establish lost will. Watkins v. Watkins, 142 Miss. 210, 106 So. 753, 1926 Miss. LEXIS 49 (Miss. 1926).

15. Evidence — sufficiency.

The evidence was sufficient to rebut the presumption that a testator revoked a will which was known to have been made and was kept in a locked drawer of the testator’s desk, but which was not found upon his death, where the testator had a close and affectionate relationship with his daughter who was the sole beneficiary under the will, he talked to people about his will and told them that he was leaving his entire estate to his daughter, there was nothing in the record suggesting that he had changed his mind, the desk in which the will was kept was subject to entry by others, and there was evidence that someone had entered the house and the desk area after the testator died and emptied the contents of filing cabinet drawers. Berry v. Smith, 584 So. 2d 400 (Miss. 1991).

Where a testator’s will was found in a lock box at his bank, to which box only he had access, and where the testator’s signature, but not the signatures of the witnesses, had been cut off of the bottom of the first two pages of the will apparently with scissors, but the third page with the signature of the testator and those of the witnesses, and with an attestation certificate also signed by the witnesses, was unmarred and intact, and in all other respects the will was in its original condition, the will had not been revoked. Griffith v. Movie Star of Collins, Inc., 233 So. 2d 760, 1970 Miss. LEXIS 1664 (Miss. 1970).

Although there was no direct proof that the testatrix had destroyed the will, proof that the will was in her possession when last seen and that it could not be found after her death, together with other evidence, supported finding that complainant’s proof was insufficient to establish the existence of the alleged lost or destroyed will at the time of testatrix’s death, or to overcome the presumption that the will had been destroyed by the testatrix during her lifetime with the intention of revoking it. James v. Barber, 244 Miss. 234, 142 So. 2d 21, 1962 Miss. LEXIS 443 (Miss. 1962).

Although a will which had last been seen in testatrix’ possession was not found after her death, evidence established that the testatrix did not revoke her will and rebutted the presumption as to revocation arising due to the fact that the will could not be found upon her death, especially since it appeared that the devisees under the will were blood relatives of the testatrix, and that one, who desired to defeat the will, had access to the place where it was kept. Adams v. Davis, 233 Miss. 228, 102 So. 2d 190, 1958 Miss. LEXIS 377 (Miss. 1958).

Under evidence that testatrix might have desired to revoke her will but later changed her mind, the chancellor did not err in holding that there had been no revocation where both copies of the instrument were found in her possession at the time of death, and even though the original or ribbon copy of the instrument, which was found in the envelope with other of the testatrix’ papers, was torn from the bottom upwards by five separate tears which extended to points opposite or above the testatrix’ signature, it was shown that no part of the instrument was torn off, and the signature of the testatrix and subscribing witnesses were plainly legible, there were no interlineations, erasures or cancellations on the instrument, and the carbon copy thereof was not torn. McCormack v. Warren, 228 Miss. 617, 89 So. 2d 702, 1956 Miss. LEXIS 555 (Miss. 1956).

Will presumed destroyed animo revocandi, where traced to testator and not found after death. Watkins v. Watkins, 142 Miss. 210, 106 So. 753, 1926 Miss. LEXIS 49 (Miss. 1926).

16. —Parol.

Parol testimony designed to show an implied revocation is not admissible. In re Stoball's Will, 211 Miss. 15, 50 So. 2d 635, 1951 Miss. LEXIS 327 (Miss. 1951).

The statute by its very language excludes parol testimony to change a will in any respect. Hilton v. Johnson, 194 Miss. 671, 12 So. 2d 524, 1943 Miss. LEXIS 77 (Miss. 1943).

In a widow’s contest of her husband’s will, leaving all his property to his brothers and sisters, parol testimony of several witnesses, offered by the widow, that the husband had stated that he wanted her to have all of his property, was properly excluded as not establishing a revocation in the manner provided by this section [Code 1942, § 658]. Hilton v. Johnson, 194 Miss. 671, 12 So. 2d 524, 1943 Miss. LEXIS 77 (Miss. 1943).

17. Equity; promise not to revoke.

A breach of a contract not to revoke a will is just that a breach of contract. It is not grounds for contesting the will pertaining to the contract. Remedies, if any, of promissor’s heirs lie on the contract or perhaps upon constructive trust theory. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

A contract not to revoke a will may become irrevocable, as long as the promisee performs in accordance with the contract. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

A proper rescission of a contract not to revoke a will does not revoke the will to which the contract pertains. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

Where testator executes a will in compliance with an oral agreement with the devisee that the latter will render unique and necessary personal services to testator involving a substantial change in the status and manner of living of the promisee, and such services have been performed, so that a revocation of the will amounts to fraud upon the devisee rendering it impossible or impracticable to restore devisee to prior situation, equity will hold such will to be irrevocable and the rights thereunder may be established. Johnston v. Tomme, 199 Miss. 337, 24 So. 2d 730, 1946 Miss. LEXIS 202 (Miss. 1946).

RESEARCH REFERENCES

ALR.

Remarriage of woman after death of or divorce from former husband as revoking will executed during former marriage. 9 A.L.R.2d 510.

Conflict of laws respecting revocation of will. 9 A.L.R.2d 1412.

Destruction or cancelation of one copy of will executed in duplicate, as revocation of other copy. 17 A.L.R.2d 805.

Divorce or annulment as affecting will previously executed by husband or wife. 18 A.L.R.2d 697.

What constitutes fraud within statute relating to proof of will “fraudulently” destroyed during testator’s lifetime. 23 A.L.R.2d 382.

Effect of testator’s attempted physical alteration of will after execution. 24 A.L.R.2d 514.

Adoption of child as revoking will. 24 A.L.R.2d 1085.

Wills: revocation as affected by invalidity of some or all of dispositive provisions of later will. 28 A.L.R.2d 526.

Validity of oral promise or agreement not to revoke will. 29 A.L.R.2d 1229.

Codicil as reviving revoked will or codicil. 33 A.L.R.2d 922.

Implied revocation of will by later will or codicil. 59 A.L.R.2d 11.

Statutory revocation of will by subsequent birth or adoption of child. 97 A.L.R.2d 1044.

Revocation of will as affecting codicil and vice versa. 7 A.L.R.3d 1143.

Statute excluding testimony of one person because of death of another as applied to testimony in respect of lost or destroyed instrument. 18 A.L.R.3d 606.

Revocation of will by nontestamentary writing. 22 A.L.R.3d 1346.

Revocation of witnessed will by holographic will or codicil, where statute requires revocation by instrument of equal formality as will. 49 A.L.R.3d 1223.

Testator’s failure to make new will, following loss of original will by fire, theft, or similar casualty, as constituting revocation of original will. 61 A.L.R.3d 958.

Divorce or annulment as affecting will previously executed by husband or wife. 71 A.L.R.3d 1297.

Revival, under doctrine of dependant relative revocation, of charitable bequest in will expressly revoked in later will containing same charitable bequest. 75 A.L.R.3d 877.

Disposition of insurance proceeds of personal property specifically bequeathed or devised. 82 A.L.R.3d 1261.

Marriage of testator or birth of testator’s child as revoking will previously made in exercise of power of appointment. 92 A.L.R.3d 1244.

Validity of statutes or rules providing that marriage or remarriage of woman operates as revocation of will previously executed by her. 99 A.L.R.3d 1020.

Liability in damages for interference with expected inheritance or gift. 22 A.L.R.4th 1229.

Revocation of prior will by revocation clause in lost will or other lost instrument. 31 A.L.R.4th 306.

Sufficiency of evidence of nonrevocation of lost will not shown to have been inaccessible to testator – modern cases. 70 A.L.R.4th 323.

Pretermitted heir statutes: what constitutes sufficient testamentary reference to, or evidence of contemplation of, heir to render statute inapplicable. 83 A.L.R.4th 779.

Ademption or revocation of specific devise or bequest by guardian, committee, conservator, or trustee of mentally or physically incompetent testator. 84 A.L.R.4th 462.

Sufficiency of evidence of nonrevocation of lost will where codicil survives. 84 A.L.R.4th 531.

Action for tortious interference with bequest as precluded by will contest remedy. 18 A.L.R.5th 211.

Alzheimer’s disease as affecting testamentary capacity. 47 A.L.R.5th 523.

Am. Jur.

79 Am. Jur. 2d, Wills § 454 et seq.

20B Am. Jur. Legal Forms 2d, Wills § 266:118 et seq., 266:288 et seq. (revocation, generally).

CJS.

95 C.J.S., Wills § 407 et seq.

§ 91-5-5. Children born after making of the will.

If a testator or testatrix, having a child or children born at the time of making and publishing his or her last will and testament, shall, at his or her death, leave a child or children born after the making and publishing such last will and testament, the child or children so after-born, if unprovided for by settlement and neither provided for nor disinherited, but only pretermitted, by the last will and testament, shall succeed to the same portion of the father’s or mother’s estate as such child or children would have been entitled to if the father or mother had died intestate, towards raising which portion the devisees and legatees shall contribute proportionately out of the parts devised and bequeathed to them by the same will and testament, in the same manner as is provided in the case of posthumous children.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (16); 1857, ch. 60, art. 36; 1871, § 2390; 1880, § 1264; 1892, § 4490; 1906, § 5080; Hemingway’s 1917, § 3368; 1930, § 3352; 1942, § 659.

JUDICIAL DECISIONS

1. In general.

2. Rights of after-born children.

1. In general.

In interpreting a will, as affected by this section [Code 1942, § 659], and in an effort to determine the intent of the testatrix, the court should take into consideration all of the terms and provisions of the will and the circumstances surrounding the testatrix at the time at which she executed the will. Guion v. Guion, 232 Miss. 647, 100 So. 2d 351, 1958 Miss. LEXIS 313 (Miss. 1958).

Intent is to be determined by the words of the will and by circumstances surrounding the testator, including the events and circumstances happening after the execution of the will and before the death of the testator. Guion v. Guion, 232 Miss. 647, 100 So. 2d 351, 1958 Miss. LEXIS 313 (Miss. 1958).

In a case involving an adopted child born before the execution of a will, the court need not reach the question whether this section [Code 1942, § 659] was intended to apply to adopted children born after the execution of a will since the legislature intended pretermitted children provisions to apply only to children born after the will was made. Lee v. Foley, 224 Miss. 684, 80 So. 2d 765, 1955 Miss. LEXIS 531 (Miss. 1955).

2. Rights of after-born children.

Where a mother had two living children at the time she executed her will, the fact that she devised and bequeathed all of her property to her husband manifested an intent to disinherit her children as a class, so that a child born after the execution of the will had no inheritable rights in the mother’s estate. Guion v. Guion, 232 Miss. 647, 100 So. 2d 351, 1958 Miss. LEXIS 313 (Miss. 1958).

A general devise of a remainder or reversionary interest to the heirs of the testator or to his children does not comprehend a posthumous child, so as to prevent it from claiming under the statute as a child pretermitted by the will, in the absence of anything to show that the child was in the mind of the testator. Mahaffey v. First Nat'l Bank, 231 Miss. 798, 97 So. 2d 756, 1957 Miss. LEXIS 567 (Miss. 1957).

Provisions of testator’s will, directing that the residue of testator’s estate should be distributed into four parts, with one part each going to his wife and then living children, and devising a life estate in certain property to testator’s sister and brother-in-law, with reversion to the heirs of testator’s body, did not manifest an intent to deprive two children born after the execution of the will, one posthumously, of the status of pretermitted children. Mahaffey v. First Nat'l Bank, 231 Miss. 798, 97 So. 2d 756, 1957 Miss. LEXIS 567 (Miss. 1957).

Child born within 10 months after testator’s death, or after time devisees must be living to take under will, takes under will; “in esse.” Scott v. Turner, 137 Miss. 636, 102 So. 467, 1925 Miss. LEXIS 6 (Miss. 1925).

After-born children held to inherit interest in decedent’s estate; devises and legacies held subject to proportionate contribution to make up shares of after-born children. Clark v. Clark, 126 Miss. 455, 89 So. 4, 1921 Miss. LEXIS 51 (Miss. 1921).

After-born children not provided for in will held vested with absolute title to property as if parent had died intestate. Clark v. Clark, 126 Miss. 455, 89 So. 4, 1921 Miss. LEXIS 51 (Miss. 1921).

Child born during testator’s life, after making of will and not mentioned therein, there being other living children, became vested with absolute title to share in estate. Watkins v. Watkins, 88 Miss. 148, 40 So. 1001, 1906 Miss. LEXIS 150 (Miss. 1906).

RESEARCH REFERENCES

ALR.

Adoption of child as revoking will. 24 A.L.R.2d 1085.

Marriage of testator or birth of testator’s child as revoking will previously made in exercise of power of appointment. 92 A.L.R.3d 1244.

Conflict of laws as to pretermission of heirs. 99 A.L.R.3d 724.

Pretermitted heir statutes: what constitutes sufficient testamentary reference to, or evidence of contemplation of, heir to render statute inapplicable. 83 A.L.R.4th 779.

Legal status of posthumously conceived child of decedent. 17 A.L.R.6th 593.

Am. Jur.

79 Am. Jur. 2d, Wills § 541 et seq.

20B Am. Jur. Legal Forms 2d, Wills, § 266:112 (provision of codicil as to bequest to child born or adopted after execution of will).

6 Am. Jur. Proof of Facts 2d, Intentional Omission of Child from Will, § 8 et seq. (proof of intentional omission of child from will).

CJS.

95 C.J.S., Wills § 440.

§ 91-5-7. Bequests not to lapse in certain cases.

Whenever any estate of any kind shall or may be devised or bequeathed by the last will and testament of any testator or testatrix to any person being a child or descendant of such testator or testatrix, and such devisee or legatee shall, during the lifetime of such testator or testatrix, die testate or intestate, leaving a child or children, or one or more descendants of a child or children, who shall survive such testator or testatrix, in that case, such devise or legacy to such person so situated as above mentioned, and dying in the lifetime of the testator or testatrix, shall not lapse, but the estate so devised or bequeathed shall vest in such child or children, descendant or descendants, of such devisee or legatee in the same manner as if a legatee or devisee had survived the testator or testatrix and had died intestate.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (17); 1857, ch. 60, art. 37; 1871, § 2391; 1880, § 1265; 1892, § 4491; 1906, § 5081; Hemingway’s 1917, § 3369; 1930, § 3553; 1942, § 660.

JUDICIAL DECISIONS

1. In general.

Where the residuary clause of the decedent’s will gave an undivided one-half interest of the remainder of his estate to his wife, and secondly, an undivided one-half interest, per stirpes, to his children (by an earlier marriage), and where the wife predeceased the husband by one week, the chancery court properly rejected the stepchildren’s argument that either spouse intended for all six children (the decedent’s children and the stepchildren), to divide their estate equally, no matter which parent died first; because the writing was clear and spoke for itself, parol evidence was not admissible to alter the terms of the document, and the anti-lapse statute, Miss Code Ann. §91-5-7, was clearly applicable, such that the failed devise to the wife passed to the decedent’s natural children. Marlar v. Castillo-Ruiz (In re Will of Roland), 920 So. 2d 539, 2006 Miss. App. LEXIS 85 (Miss. Ct. App. 2006).

Rule as to lapsed devises is applicable primarily to instances where devisee named in will predeceased testatrix. Mississippi State Univ. Found. v. Clark (In re Estate of Homburg), 697 So. 2d 1154, 1997 Miss. LEXIS 317 (Miss. 1997).

Testamentary gift to life income beneficiary of testamentary trust lapsed when beneficiary predeceased testatrix; however, gift over to remaindermen did not lapse, as remaindermen were capable of taking at time of death of testatrix. Mississippi State Univ. Found. v. Clark (In re Estate of Homburg), 697 So. 2d 1154, 1997 Miss. LEXIS 317 (Miss. 1997).

In a proceeding seeking interpretation of a residuary clause of a will in which the testator left his residual estate to his daughter and to his brothers and sisters, share and share alike, several of whom predeceased the testator, the chancellor properly held that the lapsed portions of the testator’s estate descended by the laws of intestate succession to his daughter, his heir-at-law. Moffett v. Howard, 392 So. 2d 509, 1981 Miss. LEXIS 1903 (Miss. 1981).

Where a son died intestate prior to the death of the testatrix and left a son and daughter as his surviving heirs, such surviving heirs succeeded to the share of their father in the estate. Martin v. Eslick, 229 Miss. 234, 90 So. 2d 635, 1956 Miss. LEXIS 604 (Miss. 1956).

The rule as to lapsed devises is applicable primarily to instances where the devisee named in the will had died prior to the death of the testator. Hays v. Cole, 221 Miss. 459, 73 So. 2d 258, 1954 Miss. LEXIS 551 (Miss. 1954).

Under devise of residue of estate under will to the fiancee, two uncles and a cousin of testator, the share of one of the devisees who predeceased the testator goes to testator’s heirs at law, and is not saved by this section [Code 1942, § 660]. Clark v. Case, 207 Miss. 163, 42 So. 2d 109, 1949 Miss. LEXIS 326 (Miss. 1949).

This section [Code 1942, § 660] does not apply to bequests to those who are not descendants of the testator, and a legacy to a niece who predeceased the testator lapsed so that her son did not inherit through her. Kullman v. Dreyfus' Estate, 201 Miss. 887, 30 So. 2d 81, 1947 Miss. LEXIS 460 (Miss. 1947).

Leasehold interest in school land in state owned by testatrix of other state is governed by Mississippi law; legacy lapses on death of legatee without children though statute of domicile of testatrix provides contrary. Neblett v. Neblett, 112 Miss. 550, 73 So. 575, 1916 Miss. LEXIS 145 (Miss. 1916).

RESEARCH REFERENCES

ALR.

Wills: antilapse statute as applicable to devise or bequest in terms of distributive share, under law, in estate of testator. 3 A.L.R.2d 1419.

Benefit of direction in deed or will for payments by grantee or devisee to third person as surviving latter’s death, and passing as part of his estate. 6 A.L.R.2d 363.

Devise or bequest to designated individual “or his estate,” “or his children,” “or his representatives,” or the like (other than “or his heirs”), as subject to lapse in event of individual’s death before that of testator. 11 A.L.R.2d 1387.

Rights of party to void marriage in respect of transfers or gifts to other in mistaken belief marriage was valid. 14 A.L.R.2d 918.

Who is “child,” “issue,” “descendant,” “relation,” “heir,” etc., within antilapse statute describing the person taking through or from the legatee or devisee. 19 A.L.R.2d 1159.

Devolution of lapsed portion of residuary estate. 36 A.L.R.2d 1117.

Applicability of anti-lapse statutes to class gifts. 56 A.L.R.2d 948.

Testator’s intention as defeating operation of antilapse statute. 63 A.L.R.2d 1172.

Who are within terms “relation,” “descendant,” “child,” “brother,” “sister,” etc., describing legatee or devisee, in statute providing against lapse upon death of legatee or devisee before testator. 63 A.L.R.2d 1195.

Ademption of bequest of proceeds of property. 45 A.L.R.3d 10.

Anti-lapse statute as applicable to interest of beneficiary under inter vivos trust who predeceases life-tenant settlor. 47 A.L.R.3d 358.

Am. Jur.

80 Am. Jur. 2d, Wills §§ 1416, 1417 et seq.

20B Am. Jur. Legal Forms 2d, Wills § 266:644 et seq. (lapse; gifts over).

CJS.

97 C.J.S., Wills, §§ 2085-2087 et seq.

§ 91-5-9. Devise to witness void.

If any person be a subscribing witness to a will wherein any devise or bequest is made to him and the will cannot otherwise be proven, such devise or bequest shall be void, and the witness shall be competent as to the residue of the will as if a devise or bequest had not been made to him, and he may be compelled to testify. If such witness would have been entitled to any share of the testator’s estate in case the will were not established, then so much of such share shall be saved to the witness as shall not exceed the value of the devise or bequest made to him in the will.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (27); 1857, ch. 60, art. 45; 1871, § 1101; 1880, § 1973; 1892, § 1826; 1906, § 2001; Hemingway’s 1917, § 1666; 1930, § 3554; 1942, § 661.

JUDICIAL DECISIONS

1. In general.

Where a devisee or legatee to the will is also a witness, the devise or bequest to him is void but the witness is competent as to the residue of the will, so the will is valid except as to the annulled legacy or devise. Estate of Crawford v. Crawford, 225 Miss. 208, 82 So. 2d 823, 1955 Miss. LEXIS 574 (Miss. 1955).

Devise to witness is void, but witness is competent to establish residue of the will. Swanzy v. Kolb, 94 Miss. 10, 46 So. 549, 1908 Miss. LEXIS 2 (Miss. 1908); Estate of Crawford v. Crawford, 225 Miss. 208, 82 So. 2d 823, 1955 Miss. LEXIS 574 (Miss. 1955).

Where a husband qualified as executor under the will of his wife, proved the will as a subscribing witness, and administered the estate, he is estopped to claim title to land belonging to him and devised by the will to a third party. In this case this section [Code 1942, § 661] was not invoked, and the husband took the bequests and devises under the will. West v. West, 131 Miss. 880, 95 So. 739, 1923 Miss. LEXIS 223 (Miss. 1923).

Words “otherwise to be proved” in this section [Code 1942, § 661] refer to execution and not proof of contents of will. Swanzy v. Kolb, 94 Miss. 10, 46 So. 549, 1908 Miss. LEXIS 2 (Miss. 1908).

RESEARCH REFERENCES

ALR.

Amount or value of testamentary gift as affecting application of statute invalidating will attested by beneficially interested witness or limiting benefit to such witness. 73 A.L.R.2d 1230.

Exception or proviso in statute invalidating testamentary gift to subscribing witness, saving the share witness would take in absence of will. 95 A.L.R.2d 1256.

Am. Jur.

79 Am. Jur. 2d, Wills §§ 263 et seq., 275, 276 et seq.

CJS.

95 C.J.S., Wills §§ 86-92, 262-276.

§ 91-5-11. Devise or bequest to trustee.

  1. A devise or bequest in a will duly executed pursuant to the provisions of Section 91-5-1 of Mississippi Code of 1972 may be made to the trustee of a trust which is evidenced by a written instrument in existence when the will is made and which is identified in the will. Such devise or bequest shall not be invalid because the trust is amendable or revocable, or both, by the settlor or any other person or persons; nor because the trust instrument or any amendment thereto was not executed in the manner required for wills; nor because the trust was amended after execution of the will. Unless the will provides otherwise, such devise or bequest shall operate to dispose of the property under the terms and provisions of the instrument creating the trust, including any amendments or modifications in writing made at any time before or after the making of the will and before the death of the testator, and the property shall not be deemed held under a testamentary trust. An entire revocation of the trust prior to the testator’s death shall invalidate the devise or bequest.
  2. The provisions of this section shall apply to all devises or bequests made in any will duly executed according to said section of any testator dying after May 6, 1958, whether the will is executed before or after that date.
  3. The term “will” in this section shall include and refer to the term “codicil”.

HISTORY: Codes, 1942, § 661.5; Laws, 1958, ch. 240, §§ 1-3, eff. upon passage (approved May 6, 1958).

Cross References —

Definition of term “will,” see §1-3-59.

Comparable Laws from other States —

Georgia Code Annotated, §§53-12-70 through53-12-74.

Tennessee Code Annotated, §32-3-106.

Texas Probate Code Annotated, § 58a.

RESEARCH REFERENCES

ALR.

Effect of impossibility of performance of condition precedent to testamentary gift. 40 A.L.R.4th 193.

§ 91-5-13. Creditor competent witness to will.

Any creditor shall be a competent subscribing witness to a last will and testament; but any special provision in favor of such creditor in the will, either by admitting the debt or by providing for its payment or by giving it a preference, shall be void, and such claim shall stand as though the provision had not been made.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (44); 1857, ch. 60, art. 46; 1871, § 1102; 1880, § 1974; 1892, § 1827; 1906, § 2002; Hemingway’s 1917, § 1667; 1930, § 3555; 1942, § 662.

§ 91-5-15. Nuncupative wills.

A nuncupative will shall not be established unless it be made in the time of the last sickness of the deceased at his or her habitation or where he or she hath resided for ten days next preceding the time of his or her death, except when such person is taken sick from home and die before his or her return to such habitation, nor where the value bequeathed exceeds One Hundred Dollars ($100.00) unless it be proved by two witnesses that the testator or testatrix called on some person present to take notice or bear testimony that such is his or her will, or words to that effect.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (18); 1857, ch. 60, art. 38; 1871, § 2392; 1880, § 1266; 1892, § 4492; 1906, § 5082; Hemingway’s 1917, § 3370; 1930, § 3556; 1942, § 663.

JUDICIAL DECISIONS

1. In general.

2. Devise of lands.

3. Foreign nuncupative wills.

4. Not found.

1. In general.

Biological father entitled to inherit from illegitimate child is entitled to share in recovery in wrongful death action. Burdette v. Crump, 472 So. 2d 959, 1985 Miss. LEXIS 2142 (Miss. 1985).

“Last sickness,” as used in statute permitting nuncupative wills under certain conditions, means that at time of making will testator is in extremis, at least so near death that he did not have reasonable time and opportunity to make written will. Schmitz v. Summers, 179 Miss. 260, 174 So. 569, 1937 Miss. LEXIS 20 (Miss. 1937).

Where testator made nuncupative will while sick with illness of which he died, but neither testator nor his physician considered his condition mortally serious, will was invalid under statute requiring nuncupative wills to be made “in the time of last sickness.” Schmitz v. Summers, 179 Miss. 260, 174 So. 569, 1937 Miss. LEXIS 20 (Miss. 1937).

Nuncupative will is testamentary declaration, not in writing, made before sufficient number of witnesses when testator is in extremis. Lee v. Barrow, 156 Miss. 711, 126 So. 648, 1930 Miss. LEXIS 211 (Miss. 1930).

Nuncupative will requires intent of testator that declaration then made constitute his will without being embodied in written instrument. Lee v. Barrow, 156 Miss. 711, 126 So. 648, 1930 Miss. LEXIS 211 (Miss. 1930).

Instrument dictated in form of letter to executor was simply defectively executed written will and not subject to probate as nuncupative will. Lee v. Barrow, 156 Miss. 711, 126 So. 648, 1930 Miss. LEXIS 211 (Miss. 1930).

The witnesses are not required to prove the presence of each other. Burch v. Stovall, 27 Miss. 725, 1854 Miss. LEXIS 118 (Miss. 1854).

2. Devise of lands.

Lands do not pass under a nuncupative will. Sadler v. Sadler, 60 Miss. 251, 1882 Miss. LEXIS 42 (Miss. 1882).

3. Foreign nuncupative wills.

The removal and change of citizenship from Louisiana to this state of a person who has executed a nuncupative will in that state according to its laws does not revoke the will. Pratt v. Hargraves, 77 Miss. 892, 28 So. 722, 1900 Miss. LEXIS 52 (Miss. 1900).

4. Not found.

Where a joint owner of a certificate of deposit (CD) still retained an ownership interest when the CD was reissued with new owners right at the time of her death, there was no violation of Miss. Code Ann. §91-5-15 since there was no testamentary devise. DeJean v. DeJean, 982 So. 2d 443, 2007 Miss. App. LEXIS 730 (Miss. Ct. App. 2007), cert. denied, 981 So. 2d 298, 2008 Miss. LEXIS 236 (Miss. 2008).

RESEARCH REFERENCES

ALR.

What amounts to “last sickness” or the like within requirement that nuncupative will be made during last sickness. 8 A.L.R.3d 952.

Am. Jur.

79 Am. Jur. 2d, Wills § 625 et seq.

20 Am. Jur. Legal Forms 2d, Wills, § 266:92 (nuncupative will: affidavit by witness who reduced testamentary words to writing).

CJS.

95 C.J.S., Wills § 340 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

§ 91-5-17. Parties in interest to nuncupative will to be cited.

The probate of any nuncupative will shall not be taken, or letters testamentary granted thereon, until after the expiration of fourteen days from the time of the decease of the testator or testatrix, nor until the widow, if any, and next of kin, if resident in this state, have been summoned to contest the same if they think proper.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (18); 1857, ch. 60, art. 40; 1871, § 2394; 1880, § 1268; 1892, § 4494; 1906, § 5084; Hemingway’s 1917, § 3372; 1930, § 3557; 1942, § 664.

RESEARCH REFERENCES

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

§ 91-5-19. Nuncupative will not to be proven after six months unless reduced to writing.

After six months have elapsed from the time of speaking the alleged testamentary words, testimony shall not be received to probate a nuncupative will unless the words, or the substance thereof, shall have been reduced to writing within six days after speaking the same.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (18); 1857, ch. 60, art. 39; 1871, § 2393; 1880, § 1267; 1892, § 4493; 1906, § 5083; Hemingway’s 1917, § 3371; 1930, § 3558; 1942, § 665.

JUDICIAL DECISIONS

1. In general.

The word “prove,” (Code 1871, § 2393) had reference to probate; but, if probated within six months, testimony to establish the will on an issue devisavit vel non would not be rejected. George v. Greer, 53 Miss. 495, 1876 Miss. LEXIS 101 (Miss. 1876).

RESEARCH REFERENCES

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

§ 91-5-21. Members of armed forces and mariners at sea excepted.

Any person of sound mind eighteen years of age or older and being in the armed forces of the United States of America, in active service at home or abroad or being a mariner at sea, may devise, dispose of, and bequeath his goods and chattels or property, real and personal, anything in this chapter to the contrary notwithstanding.

Any will executed prior to July 23, 1968, which conforms to the requirements of this section shall be valid; provided, however, that the testator of said will must be alive at said date.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (21); 1857, ch. 60, art. 41; 1871, § 2395; 1880, § 1269; 1892, § 4495; 1906, § 5085; Hemingway’s 1917, § 3373; 1930, § 3559; 1942, § 666; Laws, 1968, ch. 307, §§ 1, 2, eff from and after passage (approved July 23, 1968).

RESEARCH REFERENCES

Am. Jur.

79 Am. Jur. 2d, Wills § 632 et seq.

CJS.

95 C.J.S., Wills §§ 351-353.

§ 91-5-23. Provision for husband or wife to be in bar.

Any provision by the will of the husband or wife for the other shall be construed to be in bar of any share of the real or personal estate of the testator, unless it be otherwise expressed in the will.

HISTORY: Codes, 1880, § 1174; 1892, § 4498; 1906, § 5088; Hemingway’s 1917, § 3376; 1930, § 3560; 1942, § 667.

Cross References —

Descent of property between husband and wife, see §91-1-7.

JUDICIAL DECISIONS

1. In general.

Widow of testator dying without children inherits all undisposed of property, including lapsed devises; widow of testator dying without children not precluded from inheriting undisposed property because she takes life estate under the will. Marx v. Hale, 131 Miss. 290, 95 So. 441, 1922 Miss. LEXIS 289 (Miss. 1923).

Where the widow gets nothing by the will or where the devise to her is unsatisfactory and she renounces the will she takes a child’s part, but where she takes a legacy under the will, and the will is expressly made in lieu of the allowance of one year’s provisions and all exemptions, she may not without renouncing the will take the legacy and the year’s provisions and other exemptions. McGaughey v. Eades, 78 Miss. 853, 29 So. 516, 1901 Miss. LEXIS 132 (Miss. 1901).

The remedy of the husband or wife who is dissatisfied with the provision made for him or her in the will of the other is to renounce such provision and claim a distributive share of the estate, whether it includes the homestead or other property, as provided by Code 1942, § 668; or if no such provision is made in the will, to claim such distributive share under Code 1942, §§ 667, 669, without renunciation. Kelly v. Alred, 65 Miss. 495, 4 So. 551, 1888 Miss. LEXIS 30 (Miss. 1888).

RESEARCH REFERENCES

ALR.

Priority of surviving spouse who accepts provision of will in lieu of dower or other marital rights over other legatees and devisees and creditors. 2 A.L.R.2d 607.

Spouse’s right to take under other spouse’s will as affected by antenuptial or postnuptial agreement or property settlement. 53 A.L.R.2d 475.

Surviving spouse’s right to marital share as affected by valid contract to convey by will. 85 A.L.R.4th 418.

Validity of Postnuptial Agreements in Contemplation of Spouse’s Death. 87 A.L.R.6th 495.

§ 91-5-25. Right of spouse to renounce will; form of renunciation; right to intestate share.

When a husband makes his last will and testament and does not make satisfactory provision therein for his wife, she may, at any time within ninety (90) days after the probate of the will, file in the office where probated a renunciation to the following effect, viz.: “I, A B, the widow of C D, hereby renounce the provision made for me by the will of my deceased husband, and elect to take in lieu thereof my legal share of his estate.” Thereupon she shall be entitled to such part of his estate, real and personal, as she would have been entitled to if he had died intestate, except that, even if the husband left no child nor descendant of such, the widow, upon renouncing, shall be entitled to only one-half (1/2) of the real and personal estate of her deceased husband. The husband may renounce the will of his deceased wife under the same circumstances, in the same time and manner, and with the same effect upon his right to share in her estate as herein provided for the widow.

HISTORY: Codes, 1871, § 1282; 1880, § 1172; 1892, § 4496; 1906, § 5086; Hemingway’s 1917, § 3374; 1930, § 3561; 1942, § 668; Laws, 1975, ch. 373, § 1, eff from and after January 1, 1976.

JUDICIAL DECISIONS

1. In general.

2. Construction.

3. Who may take or renounce.

4. —Common law spouse.

5. Time within which to renounce.

6. Right as personal.

7. Renunciation for person non compos mentis.

8. Effect on right to contest will.

9. Effect on executorship.

10. Testator having foreign domicil.

11. Contract to make or renounce will.

12. Valuation, calculation.

13. Effect on trusts, insurance proceeds.

14. Effect on debts.

15. Application in particular cases.

16. Effect, tax deductions.

1. In general.

Where a husband can properly renounce his wife’s will, and there are no children, he is entitled to one half of the estate of his deceased wife; however, the right of a husband to renounce is qualified by Code 1942, § 670, which expressly applies to husband renouncing the will of his wife. Myers v. Laird, 230 Miss. 675, 93 So. 2d 828, 1957 Miss. LEXIS 409 (Miss. 1957).

The effect of renunciation is to make the deceased spouse an intestate as to one-half of the willed property, leaving the will to stand as to the other half, so that the deductions provided in Code 1942, § 670, on account of the separate estate of the surviving spouse are to be taken out of the half of the total estate to which the surviving spouse is limited by this section. [Code 1942, § 668]. Davis v. Miller, 202 Miss. 880, 32 So. 2d 871, 1947 Miss. LEXIS 351 (Miss. 1947).

2. Construction.

Code 1942, §§ 470 and 668, must be construed together. Callicott & Norfleet v. Callicott, 90 Miss. 221, 43 So. 616, 1907 Miss. LEXIS 83 (Miss. 1907).

A failure to renounce within the statutory time amounts to an election to take under the will. Collins v. Melton, 40 Miss. 242, 1866 Miss. LEXIS 67 (Miss. 1866).

3. Who may take or renounce.

A wife justified in living separate and apart from her husband at the time of his death, there being no children, was entitled to renounce his will and take one-half of his estate, less the value of her own separate property. Stringer v. Arrington, 202 Miss. 798, 32 So. 2d 879, 1947 Miss. LEXIS 342 (Miss. 1947).

4. —Common law spouse.

In a proceeding to renounce will and to obtain a year’s support from the estate on ground that plaintiff had been testator’s common law wife, the will which did not refer to the plaintiff as wife, but left her an annuity as long as she was unmarried, could be taken into consideration. Martin v. Martin's Estate, 217 Miss. 173, 63 So. 2d 827, 1953 Miss. LEXIS 421 (Miss. 1953).

In a proceeding to renounce will and to obtain a year’s support from the estate on ground that plaintiff had been testator’s common law wife, income returns for years during which plaintiff claimed to have been testator’s common law wife in which plaintiff reported herself as single person constituted competent evidence since they were declarations against interest. Martin v. Martin's Estate, 217 Miss. 173, 63 So. 2d 827, 1953 Miss. LEXIS 421 (Miss. 1953).

In a proceeding to renounce will and to obtain a year’s support from the estate on ground that plaintiff had been testator’s common law wife, income tax reports for a period which plaintiff claimed to be common law wife, filed by the plaintiff as a single person did not constitute a waiver of plaintiff’s disqualification as witness under the Deadman’s Statute. Martin v. Martin's Estate, 217 Miss. 173, 63 So. 2d 827, 1953 Miss. LEXIS 421 (Miss. 1953).

5. Time within which to renounce.

Substantial evidence supported the chancery court’s judgment awarding a wife a one-third interest in a decedent’s estate because the wife filed a renunciation of the provision made for her in the will and her intention to elect her spousal share within the time period established by the statute, and the chancery court found that the wife complied with the statute. Chester v. Labasse (in re Estate of Labasse), — So.3d — (Miss. 2017)

Widow may renounce at any time within 6 months after probate; widow and not court determines what is “satisfactory provision.” Simpson v. Simpson, 120 Miss. 197, 82 So. 3, 1919 Miss. LEXIS 77 (Miss. 1919).

Spouse’s right to renounce will under statute was personal and abated at her demise; therefore, such right may not be undertaken by personal representative after death of spouse, even where death occurs prior to expiration of statutory period for election. Shattuck v. Estate of Tyson, 508 So. 2d 1077, 1987 Miss. LEXIS 2556 (Miss. 1987).

A widow’s renunciation of her husband’s will, which renunciation was made before the will was admitted to probate, was nevertheless effective and valid, despite the provision in §91-5-25 stating that renunciation may be made at any time within 90 days after the probate of the will. Gettis v. McAllister, 411 So. 2d 770, 1982 Miss. LEXIS 1917 (Miss. 1982).

6. Right as personal.

Spouse’s right to renounce will under statute was personal and abated at her demise; therefore, such right may not be undertaken by personal representative after death of spouse, even where death occurs prior to expiration of statutory period for election. Shattuck v. Estate of Tyson, 508 So. 2d 1077, 1987 Miss. LEXIS 2556 (Miss. 1987).

Where a wife in her will failed to make any provision for her surviving husband, and the husband’s property was not equal to his lawful portion of the wife’s estate, the right of the husband to renounce the will and to take his legal share of the wife’s estate vested as a matter of law and became part of his estate upon his death, exercisable by the executor of the husband’s estate, even though before his death, 3 weeks following his wife’s death, the husband did not renounce the wife’s will or take any affirmative action with reference thereto. McBride v. Haynes, 247 So. 2d 129, 1971 Miss. LEXIS 1436 (Miss. 1971).

The personal representative of a deceased spouse does not have the right to renounce the will of a predeceased spouse under this section [Code 1942, § 668], for the privilege is one which must be invoked personally by the surviving spouse during her lifetime. Jenkins v. Borodofsky, 211 So. 2d 874, 1968 Miss. LEXIS 1288 (Miss. 1968).

Equitable estoppel does not and cannot authorize the exercise of a personal right which terminates with the death of a spouse, and the fact that a husband shot and killed his wife, an act which would have precluded his inheriting her estate, is no justification for permitting the deceased wife’s personal representatives to renounce the husband’s will, an act which by law can only be invoked personally by a surviving spouse. Jenkins v. Borodofsky, 211 So. 2d 874, 1968 Miss. LEXIS 1288 (Miss. 1968).

The right to renounce a will conferred by this statute upon a surviving spouse may not be exercised by his or her administrator. Estate of Mullins v. Estate of Mullins, 239 Miss. 751, 125 So. 2d 93, 1960 Miss. LEXIS 350 (Miss. 1960).

7. Renunciation for person non compos mentis.

Where a widow has been mentally incompetent continuously from the death of the testator and has no guardian acting in her behalf during the statutory period for renunciation, its lapse is no bar to a subsequent election in her behalf by the court, or guardian acting under supervision and approval of the court; for the general rule is that where an election is required by statute to be made within a certain period of time, the incompetency of the person entitled to elect is considered as warranting an extension of the statutory period. Wolcott v. Wolcott, 184 So. 2d 381, 1966 Miss. LEXIS 1459 (Miss. 1966).

The general savings statute in favor of those under disabilities insofar as limitations of actions are concerned does not apply to the statute giving a widow the right to renounce her husband’s will under certain circumstances. Wolcott v. Wolcott, 184 So. 2d 381, 1966 Miss. LEXIS 1459 (Miss. 1966).

The right to renounce a will conferred by this statute upon a surviving spouse may be exercised by a guardian in case of such spouse’s incompetency. Estate of Mullins v. Estate of Mullins, 239 Miss. 751, 125 So. 2d 93, 1960 Miss. LEXIS 350 (Miss. 1960).

Guardian, with approval of chancery court, may renounce for widow non compos mentis. Hardy v. Richards, 98 Miss. 625, 54 So. 76, 1910 Miss. LEXIS 101 (Miss. 1910).

8. Effect on right to contest will.

Renouncement by a widow of her husband’s will does not constitute an abandonment of her action to contest the will, since renouncement does not affect the validity of the will but merely affects the amount of property which the parties receive, and, therefore, renouncement does not constitute an estoppel to contest the will. Edwards v. Edwards, 193 Miss. 889, 11 So. 2d 450, 1943 Miss. LEXIS 16 (Miss. 1943).

Where a widow contesting the will of her husband renounced within the time prescribed, there was no inconsistency between such renunciation and the will contest so as to preclude her appeal from an adverse decision in the will contest, since both by the renunciation and the contest, if successful, she takes by inheritance; and renunciation is not an abandonment of the contest since renouncement does not affect the validity of the will but merely affects the amount of property which the parties receive. Edwards v. Edwards, 193 Miss. 889, 11 So. 2d 450, 1943 Miss. LEXIS 16 (Miss. 1943).

Renunciation by a widow of her husband’s will within the time prescribed and pending an appeal from a judgment against her in a contest of the will, did not preclude her from prosecuting her appeal in the will contest irrespective of any inconsistency between renunciation and the prosecution of the appeal. Edwards v. Edwards, 193 Miss. 889, 11 So. 2d 450, 1943 Miss. LEXIS 16 (Miss. 1943).

9. Effect on executorship.

Husband must renounce wife’s will and refuse qualification as executor if he would keep on property devised thereunder. West v. West, 131 Miss. 880, 95 So. 739, 1923 Miss. LEXIS 223 (Miss. 1923).

10. Testator having foreign domicil.

Husband may renounce wife’s will and take child’s share, although domicil of testatrix in foreign state. Bolton v. Barnett, 131 Miss. 802, 95 So. 721, 1923 Miss. LEXIS 220 (Miss. 1923).

Right of husband to renounce will of wife and take child’s part governed by law of state, and not by law of wife’s domicil; husband renouncing will of wife, who also leaves children, may take child’s part in both real and personal property. Bolton v. Barnett, 131 Miss. 802, 95 So. 721, 1923 Miss. LEXIS 220 (Miss. 1923).

11. Contract to make or renounce will.

Although proper contracts not to renounce a will are enforceable even though Code 1972 §91-5-25 provides that a husband or wife may renounce the will of another, the wife’s agreement not to renounce her will constituted an unconscionable contract so as to permit the wife’s renunciation of her husband’s will, notwithstanding her prior agreement not to renounce, where the wife was taken by her husband directly from her job to the office of the husband’s attorney and persuaded to assign the contract without prior knowledge of its existence or the opportunity to read the entire contract, and where the provision in the will, giving the wife a life estate in the parties’ homestead as long as she continued to live on the property, was minimal consideration when viewed against her rights under the laws of descent and distribution including her statutory right to a life estate in the homestead under Code 1972 §91-1-23 irrespective of her living on the property. In re Will of Johnson, 351 So. 2d 1339, 1977 Miss. LEXIS 1950 (Miss. 1977).

Release of a right to renounce wife’s will by the husband constituted sufficient consideration for a contract by the wife to will to the husband or his issue one third of her estate, so that the wife could not, by revoking the will executed pursuant to the contract, defeat the rights of the predeceased husband’s issue. In re Estate of Sadler, 232 Miss. 349, 98 So. 2d 863, 1957 Miss. LEXIS 482 (Miss. 1957).

Husband’s will giving property to one who provided for him pursuant to contract was an obligation of the contract, not an abrogation of the contract which would enable widow to renounce will. Price v. Craig, 164 Miss. 42, 143 So. 694, 1932 Miss. LEXIS 218 (Miss. 1932).

12. Valuation, calculation.

The value of real property in Louisiana would not be included in the value of an estate for the purpose of determining the lawful portion of the surviving husband of the testatrix, when he renounced the will in Mississippi, by the testatrix’ real and personal estate in Mississippi. Banks v. Junk, 264 So. 2d 387, 1972 Miss. LEXIS 1356 (Miss. 1972).

In a proceeding to determine whether surviving husband’s separate estate was equal in value to one half portion of his deceased wife’s estate, the chancellor properly found that the husband had not conveyed his one half interest in certain Louisiana property to his children prior to wife’s death, but had given the property to his children by an act of donation after the event; thus, the value of the husband’s one half interest in the Louisiana property, less one half of the outstanding mortgage loan, should have been included in the valuation of his separate estate along with the value of his personal property, and he was precluded by Code 1942, § 670, from renouncing his wife’s will, which made no provision for him, since his property at the time of her death was more than equal in value to what would have been his lawful portion of her estate. Myers v. Laird, 230 Miss. 675, 93 So. 2d 828, 1957 Miss. LEXIS 409 (Miss. 1957).

Where testatrix had willed an estate of the value of $90,000, and surviving husband had a separate estate worth $30,000, upon renunciation the surviving husband was entitled only to have the value of his separate estate deducted from one-half of the value of testatrix’s estate, leaving the sum of $15,000 as a deficiency to be made up for the surviving husband. Davis v. Miller, 202 Miss. 880, 32 So. 2d 871, 1947 Miss. LEXIS 351 (Miss. 1947).

13. Effect on trusts, insurance proceeds.

Where will gave widow one-half interest in testator’s entire estate except proceeds of an insurance policy, which were directed to be used to pay certain legacies and to set up a trust for testator’s adopted son, widow on renunciation was entitled to one-half the personal estate to the extent of impairing the trust if net personal estate was insufficient. Campbell v. Cason, 206 Miss. 420, 40 So. 2d 258, 1949 Miss. LEXIS 271 (Miss. 1949).

Where a widow renounced will leaving her one-half of testator’s entire estate except proceeds of insurance policy which were to be used to pay bills of testator’s aged father not to exceed $500 and to provide small monthly payments for such father’s living expenses, with residue to be used in trust for adopted son, and personal estate of testator was substantial, award to widow would not be postponed pending ascertainment of liabilities with respect to insurance proceeds, since such contingent liabilities were inconsequential in comparison with the net personal estate of the testator. Campbell v. Cason, 206 Miss. 420, 40 So. 2d 258, 1949 Miss. LEXIS 271 (Miss. 1949).

Where widow renounced will, leaving her undivided one-half interest in the entire estate excluding proceeds of an insurance policy, and contained a similar provision for testator’s adopted son together with a trust in favor of such son with respect to the insurance proceeds, the son took under the will and not as an heir. Campbell v. Cason, 206 Miss. 420, 40 So. 2d 258, 1949 Miss. LEXIS 271 (Miss. 1949).

14. Effect on debts.

Widow accepting devise made subject to payment of debts must pay them though she might have renounced. Rainey v. Rainey, 124 Miss. 780, 87 So. 128, 1920 Miss. LEXIS 550 (Miss. 1920).

The estate does not on the widow’s election to take against the will become intestate as to the widow’s share so as to incumber that share primarily with the debts of the estate, but she is entitled to the same proportion of the estate which she would have taken had her husband died intestate, after the payment of the debts from the whole estate. Gordon v. James, 86 Miss. 719, 39 So. 18, 1905 Miss. LEXIS 93 (Miss. 1905).

15. Application in particular cases.

Chancery court was not manifestly wrong in granting a widow a child’s share of her late husband’s estate after finding that she had not abandoned her marriage because there was no legal change of marital status; the changer court found that the widow did not willfully leave or have the intention of permanently separating from the marital relationship. Estes v. Estes, 226 So.3d 583, 2017 Miss. LEXIS 223 (Miss. 2017).

The right of a widow to renounce her husband’s will could not be exercised by the co-conservators of her estate where no evidence was presented to the court demonstrating that the widow was non compos mentis, and court approval for the co-conservators to file on her behalf was neither requested nor given. Greer v. State, 755 So. 2d 511, 1999 Miss. App. LEXIS 434 (Miss. Ct. App. 1999).

A trial court erred in considering a widow’s homestead right as part of her separate estate for purposes of determining and reducing the value of her statutory share of the net assets of the estate resulting from her election against her husband’s will since her homestead right was not property owned by her at the time of her husband’s death, but accrued to her as the result of her husband’s death and the renunciation of his will. Holloway v. Holloway (In re Estate of Holloway), 631 So. 2d 127, 1993 Miss. LEXIS 603 (Miss. 1993).

Widow who had entered into a property settlement agreement with husband may not elect to take against his will unless her estate is less than one half of her deceased husband’s estate. Will of Best v. Brewer, 236 Miss. 359, 111 So. 2d 262, 1959 Miss. LEXIS 325 (Miss. 1959).

Under Code 1942, § 668, together with Code 1942, § 670, the widow is entitled to one-half of testator’s net estate, where he died leaving widow and adopted son as only heirs of law. Campbell v. Cason, 206 Miss. 420, 40 So. 2d 258, 1949 Miss. LEXIS 271 (Miss. 1949).

Upon a widow’s renunciation of a testator’s will devising to her a life estate in his home with remainder to a daughter, the widow became entitled to a one-third interest to the property in fee, and the daughter to the other two-thirds interest therein, subject to the right of the widow to occupy and use it during her widowhood. Milton v. Milton, 193 Miss. 563, 10 So. 2d 175, 1942 Miss. LEXIS 131 (Miss. 1942).

Where a testator directed that monthly payments of $200 be made to his wife so long as she remained his widow, and that, “in the event of the death or remarriage of my wife, and $200 monthly payments shall cease, then” the sum of $75 per month should be paid to a daughter and to a stepdaughter, the use of the words “and $200 monthly payments shall cease” between the words “wife” and “then” demonstrated that he meant that the payment to the daughters should begin on the cessation for any reason of the monthly payments bequeathed to the widow, and, upon renunciation of the will by the widow, the bequests of monthly payments to the daughters became at once effective, regardless of the fact that the widow was still living and had not remarried. Milton v. Milton, 193 Miss. 563, 10 So. 2d 175, 1942 Miss. LEXIS 131 (Miss. 1942).

Provision that on renunciation husband shall be entitled to one-half of wife’s estate does not limit his rights as heir to property not devised. Cain v. Barnwell, 124 Miss. 860, 87 So. 484, 1921 Miss. LEXIS 190 (Miss. 1921).

Widow with one child upon renouncing took child’s part. Williams v. Williams, 111 Miss. 129, 71 So. 300, 1916 Miss. LEXIS 253 (Miss. 1916).

Upon renunciation one-half of land not going to widow descended as intestate property, and did not go to residuary legatees. Gordan v. Perry, 98 Miss. 893, 54 So. 445, 1910 Miss. LEXIS 139 (Miss. 1910).

Upon renouncing will widow became tenant in common with residuary legatees and devisees, and with them entitled to sue for partition. Laughlin v. O'Reily, 92 Miss. 121, 45 So. 193, 1907 Miss. LEXIS 11 (Miss. 1907).

Where 3 of 6 children of testator received advancements extinguishing their rights in estate, widow by renouncing became entitled to one-fourth interest. Callicott & Norfleet v. Callicott, 90 Miss. 221, 43 So. 616, 1907 Miss. LEXIS 83 (Miss. 1907).

The estate does not on the widow’s election to take against the will become intestate as to the widow’s share so as to incumber that share primarily with the debts of the estate, but she is entitled to the same proportion of the estate which she would have taken had her husband died intestate, after the payment of the debts from the whole estate. Gordon v. James, 86 Miss. 719, 39 So. 18, 1905 Miss. LEXIS 93 (Miss. 1905).

Where a widow has elected under this section [Code 1942, § 668] to take against her husband’s will she becomes a co-tenant with the devisee in each and every parcel of real estate specifically devised by her deceased husband, and is not made a creditor of the estate by Code 1906, § 5089 (Code 1942, § 670). Gordon v. James, 86 Miss. 719, 39 So. 18, 1905 Miss. LEXIS 93 (Miss. 1905).

16. Effect, tax deductions.

The estate tax marital deduction available under 26 USCS § 2056 is not limited to the amount of property the taxpayer could receive by renouncing the will under state law. Waldrup v. United States, 499 F. Supp. 820, 1980 U.S. Dist. LEXIS 16059 (N.D. Miss. 1980).

RESEARCH REFERENCES

ALR.

Waiver or abandonment of, or estoppel to assert, prior renunciation of, or election to take against, spouse’s will. 29 A.L.R.2d 227.

What passes under provision of will that spouse shall take share of estate allowed or provided by law, or a provision of similar import. 36 A.L.R.2d 147.

Who must bear loss occasioned by election against will. 36 A.L.R.2d 291.

Revocation or withdrawal of election to take under or against will. 71 A.L.R.2d 942.

Election by spouse to take under or against will as exercisable by agent or personal representative. 83 A.L.R.2d 1077.

What constitutes or establishes beneficiary’s acceptance or renunciation of devise or bequest. 93 A.L.R.2d 8.

Factors considered in making election for incompetent to take under or against will. 3 A.L.R.3d 6.

Time within which election must be made for incompetent to take under or against will. 3 A.L.R.3d 119.

Who may make election for incompetent to take under or against will. 21 A.L.R.3d 320.

Extension of time within which spouse may elect to accept or renounce will. 59 A.L.R.3d 767.

Acceptance of benefits under will as election precluding enforcement of contract right as to property bequeathed. 60 A.L.R.3d 1147.

Surviving spouse taking elective share as chargeable with estate or inheritance tax. 67 A.L.R.3d 199.

Conflict of laws regarding election for or against will, and effect in one jurisdiction of election in another. 69 A.L.R.3d 1081.

Liability for administration expenses of spouse electing against will. 89 A.L.R.3d 315.

Extent of rights of surviving spouse who elects to take against will in profits of or increase in value of estate accruing after testator’s death. 7 A.L.R.4th 989.

Construction, application, and effect of statutes which deny or qualify surviving spouse’s right to elect against deceased spouse’s will. 48 A.L.R.4th 972.

Determination of, and charges against, “augmented estate” upon which share of spouse electing to take against will is determined under Uniform Probate Code sec. 2-202. 63 A.L.R.4th 1173.

Surviving spouse’s right to marital share as affected by valid contract to convey by will. 85 A.L.R.4th 418.

Am. Jur.

31 Am. Jur. 2d (Rev), Executors and Administrators §§ 677-681.

80 Am. Jur. 2d, Wills § 1355 et seq.

25 Am. Jur. Pl & Pr Forms (Rev), Wills, Forms 161 et seq. (election whether to take under will).

CJS.

34 C.J.S., Executors and Administrators §§ 460-462, 466 et seq.

Law Reviews.

1979 Mississippi Supreme Court Review: Miscellaneous. 50 Miss. L. J. 833, December, 1979.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

§ 91-5-27. Effect of no provision for husband or wife.

If the will of the husband or wife shall not make any provision for the other, the survivor of them shall have the right to share in the estate of the deceased husband or wife, as in case of unsatisfactory provision in the will of the husband or wife for the other of them. In such case a renunciation of the will shall not be necessary, but the rights of the survivor shall be as if the will had contained a provision that was unsatisfactory and it had been renounced.

HISTORY: Codes, 1880, § 1173; 1892, § 4497; 1906, § 5087; Hemingway’s 1917, § 3375; 1930, § 3562; 1942, § 669.

JUDICIAL DECISIONS

1. In general.

Trial court erred in failing to determine whether a widow clearly deserted or abandoned her marriage when she left the decedent’s home by her own volition after his leg was amputated, and was living in her own home when he died such that she was not entitled to take a child’s share of the estate under Miss. Code Ann. §91-5-27. In re Estate of Estes, 111 So.3d 1223, 2012 Miss. App. LEXIS 820 (Miss. Ct. App. 2012).

No revocation of will as matter of law occurred when, subsequent to death of beneficiary, constructive trust was imposed on assets of estate resulting in husband’s will making no provision for wife. Shattuck v. Estate of Tyson, 508 So. 2d 1077, 1987 Miss. LEXIS 2556 (Miss. 1987).

The trial court erred in holding that a husband was not entitled to an undivided one-half interest in the real and personal property owned by his deceased wife where, although the parties had lived apart for 15 to 20 years, there was no substantial evidence to show a desertion or abandonment as to estop the husband from claiming under the statute; at most the evidence proved that there had been a long separation between the parties. Tillman v. Williams, 403 So. 2d 880, 1981 Miss. LEXIS 2188 (Miss. 1981).

A wife’s failure to renounce her husband’s will in the six months after its probate constituted a waiver of her right to do so. Rush v. Rush, 360 So. 2d 1240, 1978 Miss. LEXIS 2341 (Miss. 1978).

In an action between the beneficiaries under testator’s will and the heirs of his widow, who had renounced the will, the chancellor, after finding the testator’s net estate and the widow’s net estate at the time of testator’s death, correctly determined that the estate should be distributed according to Code 1942, § 670, and that the widow’s heirs were entitled to the difference between one half of the net estate of the testator and the net value of the widow’s estate. The contention by the heirs at law of the widow that under the provisions of this section [Code 1942, § 669] the widow was entitled to one half of the real and personal estate of the testator without regard to Code 1942, § 670, and that in any event they were entitled to an undivided one third interest in the real property and one third of the net distribution of the personal property of the deceased, was rejected. Carter v. Evans, 230 Miss. 803, 94 So. 2d 237, 1957 Miss. LEXIS 425 (Miss. 1957).

Husband’s will giving property to one who provided for him pursuant to contract prior to his marriage to the wife who survived him, and while a former wife was still living, was not abrogation of contract which would enable widow to renounce will. Price v. Craig, 164 Miss. 42, 143 So. 694, 1932 Miss. LEXIS 218 (Miss. 1932).

Husband not provided for in will, held entitled to undivided one-half interest in homestead lands devised by wife. Cain v. Barnwell, 125 Miss. 123, 87 So. 481, 1920 Miss. LEXIS 339 (Miss. 1920).

Husband without separate estate entitled to undivided interest in land devised where wife’s will made no provision for him. Caine v. Barnwell, 120 Miss. 209, 82 So. 65, 1919 Miss. LEXIS 79 (Miss. 1919).

RESEARCH REFERENCES

ALR.

Inclusion of funds in savings bank trust (Totten Trust) in determining surviving spouse’s interest in decedent’s estate. 64 A.L.R.3d 187.

Surviving spouse’s right to marital share as affected by valid contract to convey by will. 85 A.L.R.4th 418.

Am. Jur.

25 Am. Jur. Pl & Pr Forms (Rev), Wills, Forms 161 et seq. (election whether to take under will).

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

§ 91-5-29. Effect of wife or husband having separate estate.

In case the wife have a separate property at the time of the death of her husband, equal in value to what would be her lawful portion of her husband’s real and personal estate, and he have made a will, she shall not be at liberty to signify her dissent to the will or to renounce any provision or bequest therein in her favor and elect to take her portion of his estate. If her separate property be not equal in value to what would be the value of her portion of her husband’s estate, then she may signify her dissent to the will, as in other cases provided by law, and claim to have the deficiency made up to her, notwithstanding the will. The court in which the will is probated may appoint three commissioners to ascertain, by valuation of the estate, what her lawful portion thereof would be worth; and the commissioners shall also value her own separate estate and report their valuation to the court. Whereupon the court shall make the proper order for allowing her to share in her husband’s real and personal estate to make up the deficiency after the following rule: if her separate property be equal in value to two thirds of what she would be entitled to, she shall have one third of her lawful portion of the land and one third of what would be her distributive share of the personalty; if her separate property be worth half in value what she would be entitled to, then she shall be entitled to half her lawful portion of real estate and half of what would be her distributive share of the personalty; if her separate property be worth only one third in value what she would be entitled to, then she shall be entitled to two thirds of her lawful portion of real estate and two thirds of what would be her distributive share in the personalty. This section shall not preclude or prevent any married woman from renouncing the provisions of her husband’s will and electing to take her lawful portion if her separate property do not amount in value to one fifth of what she would be entitled to. This section shall apply to a husband renouncing the will of his wife, and shall govern as to his right to share in her estate in such case.

HISTORY: Codes, 1857, ch. 40, art. 30; 1871, § 1789; 1880, § 1175; 1892, § 4499; 1906, § 5089; Hemingway’s 1917, § 3377; 1930, § 3563; 1942, § 670.

JUDICIAL DECISIONS

1. In general.

2. Institution of valuation proceedings.

3. What includible in survivor’s separate estate.

4. What includible in deceased’s estate.

5. Particular applications.

1. In general.

The rule for the distribution of the estate of a decedent upon renunciation of a will is to determine the value of the gross estate of the decedent, deduct from that amount the debts of the decedent, administrative expenses and funeral expenses, leaving the net value of the decedent’s estate; when the surviving spouse is entitled to one-half of the estate, the net value must be divided by two and the net value of the estate of the surviving spouse is deducted from such figure, and any balance remaining would be a deficiency to be made up to the surviving spouse. Banks v. Junk, 264 So. 2d 387, 1972 Miss. LEXIS 1356 (Miss. 1972).

Husband whose property greatly exceeds that of his wife may not renounce her will. Biggs v. Roberts, 237 Miss. 406, 115 So. 2d 151, 1959 Miss. LEXIS 485 (Miss. 1959).

Widow who had entered into a property settlement agreement with husband may not elect to take against his will unless her estate is less than one half of her deceased husband’s estate. Will of Best v. Brewer, 236 Miss. 359, 111 So. 2d 262, 1959 Miss. LEXIS 325 (Miss. 1959).

Where a husband can properly renounce his wife’s will, and there are no children, he is entitled to one half of the estate of his deceased wife; however, the right of a husband to renounce is qualified by this section [Code 1942, § 670], which expressly applies to husband renouncing the will of his wife. Myers v. Laird, 230 Miss. 675, 93 So. 2d 828, 1957 Miss. LEXIS 409 (Miss. 1957).

Under Code 1942, § 668, together with this section [Code 1942, § 670], the widow is entitled to one-half of testator’s net estate, where he died leaving widow and adopted son as only heirs of law. Campbell v. Cason, 206 Miss. 420, 40 So. 2d 258, 1949 Miss. LEXIS 271 (Miss. 1949).

The effect of renunciation is to make the deceased spouse an intestate as to one-half of the willed property, leaving the will to stand as to the other half, so that the deductions provided in this section [Code 1942, § 670] on account of the separate estate of the surviving spouse are to be taken out of the half of the total estate to which the surviving spouse is limited by Code 1942, § 668. Davis v. Miller, 202 Miss. 880, 32 So. 2d 871, 1947 Miss. LEXIS 351 (Miss. 1947).

The widow is not made a creditor of the estate by this section [Code 1942, § 670] where she has elected to take against her husband’s will. Gordon v. James, 86 Miss. 719, 39 So. 18, 1905 Miss. LEXIS 93 (Miss. 1905).

2. Institution of valuation proceedings.

Beneficiaries under will desiring to have widow’s separate estate counted against her apportionment should file petition stating facts, but the petition cannot be heard until 12 months after probate and before final settlement. Simpson v. Simpson, 120 Miss. 197, 82 So. 3, 1919 Miss. LEXIS 77 (Miss. 1919).

Proceeding to appoint commissioner may be instituted by executor or any person interested, but all interested persons must be made parties. Jones v. Jones, 94 Miss. 460, 49 So. 115, 1909 Miss. LEXIS 367 (Miss. 1909).

3. What includible in survivor’s separate estate.

Contention by the heirs at law of widow that joint and survivorship bank accounts in the name of the widow and the testator, who predeceased widow, were not properly a part of the widow’s separate estate, was rejected. Carter v. Evans, 230 Miss. 803, 94 So. 2d 237, 1957 Miss. LEXIS 425 (Miss. 1957).

Proceeds of insurance which widow took as sole heir of husband were not part of her separate estate. O'Reily v. Laughlin, 92 Miss. 1, 45 So. 19, 1907 Miss. LEXIS 7 (Miss. 1907).

4. What includible in deceased’s estate.

Contention by the heirs at law of widow that joint and survivorship bank accounts in the name of the widow and the testator, who predeceased widow, were not properly a part of the widow’s separate estate, was rejected. Carter v. Evans, 230 Miss. 803, 94 So. 2d 237, 1957 Miss. LEXIS 425 (Miss. 1957).

Where the testator prior to her marriage to appellant had signed and acknowledged a warranty deed conveying her farm to her niece, reserving to herself a life estate, and handed the deed to her brother with the instructions to keep and deliver it to the niece upon the testator’s death, there was a valid delivery from the testator to the niece, so that the value of the farm did not form a part of the testator’s estate. Myers v. Laird, 230 Miss. 675, 93 So. 2d 828, 1957 Miss. LEXIS 409 (Miss. 1957).

Where a number of Series E Savings Bonds were payable jointly to the wife or some third persons designated therein, the bonds, upon the wife’s death, were not a portion of her estate, since the surviving co-owners of the bonds became the sole and absolute owners. Myers v. Laird, 230 Miss. 675, 93 So. 2d 828, 1957 Miss. LEXIS 409 (Miss. 1957).

Where a certificate of deposit in the bank was payable to the wife or the wife’s brother, upon the death of the wife, this deposit became the property of the brother, and was no portion of the wife’s estate. Myers v. Laird, 230 Miss. 675, 93 So. 2d 828, 1957 Miss. LEXIS 409 (Miss. 1957).

5. Particular applications.

In an action between the beneficiaries under testator’s will and the heirs of his widow, who had renounced the will, the chancellor, after finding the testator’s net estate and the widow’s net estate at the time of testator’s death, correctly determined that the estate should be distributed according to this section [Code 1942, § 670], and that the widow’s heirs were entitled to the difference between one half of the net estate of the testator and the net value of widow’s estate. Carter v. Evans, 230 Miss. 803, 94 So. 2d 237, 1957 Miss. LEXIS 425 (Miss. 1957).

In a proceeding to determine whether a surviving husband’s separate estate was equal in value to one half portion of his deceased wife’s estate, the chancellor properly found that the husband had not conveyed his one half interest in certain Louisiana property to his children prior to death of testator, but that he had given his children the property by an act of donation after the event; thus, the value of the husband’s one half interest in the Louisiana property, less one half of the outstanding mortgage loan, should have been included in the valuation of his separate estate along with the value of his personal property, and he was precluded by this section [Code 1942, § 670] from renouncing his wife’s will, which made no provision for him, since his property at the time of her death was more than equal in value to what would have been his lawful portion of her estate. Myers v. Laird, 230 Miss. 675, 93 So. 2d 828, 1957 Miss. LEXIS 409 (Miss. 1957).

Where a testatrix had willed an estate of the value of $90,000, and surviving husband had a separate estate worth $30,000, upon renunciation the surviving husband was entitled only to have the value of his separate estate deducted from one-half of the value of testatrix’s estate, leaving the sum of $15,000 as a deficiency to be made up for the surviving husband. Davis v. Miller, 202 Miss. 880, 32 So. 2d 871, 1947 Miss. LEXIS 351 (Miss. 1947).

RESEARCH REFERENCES

ALR.

Waiver or abandonment of, or estoppel to assert, prior renunciation of, or election to take against, spouse’s will. 29 A.L.R.2d 227.

What passes under provision of will that spouse shall take share of estate allowed or provided by law, or a provision of similar import. 36 A.L.R.2d 147.

Who must bear loss occasioned by election against will. 36 A.L.R.2d 291.

What constitutes transfer outside the will precluding surviving spouse from electing statutory share under Uniform Probate Code § 2-301. 11 A.L.R.4th 1213.

Surviving spouse’s right to marital share as affected by valid contract to convey by will. 85 A.L.R.4th 418.

Am. Jur.

25 Am. Jur. Pl & Pr Forms (Rev), Wills, Forms 161 et seq. (election whether to take under will).

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

§ 91-5-31. Repealed.

Repealed by Laws, 1993, ch. 342, § 1, eff from and after passage (approved March 10, 1993).

[Codes, 1892, § 4501; 1906, § 5091; Hemingway’s 1917, § 3379; 1930, § 3565; 1942, § 671; Laws, 1940, ch. 318; Laws, 1988, ch. 489, § 1]

Editor’s Notes —

Former §91-5-31 was a statute of mortmain, and provided certain restrictions on how a person could, by will, bequeath or devise his assets to charitable, religious, educational or civil institutions. Similar provisions are contained in Miss. Const., Art. 14, § 270.

JUDICIAL DECISIONS

1. In general.

The legislature intended the repeal of the statute to be effective as of its date of passage in that there is no savings clause included. Hudson v. Moon, 732 So. 2d 927, 1999 Miss. LEXIS 53 (Miss. 1999).

Where heirs at law had a vested remainder, subject to defeasance by the exercise of a power of disposition by the defendant foundation, but the foundation failed to exercise such power, the subsequent repeal of the statute did not affect the heirs’ rights and they maintained rights in the land not disposed of by the foundation. Hudson v. Moon, 732 So. 2d 927, 1999 Miss. LEXIS 53 (Miss. 1999).

§ 91-5-33. Person who kills another not to take under his will.

If any person shall wilfully cause or procure the death of another in any manner, he shall not take the property, or any part thereof, real or personal, of such other under any will, testament, or codicil. Any devise to such person shall be void and, as to the property so devised, the decedent shall be deemed to have died intestate.

This shall not defeat the title of a bona fide purchaser for value of the property so devised, who acquired the same after one year from the probation of the will without notice that the person to whom the same was devised so caused or procured the death of the testator.

HISTORY: Codes, 1892, § 4502; 1906, § 5092; Hemingway’s 1917, § 3380; 1930, § 3566; 1942, § 672.

Cross References —

Inheritance by killer from his victim, see §91-1-25.

JUDICIAL DECISIONS

1. In general.

Public Employees’ Retirement System (PERS) Board of Trustees did not err in denying the claim a deceased PERS member’s sister because the member’s husband was entitled to lifetime spousal survivor benefits, notwithstanding the fact he was convicted of aggravated driving under the influence in connection with the member’s death; the husband did not willfully cause the member’s death under the slayer statutes, and he had been married to the member for over one year. Hicks v. Public Employees' Ret. Sys. of Miss., 282 So.3d 1204, 2019 Miss. App. LEXIS 479 (Miss. Ct. App. 2019).

Mississippi Supreme Court has applied the same statutory principles of the “slayer statutes” where the property at issue was life insurance proceeds rather than an inheritance; the same principles would apply to Public Employees’ Retirement System benefits for the strong public policy against allowing someone to profit from involvement in the death of another. Hicks v. Public Employees' Ret. Sys. of Miss., 282 So.3d 1204, 2019 Miss. App. LEXIS 479 (Miss. Ct. App. 2019).

This section requires a finding of willful conduct to preclude a person from inheriting from his or her victim. Because an insane person lacks the requisite ability willfully to kill another person, the Slayer Statute is not applicable in cases where the killer is determined to be insane at the time of the killing. Armstrong v. Armstrong (In re Estate of Armstrong), 170 So.3d 510, 2015 Miss. LEXIS 378 (Miss. 2015).

Evidence of a guilty plea to a charge of manslaughter is not sufficient, standing alone, to enable a fact finder to conclude that one is prohibited from inheriting under §§91-1-25 and91-5-33. Hood v. VanDevender, 661 So. 2d 198, 1995 Miss. LEXIS 456 (Miss. 1995).

Equitable estoppel does not and cannot authorize the exercise of a personal right which terminates with the death of a spouse, and the fact that a husband shot and killed his wife, an act which would have precluded his inheriting her estate, is no justification for permitting the deceased wife’s personal representatives to renounce the husband’s will, an act which by law can only be invoked personally by a surviving spouse. Jenkins v. Borodofsky, 211 So. 2d 874, 1968 Miss. LEXIS 1288 (Miss. 1968).

RESEARCH REFERENCES

ALR.

Felonious killing of testator as affecting slayer’s rights as beneficiary under will. 36 A.L.R.2d 960.

Felonious killing of ancestor as affecting intestate succession. 39 A.L.R.2d 477.

Homicide as precluding taking under will or by intestacy. 25 A.L.R.4th 787.

Am. Jur.

79 Am. Jur. 2d, Wills § 148.

CJS.

95 C.J.S., Wills §§ 99-102.

Law Reviews.

1978 Mississippi Supreme Court Review: Miscellaneous. 50 Miss. L. J. 165, March, 1979.

§ 91-5-35. Will devising real property admitted to probate as muniment of title only; rights of interested parties unaffected.

  1. When a person dies testate owning at the time of death real property in the State of Mississippi and his will purports to devise such realty, then said will may be admitted to probate, as a muniment of title only, by petition signed and sworn to by all beneficiaries named in the will, and the spouse of such deceased person if such spouse is not named as a beneficiary in the will, without the necessity of administration or the appointment of an executor or administrator with the will annexed, provided it be shown by said petition that:
    1. The value of the decedent’s personal estate in the State of Mississippi at the time of his or her death, exclusive of any interest in real property, did not exceed the sum of Ten Thousand Dollars ($10,000.00), exclusive of exempt property; and
    2. All known debts of the decedent and his estate have been paid, including estate and income taxes, if any.
  2. If any beneficiary to any will admitted to probate pursuant to this section shall be under a disability, then the petition may be signed for him by one of his parents or his legal guardian.
  3. The probate of a will under this section shall in no way affect the rights of any interested party to petition for a formal administration of the estate or to contest the will as provided by Section 91-7-23, Mississippi Code of 1972, or the right of anyone desiring to contest a will presented for probate as provided by Section 91-7-21, or as otherwise provided by law.
  4. This section shall apply to wills admitted to probate from and after July 1, 1984, notwithstanding that the testator or testatrix may have died on or before July 1, 1984.

HISTORY: Laws, 1983, ch. 385; Laws, 1984, ch. 467; Laws, 1989, ch. 582, § 1, eff from and after July 1, 1989.

Chapter 7. Executors and Administrators

§ 91-7-1. Venue of proof of wills.

Wills shall be proved in and letters testamentary thereon granted by the chancery court of the county in which the testator had a fixed place of residence. If he had no fixed place of residence and land be devised in the will, it shall be proved in and letters granted by the chancery court of the county where the land, or some part thereof, is situated. If the testator had no fixed place of residence and personal property only be disposed of by the will, it may be proved in and letters granted by the chancery court of the county where the testator died, or of the county in which some part of the property may be.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (24); 1857, ch. 60, art. 42; 1871, § 1098; 1880, § 1960; 1892, § 1813; 1906, § 1988; Hemingway’s 1917, § 1653; 1930, § 1599; 1942, § 495.

Cross References —

Definition of “will”, see §1-3-61.

Jurisdiction of chancery court over matters of administration of estates, see §9-5-83.

Wills and testaments generally, see §91-5-1 et seq.

Probate of will as prima facie evidence of its validity, see §91-7-27.

Grant of letters of administration, see §91-7-63.

Applicability of Mississippi Rules of Civil Procedure to proceedings which are subject to the provisions of Title 91, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Forum county pursuant to Miss. Const. Art. VI, § 159 had full jurisdiction over admission of the testator’s will to probate. Indeed, under that constitutional provision it had full jurisdiction over matters testamentary and of administration, and the forum county under Miss. Code Ann. §91-7-1 was the proper location to hear probate matters concerning the testator’s estate because the testator at the time of his death had a fixed residence in the forum county. Ellzey v. McCormick, 17 So.3d 583, 2009 Miss. App. LEXIS 118 (Miss. Ct. App. 2009).

Hancock County was the proper venue to admit a nondomiciliary’s will where the decedent, after living in the county for more than 30 years, had at least acquired some clothing or other personal property in the county in which he died. In re Estate of Kelly v. Cuevas, 951 So. 2d 564, 2005 Miss. App. LEXIS 995 (Miss. Ct. App. 2005), aff'd in part and rev'd in part, 951 So. 2d 543, 2007 Miss. LEXIS 18 (Miss. 2007).

As decedent’s will was not a foreign will, but a domestic will, sounding in Mississippi law, executed by the decedent in Mississippi where he had resided in a residential care facility for 25 years, and where he died, the trial court properly determined that it had subject matter jurisdiction to probate the will under Miss. Code Ann. §91-7-1. Estate of Kelly v. Cuevas, 951 So. 2d 543, 2007 Miss. LEXIS 18 (Miss. 2007).

If the testator had no fixed place of residence, and only personal property is to be disposed of by the will, it may be proved in, and letters granted by, the chancery court of the county where the testator died, or the county in which some part of the property may be. Halford v. Hines, 223 Miss. 786, 79 So. 2d 264, 1955 Miss. LEXIS 439 (Miss. 1955).

Where it was shown that the testator had lived for seventy years on the farm, and when he moved to a town did not move any of his household effects and a witness testified that the testator was coming back home, the evidence was sufficient to support the finding that the testator had not changed his residence. Halford v. Hines, 223 Miss. 786, 79 So. 2d 264, 1955 Miss. LEXIS 439 (Miss. 1955).

Domestic will when probated and recorded in county in which testator resided at time of death constituted notice throughout state to subsequent mortgagee of land in Mississippi devised by will, without necessity of recording will in county wherein land was situated. Federal Land Bank v. Newsom, 175 Miss. 114, 161 So. 864, 166 So. 345, 1935 Miss. LEXIS 27 (Miss. 1935).

Probate of will is a proceeding in rem having no effect on property outside of jurisdiction where will probated. Woodville v. Pizzati, 119 Miss. 442, 81 So. 127, 1919 Miss. LEXIS 22 (Miss. 1919).

RESEARCH REFERENCES

ALR.

Adverse interest or position as qualification for appointment of administrator, executor, or other personal representative. 11 A.L.R.4th 638.

Am. Jur.

79 Am. Jur. 2d, Wills § 732 et seq.

CJS.

95 C.J.S., Wills § 549 et seq.

Law Reviews.

Weems and Evans, Mississippi law of intestate succession, wills, and administration and the proposed Mississippi Uniform Probate Code: a comparative analysis. 62 Miss. L. J. 1, Spring, 1992.

Practice References.

Bickel and Flannery, Living Trusts: Forms and Practice (Matthew Bender).

Burke, Friel, and Gagliardi, Modern Estate Planning, Second Edition (Matthew Bender).

Christensen, International Estate Planning, Second Edition (Matthew Bender).

Mobley, Robinson and Hedrick, Pritchard on the Law of Wills and Administration of Estates, Seventh Edition (Michie).

Rapkin, Planning for Large Estates (Matthew Bender).

Schoenblum, Estate Planning Forms and Clauses with CD Rom (Matthew Bender).

Wyatt, Trust Administration and Taxation (Matthew Bender).

LexisNexis® CD – Estate Planning Package (CD-ROM) (LexisNexis).

Murphy’s Will Clauses: Annotations and Forms with Tax Effects (Matthew Bender).

§ 91-7-3. By whom presented.

When any last will and testament is exhibited to be proved, the court may take the probate thereof, and any one interested in a will may propound it for probate. Summons may be issued by the clerk for the subscribing witnesses, or for other witnesses, to be examined as to such will.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (29); 1857, ch. 60, art. 43; 1871, § 1099; 1880, §§ 1961, 1992; 1892, § 1814; 1906, § 1989; Hemingway’s 1917, § 1654; 1930, § 1600; 1942, § 496.

JUDICIAL DECISIONS

1. In general.

The probation of 1980 will in common form and its admission to probate created prima facie evidence that the will was valid. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

The probate of a will in common form is not a final adjudication of its validity but is an “incipient step” necessary to enable the court to proceed to carry the will into execution, and it is not conclusive against heirs and distributees, and if they desire to contest the validity of the will this shall be done by an issue devisavit vel non. Perry v. Aldrich, 251 Miss. 429, 169 So. 2d 786, 1964 Miss. LEXIS 361 (Miss. 1964).

Where a niece and two nephews had recited in a sworn petition for letters of administration that their aunt had died intestate some five years previously, although at the time admittedly all knew of the existence of the aunt’s will, and the estate had been administered and discharged, the niece was estopped 21 years later from offering the aunt’s will to probate. Logan v. Smith, 229 Miss. 513, 91 So. 2d 707, 1956 Miss. LEXIS 633 (Miss. 1956).

If from any cause the original will cannot be had, secondary evidence of its contents is admissible, and it may be probated in that form. Pratt v. Hargraves, 77 Miss. 892, 28 So. 722, 1900 Miss. LEXIS 52 (Miss. 1900).

The refusal to probate a will in common form because of insufficient proof does not preclude the subsequent probate on sufficient evidence. Martin v. Perkins, 56 Miss. 204, 1878 Miss. LEXIS 60 (Miss. 1878).

RESEARCH REFERENCES

ALR.

Probate where two or more testamentary documents, bearing the same date or undated, are proffered. 17 A.L.R.3d 603.

What circumstances excuse failure to submit will for probate within time limit set by statute. 17 A.L.R.3d 1361.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 386.

79 Am. Jur. 2d, Wills § 760 et seq.

CJS.

95 C.J.S., Wills § 489.

§ 91-7-5. Production of will compelled.

The chancery court of the proper county, on being informed that any person has the last will and testament of a testator or testatrix, may compel such person to produce it.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (22); 1857, ch. 60, art. 47; 1871, § 1103; 1880, § 1977; 1892, § 1830; 1906, § 2005; Hemingway’s 1917, § 1670; 1930, § 1601; 1942, § 497.

RESEARCH REFERENCES

ALR.

Sufficiency of evidence to support grant of summary judgment in will probate or contest proceedings. 53 A.L.R.4th 561.

Am. Jur.

79 Am. Jur. 2d, Wills § 714 et seq.

CJS.

95 C.J.S., Wills §§ 474-477, 710.

§ 91-7-7. Proof of due execution of will.

The due execution of the will, whether heretofore or hereafter executed, must be proved by at least one (1) of the subscribing witnesses, if alive and competent to testify. If none of the subscribing witnesses can be produced to prove the execution of the will, it may be established by proving the handwriting of a testator and of the subscribing witnesses to the will, or of some of them. The execution of the will may be proved by affidavits of subscribing witnesses. The affidavits may be annexed to the will or may be a part of the will, and shall state the address of each subscribing witness. Such affidavits may be signed at the time that the will is executed.

HISTORY: Codes, 1871, § 1117; 1880, § 1963; 1892, § 1815; 1906, § 1991; Hemingway’s 1917, § 1656; 1930, § 1602; 1942, § 498; Laws, 1946, ch. 335, § 1; Laws, 1992, ch. 383, § 1, eff from and after July 1, 1992.

Cross References —

Number of witnesses of will required, see §91-5-1.

Nuncupative wills, see §91-5-15.

Wills of members of armed forces and mariners, see §91-5-21.

JUDICIAL DECISIONS

1. In general.

2. Resort to secondary evidence.

1. In general.

A record of probate in common form which does not contain the affidavit of a subscribing witness or other testimony in writing proving the validity of the will, and no explanation of the absence of such proof, is not prima facie evidence of the validity of the will. Gibson v. Jones, 238 Miss. 186, 117 So. 2d 879, 1960 Miss. LEXIS 394 (Miss. 1960).

In a will contest where proponents introduced a record of probate of will in common form, it was not necessary that they go further and make proof of will by having one of subscribing witnesses present to testify. Bearden v. Gibson, 215 Miss. 218, 60 So. 2d 655, 1952 Miss. LEXIS 555 (Miss. 1952).

This section [Code 1942, § 498] does not require that the execution of the will be proved by more than one of the subscribing witnesses, and where one of two subscribing witnesses testifies to every fact necessary to the due execution of a lost will, together with evidence that the testator made corroborative statements up to the time of her death, the proponent was held to have met the burden of proof, notwithstanding that the other subscribing witnesses denied his attestation or presence at the execution thereof. Warren v. Sidney's Estate, 183 Miss. 669, 184 So. 806, 1938 Miss. LEXIS 281 (Miss. 1938).

Evidence of subscribing witness that testatrix told him that instrument was her will, that she had signed it and wanted him to sign it as a witness, and that he did so in her presence, and testimony of other witness who did not sign in presence of other subscribing witness and was not present when other witness signed that testatrix told him instrument was her will and requested him to sign it as a witness, was sufficient to authorize admission of will to probate in solemn form. Austin v. Patrick, 179 Miss. 718, 176 So. 714, 1937 Miss. LEXIS 74 (Miss. 1937).

If contestant introduces attesting witness, failure of proponents to do so is corrected. Ward v. Ward, 124 Miss. 697, 87 So. 153, 1920 Miss. LEXIS 559 (Miss. 1920).

2. Resort to secondary evidence.

The trial court properly set aside a jury verdict finding that the decedent’s lost or destroyed will had been properly executed where there was neither direct nor secondary evidence that the alleged lost or destroyed will was ever signed, witnessed, and executed according to law. Gaston v. Gaston, 358 So. 2d 376, 1978 Miss. LEXIS 2527 (Miss. 1978).

When the witnesses to a lost will are dead, their attestation may be proved by secondary evidence. Estate of Willis v. Willis, 207 So. 2d 348, 1968 Miss. LEXIS 1609 (Miss. 1968).

Although under Code 1942, § 498 the testimony of only one living witness is sufficient to establish a will’s proper execution, proof of two signatures of witnesses is required to prove due execution where the witnesses to a will are deceased. Estate of Willis v. Willis, 207 So. 2d 348, 1968 Miss. LEXIS 1609 (Miss. 1968).

Proof of the due execution of the will may, if necessary, be made by others than subscribing witnesses, although subscribing witnesses must be produced, if possible. Warren v. Sidney's Estate, 183 Miss. 669, 184 So. 806, 1938 Miss. LEXIS 281 (Miss. 1938).

Where subscribing witness will and can prove facts as to execution of will, secondary evidence cannot be used until they have been called or produced. Helm v. Sheeks, 116 Miss. 726, 77 So. 820, 1917 Miss. LEXIS 366 (Miss. 1917); Warren v. Sidney's Estate, 183 Miss. 669, 184 So. 806, 1938 Miss. LEXIS 281 (Miss. 1938).

RESEARCH REFERENCES

ALR.

“Attestation” or “witnessing” of will, required by statute, as including witnesses’ subscription. 45 A.L.R.2d 1365.

Failure of attesting witness to write or state place of residence as affecting will. 55 A.L.R.2d 1053.

Requirement that holographic will, or its material provisions, be entirely in testator’s handwriting as affected by appearance of some printed or written matter not in testator’s handwriting. 37 A.L.R.4th 528.

Sufficiency of evidence to support grant of summary judgment in will probate or contest proceedings. 53 A.L.R.4th 561.

Am. Jur.

80 Am. Jur. 2d, Wills § 852 et seq., 859 et seq.

1 Am. Jur. Proof of Facts 2, Mistake in the Inducement in Wills, § 5 et seq. (proof of mistake in the inducement).

24 Am. Jur. Proof of Facts 3d 667, Identification of Handprinting and Numerals.

25 Am. Jur. Proof of Facts 3d 637, Illegible Signatures and Writing in Litigation.

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 22:4, 22:5.

CJS.

95 C.J.S., Wills §§ 637, 638, 658-665.

§ 91-7-9. Affidavit of subscribing witness receivable.

The affidavit of any subscribing witness to a will, made before and certified by any officer in the state competent to administer oaths, shall be received as a substitute for the personal attendance of the affiant to prove the will where there is no contest about it.

HISTORY: Codes, 1880, § 1964; 1892, § 1817; 1906, § 1992; Hemingway’s 1917, § 1657; 1930, § 1603; 1942, § 499.

Editor’s Notes —

Laws, 1974, ch. 375, § 1, amended this section by adding a second paragraph. At the direction of the State Attorney General, the amendment was not executed, and instead, the second paragraph was designated as new code §91-7-10.

JUDICIAL DECISIONS

1. In general.

As the will was not contested, the affidavits of two attesting witnesses that the decedent was of sound and disposing mind at the time he executed his will was sufficient to establish the will was properly executed. In re Estate of Kelly v. Cuevas, 951 So. 2d 564, 2005 Miss. App. LEXIS 995 (Miss. Ct. App. 2005), aff'd in part and rev'd in part, 951 So. 2d 543, 2007 Miss. LEXIS 18 (Miss. 2007).

Under Code 1942, § 499 where there was no will contest, the affidavit of the subscribing witness constituted testimony of the attesting witness for the proponent of the will. Chapman v. Chapman, 264 So. 2d 395, 1972 Miss. LEXIS 1357 (Miss. 1972).

The logical basis of the rule that subscribing witnesses to a will that has been admitted to probate in common form should be produced is that the affidavit of proof of due execution of a will authorized by statute is an ex parte statement by the subscribing witnesses. Chapman v. Chapman, 264 So. 2d 395, 1972 Miss. LEXIS 1357 (Miss. 1972).

A person contesting a will should be allowed to examine the subscribing witnesses to the will as to all matters relevant to the will’s execution and to inquire into surrounding facts and circumstances so that the court may determine if the will was properly signed and attested, if attestation be required, and if the testator was mentally competent and free of undue influence. Chapman v. Chapman, 264 So. 2d 395, 1972 Miss. LEXIS 1357 (Miss. 1972).

The contestant of a will was entitled to impeach the testimony of subscribing witnesses who were called by the contestant as adverse witnesses, in an affidavit which was the basis for admission of the will to probate, even if such impeachment was made by the witnesses’ own testimony. Chapman v. Chapman, 264 So. 2d 395, 1972 Miss. LEXIS 1357 (Miss. 1972).

A record of probate in common form which does not contain the affidavit of a subscribing witness or other testimony in writing proving the validity of the will, and no explanation of the absence of such proof, is not prima facie evidence of the validity of the will. Gibson v. Jones, 238 Miss. 186, 117 So. 2d 879, 1960 Miss. LEXIS 394 (Miss. 1960).

In a will contest where proponents introduced a record of probate of will in common form, it was not necessary that they go further and make proof of will by having one of subscribing witnesses present to testify. Bearden v. Gibson, 215 Miss. 218, 60 So. 2d 655, 1952 Miss. LEXIS 555 (Miss. 1952).

In a will contest after probate, proponents of a will, executed in Texas, were not required to make proof of the validity of the will by having the subscribing witnesses present to testify, or their testimony in the form of depositions, and a prima facie case of the validity of the will was properly made out by introducing the probate of the will in common form by the affidavits of the subscribing witnesses who resided in Texas. Hilton v. Johnson, 194 Miss. 671, 12 So. 2d 524, 1943 Miss. LEXIS 77 (Miss. 1943).

The affidavits of two subscribing witnesses to a will were sufficient for the probate thereof in common form. Austin v. Patrick, 179 Miss. 718, 176 So. 714, 1937 Miss. LEXIS 74 (Miss. 1937).

§ 91-7-10. Affidavits may be used to authenticate holographic wills or codicils.

Where there is not contest about it, a holographic will or codicil may be proved at the time of presentment for probate by the affidavits, made before an officer in the state authorized to administer oaths, of at least two (2) persons, in no wise interested in the estate of the testator or testatrix, attesting to the authenticity of the will or codicil and the competency of the testator or testatrix to make testamentary disposition of his or her property; provided, however, that such affiants shall be persons familiar with the handwriting and signature of the testator or testatrix, and the affidavits so presented shall contain statements made on the personal knowledge of such affiants attesting that such handwriting and such signature are genuine and were made and done by the testator or testatrix; and in such case the affidavits made and presented in conformity herewith may be received as a substitute for the personal attendance of witnesses to prove such will or codicil.

HISTORY: Laws, 1974, ch. 375, § 1, eff from and after passage (approved March 19, 1974).

Editor’s Notes —

Laws, 1974, ch. 375, § 1, amended §91-7-9 by adding a second paragraph. At the direction of the State Attorney General, the second paragraph was designated as new code §91-7-10.

RESEARCH REFERENCES

ALR.

Competency of interested witnesses to testify to signature or handwriting of deceased. 13 A.L.R.3d 404.

Am. Jur.

79 Am. Jur. 2d, Wills § 605.

25 Am. Jur. Pl & Pr Forms (Rev), Wills, Form 55 (petition or application to probate holographic will).

CJS.

95 C.J.S., Wills §§ 330-339, 478-481, 679-682, 734, 735.

§ 91-7-11. Testimony of absent witness.

When any will shall be exhibited for probate and any witness who attested the will shall reside out of the state or be not found, either of the following methods may be used to prove the execution of the will, to wit:

A commission may issue to take his or her deposition, as in other cases of nonresident witnesses, to which the will shall be attached. Before such original will shall be sent abroad for proof, the clerk shall make and certify to a true copy thereof and file the copy in his office, and such certified true copy shall have the same legal force and effect of the original will and may be substituted for the original will should the original will be lost. Provided, however, where there is no contest, the affidavit of such nonresident subscribing witness may be made before any officer competent to administer oaths in the state where such nonresident witness may be found.

Or, in lieu of sending the original will abroad for such proof, the clerk may have made a photostatic copy of said original will and certify to same as being a photostatic copy of said original will and send said certified photostatic copy of said original will abroad, instead of the original will; and in which case, the clerk shall file the original will in his office.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (28); 1857, ch. 60, art. 44; 1871, § 1100; 1880, § 1972; 1892, § 1819; 1906, § 1994; Hemingway’s 1917, § 1659; 1930, § 1604; 1942, § 500; Laws, 1954, ch. 215; Laws, 1966, ch. 322, § 1, eff from and after passage (approved May 20, 1966).

§ 91-7-13. Testimony on probating will reduced to writing.

If the will shall appear to have been duly executed, it shall be admitted to probate. All testimony taken in probating it shall be reduced to writing and filed and carefully preserved in the clerk’s office.

HISTORY: Codes, 1880, § 1965; 1892, § 1818; 1906, § 1993; Hemingway’s 1917, § 1658; 1930, § 1605; 1942, § 501.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 501] and Code 1942, § 507 must be read together. Gibson v. Jones, 238 Miss. 186, 117 So. 2d 879, 1960 Miss. LEXIS 394 (Miss. 1960).

A record of probate in common form which fails to show compliance with this section [Code 1942, § 501] does not constitute prima facie evidence of the validity of the will. Gibson v. Jones, 238 Miss. 186, 117 So. 2d 879, 1960 Miss. LEXIS 394 (Miss. 1960).

§ 91-7-15. Will executed by person in armed forces — additional manner of proof.

In addition to the manner in which wills may be proved and admitted to probate in the State of Mississippi under other laws, any will executed by any member of the armed forces of the United States during the Korean War, or any other war, may be proved and admitted to probate, and letters testamentary thereon granted, by the chancery court or the chancellor in vacation of the county in which such testator lived when he became a member of such armed forces, or by the chancery court or the chancellor in vacation of the county in which such testator owned land at the time of his death, on the affidavit of any reliable person or persons sufficient to satisfy the chancellor that the testator is dead, that the writing propounded for probate was signed by the testator as his last will and testament, that the affidavit or testimony of the subscribing witnesses to such will cannot reasonably be obtained, and that there is good reason for such will to be then probated.

HISTORY: Codes, 1942, § 501-01; Laws, 1944, ch. 167, § 1; Laws, 1952, ch. 254.

RESEARCH REFERENCES

Am. Jur.

25 Am. Jur. Proof of Facts 3d 637, Illegible Signatures and Writing in Litigation.

§ 91-7-17. Rejection of will not binding.

The rejection of an ex parte application to probate a will shall not bind any one or extinguish any right.

HISTORY: Codes, 1880, § 1966; 1892, § 1920; 1906, § 1995; Hemingway’s 1917, § 1660; 1930, § 1606; 1942, § 502.

§ 91-7-19. All interested may be made parties.

Any proponent of a will for probate may, in the first instance, make all interested persons parties to his application to probate the will, and in such case all who are made parties shall be concluded by the probate of the will. At the request of either party to such proceeding, an issue shall be made up and tried by a jury as to whether or not the writing propounded be the will of the alleged testator.

HISTORY: Codes, 1880, § 1967; 1892, § 1821; 1906, § 1996; Hemingway’s 1917, § 1661; 1930, § 1607; 1942, § 503.

JUDICIAL DECISIONS

1. In general.

2. Interested parties.

3. Conclusiveness of decree.

1. In general.

Daughter would not forfeit her share of a decedent’s estate because sufficient evidence existed that the daughter acted in good faith when submitting the second codicil; even though the jury found the second codicil invalid, that decision alone did not mean that it was submitted in bad faith or without probable cause, and under the statute the jury could not ever reach that question. Estate of Roosa v. Roosa, — So.3d —, 2019 Miss. App. LEXIS 163 (Miss. Ct. App. Apr. 23, 2019), cert. denied, 283 So.3d 733, 2019 Miss. LEXIS 412 (Miss. 2019), cert. denied, — So.3d —, 2019 Miss. LEXIS 477 (Miss. 2019).

Court of appeals declined to remand for a jury to determine whether a decedent’s daughter exhibited good faith in probating the second codicil because the issue was not within the jury’s province under the statute. Estate of Roosa v. Roosa, — So.3d —, 2019 Miss. App. LEXIS 163 (Miss. Ct. App. Apr. 23, 2019), cert. denied, 283 So.3d 733, 2019 Miss. LEXIS 412 (Miss. 2019), cert. denied, — So.3d —, 2019 Miss. LEXIS 477 (Miss. 2019).

Trial court did not err in granting beneficiaries summary judgment in a will contest because they established a prima facie case that the will was valid and that the testator possessed testamentary capacity, and the son failed to rebut the prima facie case with any summary-judgment evidence that there was a genuine issue for trial; the will was admitted to probate, and the beneficiaries attached affidavits of individuals that testified as to the testator’s mental capacity. Froemel v. Estate of Froemel, 248 So.3d 876, 2018 Miss. App. LEXIS 230 (Miss. Ct. App. 2018).

Chancellor erred in holding that Miss. Code Ann. §91-7-33 absolutely barred the sister from initially proving a lost foreign will in Mississippi where the will disposed of property in this state. Given the existence of genuine issues of material fact regarding the validity of the testator’s will, the chancellor should have proceeded with the will contest and impaneled a jury to decide the will’s validity. Watt v. Cobb (In re Estate of High), 19 So.3d 1282, 2009 Miss. App. LEXIS 743 (Miss. Ct. App. 2009).

Summary judgment is properly granted where no genuine issues of material fact have been presented although question of will or no will is primary issue in will contest and either party to will contest has automatic right to jury trial. Gallagher v. Warden, 507 So. 2d 27 (Miss. 1987).

Evidence that testator of advanced years living in nursing home was dependent upon beneficiary to some degree is insufficient basis for finding of confidential relationship resulting in will being product of undue influence where there is no proof that testator looked to beneficiary to care for personal needs, to tend to him, or to handle his affairs. In re Will & Estate of Varvaris, 477 So. 2d 273, 1985 Miss. LEXIS 2256 (Miss. 1985).

Party who desires jury to try issue of devisavit vel non is under duty to specifically request jury before hearing on matter. In re Will & Estate of Varvaris, 477 So. 2d 273, 1985 Miss. LEXIS 2256 (Miss. 1985).

In a probate action the chancery court properly overruled a motion to exclude the jury on the issue involving probate of a 1961 will, where the mover’s pleading involving a 1979 will raised the issue of revocation of the 1961 will, and where the question of revocation was a proper question for the jury. Deposit Guaranty Nat'l Bank v. Cotten, 420 So. 2d 242, 1982 Miss. LEXIS 2203 (Miss. 1982).

Although the evidence was conflicting, jury’s finding that an alleged holographic will was not in the handwriting of the deceased would not be disturbed by the supreme court where there was ample evidence to warrant that conclusion, and the chancellor’s decree had upheld a jury’s verdict. In re Estate of Rumley, 234 Miss. 490, 106 So. 2d 678, 1958 Miss. LEXIS 522 (Miss. 1958).

It was not required in a probate proceeding that an issue devisavit vel non be tried to a jury. Darby v. Arrington, 194 Miss. 123, 11 So. 2d 220, 1942 Miss. LEXIS 170 (Miss. 1942).

Where cousins of a testatrix’s heir, who would inherit the estate if the will, under which the heir would receive a life estate, should be set aside, were precluded from prosecuting an appeal from a decree validating the will, upon the death of the heir pending the appeal, since the proceedings involved the only persons then interested, and the cousins were not beneficiaries, his administrator, in his naked right as administrator of the only “interested person,” could not (there being no creditors of the deceased heir’s estate), prosecute the appeal, either on behalf of the estate or of the cousins. Darby v. Arrington, 194 Miss. 123, 11 So. 2d 220, 1942 Miss. LEXIS 170 (Miss. 1942).

2. Interested parties.

An administrator is not such an “interested party” within statutes providing that a proponent may make all interested persons parties to application for probate of will and that any interested person may at any time within two years contest validity of will probated without notice, as is authorized to contest will subsequently presented for probate. Austin v. Patrick, 179 Miss. 718, 176 So. 714, 1937 Miss. LEXIS 74 (Miss. 1937).

3. Conclusiveness of decree.

The admission of a will to probate was only prima facie evidence of its validity and would not conclude the heirs at law as interested parties from contesting will within two years in manner prescribed by statute, where the heirs at law had not been made parties to the petition for the probate thereof. Austin v. Patrick, 179 Miss. 718, 176 So. 714, 1937 Miss. LEXIS 74 (Miss. 1937).

In proceeding to probate will and to remove administratrix theretofore appointed, chancery court was without jurisdiction to hear contest as to validity of will where none of the interested parties as such were before the court, and hence such parties would not be concluded by decree adjudicating validity of will. Austin v. Patrick, 179 Miss. 718, 176 So. 714, 1937 Miss. LEXIS 74 (Miss. 1937).

RESEARCH REFERENCES

ALR.

Judgment denying validity of will because of undue influence, lack of mental capacity, or the like, as res judicata as to validity of another will, deed, or other instrument. 25 A.L.R.2d 657.

Necessity that executor or administrator be represented by counsel in presenting matters in probate court. 19 A.L.R.3d 1104.

Am. Jur.

79 Am. Jur. 2d, Wills § 760 et seq.

25 Am. Jur. Pl & Pr Forms (Rev), Wills, Forms 72, 72.1, 72.2 (notice).

§ 91-7-21. Caveat against probate may be filed.

Any one desiring to contest a will presented for probate may do so before probate by entering in the clerk’s office in which it shall be presented his objection to the probate thereof, and causing all parties interested and who do not join him in such objection to be made parties defendant. Thereupon the issue devisavit vel non shall be made up and tried, and proceedings had as in other like cases. When an objection to the probate of a will has been made in writing, filed with the clerk, probate shall not be had of such will without notice to the objector.

HISTORY: Codes, 1880, § 1970; 1892, § 1815; 1906, § 1990; Hemingway’s 1917, § 1655; 1930, § 1608; 1942, § 504.

Cross References —

Right to renounce will, see §91-5-25 et seq.

Rights of interested parties to contest will devising real property which is admitted to probate as muniment of title only, see §91-5-35.

JUDICIAL DECISIONS

1. In general.

A chancery court did not have jurisdiction to hear a will contest where the executor failed to properly designate the beneficiaries as necessary parties, since the “interested and necessary parties” were not timely noticed and properly joined in the lawsuit; the chancellor should have joined all necessary and proper parties before exercising jurisdiction. Padron v. Martell (In re Estate of McClerkin), 651 So. 2d 1052, 1995 Miss. LEXIS 135 (Miss. 1995).

In an action to probate a will, the chancellor erred in sustaining the executor’s and beneficiaries’ motions to dismiss a caveat against probate filed by will contestants on the ground that the will was not contested within 2 years as required by §91-7-23 where the beneficiaries were not listed as interested parties on the petition to probate the will, since the beneficiaries were necessary parties entitled to notice of the action. Padron v. Martell (In re Estate of McClerkin), 651 So. 2d 1052, 1995 Miss. LEXIS 135 (Miss. 1995).

Pleadings filed by the executor and sole beneficiary of 1980 will constituted a caveat against or contest of 1982 will sought to be substituted for earlier will for probate. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

Where a will has been admitted to probate in common form as the last will of a testator, it will remain the last will of the testator unless (within the time allowed by law) it is set aside by an order of the chancery court upon a contest and issue devisavit vel non. Perry v. Aldrich, 251 Miss. 429, 169 So. 2d 786, 1964 Miss. LEXIS 361 (Miss. 1964).

Where contest of a will was filed after admission of the will to probate by the clerk in vacation without notice to the objectors but before such admission was approved and confirmed by the court, such contest was not filed “before probate” within the meaning of this section [Code 1942, § 504], so as to preclude introduction in evidence of the probate of the will as prima facie evidence of its validity, in the trial of the will contest. Bigleben v. Henry, 196 Miss. 586, 17 So. 2d 602, 1944 Miss. LEXIS 238 (Miss. 1944).

Entry by the clerk of his order in vacation admitting a will to probate is an adjudication by him that the instrument has been duly proven by the presentation thereof with the affidavits of the subscribing witnesses thereto attached. Bigleben v. Henry, 196 Miss. 586, 17 So. 2d 602, 1944 Miss. LEXIS 238 (Miss. 1944).

Probate of a will in common form before the clerk in vacation should be deemed prima facie evidence of the validity of the will unless and until its invalidity shall have been determined by the court. Bigleben v. Henry, 196 Miss. 586, 17 So. 2d 602, 1944 Miss. LEXIS 238 (Miss. 1944).

Where instrument purporting to be a will was admitted to probate by the clerk in vacation, without notice to the objectors, and will contest was filed thereafter but before approval and confirmation of clerk’s acts in question, and admission to probate was thereafter approved and confirmed over objection of contestants, and on subsequent trial of will contest probate of the instrument was offered in evidence but contestant offered no evidence, peremptory instruction in favor of proponent was correct. Bigleben v. Henry, 196 Miss. 586, 17 So. 2d 602, 1944 Miss. LEXIS 238 (Miss. 1944).

Surviving wife, only heir at law, may contest husband’s will. Woodville v. Pizzati, 119 Miss. 442, 81 So. 127, 1919 Miss. LEXIS 22 (Miss. 1919).

Acquiescence in probate of will in Louisiana, by surviving wife, held not to estop her from contesting will in Mississippi. Woodville v. Pizzati, 119 Miss. 442, 81 So. 127, 1919 Miss. LEXIS 22 (Miss. 1919).

RESEARCH REFERENCES

ALR.

Right of executor or administrator to contest will codicil of his decedent. 31 A.L.R.2d 756.

Validity and enforceability of agreement to drop or compromise will contest or withdraw objections to probate, or of agreement to induce others to do so. 42 A.L.R.2d 1319.

Decedent’s spouse as a proper party to contest will. 78 A.L.R.2d 1060.

Right of trustee named in earlier will to contest, or seek to revoke probate of, later will. 94 A.L.R.2d 1409.

Estoppel to contest will or attack its validity by acceptance of benefits thereunder. 78 A.L.R.4th 90.

Am. Jur.

79 Am. Jur. 2d, Wills §§ 726 et seq., 780.

25 Am. Jur. Pl & Pr Forms (Rev), Wills, Forms 241 et seq. (opposition and contest).

9 Am. Jur. Trials, Will Contests, § 1 et seq.

CJS.

95 C.J.S., Wills §§ 498, 499, 501-510, 537 et seq.

§ 91-7-23. Validity contested within two years.

Any person interested may, at any time within two years, by petition or bill, contest the validity of the will probated without notice; and an issue shall be made up and tried as other issues to determine whether the writing produced be the will of the testator or not. If some person does not appear within two years to contest the will, the probate shall be final and forever binding, saving to infants and persons of unsound mind the period of two years to contest the will after the removal of their respective disabilities. In case of concealed fraud, the limitation shall commence to run at, and not before, the time when such fraud shall be, or with reasonable diligence might have been, first known or discovered.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (29); 1857, ch. 60, art. 43; 1871, § 1099; 1880, § 1961; 1892, § 1822; 1906, § 1997; Hemingway’s 1917, § 1662; 1930, § 1609; 1942, § 505.

Cross References —

Rights of interested parties to contest will devising real property which is admitted to probate as muniment of title only, see §91-5-35.

Criminal offense of alteration, destruction, or secretion of wills, see §97-9-77.

Criminal offense of forgery of will, see §97-21-63.

JUDICIAL DECISIONS

1. Construction and application in general.

2. Who may contest, or procure construction of, will.

3. Issues which may be submitted or considered at same time.

4. Concealed fraud.

1. Construction and application in general.

Daughter of testator was not entitled to go forward on the daughter’s will contest filed in the forum county more than two years after the testator’s will was admitted to probate there. Pursuant to Miss. Code Ann. §91-7-23, the daughter had to file the daughter’s will contest within two years from the date the will was admitted to probate, and the daughter did not do so. Ellzey v. McCormick, 17 So.3d 583, 2009 Miss. App. LEXIS 118 (Miss. Ct. App. 2009).

As decedent’s brother did not contest the decedent’s will within the two-year limitations period for contesting a will admitted to probate in common form, the probate in common form was binding and final. In re Estate of Kelly v. Cuevas, 951 So. 2d 564, 2005 Miss. App. LEXIS 995 (Miss. Ct. App. 2005), aff'd in part and rev'd in part, 951 So. 2d 543, 2007 Miss. LEXIS 18 (Miss. 2007).

In an action to probate a will, the chancellor erred in sustaining the executor’s and beneficiaries’ motions to dismiss a caveat against probate filed by will contestants on the ground that the will was not contested within 2 years as required by §91-7-23 where the beneficiaries were not listed as interested parties on the petition to probate the will, since the beneficiaries were necessary parties entitled to notice of the action. Padron v. Martell (In re Estate of McClerkin), 651 So. 2d 1052, 1995 Miss. LEXIS 135 (Miss. 1995).

The failure to join known interested parties within 2 years from the date of probate of a will did not require dismissal of a petition to contest the will; treatment of the “persons interested” as necessary parties would be governed by Rules 19 and 21, Miss. R. Civ. P., and therefore the chancery court was required to make the interested persons parties and process issue accordingly. Estate of Schneider, 585 So. 2d 1275, 1991 Miss. LEXIS 643 (Miss. 1991).

The word “probate” within the meaning of §91-7-23 refers to the act of the clerk accepting the will for probate, rather than the date upon which the estate closed and, therefore, the 2-year limitations period runs from the date the clerk admits the will to probate. In re Will of Fields, 570 So. 2d 1202, 1990 Miss. LEXIS 708 (Miss. 1990).

Attempt to contest will was unseasonable where, while chancery court was in vacation, chancery clerk on January 24, 1983, admitted will and codicils to probate, thereafter issuing Letters Testamentary; on June 13, 1983, chancellor entered order ratifying actions by chancery clerk conducted while court was in vacation; and, action to set aside will alleging mental incompetency when making will was commenced on May 6, 1985. Sims v. Stennis, 510 So. 2d 798 (Miss. 1987).

The sole issue in a will contest is devisavit vel non, or will or no will. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

In an action by a devisee under a 1935 will to perfect his title in certain realty, the trial court correctly dismissed the pending proceedings upon the motion of such devisee, even though a contest of the will had been filed, where it was discovered that the original will had been admitted to probate in 1937 and where the contestants made no attempt to come within the exceptions to the two-year statute of limitations for will contests. In re Last Will & Testament of Hickman, 374 So. 2d 239, 1979 Miss. LEXIS 2339 (Miss. 1979).

Under Code 1972 §11-5-3, §91-7-23, and §91-7-29, prescribing will contest procedures, trial judge erred in directing verdict in favor of proponents of will on issue of testamentary capacity and undue influence, since roll of jury in will contest is same as that of jury in civil trial in court of law and is not “merely advisory.” Fowler v. Fisher, 353 So. 2d 497, 1977 Miss. LEXIS 2002 (Miss. 1977).

Under former provisions, it was held that in a proceeding on a petition for probate of a will and revocation of a will previously probated by the defendants, where the plaintiff had filed a petition within the two-year statute of limitations but did not request service of process to issue until after the limitation period, the suit was barred by limitations, since to constitute “legal filing” of the suit, so as to toll the statute of limitations, the presentation of the bill or petition to the clerk must be followed by the issuance of process in the normal and usual manner without undue delay. Knuckles v. Wells, 222 So. 2d 660 (Miss. 1969).

Where a will has been admitted to probate in common form as the last will of a testator, it will remain the last will of the testator unless within the time allowed by law it is set aside by an order of the chancery court upon a contest and issue devisavit vel non. Perry v. Aldrich, 251 Miss. 429, 169 So. 2d 786, 1964 Miss. LEXIS 361 (Miss. 1964).

In the contest of a will, the burden was on the proponent to prove the validity of the will, i.e., that the testator had mental capacity to make it, and that he was not procured to make it by the pressure of undue influence upon him, and this burden was met by the introduction of evidence that the will had been duly admitted to probate. O'Bannon v. Henrich, 191 Miss. 815, 4 So. 2d 208, 1941 Miss. LEXIS 176 (Miss. 1941).

The admission of a will to probate was only prima facie evidence of its validity and would not conclude the heirs at law as interested parties from contesting will within two years in manner prescribed by statute, where the heirs at law had not been made parties to the petition for the probate thereof. Austin v. Patrick, 179 Miss. 718, 176 So. 714, 1937 Miss. LEXIS 74 (Miss. 1937).

Contest as to the validity of a will probated without notice must be brought in the court in which the will was probated, the contest being merely supplementary to and a continuation of, the probate proceedings, and, accordingly, the contest is not maintainable in federal courts. In re Armistead's Estate, 4 F. Supp. 606, 1933 U.S. Dist. LEXIS 1282 (D. Miss. 1933).

Parties seeking to set aside will as forgery have burden of showing forgery by clear and convincing pleading, and evidence. Didlake v. Ellis, 158 Miss. 816, 131 So. 267, 1930 Miss. LEXIS 112 (Miss. 1930).

2. Who may contest, or procure construction of, will.

Grandchildren of decedent had no standing to maintain an action challenging the validity of the decedent’s will because they were not interest parties at the time of the will’s entry into probate as required by Miss. Code Ann. §91-7-23. They had no direct, pecuniary interest in the estate at the time it was entered into probate or within the two-year statute of limitations. Tatum v. Wells, 2 So.3d 739, 2009 Miss. App. LEXIS 49 (Miss. Ct. App. 2009).

Putative illegitimate children were not interested persons because they failed to establish any right to inherit as illegitimates, therefore, they lacked standing to contest the last will and testament of the decedent. Parks v. Mathis (In re Estate of Mathis), 800 So. 2d 119, 2001 Miss. App. LEXIS 455 (Miss. Ct. App. 2001).

A will contestant who alleged that she was the only natural child and heir at law of the decedent had standing to contest the will, even though she would take more under the will than she would without it under her existing status, since her status could change pending the hearing on heirship, and she would take more without the will than under the will if she was found to be the sole heir at law. Dees v. Estate of Moore, 562 So. 2d 109, 1990 Miss. LEXIS 257 (Miss. 1990).

A widow could not contest her husband’s will more than two years after it was probated, notwithstanding her contention that she was lulled into refraining from contesting it by promises of the testator’s children to take care of her and to let her share in the estate. Rush v. Rush, 360 So. 2d 1240, 1978 Miss. LEXIS 2341 (Miss. 1978).

Children of deceased, who entered into agreement with their father not to interfere with his plans as to the future or to make any claim on other property of decedent, in return for gift of property, were not barred from subsequently contesting will where the chancellor found that the agreement was lacking in certainty as to the purpose and extent of the waiver. Ward v. Ward, 203 Miss. 32, 33 So. 2d 294, 1948 Miss. LEXIS 227 (Miss. 1948).

An administrator is not such an “interested party” within statutes providing that a proponent may make all interested persons parties to application for probate of will and that any interested person may at any time within two years contest validity of will probated without notice, as is authorized to contest will subsequently presented for probate. Austin v. Patrick, 179 Miss. 718, 176 So. 714, 1937 Miss. LEXIS 74 (Miss. 1937).

Parties having no interest in property devised under will admitted to probate cannot complain of forgery or fraud of person beneficially interested. Didlake v. Ellis, 158 Miss. 816, 131 So. 267, 1930 Miss. LEXIS 112 (Miss. 1930).

Bill seeking to revoke probate of will for forgery and fraud, not showing complainants were interested parties nor essential requisites to probate of destroyed will, held insufficient. Didlake v. Ellis, 158 Miss. 816, 131 So. 267, 1930 Miss. LEXIS 112 (Miss. 1930).

Administrator may not contest will subsequently presented for probate. Cajoleas v. Attaya, 145 Miss. 436, 111 So. 359, 1927 Miss. LEXIS 158 (Miss. 1927).

Complainant having no interest subject to enforcement in equity cannot secure construction of will. Orman v. Hall, 91 So. 273 (Miss. 1922).

A person who takes more under a will than he would as heir cannot contest the validity of the will. Biles v. Dean, 14 So. 536 (Miss. 1893).

3. Issues which may be submitted or considered at same time.

A party may combine a suit to determine heirship with a suit to contest a will. Dees v. Estate of Moore, 562 So. 2d 109, 1990 Miss. LEXIS 257 (Miss. 1990).

Whether writing produced is testator’s will is sole question to be determined on issue of devisavit vel non, and questions as to construction, sufficiency of identification of beneficiaries, and description of property devised cannot be considered. Kinard v. Whites, 175 Miss. 480, 167 So. 636, 1936 Miss. LEXIS 66 (Miss. 1936).

If the interest or heirship of the contestants be denied, that issue should be determined before the issue as to the validity of the will; and a submission of both issues to the same jury is erroneous. Edwards v. Gaulding, 38 Miss. 118, 1859 Miss. LEXIS 101 (Miss. 1859).

4. Concealed fraud.

Appellants’ claim that the chancellor erred in finding that a property interest had passed through inheritance was not considered on appeal where the argument was not raised before the chancellor, the will at issue was probated in 1986, no issue of concealed fraud had been raised, and thus, consistent with Miss. Code Ann. §91-7-23 (Rev. 2013), the inheritance issue was procedurally barred. Wood v. Miller, 179 So.3d 48, 2015 Miss. App. LEXIS 300 (Miss. Ct. App. 2015).

A will contest initiated by the daughter of a predeceased son of the decedent, in which she alleged that she was inadvertently omitted from the will, was time-barred where it was not commenced within two years, notwithstanding her contention that the executrix and the attorney for the estate intentionally misled her by stating that she did not need to worry because there was no objection to her and her siblings receiving a share of the estate since she knew from almost the moment the will was offered for probate that she was not included in the estate and the probate of the estate was not hidden from her. Williams v. Estate of Winding (In re Last Will & Testament of Winding), 783 So. 2d 707, 2001 Miss. LEXIS 102 (Miss. 2001).

“Concealed fraud,” within statute extending time for contesting validity of will probated without notice, is designed fraud by which party knowing to whom right belongs conceals circumstances giving that right, thereby enabling himself to enter and hold. Wilson v. Wilson, 166 Miss. 369, 146 So. 855, 1933 Miss. LEXIS 358 (Miss. 1933).

Where plaintiffs knew from beginning facts which would have avoided will, but testator’s widow promised them she would make division of property and after two years expired repudiated promise, there was no “concealed fraud” extending time for contesting validity of will. Wilson v. Wilson, 166 Miss. 369, 146 So. 855, 1933 Miss. LEXIS 358 (Miss. 1933).

Estoppel could not operate to prevent defendant from pleading statute of limitations applying to will contest, which set up its own exceptions. Wilson v. Wilson, 166 Miss. 369, 146 So. 855, 1933 Miss. LEXIS 358 (Miss. 1933).

RESEARCH REFERENCES

ALR.

Provision of will for forfeiture in case of contest, as applied to contest by one not a beneficiary. 7 A.L.R.2d 1357.

Instructions, in will contest, defining natural objects of testator’s bounty. 11 A.L.R.2d 731.

Validity and enforceability of agreement to drop or compromise will contest or withdraw objections to probate, or of agreement to induce others to do so. 42 A.L.R.2d 1319.

Decedent’s spouse as a proper party to contest will. 78 A.L.R.2d 1060.

Wills: challenge in collateral proceeding to decree admitting will to probate, on ground of fraud inducing complainant not to resist probate. 84 A.L.R.3d 1119.

Modern status: inheritability or descendability of right to contest will. 11 A.L.R.4th 907.

Word “child” or “children” in will as including grandchild or grandchildren. 30 A.L.R.4th 319.

Fraud as extending statutory limitations period for contesting will or its probate. 48 A.L.R.4th 1094.

Sufficiency of evidence to support grant of summary judgment in will probate or contest proceedings. 53 A.L.R.4th 561.

§ 91-7-25. Necessary parties to contest.

In any proceeding to contest the validity of a will, all persons interested in such contest shall be made parties.

HISTORY: Codes, 1880, § 1968; 1892, § 1823; 1906, § 1998; Hemingway’s 1917, § 1663; 1930, § 1610; 1942, § 506.

JUDICIAL DECISIONS

1. In general.

2. Standing.

1. In general.

Chancery court’s judgment denying daughters’ petition to contest the will of their mother had to be reversed and set aside because all necessary parties were not joined. Schmidt v. True (In re Will of True), 220 So.3d 276, 2017 Miss. App. LEXIS 288 (Miss. Ct. App. 2017).

A chancery court did not have jurisdiction to hear a will contest where the executor failed to properly designate the beneficiaries as necessary parties, since the “interested and necessary parties” were not timely noticed and properly joined in the lawsuit; the chancellor should have joined all necessary and proper parties before exercising jurisdiction. Padron v. Martell (In re Estate of McClerkin), 651 So. 2d 1052, 1995 Miss. LEXIS 135 (Miss. 1995).

In an action to probate a will, the chancellor erred in sustaining the executor’s and beneficiaries’ motions to dismiss a caveat against probate filed by will contestants on the ground that the will was not contested within 2 years as required by §91-7-23 where the beneficiaries were not listed as interested parties on the petition to probate the will, since the beneficiaries were necessary parties entitled to notice of the action. Padron v. Martell (In re Estate of McClerkin), 651 So. 2d 1052, 1995 Miss. LEXIS 135 (Miss. 1995).

The failure to join known interested parties within 2 years from the date of probate of a will did not require dismissal of a petition to contest the will; treatment of the “persons interested” as necessary parties would be governed by Rules 19 and 21, Miss. R. Civ. P., and therefore the chancery court was required to make the interested persons parties and process issue accordingly. Estate of Schneider, 585 So. 2d 1275, 1991 Miss. LEXIS 643 (Miss. 1991).

All legatees are indispensable parties to a will contest. Moore v. Jackson, 247 Miss. 854, 157 So. 2d 785, 1963 Miss. LEXIS 364 (Miss. 1963).

Proponent’s failure to plead nonjoinder of necessary parties to will contest does not waive the objection. Moore v. Jackson, 247 Miss. 854, 157 So. 2d 785, 1963 Miss. LEXIS 364 (Miss. 1963).

Heirs at law who would take property of the deceased in the absence of a valid will are necessary parties. Provenza v. Provenza, 201 Miss. 836, 29 So. 2d 669, 1947 Miss. LEXIS 453 (Miss. 1947).

Once the court has acquired jurisdiction of all interested parties, jurisdiction is not lost by the withdrawal of an answer filed on behalf of one of the defendants by one duly authorized to make such filing. Provenza v. Provenza, 201 Miss. 836, 29 So. 2d 669, 1947 Miss. LEXIS 453 (Miss. 1947).

In suit to confirm title to land, seeking construction of will to effect that it did not convey title to the land because it was devised to no named legatees, all the beneficiaries should have been under valid process. Dorsey v. Sullivan, 199 Miss. 602, 24 So. 2d 852, 1946 Miss. LEXIS 231 (Miss. 1946).

All “interested parties,” or those whose interest detrimentally affected by will, are necessary parties to will contest; heirs at law who would take property but for will, are interested parties; where contestants rely on prior will, all beneficiaries therein are interested parties; all beneficiaries in intermediate will are necessary parties in will contest. Hoskins v. Holmes County Community Hospital, 135 Miss. 89, 99 So. 570, 1924 Miss. LEXIS 19 (Miss. 1924).

2. Standing.

Appellant was properly ordered to pay an estate’s attorneys’ fees under Miss. R. Civ. P. 11, as appellant’s arguments on the issue of his standing to contest the will were frivolous, his filings contained misrepresented facts, and the estate was forced to incur unnecessary attorney’s fees in responding to those filings. Covington v. McDaniel (In re Estate of Necaise), 126 So.3d 49, 2013 Miss. App. LEXIS 108 (Miss. Ct. App.), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 598 (Miss. 2013), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 601 (Miss. 2013), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 610 (Miss. 2013).

As appellant failed to obtain a judgment, or status as a creditor of the estate, because the statute of limitations had expired and the action was not properly served upon the estate or the decedent during his lifetime, appellant did not have a direct pecuniary interest against the estate and thus was not an interested party under Miss. Code Ann. §91-7-25; therefore, he was not a proper party to the will contest. Covington v. McDaniel (In re Estate of Necaise), 126 So.3d 49, 2013 Miss. App. LEXIS 108 (Miss. Ct. App.), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 598 (Miss. 2013), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 601 (Miss. 2013), cert. denied, 125 So.3d 658, 2013 Miss. LEXIS 610 (Miss. 2013).

RESEARCH REFERENCES

ALR.

Standing of legatee or devisee under alleged prior or subsequent will to oppose probate or contest will. 39 A.L.R.3d 321.

Right of heir’s assignee to contest will. 39 A.L.R.3d 696.

Estoppel to contest will or attack its validity by acceptance of benefits thereunder. 78 A.L.R.4th 90.

What constitutes contest or attempt to defeat will within provision thereof forfeiting share of contesting beneficiary. 3 A.L.R.5th 590.

Am. Jur.

79 Am. Jur. 2d, Wills § 760 et seq.

§ 91-7-27. Probate of will prima facie evidence.

On the trial of an issue made up to determine the validity of a will which has been duly admitted to probate, such probate shall be prima facie evidence of the validity of the will.

HISTORY: Codes, 1880, § 1969; 1892, § 1824; 1906, § 1999; Hemingway’s 1917, § 1664; 1930, § 1611; 1942, § 507.

JUDICIAL DECISIONS

1. In general.

2. Construction.

3. Particular applications.

1. In general.

The probation of 1980 will in common form and its admission to probate created prima facie evidence that the will was valid. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

The probate of a will in common form is not a final adjudication of its validity but is an “incipient step” necessary to enable the court to proceed to carry the will into execution, and it is not conclusive against heirs and distributees, and if they desire to contest the validity of the will this shall be done by an issue devisavit vel non. Perry v. Aldrich, 251 Miss. 429, 169 So. 2d 786, 1964 Miss. LEXIS 361 (Miss. 1964).

2. Construction.

This section [Code 1942, § 507] must be read together with Code 1942, § 501. Gibson v. Jones, 238 Miss. 186, 117 So. 2d 879, 1960 Miss. LEXIS 394 (Miss. 1960).

3. Particular applications.

Will was properly upheld because the wife made a prima facie case for the will’s validity when she probated it in common form, and evidence indicated that although she and the testator had a close relationship, she had not overcome the testator’s will so as to exert undue influence on him. Estate of Chapman v. Chapman, 966 So. 2d 1262, 2007 Miss. App. LEXIS 722 (Miss. Ct. App. 2007).

A will is not shown to have been duly admitted to probate in common form, by a record which fails to show compliance with Code 1942, § 501 and makes no attempt to excuse such noncompliance. Gibson v. Jones, 238 Miss. 186, 117 So. 2d 879, 1960 Miss. LEXIS 394 (Miss. 1960).

In a will contest, proof of the probate is all that is required of proponents initially in meeting the burden of proof resting upon them. Wallace v. Harrison, 218 Miss. 153, 65 So. 2d 456, 1953 Miss. LEXIS 525 (Miss. 1953).

In a will contest, a prima facie case was made by proponents by introduction of the proof of probate in common form and this extends to every aspect of the will touching upon its validity and without more, the proponents have introduced sufficient evidence to sustain their burden. Bearden v. Gibson, 215 Miss. 218, 60 So. 2d 655, 1952 Miss. LEXIS 555 (Miss. 1952).

In a will contest where proponents introduced a record of probate of will in common form, it was not necessary that they go further and make proof of will by having one of subscribing witnesses present to testify. Bearden v. Gibson, 215 Miss. 218, 60 So. 2d 655, 1952 Miss. LEXIS 555 (Miss. 1952).

Probate of will in common form before chancery clerk in vacation is prima facie evidence of validity of will until will is declared invalid and set aside by proper and lawful proceeding in proper court, having jurisdiction of subject matter and of parties in interest. Rice v. McMullen, 207 Miss. 706, 43 So. 2d 195, 1949 Miss. LEXIS 382 (Miss. 1949).

Probate of a will in common form before the clerk in vacation should be deemed prima facie evidence of the validity of the will unless and until its invalidity shall have been determined by the court. Bigleben v. Henry, 196 Miss. 586, 17 So. 2d 602, 1944 Miss. LEXIS 238 (Miss. 1944).

Entry by the clerk of his order in vacation admitting a will to probate is an adjudication by him that the instrument has been duly proven by the presentation thereof with the affidavits of the subscribing witnesses thereto attached. Bigleben v. Henry, 196 Miss. 586, 17 So. 2d 602, 1944 Miss. LEXIS 238 (Miss. 1944).

In a will contest after probate, proponents of a will, executed in Texas, were not required to make proof of the validity of the will by having the subscribing witnesses present to testify, or their testimony in the form of depositions, and a prima facie case of the validity of the will was properly made out by introducing the probate of the will in common form by the affidavits of the subscribing witnesses who resided in Texas. Hilton v. Johnson, 194 Miss. 671, 12 So. 2d 524, 1943 Miss. LEXIS 77 (Miss. 1943).

In the contest of a will, the burden was on the proponent to prove the validity of the will, i.e., that the testator had mental capacity to make it, and that he was not procured to make it by the pressure of undue influence upon him, and this burden was met by the introduction of evidence that the will had been duly admitted to probate. O'Bannon v. Henrich, 191 Miss. 815, 4 So. 2d 208, 1941 Miss. LEXIS 176 (Miss. 1941).

RESEARCH REFERENCES

ALR.

Probate of copy of last will as precluding later contest of will under doctrine of res judicata. 55 A.L.R.3d 755.

Am. Jur.

80 Am. Jur. 2d, Wills § 809 et seq.

CJS.

95 C.J.S., Wills §§ 616, 617 et seq.

§ 91-7-29. Trial of issue devisavit vel non.

On the trial of such issue, the proponent of the will shall have the affirmative of the issue and be entitled to all the rights of one occupying such position. The witnesses shall be examined orally before the jury, except where in the circuit court depositions would be admissible; and the testimony taken on the probate of the will shall be admissible if the witnesses who delivered it be dead, out of the state, or have since become incompetent.

HISTORY: Codes, 1880, § 1971; 1892, § 1825; 1906, § 2000; Hemingway’s 1917, § 1665; 1930, § 1612; 1942, § 508.

Cross References —

Appeals in matters testamentary, see §§11-51-3,11-51-9.

JUDICIAL DECISIONS

1. Burden of proof.

2. Admissibility and sufficiency of evidence.

3. —Proof of incapacity or undue influence.

4. Competency of witnesses.

5. Miscellaneous.

1. Burden of proof.

The proponent of a will at all times bears the burden of persuading the trier of fact on all issues requisite to the validity of the will, e.g., due execution and testamentary capacity. At the outset, the proponent bears the burden of producing evidence of due execution and testamentary capacity. This burden is conventionally met by offering the will itself, the affidavits of subscribing witnesses and the judgment admitting the will to probate; these offerings make out the proponent’s prima facie case. Once the proponent has shouldered his or her burden of production such that he or she has made out a prima facie case, the burden of production shifts to the contestants. The burden of persuading the trier of fact on the issues of due execution and testamentary capacity rests on the proponent throughout and never shifts to the contestants; that burden of persuasion is subject to the preponderance of the evidence standard. Clardy v. National Bank of Commerce, 555 So. 2d 64, 1989 Miss. LEXIS 507 (Miss. 1989).

The burden of proof of a proponent of a will is met by the offering and receipt into evidence of the will and the record of its probate and a prima facie case is made by the proponent solely by this proof; the contestants then must offer proof to overcome such prima facie case and although the burden of proof is still with the proponent, the burden of going forward with proof of undue influence or lack of testamentary capacity, or other defenses, shifts to the contestants. Harris v. Sellers, 446 So. 2d 1012, 1984 Miss. LEXIS 1649 (Miss. 1984), overruled in part, Mullins v. Ratcliff, 515 So. 2d 1183, 1987 Miss. LEXIS 2933 (Miss. 1987).

In a will contest an instruction for the proponents that the material inquiry was the capacity of a testator on the very day and at the very time of the execution of the instrument, properly informed the jury of the issue, and was not invalidated by additional language to the effect that such was true regardless of what the jury might think or believe as to the mental capacity of the testator at any other time. Sides v. Adams, 243 So. 2d 59, 1971 Miss. LEXIS 1502 (Miss. 1971).

In will contest on ground of lack of testamentary capacity and existence of undue influence, there is but a single issue-will or no will, and burden is no proponent throughout. Blalock v. Magee, 205 Miss. 209, 38 So. 2d 708, 1949 Miss. LEXIS 426 (Miss. 1949).

In cases where a too close issue of fact is involved, instructions on burden of proof should go no further than to advise jury that proponent of will or plaintiff in other civil cases is required to establish issue by preponderance of evidence. Blalock v. Magee, 205 Miss. 209, 38 So. 2d 708, 1949 Miss. LEXIS 426 (Miss. 1949).

In will contest on ground of mental incapacity and undue influence, instructions are not prejudicially erroneous if, when all of instructions are considered as whole, jury is correctly informed that burden resting upon proponents is to show testamentary capacity and lack of undue influence by preponderance of evidence, although two of instructions given were to effect that burden of proof is upon proponents of will to show by preponderance of evidence that alleged testatrix was at time of execution of alleged will of sound and disposing mind and that if jury finds burden has not been met and that it is left uncertain and doubtful whether testatrix was of sound mind then jury should find for contestants. Blalock v. Magee, 205 Miss. 209, 38 So. 2d 708, 1949 Miss. LEXIS 426 (Miss. 1949).

Instruction that probating of will was prima facie evidence of its validity, and that burden of proving forgery thereof was on contestant, held erroneous. Ellis v. Ellis, 160 Miss. 345, 134 So. 150, 1931 Miss. LEXIS 187 (Miss. 1931).

Error in placing on contestant burden of proving will was forgery held not cured by instruction that burden was on proponent to prove signature was genuine. Ellis v. Ellis, 160 Miss. 345, 134 So. 150, 1931 Miss. LEXIS 187 (Miss. 1931).

In suit to probate a will, and to cancel the probate of prior wills, the burden of proof was on complainant. Mims v. Johnson, 129 Miss. 403, 92 So. 577, 1922 Miss. LEXIS 58 (Miss. 1922).

2. Admissibility and sufficiency of evidence.

When attesting witnesses deny execution or fail to testify, secondary evidence may be introduced by proponents of the will. Ward v. Ward, 124 Miss. 697, 87 So. 153, 1920 Miss. LEXIS 559 (Miss. 1920).

The proponents on an issue devisavit vel non may introduce evidence in rebuttal of that offered by contestants. Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 1903 Miss. LEXIS 99 (Miss. 1903).

3. —Proof of incapacity or undue influence.

A daughter overcame the presumption of undue influence arising from her father’s execution of a will leaving her 1/2 of his estate to the exclusion of a friend and charitable organizations where the father had told 2 totally disinterested witnesses that he wanted to change his will, the will was executed openly at a medical center in the presence of the 2 subscribing witnesses and medical personnel, and there was evidence that the father understood the extent and value of his assets and was rational, strong-willed, and independent up until the time of his death. Pallatin v. Jones (In re Will of Fankboner), 638 So. 2d 493, 1994 Miss. LEXIS 314 (Miss. 1994).

The test for rebutting a presumption of undue influence has been modified and no longer requires the independent advice of a competent person, but instead requires a showing of the grantor’s “independent consent and action.” Marsalis v. Lehmann, 566 So. 2d 217, 1990 Miss. LEXIS 532 (Miss. 1990).

Evidence that testator of advanced years living in nursing home was dependent upon beneficiary to some degree is insufficient basis for finding of confidential relationship resulting in will being product of undue influence where there is no proof that testator looked to beneficiary to care for personal needs, to tend to him, or to handle his affairs. In re Will & Estate of Varvaris, 477 So. 2d 273, 1985 Miss. LEXIS 2256 (Miss. 1985).

In an action contesting a will there is a presumption of undue influence that the law imposes where a confidential or fiduciary relationship exists. Harris v. Sellers, 446 So. 2d 1012, 1984 Miss. LEXIS 1649 (Miss. 1984), overruled in part, Mullins v. Ratcliff, 515 So. 2d 1183, 1987 Miss. LEXIS 2933 (Miss. 1987).

In a proceeding devisavit vel non involving a will which was challenged on the ground of lack of testamentary capacity and of undue influence, the submission to jury of both issues was error where the evidence as to undue influence was insufficient. In re Alexander's Will, 221 Miss. 478, 73 So. 2d 172, 1954 Miss. LEXIS 553 (Miss. 1954).

In will contest on ground of lack of testamentary capacity and existence of undue influence, general verdict of jury on issue of whether or not proponents have shown by preponderance of evidence both testamentary capacity and lack of undue influence at time of execution of will should be sustained if proponents fail to prove either or both of these necessary requirements. Blalock v. Magee, 205 Miss. 209, 38 So. 2d 708, 1949 Miss. LEXIS 426 (Miss. 1949).

In will contest on ground of lack of testamentary capacity and existence of undue influence, it should be assumed that general verdict of jury against validity of will was on ground of want of testamentary capacity which was amply supported by evidence, where proof was insufficient to sustain verdict on ground of undue influence. Blalock v. Magee, 205 Miss. 209, 38 So. 2d 708, 1949 Miss. LEXIS 426 (Miss. 1949).

As to undue influence testator’s declarations at time of execution of will admissible as res gestae. Sanders v. Sanders, 126 Miss. 610, 89 So. 261, 1921 Miss. LEXIS 70 (Miss. 1921).

Instruction on “undue influence” omitting element of destruction of free agency, is erroneous. Scally v. Wardlaw, 123 Miss. 857, 86 So. 625, 1920 Miss. LEXIS 89 (Miss. 1920).

Where evidence will not support a finding of incapacity, peremptory instruction for proponent proper. Scally v. Wardlaw, 123 Miss. 857, 86 So. 625, 1920 Miss. LEXIS 89 (Miss. 1920).

On an issue devisavit vel non, where the question is as to the sanity of the testator, the contestants are not required to prove his insanity beyond all reasonable doubt. King v. Rowan, 82 Miss. 1, 34 So. 325, 1903 Miss. LEXIS 158 (Miss. 1903).

Upon an issue devisavit vel non, an instruction for contestants is erroneous if it authorizes the jury, without qualification or limitation, to consider the reasonableness or unreasonableness of the will. King v. Rowan, 82 Miss. 1, 34 So. 325, 1903 Miss. LEXIS 158 (Miss. 1903).

4. Competency of witnesses.

Lay witnesses are competent to testify on issue of capacity of testator to make will on date of its alleged execution where they first give facts upon which their opinions are based. Blalock v. Magee, 205 Miss. 209, 38 So. 2d 708, 1949 Miss. LEXIS 426 (Miss. 1949).

At the trial of an issue devisavit vel non, the contestant, or the proponent, although the personal legatee, can testify in support of the will. Tucker v. Whitehead, 59 Miss. 594, 1882 Miss. LEXIS 169 (Miss. 1882).

5. Miscellaneous.

A breach of a contract not to revoke a will is not grounds for contesting the will pertaining to the contract. Trotter v. Trotter, 490 So. 2d 827, 1986 Miss. LEXIS 2485 (Miss. 1986).

Party who desires jury to try issue of devisavit vel non is under duty to specifically request jury before hearing on matter. In re Will & Estate of Varvaris, 477 So. 2d 273, 1985 Miss. LEXIS 2256 (Miss. 1985).

Under Code 1972 §11-5-3, §91-7-23, and §91-7-29, prescribing will contest procedures, trial judge erred in directing verdict in favor of proponents of will on issue of testamentary capacity and undue influence, since roll of jury in will contest is same as that of jury in civil trial in court of law and is not “merely advisory.” Fowler v. Fisher, 353 So. 2d 497, 1977 Miss. LEXIS 2002 (Miss. 1977).

The probate of a will in common form is not a final adjudication of its validity but is an “incipient step” necessary to enable the court to proceed to carry the will into execution, and it is not conclusive against heirs and distributees, and if they desire to contest the validity of the will this shall be done by an issue devisavit vel non. Perry v. Aldrich, 251 Miss. 429, 169 So. 2d 786, 1964 Miss. LEXIS 361 (Miss. 1964).

On trial of devisavit vel non after probate of will and record of probate proceedings, failure to submit such record to the jury was reversible error. Edgington v. Mabry, 111 Miss. 492, 71 So. 801, 1916 Miss. LEXIS 325 (Miss. 1916).

RESEARCH REFERENCES

ALR.

Estoppel to contest will or attack its validity by acceptance of benefits thereunder. 28 A.L.R.2d 116.

Alzheimer’s disease as affecting testamentary capacity. 47 A.L.R.5th 523.

Am. Jur.

80 Am. Jur. 2d, Wills § 872 et seq.

CJS.

95 C.J.S., Wills § 684 et seq.

§ 91-7-31. Wills recorded.

All original wills, after probate thereof, shall be recorded and remain in the office of the clerk of the court where they were proved, except during the time they may be removed to any other court under proper process, from which they shall be duly returned to the proper office. Authenticated copies of such wills may be recorded in any county in this state.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (23); 1857, ch. 60, art. 48; 1871, § 1004; 1880, § 1975; 1892, § 1828; 1906, § 2003; Hemingway’s 1917, § 1668; 1930, § 1613; 1942, § 509.

Cross References —

Criminal offense of forgery of record of will, see §97-21-45.

JUDICIAL DECISIONS

1. In general.

Under the provisions of Code 1972 §91-7-33, the original will of a non-resident testatrix was properly probated in this state, and this section prohibited withdrawal of the original will for transfer to another state. Crum v. First Nat'l Bank, 321 So. 2d 287 (Miss. 1975).

Court may take notice of fact that it has not been the practice to record domestic wills in counties other than that of original probate. Federal Land Bank v. Newsom, 175 Miss. 114, 161 So. 864, 166 So. 345, 1935 Miss. LEXIS 27 (Miss. 1935).

Statute providing that authenticated copies of wills may be recorded in any county is not mandatory. Federal Land Bank v. Newsom, 175 Miss. 114, 161 So. 864, 166 So. 345, 1935 Miss. LEXIS 27 (Miss. 1935).

Domestic will when probated and recorded in county in which testator resided at time of death constituted notice throughout state to subsequent mortgagee of land in Mississippi devised by will, without necessity of recording will in county wherein land was situated. Federal Land Bank v. Newsom, 175 Miss. 114, 161 So. 864, 166 So. 345, 1935 Miss. LEXIS 27 (Miss. 1935).

§ 91-7-33. Foreign wills recorded.

Authenticated copies of wills proven according to the laws of any of the states of the union, of the territories, of the District of Columbia, or of any foreign country, and affecting or disposing of property within this state, may be admitted to probate in the proper court. Such will may be contested as the original might have been if it had been executed in this state, or the original will may be proven and admitted to record here.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (25); 1857, ch. 60, art. 49; 1871, § 1105; 1880, § 1976; 1892, § 1829; 1906, § 2004; Hemingway’s 1917, § 1669; 1930, § 1614; 1942, § 510.

Cross References —

Revocation of letters testamentary granted to nonresident, see §91-7-89.

JUDICIAL DECISIONS

1. In general.

Chancellor erred in holding that Miss. Code Ann. §91-7-33 absolutely barred the sister from initially proving a lost foreign will in Mississippi where the will disposed of property in this state. Given the existence of genuine issues of material fact regarding the validity of the testator’s will, the chancellor should have proceeded with the will contest and impaneled a jury to decide the will’s validity. Watt v. Cobb (In re Estate of High), 19 So.3d 1282, 2009 Miss. App. LEXIS 743 (Miss. Ct. App. 2009).

Trial court had jurisdiction to admit to probate in Mississippi the will of nondomiciliary as the decedent had lived in a Mississippi county for more than 30 years, and the chancery court properly determined that at the time of his death decedent would have owned some clothing or other personal property in the county, and Miss. Code Ann. §91-7-33 does not require that the property be of a certain value or amount. In re Estate of Kelly v. Cuevas, 951 So. 2d 564, 2005 Miss. App. LEXIS 995 (Miss. Ct. App. 2005), aff'd in part and rev'd in part, 951 So. 2d 543, 2007 Miss. LEXIS 18 (Miss. 2007).

Mississippi courts may intervene when disposition of decedent’s interests involve property interests which are subject to its jurisdiction. Davis v. Davis, 507 So. 2d 24 (Miss. 1987).

Under the provisions of this section, the original will of a non-resident testatrix was properly probated in this state, and Code 1972 §91-7-31 prohibited the withdrawal of the original will for transfer to another state. Crum v. First Nat'l Bank, 321 So. 2d 287 (Miss. 1975).

Having properly assumed jurisdiction of the will of a non-resident testatrix, the Mississippi court was not required by comity to defer to the courts of the domiciliary state on the issue of which of the parties should bear the burden of the estate taxes and other debts of the estate. Crum v. First Nat'l Bank, 321 So. 2d 287 (Miss. 1975).

Beneficiary’s acquiescence in probate proceedings in Louisiana held not to estop him from seeking annulment of proceedings in Mississippi under certified copy of Louisiana proceedings. Gilmore v. Gilmore, 144 Miss. 424, 110 So. 111, 1926 Miss. LEXIS 377 (Miss. 1926).

Will of nonresident devising property within state may be probated in first instance in county where situated. Bolton v. Barnett, 131 Miss. 802, 95 So. 721, 1923 Miss. LEXIS 220 (Miss. 1923).

Foreign will ineffective as conveyance until probated, when it relates back; purchaser with notice of will takes subject to probate. Belt v. Adams, 125 Miss. 387, 87 So. 666, 1921 Miss. LEXIS 127 (Miss. 1921).

Judgment of Louisiana court establishing instrument as will, not conclusive on Mississippi court. Woodville v. Pizzati, 119 Miss. 442, 81 So. 127, 1919 Miss. LEXIS 22 (Miss. 1919).

All rights derived through a will insofar as it affects property situated in this state are governed by Mississippi law. Heard v. Drennen, 93 Miss. 236, 46 So. 243, 1908 Miss. LEXIS 67 (Miss. 1908).

The probate of an authenticated copy does not authorize an executor to maintain an ejectment without taking out letters in this state. Sims v. Walden, 65 Miss. 211, 3 So. 457 (Miss. 1887); Pratt v. Hargraves, 77 Miss. 892, 28 So. 722, 1900 Miss. LEXIS 52 (Miss. 1900).

RESEARCH REFERENCES

ALR.

Probate, in state where assets are found, of will of nonresident which has not been admitted to probate in state of domicil. 20 A.L.R.3d 1033.

Law Reviews.

1987 Mississippi Supreme Court Review, Wills and estates. 57 Miss. L. J. 542, August, 1987.

§ 91-7-35. Grant of letters testamentary.

The executor named in any last will and testament, whether made in this state or out of it and admitted to probate here on an authenticated copy or on the original, shall be entitled to letters testamentary thereon if not legally disqualified. A person shall not be capable of being executor who, at the time when letters testamentary ought to be granted, is under the age of eighteen years, of unsound mind, or convicted of a felony.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (25); 1857, ch. 60, art. 50; 1871, § 1106; 1880, § 1978; 1892, § 1831; 1906, § 2006; Hemingway’s 1917, § 1671; 1930, § 1615; 1942, § 511.

Cross References —

Recording of letters testamentary by chancery clerk, see §9-5-137.

Grant of letters testamentary by chancery clerk, see §9-5-141.

Power of bank to act as executor or administrator, see §81-5-33.

Accounts of fiduciaries in savings associations, see §81-12-139.

Persons disqualified to administer estate, see §91-7-65.

Appointment of testamentary guardian, see §93-13-7.

JUDICIAL DECISIONS

1. In general.

Appellant was never qualified to act as executor of the estate because appellant had been convicted of possesion of a controlled substance (a felony) and sentenced to serve two years in prison. Dodson v. Dodson (In re Estate of Dodson), 20 So.3d 73, 2009 Miss. App. LEXIS 716 (Miss. Ct. App. 2009).

Executor or administrator is regarded as officer of court subject to direction, supervision and control of court until estate is closed and he is finally discharged. Bailey v. Sayle, 206 Miss. 757, 40 So. 2d 618, 1949 Miss. LEXIS 298 (Miss. 1949).

Where foreign will is probated on authenticated copy, the court should appoint executors named therein if not disqualified under the laws of Mississippi, whether or not they are disqualified in the state where will is made. Heard v. Drennen, 93 Miss. 236, 46 So. 243, 1908 Miss. LEXIS 67 (Miss. 1908).

RESEARCH REFERENCES

ALR.

Delegation by will of the power to nominate executor. 11 A.L.R.2d 1284.

Construction and effect of statutory provision disqualifying persons wanting integrity. 73 A.L.R.2d 458.

Adverse interest or position as disqualification for appointment of administrator, executor, or other personal representative. 11 A.L.R.4th 638.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 158, 159, 160, 162.

9A Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 1 et seq. (appointment, qualification, and tenure).

8 Am. Jur. Legal Forms 2d, Executors and Administrators, §§ 104:13 et seq. (appointment, qualification, and tenure).

CJS.

33 C.J.S., Executors and Administrators §§ 21-23 et seq.

Law Reviews.

1978 Mississippi Supreme Court Review: Miscellaneous. 50 Miss. L. J. 165, March, 1979.

§ 91-7-37. Eighteen the age of majority for executors and administrators.

The age of eighteen (18) years shall be the age of majority of an executor, executrix, administrator or administratrix. In case letters testamentary or of administration shall be granted to any one under twenty-one (21) years, the bond executed by such person for the performance of the duties shall be as valid and binding as if such person were of full age.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (36); 1857, ch. 60, art. 51; 1871, § 1107; 1880, § 1979; 1892, § 1832; 1906, § 2007; Hemingway’s 1917, § 1672; 1930, § 1616; 1942, § 512; Laws, 1974, ch. 446, eff from and after passage (approved March 26, 1974).

Cross References —

Removal of disability of minority generally, see §93-19-1 et seq.

JUDICIAL DECISIONS

1. In general.

Approved sale or lease by minor administrator is valid. Giglio v. Woollard, 126 Miss. 6, 88 So. 401, 1921 Miss. LEXIS 5 (Miss. 1921).

RESEARCH REFERENCES

ALR.

Capacity of infant to act as executor or administrator, and effect of improper appointment. 8 A.L.R.3d 590.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 202.

CJS.

33 C.J.S., Executors and Administrators §§ 40, 41.

§ 91-7-39. Administration with will annexed.

If there be no executor named in any last will and testament, or if the executors named all renounce the executorship or, being required to qualify, shall all refuse or fail to do so or shall refuse or wilfully neglect, for the space of forty days after the death of the testator, to exhibit the will and testament for probate or shall all be disqualified, then administration with the will annexed shall be granted to the person who would be entitled to administer according to the rule prescribed for granting administration. Before granting such administration, each executor named in the will and testament who has not renounced the executorship shall be summoned to show cause why administration should not be granted. If any executor named be absent from the state at the time of the probate of the will and administration should be granted during his absence, such executor shall be allowed forty days after his return to make application for letters testamentary and, on his qualifying, the letters of administration shall be revoked; and the administrator shall deliver all the estate which has come to his hands to the executor and settle the account of his administration.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (31); 1857, ch. 60, art. 52; 1871, § 1108; 1880, § 1980; 1892, § 1833; 1906, § 2008; Hemingway’s 1917, § 1673; 1930, § 1617; 1942, § 513.

Cross References —

Power of bank to act as executor or administrator, see §81-5-33.

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 1014 et seq.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 1271-1273 (petition or application for letters of administration de bonis non with will annexed); Form 1275 (order appointing administrator de bonis non with will attached).

CJS.

34 C.J.S., Executors and Administrators §§ 1143-1153.

§ 91-7-41. Oath and bond of executor or administrator with will annexed.

Every executor or administrator with the will annexed, at or prior to the time of obtaining letters testamentary or of administration, shall take and subscribe the following oath, viz.:

“I do swear that the writing exhibited byme is the true last will and testament of_______________ , as far as I know and believe, and that I, if and whenappointed as executor, will well and truly execute the same accordingto its tenor, and discharge the duties required by law.” Inthe case of an administrator with the will annexed, then say “I,as administrator, will,” and “when appointed as administrator,will” etc.

He will alsogive bond in such penalty as will be equal to the full value of theestate, and with such sureties as may be approved of by the courtor by the clerk, payable to the state, with the following conditions,viz.:

“The conditionof this bond is, that if the abovebound_______________ , as executorof the last will and testament of_______________ , shall welland truly execute the willas far as the same may be consistent withlaw, and faithfully dischargeall the duties required of him by law,then this obligation shallbe void.” If the obligor be administratorwith the will annexed,then say “the above bound_______________ , as administratorwith the will of_______________annexed, will,”etc.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (33); 1857, ch. 60, art. 53; 1871, § 1109; 1880, § 1981; 1892, § 1834; 1906, § 2009; Hemingway’s 1917, § 1674; 1930, § 1618; 1942, § 514; Laws, 2001, ch. 422, § 1, eff from and after July 1, 2001.

Cross References —

Cancellation or reduction of bond, see §9-5-103.

Bond of administrator de bonis non, see §§91-7-69,91-7-71.

Bond of temporary administrator, see §91-7-55.

Oath and bond of administrator, see §91-7-67.

Bond and oath of county administrator, see §91-7-75.

Additional bond for county administrator, see §91-7-77.

Recording of bond, see §91-7-311.

New bonds for executors and administrators, see §§91-7-315,91-7-317.

Credit for cost of bond, see §91-7-319.

JUDICIAL DECISIONS

1. In general.

The liability of the surety of an administrator c. t. a. must be determined by the condition of the bond to the effect that the administrator should faithfully discharge all the duties required of him by law, when considered in connection with Code 1942, § 514. Fidelity & Deposit Co. v. Doughtry, 181 Miss. 586, 179 So. 846, 1938 Miss. LEXIS 99 (Miss. 1938).

RESEARCH REFERENCES

ALR.

What funds, not part of the estate, are received under color of office so as to render liable surety on executor’s or administrator’s bond. 82 A.L.R.3d 869.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 312, 313, 321, 322.

9A Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 341 et seq. (administration bonds).

CJS.

33 C.J.S., Executors and Administrators §§ 90-99.

34 C.J.S., Executors and Administrators §§ 325.

§ 91-7-43. Executor as residuary legatee.

If the executor be a residuary legatee, he may, instead of the bond required of other executors, give bond payable to the state in a sum, with two or more sureties, to the satisfaction of the court or clerk, conditioned to pay all the debts and legacies of the testator within one year. In such case the executor shall not be required to return an inventory or appraisement, but he shall file with his petition a sworn statement of the amount of the indebtedness of the testator, so far as he can ascertain the same. The giving of such bond shall not discharge the estate of the testator from liability for the payment of his debts; and such bond shall be subject to suits in the same manner as the bond required of other executors.

HISTORY: Codes, 1892, § 1835; 1906, § 2010; Hemingway’s 1917, § 1675; 1930, § 1619; 1942, § 515.

§ 91-7-45. When bond not required.

If the testator, by will, direct that his executor shall not be required to give bond, then none shall be required unless the court or the clerk, at the time of granting the letters or afterwards, shall have reason to require bond, in which event it shall be the duty of the court or clerk to require bond with sufficient sureties. If any creditor of such testator petition the court or the clerk in vacation, under oath, stating his claim and that he believes he is in danger of losing his demand, or some of it, by the bad management of said estate or by the personal insolvency of the executor, such executor, having had five days’ notice of the petition, shall be required to give a bond with sureties, to be approved by the court or clerk in vacation, payable to said creditor in a sufficient sum to cover his legal demand, and conditioned to save him from all loss by reason of any act or omission of such executor. Instead of such bond, the executor may give bond as if he had not been relieved from it by the will. If the bond required in either case be not given, it shall be the duty of the court or clerk to remove the executor and grant letters of administration, with the will annexed, to some other person.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (34); 1857, ch. 60, art. 54; 1871, § 1110; 1880, § 1982; 1892, § 1836; 1906, § 2011; Hemingway’s 1917, § 1676; 1930, § 1620; 1942, § 516.

JUDICIAL DECISIONS

1. In general.

In a probate proceeding, a chancellor did not err in not requiring the executor, the decedents’ son, to pay a bond because the will contained a provision that waived any bond. Carson Family Trust v. Carson (In re Estate of Carson), 986 So. 2d 1072, 2008 Miss. App. LEXIS 434 (Miss. Ct. App. 2008).

Executrix who was life tenant under will and who asserted absolute estate in all of property bequeathed, held properly required to give bond, notwithstanding testator’s direction no bond was required. Brown v. Franklin, 157 Miss. 38, 127 So. 561, 1930 Miss. LEXIS 256 (Miss. 1930).

RESEARCH REFERENCES

ALR.

Testamentary option to purchase estate property as surviving optionee’s death. 18 A.L.R.4th 578.

§ 91-7-47. Rights and duties of executor or administrator with will annexed.

  1. Every executor or administrator with the will annexed, who has qualified, shall have the right to the possession of all the personal estate of the deceased, unless otherwise directed in the will; and he shall take all proper steps to acquire possession of any part thereof that may be withheld from him, and shall manage the same for the best interest of those concerned, consistently with the will, and according to law. He shall have the proper appraisements made, return true and complete inventories except as otherwise provided by law, shall collect all debts due the estate as speedily as may be, pay all debts that may be due from it which are properly probated and registered, so far as the means in his hands will allow, shall settle his accounts as often as the law may require, pay all the legacies and bequests as far as the estate may be sufficient, and shall well and truly execute the will if the law permit. He shall also have a right to the possession of the real estate so far as may be necessary to execute the will, and may have proper remedy therefor.
  2. In addition to the rights and duties contained in this section, he shall also have those rights, powers and remedies as set forth in Section 91-9-9.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (32); 1857, ch. 60, art. 55; 1871, § 1111; 1880, § 1983; 1892, § 1837; 1906, § 2012; Hemingway’s 1917, § 1677; 1930, § 1621; 1942, § 517; Laws, 1994, ch. 589, § 3; Laws, 1999, ch. 374, § 1; Laws, 2002, ch. 612 , § 1; Laws, 2008, ch. 452, § 1, eff from and after passage (approved Apr. 8, 2008).

Editor’s Notes —

Section 91-9-9, referred to in (2), was repealed by Laws 2014, ch. 421, § 105, effective July 1, 2014.

Amendment Notes —

The 2002 amendment substituted “July 1, 2008” for “July 1, 2002” at the end of (2).

The 2008 amendment deleted the former last sentence of (2) which read: “The provisions of this subsection shall stand repealed from and after July 1, 2008.”

Cross References —

Accounts of executors in savings associations, see §81-12-139.

Additional obligations of fiduciary, see Miss. Uniform Chancery Court Rules 6.01 et seq.

JUDICIAL DECISIONS

1. In general.

Decedent’s son appointed as temporary administrator of the decedent’s son did not fail to file a required accounting because (1) the chancellor found such an accounting was filed, and (2) the decedent’s daughter admitted possessing a copy of the accounting. Flowers v. Flowers (In re Estate of Flowers), 269 So.3d 120, 2018 Miss. App. LEXIS 2 (Miss. Ct. App. 2018).

Judicial estoppel applied because plaintiff had a duty to discover all of the assets of his father’s estate before he agreed to close the estate and he could not now take a position that was opposed to his previous position which was to his benefit at the time. Furthermore, plaintiff was aware of the properties at the time he closed the estate. Johnson v. Herron, 33 So.3d 1160, 2009 Miss. App. LEXIS 744 (Miss. Ct. App. 2009), cert. denied, 34 So.3d 1176, 2010 Miss. LEXIS 227 (Miss. 2010).

An executor’s actions constituted civil contempt and did not measure up to the standard of prudence, caution and trust required of an executor where the estate was deprived of a substantial sum of money largely due to his inaction, even though he claimed that he relied on the advice of counsel for everything he did as executor. Holloway v. Holloway (In re Estate of Holloway), 631 So. 2d 127, 1993 Miss. LEXIS 603 (Miss. 1993).

Although one person may be named as both executrix and testamentary trustee, the executrix performs only such duties and powers granted to her as the law and will designates, and the power designated by the will only for the testamentary trustee does not transfer to the executrix unless the will so designates. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

Where a testamentary trust has not come into being, the authority to act as executrix, of one who is named both as executrix and as testamentary trustee by the will, is not governed by the trust powers granted to her as testamentary trustee. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

Court authority is not per se necessary to authorize an executrix with will annexed to exercise the estate’s stock voting rights in a closely held corporation. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

Where will did not confer authority, neither executor nor administrator with will annexed had authority to collect rents on realty except during year of testator’s death. Fidelity & Deposit Co. v. Doughtry, 181 Miss. 586, 179 So. 846, 1938 Miss. LEXIS 99 (Miss. 1938).

Action of administrator with will annexed in leasing realty following year of testator’s death, without court authority, was in his capacity as tenant in common with coheirs and codevisees and not as administrator. Fidelity & Deposit Co. v. Doughtry, 181 Miss. 586, 179 So. 846, 1938 Miss. LEXIS 99 (Miss. 1938).

Where to follow terms of will by not operating farm beyond certain period would result in permanent impairment and partial destruction of estate, court could authorize executor or trustee to operate farm for another year. Low v. First Nat'l Bank & Trust Co., 162 Miss. 53, 138 So. 586, 1932 Miss. LEXIS 102 (Miss. 1932).

Powers of executor co-extensive with will. Ricks v. Johnson, 134 Miss. 676, 99 So. 142, 1924 Miss. LEXIS 288 (Miss. 1924).

Executor entitled to execute trust where trustee not named; court must appoint named person executor if qualified. Ricks v. Johnson, 134 Miss. 676, 99 So. 142, 1924 Miss. LEXIS 288 (Miss. 1924).

Heirs and devisees should have notice and hearing on proceeding by executor to obtain possession of real estate, if executor not given specific control by will and there was sufficient cash to pay debts. Miles v. Fink, 119 Miss. 147, 80 So. 532, 1918 Miss. LEXIS 24 (Miss. 1918).

Executor before discharge cannot acquire tax title to land so as to defeat title of life devisee and remainderman. Deanes v. Whitfield, 107 Miss. 273, 65 So. 246, 1914 Miss. LEXIS 78 (Miss. 1914).

Chancery court cannot enlarge statutory powers of administrator. Alexander v. Herring, 99 Miss. 427, 55 So. 360, 1910 Miss. LEXIS 34 (Miss. 1910).

Chancery court cannot authorize administrator to engage in business with estate funds. Alexander v. Herring, 99 Miss. 427, 55 So. 360, 1910 Miss. LEXIS 34 (Miss. 1910).

Executor or administrator acting within authority is as much bound by estoppel as individuals. Caldwell v. Kimbrough, 91 Miss. 877, 45 So. 7, 1907 Miss. LEXIS 167 (Miss. 1907).

RESEARCH REFERENCES

ALR.

Power and responsibility of executor or administrator to compromise claim due estate. 72 A.L.R.2d 191.

Power and responsibility of executor or administrator to compromise claim against estate. 72 A.L.R.2d 243.

Power and responsibility of executor or administrator as to compromise or settlement of action or cause of action for death. 72 A.L.R.2d 285.

Judicial resolution of impasse between joint executors or administrators where concurrent action is required. 85 A.L.R.3d 1124.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 1029 et seq.

8 Am. Jur. Legal Forms 2d, Executors and Administrators § 104:55 (letter from attorney to executor or administrator of estate as to duties and liabilities).

8 Am. Jur. Legal Forms 2d, Executors and Administrators § 104:89 et seq. (custody and management of estate); § 104:157 et seq. (creditors’ claims).

CJS.

34 C.J.S., Executors and Administrators §§ 1151-1153.

§ 91-7-49. Directions of will to be followed.

Whenever any last will and testament shall empower and direct the executor as to the sale of property, the payment of debts and legacies, and the management of the estate, the directions of the will shall be followed by the executor, and the provisions herein contained shall not so operate as to require the executor to pursue a different course from that prescribed in the will, if it be lawful. If land be directed by the will to be sold, the sale shall be made and the proper conveyance executed by the executors, or such of them as shall undertake the execution of the will, or by the person appointed by the will to execute the trust. If the executor fail to qualify or die before he execute the will, and if the person appointed fail to execute the trust, the sale shall be made by the administrator with the will annexed. The executor shall, in all cases, make publication for creditors to probate their claims, as required in the administration of the estates of intestates and with like effect, any provision of the will to the contrary notwithstanding.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (113); 1857, ch. 60, art. 136; 1871, § 1194; 1880, § 1984; 1892, § 1838; 1906, § 2013; Hemingway’s 1917, § 1678; 1930, § 1622; 1942, § 518; Laws, 1940, ch. 232.

Cross References —

Additional provisions governing conduct of executor, see Miss. Uniform Chancery Court Rules 6.01 et seq.

JUDICIAL DECISIONS

1. In general.

2. Sale of property.

3. —Exercise of discretion.

4. —Notice; advertising.

5. —Taxes and expenses; surcharges.

6. —Multiple executors.

1. In general.

Chancery court did not err by considering the final accounting, the petition to close a decedent’s estate, and the wife’s objections to the final accounting because the daughter, who was appointed executor, repeatedly failed to comply with the chancery court’s orders; as executor, the daughter bore a responsibility to administer and close the estate, and she could not complain of errors she caused by failing to properly fulfill her duty. Chester v. Labasse (In re Estate of Labasse), 242 So.3d 167, 2017 Miss. App. LEXIS 540 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 70, 2018 Miss. LEXIS 192 (Miss. 2018).

Executrix was properly surcharged for payment of decedent’s debts which had not been probated, registered, or allowed. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

Crops growing on devised land at time of death of testatrix which are not needed by executor for payment of debts or cost of administration of estate pass to devisee of land rather than into estate for benefit of residuary legatees where will devised land and all trucks, farm implements, tractors and equipment thereon and directed that immediately after death of devisor devisee should be vested with entire control over her part of property. Oberst v. Mullens, 43 So. 2d 560 (Miss. 1949).

Intention of testator ascertained from entire will given effect if not illegal. Lesche v. Cutrer, 135 Miss. 469, 99 So. 136, 1924 Miss. LEXIS 1 (Miss. 1924).

Where a will creates an express trust for the payment of debts, by virtue of this section [Code 1942, § 518], the statute of limitations barring claims unless probated within one year after notice to creditors has no application. Gordon v. McDougall, 84 Miss. 715, 37 So. 298, 1904 Miss. LEXIS 96 (Miss. 1904).

The statute of limitations is no bar to the payment of unprobated claims in carrying out a will creating an express trust for the payment of debts. Gordon v. McDougall, 84 Miss. 715, 37 So. 298, 1904 Miss. LEXIS 96 (Miss. 1904).

Executors who have paid unprobated claims in pursuance of wills creating express trusts for their payment are entitled to be credited therewith in their accounts. Gordon v. McDougall, 84 Miss. 715, 37 So. 298, 1904 Miss. LEXIS 96 (Miss. 1904).

2. Sale of property.

Where a power of sale of the real estate is conferred by a testator because of his personal trust and confidence in the named executors neither the surviving executor, where more than one is designated, nor an administrator with the will annexed, where the named executors fail to qualify, die or resign, can convey title to the real property of testator without a valid order of court authorizing and empowering the sale and conveyance. Batson v. Humble Oil & Refining Co., 213 Miss. 340, 56 So. 2d 828, 1952 Miss. LEXIS 372 (Miss. 1952).

Where will gives power of sale to pay legacies, or for distribution, without stating by whom the sale is to be made, the executor takes the power by implication. Davis v. Sturdivant, 197 Miss. 139, 19 So. 2d 499, 1944 Miss. LEXIS 284 (Miss. 1944).

Under will providing “after my house and the rest of jewelry have been sold, I want the money equally divided between two named legatees,” and “should either boy die before of age this money to revert to the estate for further distribution of other request,” executrix had implied power to sell the realty, although proceeds therefrom were not to be delivered until the legatees became of age. Davis v. Sturdivant, 197 Miss. 139, 19 So. 2d 499, 1944 Miss. LEXIS 284 (Miss. 1944).

Sale by executrix of realty under power of sale in will is not a judicial sale, and needs no court order justifying it. Davis v. Sturdivant, 197 Miss. 139, 19 So. 2d 499, 1944 Miss. LEXIS 284 (Miss. 1944).

Gratuitous advice given by chancellor pursuant to request by executrix concerning implied power under will to sell realty does not diminish power of executrix in respect thereto. Davis v. Sturdivant, 197 Miss. 139, 19 So. 2d 499, 1944 Miss. LEXIS 284 (Miss. 1944).

In a contest between residuary legatees of a will and beneficiaries of an alleged gift inter vivos of certain separate stock which was by the will directed to be sold by the executors along with other assets of the estate for the payment of numerous legacies, wherein the residuary legatee sought to compel a more complete inventory by including such corporate stock, the burden of proof was upon the surviving executor and those claiming the stock, not as purchasers for value, to prove that such stock was not a part of the assets of the estate being administered. Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790, 1940 Miss. LEXIS 13 (Miss. 1940).

Authority conferred upon executors to sell lands held not discretionary, but to require sale at all events. Glidewell v. Pannell, 158 Miss. 249, 130 So. 288, 1930 Miss. LEXIS 45 (Miss. 1930).

Executor, unable to sell testator’s business at public auction, may be authorized by court to sell same to beneficiary for herself and as guardian of infant beneficiary. United States Fidelity & Guaranty Co. v. State, 110 Miss. 16, 69 So. 1007, 1915 Miss. LEXIS 20 (Miss. 1915).

3. —Exercise of discretion.

Decision to sell, made by executor, given discretion by will to sell or to operate wholesale grocery business, cannot be said to be other than act of ordinarily prudent business man, when success of business was due to decedent, whose place could not be filled because of war, great uncertainty prevailed in business field, good sale could be made, and objectors showed no certainty of profit from operations, or better sale later after attempt at continuation of business. Walker v. First Nat'l Bank, 204 Miss. 696, 38 So. 2d 98, 1948 Miss. LEXIS 398 (Miss. 1948).

Supreme court will not say that confirmation of sale of wholesale grocery business by executor, acting under authority of will, was manifestly wrong, when it is not pointed out by what means or manner a higher price could have been obtained for the assets of the estate nor in what respect beneficiaries in will suffered any loss. Walker v. First Nat'l Bank, 204 Miss. 696, 38 So. 2d 98, 1948 Miss. LEXIS 398 (Miss. 1948).

4. —Notice; advertising.

Sale of decedent’s property without legal citation to beneficiaries in will is valid where will relieves executor from legal citation to interested parties. Walker v. First Nat'l Bank, 204 Miss. 696, 38 So. 2d 98, 1948 Miss. LEXIS 398 (Miss. 1948).

Objection to executor’s sale of wholesale grocery business on ground that it was not sufficiently advertised is not well taken when, under the terms of will under which sale was made, no public notice of proposed sale was required to be given. Walker v. First Nat'l Bank, 204 Miss. 696, 38 So. 2d 98, 1948 Miss. LEXIS 398 (Miss. 1948).

Objection to executor’s sale of wholesale grocery business on ground that it was not sufficiently advertised is not well taken where publication containing elements of sale was made in three newspapers for period of approximately a week, prospective bidders were notified by telephone and letters, many people inspected property, successful bid exceeded appraised value, and objectors produced no proof more than possibility or speculation that had sale been postponed for ten or twenty days there would have been higher, or more numerous, bids on the later date. Walker v. First Nat'l Bank, 204 Miss. 696, 38 So. 2d 98, 1948 Miss. LEXIS 398 (Miss. 1948).

Fact that no notice was given to interested parties respecting sale of realty by executrix under power of sale in will, either in proceedings for sale or those whereby directions of court were sought, does not constitute a valid defense in executrix’s suit against purchaser at sale for specific performance. Davis v. Sturdivant, 197 Miss. 139, 19 So. 2d 499, 1944 Miss. LEXIS 284 (Miss. 1944).

5. —Taxes and expenses; surcharges.

Executrix would be surcharged for the amount the testamentary trust property was damaged or put in jeopardy due to her mortgaging of estate’s unencumbered real property as security for debt incurred by testator which was never probated. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

Reasonable expenditures for better sale of land were properly made out of general funds of estate where will directed sale of land and payment of proceeds, in different amounts, to special legatees with provision for reduction in proper proportion of each in event property did not sell for total amount devised, since special legatees are to be favored over residuary legatees to end that they may receive entire amount bequeathed to them respectively if property designated for that purpose could be caused to bring enough for that purpose by reasonable expenditures to promote advantageous sale. Oberst v. Mullens, 43 So. 2d 560 (Miss. 1949).

Unpaid taxes did not constitute valid defense to executrix’s suit for specific performance against purchaser of realty sold under power of sale in will, since executrix has duty under Code 1942, § 572 to pay the taxes and such obligation can be readily accounted for under the decree for specific performance. Davis v. Sturdivant, 197 Miss. 139, 19 So. 2d 499, 1944 Miss. LEXIS 284 (Miss. 1944).

In compliance with decree for specific performance of realty sold by executrix under power of sale in will, purchaser is entitled to deed free from lien for unpaid taxes. Davis v. Sturdivant, 197 Miss. 139, 19 So. 2d 499, 1944 Miss. LEXIS 284 (Miss. 1944).

6. —Multiple executors.

A testamentary power of sale conferred on two named executors did not survive the death of one of them and sales of real property made by the surviving executor were set aside where the intention of the testator, as indicated by repeated references in the will to actions to be taken by the co-executors in their joint discretion, was that the power of the remaining executor not survive. Reynolds v. State, 331 So. 2d 913, 1976 Miss. LEXIS 1887 (Miss. 1976).

The court would not order specific performance of a contract for the sale of land, which contract was signed by only one of two coexecutors where the second coexecutor knew nothing of the execution of the will and had not authorized the other executor to sign it for him, and where the contract itself did not purport to be signed by the executor for himself and for the coexecutor as joint executors, and where, although the second coexecutor signed a deed as contemplated by the contract, such deed was delivered not to the purchaser but merely to the attorney for the two coexecutors, such act not constituting delivery of the deed nor a ratification of the contract by the second coexecutor. Carter v. Hurst, 234 So. 2d 616, 1970 Miss. LEXIS 1412 (Miss. 1970).

Where will required sale of lands at all events, power vested in executors could be exercised by survivors, and court erroneously directed different course from that prescribed. Glidewell v. Pannell, 158 Miss. 249, 130 So. 288, 1930 Miss. LEXIS 45 (Miss. 1930).

§ 91-7-51. Effect of receipt for money by executor or trustee.

The receipt by an executor or any trustee, whether under a will or other instrument, for any money payable to him in the execution of his trust shall discharge the person paying it from any liability to see to the application of the money, unless otherwise expressly provided in the instrument which creates the trust.

HISTORY: Codes, 1880, § 1985; 1892, § 1839; 1906, § 2014; Hemingway’s 1917, § 1679; 1930, § 1623; 1942, § 519.

JUDICIAL DECISIONS

1. In general.

If plaintiff had had a valid claim to the proceeds of an estate sale, his sole legal recourse would have been to probate a claim against the estate pursuant to §91-7-51, and since he did not do so, he was barred from claiming the proceeds of the sale of minerals from the funds of the estate. Kelly v. Shoemake, 460 So. 2d 811, 1984 Miss. LEXIS 2019 (Miss. 1984).

§ 91-7-53. Temporary administrator.

Whenever it shall be necessary for the care and preservation of the estate of a decedent before the grant of letters testamentary, or of administration, to the person entitled thereto, the chancery court or chancellor in vacation, or the clerk of such court, on the petition of any creditor or other interested person, shall appoint a suitable person to be known as “temporary administrator.” The person named as executor or the person apparently entitled to letters of administration may be appointed temporary administrator, unless the court shall find that the circumstances require the appointment of a different person.

Whenever an appeal shall be taken from the grant of letters testamentary, or of administration, or whenever a last will and testament shall be contested, the chancery court or chancellor in vacation, on petition of any interested person, may appoint a temporary administrator if it shall appear necessary for the protection of the rights of the parties, and may make such appointment on such terms and impose such conditions as may seem proper.

The powers of such temporary administrator may be special or general, as the court may find proper, and he may be authorized to take charge of, preserve, and administer the estate until the appeal or contest shall be determined. Letters may be issued to him in ordinary form, except that he shall be therein designated as temporary administrator, and any terms or conditions imposed shall be stated therein; and the letters shall state that he is to act only until another appointment shall be made, either temporary or permanent.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (13); 1857, ch. 60, art. 30; 1871, § 1194; 1880, § 1986; 1892, § 1840; 1906, § 2015; Hemingway’s 1917, § 1680; 1930, § 1624; 1942, § 520; Laws, 1900, ch. 94; Laws, 1948, ch. 228, § 1.

Cross References —

Letters of administration, see §91-7-63 et seq.

Additional provisions governing the conduct of executors, administrators, and other fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et seq.

JUDICIAL DECISIONS

1. In general.

It was not an abuse of discretion to appoint a decedent’s son as the administrator of the decedent’s estate, even though the son was not so named in the decedent’s will, because (1) the administrator named in the will died, (2) the court had considerable discretion to appoint a temporary administrator to conserve the estate, and (3) the decedent’s daughters received sufficient notice of the appointment during the course of the litigation. Flowers v. Flowers (In re Estate of Flowers), 269 So.3d 120, 2018 Miss. App. LEXIS 2 (Miss. Ct. App. 2018).

Because a chancellor applied the wrong legal standard and incorrectly believed that only uncontested evidence was sufficient to remove the executor of the decedent’s estate, remand was necessary for a determination of whether a temporary executor was to be appointed. On remand, the chancellor was to use the correct legal standard, with the understanding that it is within the chancellor’s discretion to remove the executor even though the will contestant’s evidence may have been contested. Parker v. Benoist, 160 So.3d 198, 2015 Miss. LEXIS 113 (Miss. 2015).

On a will contest, the chancellor was justified in refusing to appoint a temporary administrator of the estate when, at the time the opponent of the will filed his petition to probate a later will in solemn form, the executrix, acting under an earlier will previously admitted to probate, had fully administered the estate, including notice to creditors and payment of all debts properly probated and nothing remained to be done except final distribution of the assets after a final decree of the court terminating the litigation. Cupit v. International Paper Co., 196 So. 2d 521, 1967 Miss. LEXIS 1489 (Miss. 1967).

Where a will probated in common form is contested, the executor may be temporarily removed pending the contest, and a temporary administrator appointed, without first finding the executor disqualified or guilty of misconduct. Sandifer v. Sandifer, 237 Miss. 464, 115 So. 2d 46, 1959 Miss. LEXIS 491 (Miss. 1959).

In a proceeding on a petition for appointment of a permanent administrator, where the chancery court’s determination of the heirs at law was not final because of a pending appeal, the appropriate action was appointment of a suitable person to act as a temporary administrator until the legal heirs of the decedent were finally determined. In re Estate of Burnside, 227 Miss. 110, 85 So. 2d 817, 1956 Miss. LEXIS 660 (Miss. 1956).

The status of an administrator is an issue distinct from other matters and it is not necessary that an appeal from an order withdrawing letters of administration await the final determination of the estate, and to hold otherwise would defeat the claim of a petitioner by permitting the incumbent to serve throughout the entire administration. Wells v. Boatner, 216 Miss. 108, 61 So. 2d 662, 1952 Miss. LEXIS 622 (Miss. 1952).

Chancery court has power under this section [Code 1942, § 520] to continue widow of deceased testator as administratrix for purpose of sale of land to pay debts in absence of sufficient personalty therefore, and failure of the court, after the existence of the will became known, to change the letters of administration granted to widow and sole heir at law to letters as temporary administratrix pending a will contest, did not render the action of the court absolutely void in ordering the land sold by her, but only voidable at most, since the court had constitutional jurisdiction of the subject matter and jurisdiction of all the parties in interest. Gill v. Johnson, 206 Miss. 707, 40 So. 2d 600, 1949 Miss. LEXIS 295 (Miss. 1949).

RESEARCH REFERENCES

ALR.

Loss of right to be appointed executor by delay in presenting will for probate or in seeking letters testamentary. 45 A.L.R.2d 916.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 1044 et seq.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 1191-1195 (petition or application for appointment of special or temporary administrator); Forms 1209-1211 (letters of special or temporary administration).

CJS.

34 C.J.S., Executors and Administrators §§ 1154-1156 et seq.

§ 91-7-55. Estate to be appraised.

Before the temporary administrator shall act as such, he shall take and subscribe an oath at or prior to the time of his appointment to faithfully discharge the duties required of him by law as such temporary administrator, and shall give bond, payable to the state, in such penalty and with such sureties as may be approved by the court or clerk, conditioned for the faithful discharge of the duties required of him as such temporary administrator by law or by order of the court or clerk. Thereupon, the estate shall be appraised as now provided by law upon the grant of letters testamentary or of administration, unless the same shall be dispensed with by the court or clerk. The temporary administrator shall make and return to the court a complete inventory of the estate, as is required by law to be made by executors in general or regular administrators, and, as soon as practicable, shall publish the notice provided by law to be published by executors and administrators, requiring creditors to have their claims against the estate probated and registered. All the provisions of the law governing such notice, the proof and registering of claims, and the bar of such as are not proved and registered shall apply when the notice is published by the temporary administrator, as when published by an executor or a general or regular administrator. When the temporary administrator shall have published such notice, no further notice to creditors to have their claims probated and registered shall be given or published upon any subsequent grant of letters testamentary or of administration; and where the estate has been appraised upon the appointment of a temporary administrator, no other appraisement shall be made upon the grant of letters testamentary or of the administration thereafter, unless the court or clerk shall deem the appraisement necessary or advisable.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (37); 1857, ch. 60, art. 56; 1871, § 1112; 1880, § 1987; 1892, § 1841; 1906, § 2016; Hemingway’s 1917, § 1681; 1930, § 1625; 1942, § 521; Laws, 2001, ch. 422, § 2, eff from and after July 1, 2001.

Cross References —

Inventory generally, see §91-7-93 et seq.

Additional provisions governing the conduct of executors, administrators, and other fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et seq.

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 493.

9A Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 561 et seq. (appointment and qualification of appraisers).

CJS.

34 C.J.S., Executors and Administrators § 202 et seq.

§ 91-7-57. Powers of temporary administrator.

The temporary administrator shall have power, and it shall be his duty, to collect the goods, chattels, personal property and debts of the decedent and to give acquittances for debts and liabilities upon payment. He may sue and be sued in all cases in which a general or regular administrator may sue or be sued; and suits brought by or against him shall not abate by the termination of his authority, but may be prosecuted by or against the executor or administrator thereafter appointed, and judgments recovered by or against him may be enforced by or against the executor or regular administrator thereafter appointed. The court, or chancellor in vacation, may at any time authorize the temporary administrator to sell such of the estate as may be perishable, likely to deteriorate in value, or be expensive to keep, and to dispose of any crops for cash, and to account for such property sold or disposed of. The court or chancellor, in ordering the sale of such property, shall take into consideration any disposition thereof by last will and testament, in case there be such, and shall order the sale of such property or not, as may be best for the parties in interest. After ninety (90) days from the time the temporary administrator was appointed and the time for probating claims has expired, the court or chancellor in vacation may order the temporary administrator to pay the claims of creditors and to hold the balance of the estate to await the ultimate probate or defeat of such last will and testament. In case the court, or chancellor in vacation, shall order the temporary administrator to pay creditors and make distribution, or to do either, he shall have all the powers and rights for the purpose over the estate, real and personal, that are conferred by law upon general or regular administrators; and all laws governing the acts and duties of a general or regular administrator shall then apply to and govern the temporary administrator.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (37); 1857, ch. 60, art. 57; 1871, § 1113; 1880, § 1988; 1892, § 1842; 1906, § 2017; Hemingway’s 1917, § 1682; 1930, § 1626; 1942, § 522; Laws, 1936, ch. 240; Laws, 1975, ch. 373, § 2, eff from and after January 1, 1976.

Cross References —

Power of executor or administrator to sue for rent due, see §89-7-13.

Additional provisions governing the conduct of executors, administrators, and other fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et seq.

JUDICIAL DECISIONS

1. In general.

Executor or administrator acting within his authority is as much bound by estoppel as individuals. Caldwell v. Kimbrough, 91 Miss. 877, 45 So. 7, 1907 Miss. LEXIS 167 (Miss. 1907).

RESEARCH REFERENCES

ALR.

Waiver or tolling of statute of limitations by executor or administrator. 8 A.L.R.2d 660.

Power and responsibility of executor or administrator to compromise claim due estate. 72 A.L.R.2d 191.

Power and responsibility of executor or administrator to compromise claim against estate. 72 A.L.R.2d 243.

Power and responsibility of executor or administrator as to compromise or settlement of action or cause of action for death. 72 A.L.R.2d 285.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 1048, 1054.

CJS.

34 C.J.S., Executors and Administrators §§ 1167-1172.

§ 91-7-59. Compensation of temporary administrator.

On the grant of letters testamentary or of administration, the powers of a temporary administrator shall cease, and it shall be his duty at once to settle his accounts with the court or chancellor in vacation and to deliver all the estate that may be in his hands to the person to whom letters testamentary or of administration shall have been granted. In case of refusal, the court or chancellor may proceed against him by attachment and impose a fine, as for a contempt, not exceeding twenty percent (20%) upon the amount of the estate in his hands; and his bond may be put in suit by the executor or administrator. The temporary administrator shall, at the same time, furnish the executor or administrator with a list of all judgments or suits to which he is a party. The court, or chancellor in vacation, may allow the temporary administrator such compensation as may be just, not exceeding five percent (5%) on the amount of the estate inventoried by him.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (40); 1857, ch. 60, art. 58; 1871, §§ 1114, 1115; 1880, §§ 1989, 1990; 1892, § 1843; 1906, § 2018; Hemingway’s 1917, § 1683; 1930, § 1627; 1942, § 523.

Cross References —

Allowance for losses, see §91-7-299.

JUDICIAL DECISIONS

1. In general.

Temporary administrator held entitled to compensation for, and necessary attorney fees incurred in, performance of his duties on same basis as regular administrator, where order appointing temporary administrator directed him to pay deceased’s debts and all but his incidental acts and expenditures were authorized by court and his services were for best interest of estate. King v. Wade, 175 Miss. 72, 166 So. 327, 1936 Miss. LEXIS 8 (Miss. 1936).

Allowance of compensation and attorney’s fees to administrator within limits prescribed by statute is addressed to sound discretion of chancery court. King v. Wade, 175 Miss. 72, 166 So. 327, 1936 Miss. LEXIS 8 (Miss. 1936).

Chancery court’s allowance of compensation to temporary administrator which was less than three per cent of the estate as inventoried, and allowance for attorney’s fees of slightly less than four per cent of estate, held not abuse of discretion. King v. Wade, 175 Miss. 72, 166 So. 327, 1936 Miss. LEXIS 8 (Miss. 1936).

Supreme court will not interfere with chancery court’s exercise of discretion in regard to allowance of compensation and attorney’s fees to administrator, except in cases of manifest and flagrant abuse. King v. Wade, 175 Miss. 72, 166 So. 327, 1936 Miss. LEXIS 8 (Miss. 1936).

RESEARCH REFERENCES

ALR.

Authority of probate court to depart from statutory schedule fixing amount of executor’s commissions and attorneys’ fees. 40 A.L.R.4th 1189.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 1041.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 1451 et seq. (compensation and allowances).

§ 91-7-61. Administrator to institute suits.

If necessary, an administrator may be appointed to institute and conduct suits, whose power shall cease when the litigation is entirely closed and who shall only account for the proceeds of the suit.

HISTORY: Codes, 1880, § 1992; 1892, § 1845; 1906, § 2019; Hemingway’s 1917, § 1684; 1930, § 1628; 1942, § 524.

Cross References —

Actions by administrator de bonis non, see §91-7-71.

Actions which accrue during administration, see §91-7-231.

Actions between co-administrators, see §91-7-247.

Suits by foreign executors or administrators, see §91-7-259.

Requirement that administrator must, unless he is licensed to practice law, retain solicitor, see Miss. Uniform Chancery Court Rule 6.01.

JUDICIAL DECISIONS

1. In general.

Widow’s failure to qualify as administratrix did not adversely affect the rights of husband’s insurer to recover on items covered by a subrogation agreement and the subrogation provisions of policy since the insurer had the right under Code 1972 §§91-7-61,91-7-63, to apply for and receive letters of administration to conduct whatever suits it deemed necessary to enforce its right. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

Decree in proceeding for appointment of administratrix and contract with attorney on part of administratrix for prosecution of death action can have no effect on right of widow and children to institute and maintain suit. Mississippi Power & Light Co. v. Smith, 169 Miss. 447, 153 So. 376, 1934 Miss. LEXIS 58 (Miss. 1934).

Railroad defendant cannot move for revocation of letters of administration granted for purpose of prosecuting suit for personal injuries. Yazoo & M. V. R. Co. v. Jeffries, 99 Miss. 534, 55 So. 354, 1911 Miss. LEXIS 224 (Miss. 1911).

RESEARCH REFERENCES

Am. Jur.

8 Am. Jur. Legal Forms 2d, Executors and Administrators, § 104:55, (letter from attorney to executor or administrator of estate as to duties and liabilities).

§ 91-7-63. Grant of administration.

  1. Letters of administration shall be granted by the chancery court of the county in which the intestate had, at the time of his death, a fixed place of residence; but if the intestate did not have a fixed place of residence, then by the chancery court of the county where the intestate died, or that in which his personal property or some part of it may be. The court shall grant letters of administration to the relative who may apply, preferring first the husband or wife and then such others as may be next entitled to distribution if not disqualified, selecting amongst those who may stand in equal right the person or persons best calculated to manage the estate; or the court may select a stranger, a trust company organized under the laws of this state, or of a national bank doing business in this state, if the kindred be incompetent. If such person does not apply for administration within thirty (30) days from the death of an intestate, the court may grant administration to a creditor or to any other suitable person.
  2. In addition to the rights and duties of the administrator contained in this chapter, he shall also have those rights, powers and remedies as set forth in Section 91-9-9.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (54); 1857, ch. 60, art. 61; 1871, §§ 1088, 1089; 1880, § 1993; 1892, § 1850; 1906, § 2024; Hemingway’s 1917, § 1689; 1930, § 1629; 1942, § 525; Laws, 1928, ch. 83; Laws, 1994, ch. 589, § 4; Laws, 1999, ch. 374, § 2; Laws, 2002, ch. 612 , § 2; Laws, 2008, ch. 452, § 2, eff from and after passage (approved Apr. 8, 2008).

Editor’s Notes —

Section 91-9-9, referred to in (2), was repealed by Laws 2014, ch. 421, § 105, effective July 1, 2014.

Amendment Notes —

The 2002 amendment substituted “July 1, 2008” for “July 1, 2002” at the end of (2).

The 2008 amendment deleted the former last sentence in (2), which read: “The provisions of this subsection shall stand repealed from and after July 1, 2008.”

Cross References —

Power of chancery clerk to grant letters of administration, see §9-5-141 et seq.

Payment of federal and state tax refunds due decedent without administration, see §27-73-9.

Bank acting as administrator, see §81-5-33.

Appointment of temporary administrator, see §91-7-53.

Administrator de bonis non, see §91-7-69.

County administrators, see §91-7-73 et seq.

Appointment of sheriff as administrator, see §91-7-83.

Executor in his own wrong, see §91-7-249.

JUDICIAL DECISIONS

1. Construction and application in general.

2. Necessity of administration.

3. Administration on behalf of creditors.

1. Construction and application in general.

Because the evidence indicated that the decedent had not divorced her former husband when she purportedly married the administrator, a chancellor did not abuse his discretion under Miss. Code Ann. §91-7-63(1) in removing and replacing the administrator. Estate of Wallace v. Mohamed, 55 So.3d 1057, 2011 Miss. LEXIS 97 (Miss. 2011).

Widower who was replaced as administrator should have remained administrator for his wife’s estate; given the statutory order of preference in Miss. Code Ann. §91-7-63(1), he was preferred to serve over the chancery court clerk because he was the natural father of one of his wife’s heirs. Estate of Wallace v. Mohamed, 55 So.3d 1088, 2010 Miss. App. LEXIS 106 (Miss. Ct. App. 2010), rev'd, 55 So.3d 1057, 2011 Miss. LEXIS 97 (Miss. 2011).

Widower should have remained administrator for his wife’s estate, in keeping with Miss. Code Ann. §91-7-63(1), because the evidence before the chancery court was wholly inadequate to show that the widower was not the decedent’s legal husband at the time of her death. There were no clerks’ certificates affirmatively showing that there was no divorce in counties where the decedent and her prior husband had lived. Estate of Wallace v. Mohamed, 55 So.3d 1088, 2010 Miss. App. LEXIS 106 (Miss. Ct. App. 2010), rev'd, 55 So.3d 1057, 2011 Miss. LEXIS 97 (Miss. 2011).

Deceased musician’s half-sister became executrix de son tort of decedent’s unprobated estate by entering agreement, in which she purported to be sister and only surviving heir of decedent, for assignment of decedent’s works, photographs, and materials in exchange for share of royalties. Johnson v. Harris (In re Estate of Johnson), 705 So. 2d 819, 1997 Miss. LEXIS 381 (Miss. 1997), cert. denied, Harris v. Johnson, 522 U.S. 1109, 118 S. Ct. 1037, 140 L. Ed. 2d 104, 1998 U.S. LEXIS 888 (U.S. 1998).

Where an administratrix was appointed in a county with no evidence that the decedent resided there, then the estate was transferred to the decedent’s county of residence and the estate filed a negligence action against defendants, summary judgment should have been granted to defendants because under Miss. Code Ann. §91-7-63(1), no legitimate estate ever existed and the appointment of the administratrix was void. Nat'l Heritage Realty, Inc. v. Estate of Boles, 947 So. 2d 238, 2006 Miss. LEXIS 473 (Miss. 2006), overruled in part, Lewis v. Pagel, 233 So.3d 740, 2017 Miss. LEXIS 221 (Miss. 2017).

Miss. Code Ann. §91-7-63(1) is jurisdictional in nature. Nat'l Heritage Realty, Inc. v. Estate of Boles, 947 So. 2d 238, 2006 Miss. LEXIS 473 (Miss. 2006), overruled in part, Lewis v. Pagel, 233 So.3d 740, 2017 Miss. LEXIS 221 (Miss. 2017).

Status as executrix de son tort, in favor of alleged illegitimate child of deceased musician, was assumed when irrevocable power of attorney was accepted from decedent’s half-sister after half-sister had assigned all rights to musician’s copyrights, as well as by later accepting appointment as personal representative of half-sister’s estate. Johnson v. Harris (In re Estate of Johnson), 705 So. 2d 819, 1997 Miss. LEXIS 381 (Miss. 1997), cert. denied, Harris v. Johnson, 522 U.S. 1109, 118 S. Ct. 1037, 140 L. Ed. 2d 104, 1998 U.S. LEXIS 888 (U.S. 1998).

Although the appointment of non-distributee relatives lies within the discretion of the chancery court under §91-7-63, a non-distributee relative had a legal right to letters of administration under the statute where she was the guardian of the sole minor heir. In re Estate of Moreland, 537 So. 2d 1337, 1989 Miss. LEXIS 2 (Miss. 1989).

The chancery court is given wide discretion in the appointment and revocation of administrators, including the discretionary authority to waive compliance with the 30-day period to apply for administration set forth in §91-7-63. In re Estate of Moreland, 537 So. 2d 1337, 1989 Miss. LEXIS 2 (Miss. 1989).

Notice to creditors of decedent’s estate signed by the then duly appointed and qualified administrator was valid, notwithstanding that he was removed, on motion of decedent’s widow, on the same date that notice to the creditors was first published, and a creditor’s claim filed some 2 months after expiration of the 90 day period from first publication date was time barred. Estate of Myers v. Myers, 498 So. 2d 376, 1986 Miss. LEXIS 2844 (Miss. 1986).

Widow’s failure to qualify as administratrix did not adversely affect the rights of husband’s insurer to recover on items covered by a subrogation agreement and the subrogation provisions of policy since the insurer had the right under Code 1972 §§91-7-61,91-7-63, to apply for and receive letters of administration to conduct whatever suits it deemed necessary to enforce its right. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

The provision of a state probate code giving a mandatory preference for appointment as administrator of a decedent’s estate to a male applicant over a female applicant otherwise equally qualified violates the equal protection clause of the Fourteenth Amendment; giving a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of a hearing on the merits of the applicants, constitutes an arbitrary legislative choice forbidden by the Fourteenth Amendment. Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225, 1971 U.S. LEXIS 8 (U.S. 1971).

A daughter of a decedent who is his sole heir and distributee, and fully competent, is entitled, as against decedent’s guardian, to be appointed administratrix of his estate. Moore v. Roecker, 239 Miss. 606, 124 So. 2d 473, 1960 Miss. LEXIS 329 (Miss. 1960).

Action of attorneys for plaintiff, who had a cause of action arising out of a motor vehicle collision, in actively participating in securing the appointment of another as administrator of decedent’s estate in order that the action against the estate might be brought in Simpson County and, thus, draw two other codefendants into the circuit court of that county was not improper, in the absence of a fraudulent agreement between plaintiff’s attorneys and the administrator, and the codefendant’s motion for a change of venue was properly denied. Great Southern Box Co. v. Barrett, 231 Miss. 101, 94 So. 2d 912, 1957 Miss. LEXIS 494 (Miss. 1957).

A chancellor has large discretion in the selection of the person to be appointed administrator of an estate except in cases made mandatory by the statute. In re Estate of Burnside, 227 Miss. 110, 85 So. 2d 817, 1956 Miss. LEXIS 660 (Miss. 1956).

In a proceeding on a petition for an appointment of an administrator, where a will appointing executors for decedent’s estate was set aside, the court did not abuse its discretion in denying an application for appointment as administrator and declining to remove the executors theretofore appointed. In re Estate of Burnside, 227 Miss. 110, 85 So. 2d 817, 1956 Miss. LEXIS 660 (Miss. 1956).

Executor or administrator is regarded as officer of court subject to direction, supervision and control of court until estate is closed and he is finally discharged. Bailey v. Sayle, 206 Miss. 757, 40 So. 2d 618, 1949 Miss. LEXIS 298 (Miss. 1949).

Chancellor has large measure of discretion, within limitations, in appointment and revocation of administration of decedents’ estates. Stribling v. Washington, 204 Miss. 529, 37 So. 2d 759, 1948 Miss. LEXIS 386 (Miss. 1948).

The right of husband, wife, or distributees to preference in granting of administration of intestate’s estate is legal right, unless incompetent, but matter is within sound discretion of court as to others. Stribling v. Washington, 204 Miss. 529, 37 So. 2d 759, 1948 Miss. LEXIS 386 (Miss. 1948).

Removal of appointed administratrix and appointment of deceased’s widow on petition by widow filed more than thirty days after intestate’s death is exercise of sound discretion of chancellor and proper when original administratrix was appointed on petition of daughter who withheld from chancellor all information as to widow, stating deceased was survived by three children, and widow knew nothing of proceedings and did not know administration was necessary. Stribling v. Washington, 204 Miss. 529, 37 So. 2d 759, 1948 Miss. LEXIS 386 (Miss. 1948).

Appointment of one other than husband of deceased as administrator within thirty-day period is not void, but appointee is subject to removal on husband’s application within thirty days, provided husband is fit person for appointment. Kevey v. Johnson, 167 Miss. 775, 150 So. 532, 1933 Miss. LEXIS 152 (Miss. 1933).

Sister of deceased appointed as administratrix held entitled to have administration expenses fixed as charge on real property inherited by husband who did not apply for appointment as administrator within thirty-day period. Kevey v. Johnson, 167 Miss. 775, 150 So. 532, 1933 Miss. LEXIS 152 (Miss. 1933).

2. Necessity of administration.

Heirs suing for debt to decedent must allege and prove no necessity of local administration. Richardson v. Neblett, 122 Miss. 723, 84 So. 695, 1920 Miss. LEXIS 472 (Miss. 1920).

Foreign administrator has no interest in personalty situated in Mississippi. Richardson v. Neblett, 122 Miss. 723, 84 So. 695, 1920 Miss. LEXIS 472 (Miss. 1920).

Where insurance policy was expressly payable to daughter of deceased alone, administrator to collect policy not necessary. Young v. Roach, 105 Miss. 6, 61 So. 984, 1913 Miss. LEXIS 184 (Miss. 1913).

3. Administration on behalf of creditors.

Where a nonresident and a resident were killed in an automobile collision in Mississippi allegedly as the result of the nonresident’s negligence, the heirs of the deceased resident had a cause of action against the personal representative of the deceased nonresident under the wrongful death statute Code 1942, § 1453, and were creditors of the nonresident’s estate, and upon their petition the chancery court of the county where the nonresident’s death occurred had jurisdiction to grant administration upon the estate of the nonresident. Day v. Hart, 232 Miss. 516, 99 So. 2d 656, 1958 Miss. LEXIS 301 (Miss. 1958).

Provision of this section [Code 1942, § 525] that if such persons as are preferred do not apply for administration within thirty days from death of intestate court may grant administration to creditor or other person is primarily for benefit of creditors, and only secondarily for benefit of persons inferior in priority to right to administer. Stribling v. Washington, 204 Miss. 529, 37 So. 2d 759, 1948 Miss. LEXIS 386 (Miss. 1948).

Recalcitrant heirs will not be permitted to hamper creditors to prejudice of creditors’ rights against an estate by failure promptly to institute administration thereof. Stribling v. Washington, 204 Miss. 529, 37 So. 2d 759, 1948 Miss. LEXIS 386 (Miss. 1948).

Creditors of decedent have first claim against his estate, and it is paramount duty of administrator to protect their interest. Stribling v. Washington, 204 Miss. 529, 37 So. 2d 759, 1948 Miss. LEXIS 386 (Miss. 1948).

The receiver of an alleged creditor of a decedent could not request appointment of administrator for decedent’s estate, unless it appeared that decedent died owing debt to alleged creditor. Thompson v. Carter's Estate, 180 Miss. 104, 177 So. 356, 1937 Miss. LEXIS 117 (Miss. 1937).

The possession and ownership of a decedent’s note on which there was a balance due disclosed, prima facie, such a debt as entitled receiver of alleged creditor of decedent to request appointment of administrator for decedent’s estate. Thompson v. Carter's Estate, 180 Miss. 104, 177 So. 356, 1937 Miss. LEXIS 117 (Miss. 1937).

A decedent’s heirs could not set up that amount of bank deposit due decedent exceeded amount of note held by receiver of bank, to prevent appointment of administrator for decedent’s estate on application of receiver, but such issue could only be raised in course of administration, or in suit on note against administrator. Thompson v. Carter's Estate, 180 Miss. 104, 177 So. 356, 1937 Miss. LEXIS 117 (Miss. 1937).

RESEARCH REFERENCES

ALR.

Right of surviving spouse, personally incompetent to serve as administrator because of being younger than age specified, to nominate administrator. 64 A.L.R.2d 1152.

Propriety of court’s appointment, as administrator of decedent’s estate, of stranger rather than person having statutory preference. 84 A.L.R.3d 707.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 158 et seq.

8 Am. Jur. Legal Forms 2d (Rev), Executors and Administrators § 104:9 et seq. (appointment, qualification, and tenure).

CJS.

33 C.J.S., Executors and Administrators § 39 et seq.

§ 91-7-65. Persons disqualified to administer.

Letters of administration shall not be granted to a person under the age of eighteen (18) years, of unsound mind, or convicted of any felony.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (60); 1857, ch. 60, art. 62; 1871, § 1090; 1880, § 1994; 1892, § 1851; 1906, § 2025; Hemingway’s 1917, § 1690; 1930, § 1630; 1942, § 526; Laws, 1976, ch. 375, eff from and after July 1, 1976.

Cross References —

Grant of letters testamentary to person under twenty-one, see §91-7-35.

JUDICIAL DECISIONS

1. In general.

An infant can neither be an administrator nor dictate who shall be appointed. Rea v. Englesing, 56 Miss. 463, 1879 Miss. LEXIS 145 (Miss. 1879).

RESEARCH REFERENCES

ALR.

Construction and effect of statutory provision that no person is competent to act as executor or administrator whom court finds incompetent by reason of want of integrity. 73 A.L.R.2d 458.

Adverse interest or position as disqualification for appointment of administrator, executor, or other personal representative. 11 A.L.R.4th 638.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 198, 199.

CJS.

33 C.J.S., Executors and Administrators §§ 54-59.

§ 91-7-67. Oath and bond of administrator.

The person to whom administration is granted, at or prior to the granting thereof, shall take and prescribe the following oath:

“I do swear that_______________ , deceased, died without any will, as far as I know or believe, and that I, if and when appointed, will well and truly administer all the goods, chattels, and credits of the deceased, and pay his debts as far as his goods, chattels, and credits will extend and the law requires me, and that I will make a true and perfect inventory of the said goods, chattels, and credits, and a just account, when thereto required. So help me God.”

He shall give bond in a penalty equal to the value of all the personal estate, with such sureties as may be approved by the court or clerk, payable to the state, with condition in form or to the effect following, to wit:

“The condition of this bond is, that if the above bound_______________ , as administrator of the goods, chattels, rights, and credits of_______________ , deceased, shall faithfully discharge all the duties required of him by law, then this obligation shall be void.”

The chancellor, in termtime or in vacation, may waive or reduce the bond if the administrator is the decedent’s sole heir or if all the heirs are competent and present their sworn petition to waive or reduce such bond.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (56); 1857, ch. 60, art. 63; 1871, § 1118; 1880, § 1995; 1892, § 1852; 1906, § 2026; Hemingway’s 1917, § 1691; 1930, § 1631; 1942, § 527; Laws, 1975, ch. 462; Laws, 2001, ch. 422, § 3, eff from and after July 1, 2001.

Cross References —

Oath and bond of executor or administrator with will annexed, see §91-7-41.

Bond and oath of county administrator, see §91-7-75.

Recording of bond, see §91-7-311.

New bonds for executors and administrators, see §§91-7-315,91-7-317.

Credit for cost of bond, see §91-7-319.

Additional provisions governing the conduct of executors, administrators, and other fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et seq.

JUDICIAL DECISIONS

1. In general.

That an administrator wrote designing and misleading letters intending to prevent, and which did prevent, a creditor from probating his claim, whereby it was lost, is not a breach of his bond. Nagle v. Ball, 71 Miss. 330, 13 So. 929, 1893 Miss. LEXIS 150 (Miss. 1893).

RESEARCH REFERENCES

ALR.

What funds, not part of the estate, are received under color of office so as to render liable surety on executor’s or administrator’s bond. 82 A.L.R.3d 869.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 261, 312, 313, 321, 322.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 311 et seq. (administration bonds).

CJS.

33 C.J.S., Executors and Administrators §§ 89-99.

§ 91-7-68. Administrator of estate of intestate under legal disability.

Upon the death intestate of any person under legal disability for whom a guardian, conservator or other fiduciary has been appointed by a court of competent jurisdiction and is serving, the judge or clerk of such court, upon proof of death of such person, may issue letters of administration to the already acting fiduciary, unless some relative or other person entitled to administer the estate shall within thirty days after the death of such person apply to the court for such administration. Upon the issuance of letters of administration to the already acting fiduciary, such fiduciary shall thereupon publish notice to creditors and administer the decedent’s estate in the manner required by law. Such fiduciary’s bond shall continue in force and he shall make only one (1) final account, unless the court, on the motion of any interested party or its own motion, shall require additional bond or accounting.

HISTORY: Codes, 1942, § 525.5; Laws, 1972, ch. 386, § 1, eff from and after passage (approved April 26, 1972).

JUDICIAL DECISIONS

1. In general.

The guardian of a life tenant did not automatically become the administrator of the life tenant’s estate on her death pursuant to §91-7-68, and thus she was not the proper party to prosecute an action to recover damages for personal injury, emotional distress, and reduction in value of the life estate following the life tenant’s death, since there is no administrator of the estate of a deceased person until one is qualified and appointed by the court. Madison v. Vintage Petroleum, 872 F. Supp. 340, 1994 U.S. Dist. LEXIS 18918 (S.D. Miss. 1994), dismissed, 85 F.3d 625, 1996 U.S. App. LEXIS 12907 (5th Cir. Miss. 1996), aff'd, 87 F.3d 1311, 1996 U.S. App. LEXIS 16949 (5th Cir. Miss. 1996).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 14.

CJS.

33 C.J.S., Executors and Administrators § 12.

§ 91-7-69. Administration de bonis non.

If an executor or administrator die, resign, be removed, or become incompetent, letters of administration de bonis non with the will annexed, or de bonis non, shall be granted to the person entitled, and he shall proceed in the administration of the estate. The letters, bond, and oath shall be in the common form, substituting proper words to show the character of the administration. The executor of an executor shall not be entitled, in right of his office, to administration de bonis non of the first estate; but such executor, or the administrator of an executor, or the executor or administrator of an administrator shall settle the accounts of his testator or intestate in the administration of the first estate, and for that purpose shall be amenable to the jurisdiction of the court.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (59); 1857, ch. 60, art. 65; 1871, § 1120; 1880, § 1997; 1892, § 1856; 1906, § 2031; Hemingway’s 1917, § 1696; 1930, § 1632; 1942, § 528.

Cross References —

Chancery clerk’s power to grant letters of administration de bonis non, see §9-5-141 et seq.

JUDICIAL DECISIONS

1. In general.

2. Powers and duties of administrator de bonis non.

3. Powers and duties of administrator of administrator.

1. In general.

Where administrator after final account and approval misappropriated money and absconded, distributees could sue on bond without administrator de bonis non. Davis v. State, 118 Miss. 577, 79 So. 764, 1918 Miss. LEXIS 98 (Miss. 1918).

It is not necessary to give notice to the legatees or wait until final settlement by the executor in order to appoint an administrator de bonis non cum testamento annexo. Sivley v. Summers, 57 Miss. 712, 1880 Miss. LEXIS 44 (Miss. 1880).

2. Powers and duties of administrator de bonis non.

Although administratrix de bonis non is only liable for unadministered assets of estate coming into her hands, she must file final account and have it approved. Hayes v. Holman, 165 Miss. 494, 144 So. 690, 1932 Miss. LEXIS 291 (Miss. 1932).

Administrator de bonis non entitled to amend so as to sue for value of property sold defendant where note given was excluded because payable to original administrator individually. Barnes v. Barnes, 109 Miss. 273, 68 So. 248, 1915 Miss. LEXIS 146 (Miss. 1915).

3. Powers and duties of administrator of administrator.

Where administrator of deceased administrator did not file account required and evidence showed money was paid out by deceased administrator without showing purposes, estate of deceased administrator and his bondsmen were liable to heirs and distributees, payment to be enforced out of original property of administrator if legally possible and in default thereof, out of bondsmen of deceased administrator. Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515, 1934 Miss. LEXIS 67 (Miss. 1934).

Bondsmen of deceased administrator’s administrator, who failed to file account required by statute, were liable to distributees of first estate for all consequences of failure of principal as administrator to faithfully discharge duties required. Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515, 1934 Miss. LEXIS 67 (Miss. 1934).

Where administrator of administrator did not file account as required, distributees of first estate could recover against bondsmen of administrator of administrator though demand was not probated, since demand was a liability, not a claim. Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515, 1934 Miss. LEXIS 67 (Miss. 1934).

Until account by administrator of administrator has been approved, administrator of administrator must hold in his hands sufficient assets of estate of his decedent to pay balance due to first estate, whether such assets are derivative of first estate, or whether original property of deceased administrator. Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515, 1934 Miss. LEXIS 67 (Miss. 1934).

Account by administrator of administrator must be filed with reasonable promptness. Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515, 1934 Miss. LEXIS 67 (Miss. 1934).

Courts have no authority to excuse performance of duty of administrator of administrator to settle accounts of deceased administrator, regardless of circumstances. Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515, 1934 Miss. LEXIS 67 (Miss. 1934).

In filing of account by administrator of administrator, the same requirements, including those in matter of notice to all proper parties in interest, must be observed which appertain to final accounts. Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515, 1934 Miss. LEXIS 67 (Miss. 1934).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 1014 et seq.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 1161 et seq. (administration de bonis non); Forms 1271 et seq. (administration de bonis non with will annexed).

CJS.

34 C.J.S., Executors and Administrators § 1129 et seq.

§ 91-7-71. Rights of administrator de bonis non.

Every administrator de bonis non shall be entitled to all choses in action taken or held by any former executor or administrator, and may institute suit therefor and, if necessary, enjoin the former executor or administrator from collecting the same. He may sue on the bond of any former executor or administrator of the estate, where the estate is insolvent or where suit and recovery may be necessary for the payment of the debts of the estate, for any money due by the former executor or administrator and which should have been accounted for and paid over by him. Where it shall be necessary for the payment of debts of the estate, an administrator de bonis non may except to the final account of a former executor or administrator, or surcharge and falsify an annual or partial settlement of such former executor or administrator, or file and maintain a bill to review any order or decree of the court allowing the account of such executor or administrator, in the same manner that distributees or legatees may do. The court or chancellor may require of an administrator de bonis non an additional bond to cover the money sought to be recovered by any such proceedings.

HISTORY: Codes, 1857, ch. 60, art. 135; 1871, § 1193; 1880, § 1998; 1892, § 1857; 1906, § 2032; Hemingway’s 1917, § 1697; 1930, § 1633; 1942, § 529.

Cross References —

Additional provisions governing the conduct of executors, administrators, and other fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et seq.

JUDICIAL DECISIONS

1. In general.

Administrator’s right to recover funds wrongfully paid to deceased’s sisters and to guardian of deceased’s illegitimate child passed to administratrix de bonis non upon her appointment, and it was her right and duty to recover such funds. National Surety Corp. v. Laughlin, 178 Miss. 499, 172 So. 490, 1937 Miss. LEXIS 187 (Miss. 1937).

While, under statute, administrator de bonis non is entitled to all choses in action taken or held by former administrator, and can maintain suit therefor, he can sue on bond of former administrator only in case estate is insolvent or where suit and recovery may be necessary for payment of debts of estate. National Surety Corp. v. Laughlin, 178 Miss. 499, 172 So. 490, 1937 Miss. LEXIS 187 (Miss. 1937).

Under statute, administrator de bonis non could not sue on bond of former administrator de bonis non, in absence of allegation that estate was insolvent or that recovery was necessary for payment of debts. National Surety Corp. v. Laughlin, 178 Miss. 499, 172 So. 490, 1937 Miss. LEXIS 187 (Miss. 1937).

The right of the administrator de bonis non to sue on the bond will be lost if the debts against the estate become barred or be paid, but the right survives to the distributees. Weir v. Monahan, 67 Miss. 434, 7 So. 291, 1889 Miss. LEXIS 66 (Miss. 1889).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 1029 et seq.

8 Am. Jur. Legal Forms 2d, Executors and Administrators § 104:55 (letter from attorney to executor or administrator of estate as to duties and liabilities).

§ 91-7-73. County administrator.

It shall be the duty of the chancellor to appoint for each county of his district an officer to be styled “county administrator,” to hold his office four years, and whose appointment shall be entered on the minutes of the court.

HISTORY: Codes, 1871, § 1091; 1880, § 1999; 1892, § 1846; 1906, § 2020; Hemingway’s 1917, § 1685; 1930, § 1634; 1942, § 530.

§ 91-7-75. Bond and oath of county administrator.

Before a county administrator shall perform any of the duties or functions of the office, and before any letters shall be granted to him, he shall execute and file in the office of the clerk of the chancery court a bond with two (2) or more sufficient sureties, to be approved by the chancellor in termtime or vacation, in a penalty of Five Thousand Dollars ($5,000.00) payable to the state, conditioned that he will discharge all the duties of the office of county administrator, which bond may be sued on at the instance of any person interested. He shall also take an oath at or prior to the granting of letters of administration, to be filed in the clerk’s office, to administer according to law every estate which may be committed to his charge, and that he will account for and pay over all monies in his hands by virtue of his office when thereto required by order of the court.

HISTORY: Codes, 1871, § 1093; 1880, § 2001; 1892, § 1847; 1906, § 2021; Hemingway’s 1917, § 1686; 1930, § 1635; 1942, § 531; Laws, 2001, ch. 422, § 4, eff from and after July 1, 2001.

Cross References —

Oath and bond of executor or administrator with will annexed, see §91-7-41.

Oath and bond of administrator, see §91-7-67.

Recording of bonds, see §91-7-311.

New bonds of executors and administrators, see §§91-7-315,91-7-317.

Additional provisions governing the conduct of executors, administrators, and other fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et seq.

§ 91-7-77. Additional bond may be required.

Whenever it shall appear that the penalty of the bond of the county administrator, as fixed, is not sufficient in amount to secure a faithful discharge of the duties of the office, it shall be the duty of the court or the chancellor, or the clerk in vacation, after five days’ notice given, to require him to give an additional bond in such penalty as the chancellor or clerk may deem sufficient to secure the rights of all parties interested; and on noncompliance, he may be removed from office.

HISTORY: Codes, 1871, § 1095; 1880, § 2002; 1892, § 1848; 1906, § 2022; Hemingway’s 1917, § 1687; 1930, § 1636; 1942, § 532.

RESEARCH REFERENCES

ALR.

What funds, not part of the estate, are received under color of office so as to render liable surety on executor’s or administrator’s bond. 82 A.L.R.3d 869.

§ 91-7-79. Letters granted to county administrator.

When it shall appear that any person has died, in this state or out of it, and has left real or personal property in this state, and some person has not applied for letters testamentary or of administration, the administration of the estate, after the expiration of sixty days from the death of such person, shall be committed to the county administrator, to whom letters of administration, administrator de bonis non, administration with the will annexed, or as the case may require, shall be granted. He shall administer the estate, as in other cases, under the direction of the court, with the same rights and liabilities as executors and other administrators. The county administrator shall not be bound to incur or be liable for costs, except such as the estate in his hands, in excess of his commissions shall be sufficient to pay. On the final settlement of the estate, he shall be allowed by the court, as his commissions, a sum not to exceed ten percent (10%) on the whole estate administered. The county administrator may also be appointed temporary administrator pending an appeal from the grant of letters testamentary or of administration, and administrator to institute suit in proper cases. He shall be liable in all cases on his official bond for his acts, and another bond need not be executed by him in any case unless, his official bond being insufficient, the court shall require an additional bond, or where he may be required to give bond to account for the proceeds of a sale of land.

HISTORY: Codes, 1871, § 1092; 1880, §§ 2004, 2005; 1892, § 1858; 1906, § 2033; Hemingway’s 1917, § 1698; 1930, § 1637; 1942, § 533.

Cross References —

Powers of chancery clerk generally, see §9-5-141 et seq.

County administrator acting as escheator, see §89-11-3.

RESEARCH REFERENCES

ALR.

Powers and duties of public administrator. 56 A.L.R.2d 1183.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 1095 et seq.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 1321 et seq. (public administrators).

CJS.

34 C.J.S., Executors and Administrators § 1195 et seq.

§ 91-7-81. Accounts to be filed when office vacated.

Should the county administrator resign his office or otherwise vacate it, he shall forthwith file an account of his administration in each case. Should such officer die, settlements of all estates committed to him shall be made by his executor or administrator.

HISTORY: Codes, 1871, § 1094; 1880, § 2006; 1892, § 1849; 1906, § 2023; Hemingway’s 1917, § 1688; 1930, § 1638; 1942, § 534.

Cross References —

Accounts generally, see §91-7-277.

Contents of final accounts, see §91-7-291.

Requirement that account filed by administrator must be personally signed and sworn to by him, see Miss. Uniform Chancery Court Rule 6.14.

§ 91-7-83. Sheriff administrator in certain cases.

If it appears that any person has died, in this state or out of it, and has left property, and some person will not qualify as executor or administrator, the court, or clerk in vacation, shall appoint the sheriff to be administrator, who shall administer the estate. The sheriff shall not be bound to incur any cost except out of the estate, and he shall be allowed not more than ten percent (10%) on the amount thereof. Any sheriff who may be appointed administrator shall make settlement of his administration, if he hath not done so before, at the termination of his office and deliver whatever property he may have of the estate at the time to his successor in office, or to such other person as may be appointed administrator. His official bond as sheriff shall be security for his faithful administration of such estate, and he shall not be required to execute any other bond, except to account for the proceeds of a sale of land.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 19 (1); 1857, ch. 60, art. 68; 1871, § 1092; 1880, § 2007; 1892, § 1859; 1906, § 2034; Hemingway’s 1917, § 1699; 1930, § 1639; 1942, § 535.

Cross References —

Sheriffs generally, see §19-25-1 et seq.

Delivery of property levied on by sheriff to successor, see §19-25-57.

JUDICIAL DECISIONS

1. In general.

Appointment of the sheriff as administrator d.b.n. under this section [Code 1942, § 535], at instance of nonresident creditors, may properly be denied where local administration has been completed. Stargell v. White, 234 Miss. 601, 107 So. 2d 125, 1958 Miss. LEXIS 532 (Miss. 1958).

The power of the sheriff to act as administrator ceases with his term of office, and a suit by him may be revived in the name of his successor, although he be still amenable to account for his acts as administrator. Cox v. Martin, 75 Miss. 229, 21 So. 611, 1897 Miss. LEXIS 82 (Miss. 1897).

§ 91-7-85. Removal and surrender of trust.

Every executor or administrator may be removed if he become disqualified, or for improper conduct in office, at the instance of any person interested, on five days’ notice to such executor or administrator; or may surrender the trust, and thereupon shall give the proper notice to the distributees or legatees and settle with the court. In case of removal or resignation, administration shall be granted as in case of the death of the executor or administrator, and with like effect. An executor or administrator who may be removed, or who may surrender his trust, shall continue to be answerable to the court until his final settlement and satisfaction be made, and until that time shall be liable on his bond.

HISTORY: Codes, 1857, ch. 60, art. 67; 1871, § 1122; 1880, § 2008; 1892, § 1860; 1906, § 2035; Hemingway’s 1917, § 1700; 1930, § 1640; 1942, § 536.

Cross References —

Removal of county administrator for failure to provide additional bond, see §91-7-77.

Removal for failure to return inventory, see §91-7-105.

Suits by or against administrator, see §91-7-241.

Removal for failure to account, see §§91-7-277,91-7-283.

Hearing on removal proceedings, see §91-7-289.

Removal for failure to furnish new bond when required, see §§91-7-315,91-7-317.

JUDICIAL DECISIONS

1. In general.

Executor’s misrepresentation of the true facts to the chancery court (his brother’s known claims of ownership to the livestock and the evidence of a valid inter vivos gift by the decedent), amounted to “improper conduct” under Miss. Code Ann. §91-7-85, and his removal as executor of the estate was proper. Further, the chancellor properly found that the executor (and his attorney), violated the Mississippi Litigation Accountability Act, Miss. Code Ann. §§11-55-1 through11-55-15 (Rev. 2002), and Miss. R. Civ. P. 11(b), by their misrepresentations in obtaining an order from the chancery court, permitting them to retrieve the subject livestock, and the chancellor’s award of attorney’s fees and expenses was proper. In re Estate of Ladner v. Ladner, 909 So. 2d 1051, 2004 Miss. LEXIS 1356 (Miss. 2004) (Miss. – 2004).

Chancellor’s removal of executrix of decedent’s estate was amply supported by record showing that she had paid unprobated claims, had failed to timely file estate tax returns, and had paid attorney’s fees without court approval, as well as conflicts of interest in the matter of administering the estate. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

Since the chancellor had the power to appoint a temporary administrator, it followed that if an executor had qualified, such executor must be removed during the pendency of the will contest in order to permit the temporary administrator to perform his duties pending the outcome of the contest, but since the petition for appointment of the temporary administrator was not brought under this section [Code 1942, § 536], if the will is upheld, appellant would be entitled to resume the office of executor, unless and until he is removed permanently under appropriate proceedings. Sandifer v. Sandifer, 237 Miss. 464, 115 So. 2d 46, 1959 Miss. LEXIS 491 (Miss. 1959).

Supreme court will not interfere with action of chancery court in removing trustee on its own motion, unless palpably unjust. Nutt v. State, 96 Miss. 473, 51 So. 401, 1910 Miss. LEXIS 171 (Miss. 1910).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 275, 279, 280.

9A Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 261 et seq. (termination of authority); Forms 301 et seq. (removal).

8 Am. Jur. Legal Forms 2d, Executors and Administrators, § 104:42 et seq. (renunciation and resignation).

CJS.

33 C.J.S., Executors and Administrators §§ 139, 140 et seq.

§ 91-7-87. Administration revoked by proof of will and grant of letters testamentary.

If a will shall be found and probated and letters testamentary be granted thereon, the same shall be a revocation of the administration; but acts lawfully done by the administrator without actual notice of such revocation shall be valid and binding.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (55); 1857, ch. 60, art. 64; 1871, § 1119; 1880, § 1996; 1892, § 1853; 1906, § 2027; Hemingway’s 1917, § 1692; 1930, § 1641; 1942, § 537.

JUDICIAL DECISIONS

1. In general.

Where an instrument was considered to be a deed and there was a grant of intestate administration, this was not res judicata on the issue whether testator died leaving a will, and the grant of testator administration is not a bar to the subsequent probate of a will. White v. Inman, 212 Miss. 237, 54 So. 2d 375, 1951 Miss. LEXIS 447 (Miss. 1951).

Chancery court has power under Code 1942, § 520, to continue widow of deceased testator as administratrix for purpose of sale of land to pay debts in absence of sufficient personalty therefor, and failure of the court, after the existence of the will became known, to change the letters of administration granted to widow and sole heir at law to letters as temporary administratrix pending a will contest, did not render the action of the court absolutely void in ordering the land sold by her, but only voidable at most, since the court had constitutional jurisdiction of the subject-matter and jurisdiction of all the parties in interest. Gill v. Johnson, 206 Miss. 707, 40 So. 2d 600, 1949 Miss. LEXIS 295 (Miss. 1949).

Where testimony was sufficient to have will probated in solemn form, chancery court had authority to admit will to probate, grant letters testamentary to executor named therein, and set aside appointment of administratrix theretofore made under statute providing that if a will shall be found and probated, and letters testamentary granted thereon, the same shall be a revocation of administration. Austin v. Patrick, 179 Miss. 718, 176 So. 714, 1937 Miss. LEXIS 74 (Miss. 1937).

RESEARCH REFERENCES

ALR.

Statutes dealing with existing intestate administration, upon discovery of will. 65 A.L.R.2d 1201.

Right to probate subsequently discovered will as affected by completed prior proceedings in intestate administration. 2 A.L.R.4th 1315.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators, §§ 275, 279, 280.

9A Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Form 273 (petition or application to revoke letters of administration and for probate of will and issuance of letters testamentary).

CJS.

33 C.J.S., Executors and Administrators § 139, 140.

§ 91-7-89. Letters of certain nonresidents revoked.

If letters testamentary or of administration be granted to any person not a resident of the state, or if any executor or administrator after his appointment remove out of the state, and if such executor or administrator refuse or neglect to settle his accounts annually or neglect the due administration thereof in any other respect, the court, after publication made and proof thereof as in other cases, or personal notice, may revoke the letters of such executor or administrator and proceed to grant administration de bonis non as if such executor or administrator had died or resigned.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 21 (7); 1857, ch. 60, art. 130; 1871, § 1188; 1880, § 2009; 1892, § 1861; 1906, § 2036; Hemingway’s 1917, § 1701; 1930, § 1642; 1942, § 538.

§ 91-7-90. Order of abatement for shares of distributees of deceased's property.

  1. Except as provided in subsection (2) and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order: (a) property not disposed of by the will; (b) residuary bequests and devises; (c) general bequests and devises; (d) specific bequests and devises. For purposes of abatement, a general bequest or devise charged on any specific property or fund is a specific bequest or devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general bequest or devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received, if full distribution of the property had been made in accordance with the terms of the will.
  2. If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (1), the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.
  3. If the subject of a preferred bequest or devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.

HISTORY: Laws, 2019, ch. 458, § 11, eff from and after July 1, 2019.

§ 91-7-91. Assets defined; unsecured creditors to give notice.

The real property, goods, chattels, personal property, choses in action and money of the deceased, or which may have accrued to his estate after his death from the sale of property, real, personal or otherwise, and the rent of lands accruing during the year of his death, whether he died testate or intestate, shall be assets and shall stand chargeable with all the just debts, funeral expenses of the deceased, and the expenses of settling the estate, without any preference or priority as between real and personal property, and shall abate in the manner set out in Section 91-7-90. However,in cases where no administration has been or shall be commenced on the estate of the decedent within three (3) years after his death, no creditor of the decedent shall be entitled to a lien or any claim whatsoever on any real property of the decedent, or the proceeds therefrom, against purchasers or encumbrancers for value of the heirs of the decedent unless such creditor shall, within three (3) years and ninety (90) days from the date of the death of the decedent, file on the lis pendens docket in the office of the clerk of the chancery court of the county in which the land is located notice of his claim, containing the name of the decedent, a brief statement of the nature, amount and maturity date of his claim and a description of the real property sought to be charged with the claim. The provisions of this section requiring the filing of notice shall not apply to any secured creditor having a recorded lien on the property.

HISTORY: Codes, 1857, ch. 60, art. 80; 1871, § 1134; 1880, § 2025; 1892, § 1881; 1906, § 2056; Hemingway’s 1917, § 1721; 1930, § 1643; 1942, § 539; Laws, 1938, ch. 262; Laws, 1975, ch. 373, § 3, eff from and after January 1, 1976; Laws, 2019, ch. 458, § 12, eff from and after July 1, 2019.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected an error near the beginning of the second sentence by deleting the word “that” following “However.” The Joint Committee ratified the correction at its August 12, 2019, meeting.

Amendment Notes —

The 2019 amendment, in the first sentence, inserted “real property,” substituted “personal property” for “personal estate,” and added “without any preference or priority…set out in Section 91-7-90” at the end; deleted the former second sentence, which read: “The lands of the testator or intestate shall also stand chargeable for the debts and such expenses over and above what the personal estate may be sufficient to pay, and may be subjected thereto in the manner hereinafter directed”; substituted “with the claim” for “therewith” at the end of the next-to-last sentence; and made a minor stylistic change.

Cross References —

Payment to heirs of money in savings association account without administration, see §81-12-143.

Rent as asset, see §89-7-11.

Liability of exempt property for debts of decedent, see §91-1-21 et seq.

Summary proceeding to discover assets, see §91-7-103.

Receipt of property in compromise of claim, see §91-7-229.

Use of assets by fiduciary, see §91-7-253.

JUDICIAL DECISIONS

1. Construction and application in general.

2. Rents or other income as assets.

3. Particular claims or charges as debts.

4. Intent of testator.

1. Construction and application in general.

When executor bank obtains Mississippi court decision under §91-7-91 requiring that federal estate taxes, debts and expenses of estate be paid out of personalty of estate, starting with residuum, and bank subsequently obtains conflicting court decision in another state requiring that tax liability of estate be apportioned equally among all estate beneficiaries, whether of real or personal property, pro rata, federal court in which bank files interpleader action will give full faith and credit and preclusive effect to latter state court decision. First Tennessee Bank N.A. v. Smith, 766 F.2d 255, 1985 U.S. App. LEXIS 20109 (6th Cir. Tenn. 1985).

In the absence of a direction to the contrary by the testator, estate taxes must be paid first from personal property not specifically devised by will, secondly from other personalty of the estate, and thirdly, if necessary, from the real estate. Stovall v. Stovall, 360 So. 2d 679, 1978 Miss. LEXIS 2295 (Miss. 1978).

Having properly assumed jurisdiction of the will of a non-resident testatrix, the Mississippi court was not required by comity to defer to the courts of the domiciliary state on the issue of which of the parties should bear the burden of the estate taxes and other debts of the estate. Crum v. First Nat'l Bank, 321 So. 2d 287 (Miss. 1975).

Property held by a decedent as trustee is no part of the assets of his estate, but his personal representative becomes trustee ex officio. Holliman v. Demoville, 243 Miss. 542, 138 So. 2d 734, 1962 Miss. LEXIS 373 (Miss. 1962).

Administration of decedent’s estate covers only personal property belonging to estate and real property is not involved unless and until personal property becomes insufficient to pay debts and it becomes necessary to resort to land for payment of debts of estate. Barnes v. Rogers, 206 Miss. 887, 41 So. 2d 58, 1949 Miss. LEXIS 311 (Miss. 1949).

The term “assets,” as applied to decedent’s estate and as used in this section [Code 1942, § 539], means property which is available, if necessary, for the payment of debts and expenses. Gaines v. Klein, 203 Miss. 271, 34 So. 2d 489, 1948 Miss. LEXIS 262 (Miss. 1948).

Upon death of owner, personalty descends to personal representative for payment of debts and legacies, and realty goes to heirs and devisees. Gidden v. Gidden, 176 Miss. 98, 167 So. 785, 1936 Miss. LEXIS 116 (Miss. 1936).

Realty goes to heirs and devisees and is not subject to debts until personalty is exhausted, unless will expressly provides otherwise. Gidden v. Gidden, 176 Miss. 98, 167 So. 785, 1936 Miss. LEXIS 116 (Miss. 1936).

Lien of creditors of decedent under statute held charge only on right, title, and interest of deceased in land at date of death. Blum v. Planters' Bank & Trust Co., 161 Miss. 226, 135 So. 353, 1931 Miss. LEXIS 257 (Miss. 1931).

Lien of creditors on lands of decedent is not superior to rights acquired by third parties in such land before death of decedent. Blum v. Planters' Bank & Trust Co., 161 Miss. 226, 135 So. 353, 1931 Miss. LEXIS 257 (Miss. 1931).

Bank becoming creditor before lands were conveyed to decedent acquired no right to subject land to payment of debts superior to outstanding liens thereon or equities therein, recorded or unrecorded, existing at grantee’s death. Blum v. Planters' Bank & Trust Co., 161 Miss. 226, 135 So. 353, 1931 Miss. LEXIS 257 (Miss. 1931).

Bequest of personalty not theretofore specifically willed was residuum and chargeable with payment of debts to exoneration of real estate. Anderson v. Gift, 156 Miss. 736, 126 So. 656, 1930 Miss. LEXIS 213 (Miss. 1930).

On accounting administrator is liable for actual value of property coming into his hands, not value fixed by appraisers. Davis v. Blumenberg, 107 Miss. 432, 65 So. 503, 1914 Miss. LEXIS 102 (Miss. 1914).

Under this section [Code 1942, § 539] and Code 1942, § 588 the personal estate must be exhausted before the lands may be resorted to for the payment of debts, unless a contrary intent be manifested in the will of the decedent. Gordon v. James, 86 Miss. 719, 39 So. 18, 1905 Miss. LEXIS 93 (Miss. 1905).

An administrator, by consent of the heirs, may lease out decedent’s lands for the purpose of paying his debts. Ashley v. Young, 79 Miss. 129, 29 So. 822, 1901 Miss. LEXIS 16 (Miss. 1901).

2. Rents or other income as assets.

This section [Code 1942, § 539] simply makes rents liable for the debts and expenses of administration if needed for that purpose; if rents are collected from property specifically devised, they are the property of the devisee and not liable for such debts and expenses until the residuum of the estate has been exhausted. Gaines v. Klein, 203 Miss. 271, 34 So. 2d 489, 1948 Miss. LEXIS 262 (Miss. 1948).

Where testatrix in devise of real estate provided for possession thereof in the devisee immediately upon probate of her will if she should die before the month of April in any year thereafter, and she died prior to April, the rents accruing from such realty during the year of her death did not become part of her personal estate so as to be chargeable for her debts, this section [Code 1942, § 539] being inapplicable under such circumstances. Eatherly v. Winn, 185 Miss. 742, 189 So. 99, 1939 Miss. LEXIS 184 (Miss. 1939).

Where a testatrix provided for the payment of all her just and legal debts, taxes on real estate accruing and due for the year prior to her death were to be paid by her executors and were not chargeable against the devisee of such real estate devised to him subject to one-half of the mortgage debt thereon. Eatherly v. Winn, 185 Miss. 742, 189 So. 99, 1939 Miss. LEXIS 184 (Miss. 1939).

Where will did not confer authority, neither executor nor administrator with the will annexed had authority to collect rents on realty except during year of testator’s death. Fidelity & Deposit Co. v. Doughtry, 181 Miss. 586, 179 So. 846, 1938 Miss. LEXIS 99 (Miss. 1938).

Rent accruing on decedent’s realty during year of decedent’s death held asset in administrator’s hands. Wright v. Wright, 160 Miss. 235, 134 So. 197, 1931 Miss. LEXIS 202 (Miss. 1931).

Rent accruing on land in Mississippi is a debt governed by its laws. Richardson v. Neblett, 122 Miss. 723, 84 So. 695, 1920 Miss. LEXIS 472 (Miss. 1920).

Under this section [Code 1942, § 539] and Code 1942, § 577 rents accruing during the year of decedent’s death, and crops remaining on the lands at the date of his death, whether gathered or still in the field, and whether they are matured or not, are assets of decedent, whether testate or intestate, and as such pass into the hands of the personal representative for the payment of the debts and the expenses of administration. Gordon v. James, 86 Miss. 719, 39 So. 18, 1905 Miss. LEXIS 93 (Miss. 1905).

3. Particular claims or charges as debts.

Since all the personal and real property of a deceased surety of an administratrix of a veteran’s estate were assets of his estate and chargeable as such with his debts, a proceeding to enforce such charge against the property in the hands of such deceased surety’s sole distributee because of administratrix’s maladministration of the veteran’s estate must be recognized. Hill v. Ouzts, 190 Miss. 341, 200 So. 254, 1941 Miss. LEXIS 54 (Miss. 1941).

When bank became insolvent and closed, deceased stockholder’s double liability matured, standing in same class as other unsecured debts, and became charge on estate’s entire personalty and realty. Gift v. Love, 164 Miss. 442, 144 So. 562, 1932 Miss. LEXIS 252 (Miss. 1932).

Heirs hold legal title to land subject to charge of ancestor’s debts, though indebtedness be not ascertained at death. Gift v. Love, 164 Miss. 442, 144 So. 562, 1932 Miss. LEXIS 252 (Miss. 1932).

Where devise was void and deceased bank stockholder’s heirs obtained judgment against testamentary trustee for proceeds of land sold, judgment claim held inferior to bank’s double liability claim on stock, and heirs took remaining land subject to such liability. Gift v. Love, 164 Miss. 442, 144 So. 562, 1932 Miss. LEXIS 252 (Miss. 1932).

Before bank went into liquidation, no compromise settlement could be made between bank, stockholder’s heirs, and testamentary trustee, which would result in defeating bank’s right to enforce double liability. Gift v. Love, 164 Miss. 442, 144 So. 562, 1932 Miss. LEXIS 252 (Miss. 1932).

Bank’s quitclaim deed of deceased stockholder’s and debtor’s land to heirs in settlement transaction, whereby heirs took certain assets in satisfaction of their judgment against estate which was inferior to bank’s claim, held not supported by consideration. Gift v. Love, 164 Miss. 442, 144 So. 562, 1932 Miss. LEXIS 252 (Miss. 1932).

That bank, without consideration, quitclaimed deceased bank stockholder’s land to heirs, pursuant to compromise settlement, and took bank stock in satisfaction of bank’s claim for loan held not to preclude superintendent of banks, after bank closed, from enforcing stockholder’s double liability against land quitclaimed. Gift v. Love, 164 Miss. 442, 144 So. 562, 1932 Miss. LEXIS 252 (Miss. 1932).

The liability of a surety on a guardian’s bond is a debt within the statute, charging the lands of a decedent with his estate over and above what his personal estate may be sufficient to pay. Savings Bldg. & Loan Ass'n v. Tart, 81 Miss. 276, 32 So. 115, 1902 Miss. LEXIS 103 (Miss. 1902).

4. Intent of testator.

A will manifests the testator’s intention that the property transferred to his wife be free of estate taxes where “Item IV” exempts from the payment of estate taxes and administration costs those bequests made earlier in the will to his wife and “Item III” specifically states that his wife is to receive $4,800 a year “free of any debts” and therefore this property cannot bear the burden of estate taxes. Waldrup v. United States, 499 F. Supp. 820, 1980 U.S. Dist. LEXIS 16059 (N.D. Miss. 1980).

This statute does not prohibit the testator himself from making, by his will, his own directions as to the order or priority of the application of his estate in the payment of his debts. Temple v. First Nat'l Bank, 202 Miss. 92, 30 So. 2d 605, 1947 Miss. LEXIS 245 (Miss. 1947).

Notwithstanding the provisions of this section [Code 1942, § 539], a testator may charge his real property with the entire burden of the payment of his debts to the complete exoneration of his personalty, if and when the real estate is sufficient to do so, or he may apportion the burden between real and personal property, the will and not the statute controlling as between legatees, devisees, and distributees. Temple v. First Nat'l Bank, 202 Miss. 92, 30 So. 2d 605, 1947 Miss. LEXIS 245 (Miss. 1947).

This statute in no way affects the rule that when a testator makes bequests of his personalty and no devise of his realty, the latter is charged with his debts to the exoneration of the bequests. Temple v. First Nat'l Bank, 202 Miss. 92, 30 So. 2d 605, 1947 Miss. LEXIS 245 (Miss. 1947).

The property specifically set aside by testator to take care of debts, costs, and expenses of the estate proving insufficient, descendible personalty and realty were required to be first exhausted in the payment of such debts, etc., before encroaching upon the legacies provided for in the will, in view of testator’s directions that such legacies should be invaded and abated for such purpose only as a last resort. Temple v. First Nat'l Bank, 202 Miss. 92, 30 So. 2d 605, 1947 Miss. LEXIS 245 (Miss. 1947).

RESEARCH REFERENCES

ALR.

Amount of funeral expenses allowable against decedent’s estate. 4 A.L.R.2d 995.

Claims for expenses of last sickness or for funeral expenses as within contemplation of statute requiring presentation of claims against decedent’s estate, or limiting time for bringing action thereon. 17 A.L.R.4th 530.

Lis pendens: grounds for cancellation prior to termination of underlying action, absent claim of delay. 49 A.L.R.4th 242.

Law Reviews.

1978 Mississippi Supreme Court Review: Miscellaneous. 50 Miss. L. J. 165, March, 1979.

§ 91-7-93. Inventory of money and property owned by decedent at time of death.

The executor or administrator shall, within ninety (90) days of the grant of his letters unless further time be allowed by the court or clerk, file an inventory, verified by oath, of the money and property owned by the decedent at the time of death, listing it with reasonable detail, and indicating as to each listed item, its market value as of the date of the decedent’s death, and the type and amount of any encumbrance that may exist with reference to any item.

There shall be no requirement for filing an inventory if the requirement of filing an inventory is waived in the testator’s will. The court or the chancellor may also waive the requirement for filing an inventory in an intestate estate upon petition to the court by the administrator. Even though the requirement of filing an inventory is waived in the testator’s will or waived by the court or the chancellor upon petition to the court by the administrator in an intestate estate, the court or the chancellor may later order the executor or administrator to file an inventory upon the petition of a beneficiary or other interested party if the court or the chancellor determines that the filing of inventory is necessary or advisable.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (78); 1857, ch. 60, art. 73; 1871, § 1127; 1880, § 2018; 1892, § 1864; 1906, § 2039; Hemingway’s 1917, § 1704; 1930, § 1644; 1942, § 540; Laws, 2019, ch. 458, § 1, eff from and after July 1, 2019.

Amendment Notes —

The 2019 amendment rewrote the section, which read: “The executor or administrator shall, within ninety days of the grant of his letters unless further time be allowed by the court or clerk, return an inventory, verified by oath, of the money belonging to the deceased which has come to his hands and of the debts due the deceased which have come to his knowledge, specifying the nature of each debt, setting down such as may be deemed hopeful distinct and separate from those which may be deemed doubtful and desperate. He shall, where appraisement is dispensed with or be not made, embrace in said inventory and give its value all property which has come to his hands; and where an appraisement has been made, he shall be charged therewith unless he show cause to the contrary.”

JUDICIAL DECISIONS

1. In general.

Intervention in estate proceedings is a proper mode of seeking correction of the inventory. Rayborn v. McGill, 243 Miss. 585, 139 So. 2d 356, 1962 Miss. LEXIS 379 (Miss. 1962).

One listed in the inventory as owing decedent’s estate may intervene for the purpose of contesting the item. Rayborn v. McGill, 243 Miss. 585, 139 So. 2d 356, 1962 Miss. LEXIS 379 (Miss. 1962).

In determining what is received by administrator, court may look to appraisement. Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515, 1934 Miss. LEXIS 67 (Miss. 1934).

Statutory provision that administrator shall be charged with what is shown by appraisement does not preclude proper parties from proving that articles appraised were actually worth more than respective appraised amounts. Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515, 1934 Miss. LEXIS 67 (Miss. 1934).

Appraisement, as regards items with which it is authorized by law to deal, stands as correct charge prima facie against administrator. Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515, 1934 Miss. LEXIS 67 (Miss. 1934).

Statutory provision, that administrator shall stand charged with appraisement unless he show cause to contrary, does not limit showing to one by administrator himself, but showing may be made by any proper person sought to be charged with administrator’s liability. Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515, 1934 Miss. LEXIS 67 (Miss. 1934).

In action against administrator of administrator, apparent defects in appraisement, introduced to show what administrator received, were supplied by operation of presumption that incidental procedural steps which should have been taken were taken. Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515, 1934 Miss. LEXIS 67 (Miss. 1934).

Appraisement was no evidence against administrator in regard to accounts due estate, life insurance, and money on hand, because appraisement does not legally deal with money and choses in action, since such items are to be returned by inventory. Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515, 1934 Miss. LEXIS 67 (Miss. 1934).

That administrator actually received more or less than was charged to him by appraisement may be shown by competent evidence adduced by any proper party in interest. Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515, 1934 Miss. LEXIS 67 (Miss. 1934).

Although appraisement was no evidence against administrator regarding insurance and cash, he was chargeable with insurance collected and cash received where evidence outside appraisement showed he received them. Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515, 1934 Miss. LEXIS 67 (Miss. 1934).

Where cotton crop was produced by tenants working on shares and landlord’s estate was entitled to only one-third of crop, administrator was chargeable only with such one-third of crop. Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515, 1934 Miss. LEXIS 67 (Miss. 1934).

On accounting administrator is chargeable with actual value of property coming into his hands rather than value fixed by appraiser. Davis v. Blumenberg, 107 Miss. 432, 65 So. 503, 1914 Miss. LEXIS 102 (Miss. 1914).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 161 et seq.

9A Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 371 et seq. (inventory and appraisal).

CJS.

34 C.J.S., Executors and Administrators § 197 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

§ 91-7-95. Supplementary inventory or appraisement.

If any property not included in the original inventory comes to the knowledge of the executor or administrator, or if the executor or administrator learns that the value or description indicated in the original inventory for any item is erroneous or misleading, he shall make a supplementary inventory or appraisement showing the market value as of the date of the decedent’s death of the new item or the revised market value or descriptions, and the appraisers or other data relied upon, if any, and file it with the court if the original inventory was filed, or furnish copies thereof or information thereof to persons interested in the new information.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (79); 1857, ch. 60, art. 75; 1871, § 1129; 1880, § 2020; 1892, § 1866; 1906, § 2041; Hemingway’s 1917, § 1706; 1930, § 1645; 1942, § 541; Laws, 2019, ch. 458, § 2, eff from and after July 1, 2019.

Amendment Notes —

The 2019 amendment rewrote the section, which read: “Whenever personal property of any kind, or assets not contained in the previous inventory, shall come to the possession or knowledge of the executor, administrator, or collector, an account or inventory of the same shall be returned within thirty days from the time of discovery, and the same shall be appraised by sworn appraisers unless the court or clerk shall deem it unnecessary.”

§ 91-7-97. Adoption of collector’s inventory or new inventory.

In case an inventory be returned by a temporary administrator, the executor or administrator who may succeed to the administration shall, within ninety days after the grant of his letters, either return a new inventory in place of the collector’s inventory or file a written acknowledgment of the receipt of the articles contained in the first inventory and consent to be answerable for the same.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (80); 1857, ch. 60, art. 76; 1871, § 1130; 1880, § 2021; 1892, § 1867; 1906, § 2042; Hemingway’s 1917, § 1707; 1930, § 1646; 1942, § 542.

RESEARCH REFERENCES

Am. Jur.

9A Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Form 431.1 (Petition or application – For extension of time to file inventory and appraisement).

§ 91-7-99. All to join in returning inventory.

If there be more than one executor, administrator, or temporary administrator, they shall all join in returning the inventories. If one or more refuse to do so, the others may return them, and the power and authority of the person so refusing shall thereafter cease. Those who return the inventory shall proceed in the administration, unless the delinquent, within sixty days, assign a reasonable excuse which the court may deem satisfactory.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (86); 1857, ch. 60, art. 78; 1871, § 1132; 1880, § 2022; 1892, § 1869; 1906, § 2044; Hemingway’s 1917, § 1709; 1930, § 1647; 1942, § 543.

§ 91-7-101. Debt from executor or administrator inventoried.

The naming of an executor in a will shall not operate to extinguish any claim which the deceased had against him, but it shall be the duty of every such executor accepting the trust to give in such claim in the list of debts. On his failure to give in such claim or any part thereof, any person interested in the estate may allege the facts by petition to the court, and the court shall decide on the validity of the claim, if it be denied. When the claim is established, the executor shall account for it as a debtor to the estate, and not otherwise; and in the same way and subject to all the foregoing provisions, an administrator shall give in a claim against himself.

HISTORY: Codes, Hutchinson’s 1848, ch. 49; art. 1 (88); 1857, ch. 60, art. 74; 1871, § 1128; 1880, § 2019; 1892, § 1865; 1906, § 2040; Hemingway’s 1917, § 1705; 1930, § 1648; 1942, § 544.

Cross References —

Claim of executor or administrator against estate, see §91-7-163.

JUDICIAL DECISIONS

1. In general.

“To give in” the claim does not operate as an estoppel on the executor or administrator to show that the same was invalid. Franks v. Wanzer, 25 Miss. 121, 1852 Miss. LEXIS 158 (Miss. 1852).

A failure by an administrator to make an inventory of the debt due by him to his intestate may be a breach of duty for which he is liable on his bond; yet it does not follow that the amount of the debt is to be treated as so much money in his hands. Kelsey v. Smith, 2 Miss. 68, 1834 Miss. LEXIS 14 (Miss. 1834).

§ 91-7-103. Summary proceeding for discovery of assets.

If the goods, chattels, and effects are improperly withheld from the executor or administrator, then he shall not be answerable for a failure to return the inventories herein required until the goods, chattels, and effects, or some part thereof, have been received. If the executor or administrator shall have cause to believe that any of the assets of the estate are concealed or have been or are wrongfully withheld from him, or that any person has in his possession or under his control any records, books, or documents containing evidence concerning such assets and the ownership thereof, or has knowledge or information thereof otherwise, then it shall be the duty of such executor or administrator to forthwith proceed by a summary petition before the court or chancellor against all persons suspected of having concealed or wrongfully withheld such assets, as well as all persons having books, records, documents, or information relating thereto, for a discovery of the assets of the estate and all adverse claim thereto, if any. All persons made parties to such petition may be compelled by attachment for contempt to discover under oath by answer filed or testimony given, either or both at such time and place as the court or chancellor may direct, all the facts known to them concerning the assets of the estate and of all adverse claims thereto, if any. If on the hearing it shall appear that any person has property or assets of the estate to which there is no adverse claim, the court or chancellor may direct it to be delivered to the executor or administrator, who shall forthwith account therefor in his inventory. No decree shall be rendered in such proceeding concerning any adverse claim set up by any person to any of the assets. The costs of such proceeding shall be borne by the estate.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (80); 1857, ch. 60, art. 76; 1871, § 1130; 1880, § 2021; 1892, § 1868; 1906, § 2043; Hemingway’s 1917, § 1708; 1930, § 1649; 1942, § 545; Laws, 1936, ch. 241.

JUDICIAL DECISIONS

1. Accounting.

Because the trustee of an educational trust was not compelled to account to the chancery court, but submitted to the accounting on her own accord, it did not matter that the accounting was not under oath. Fuller v. Kelly (In re Fuller), 203 So.3d 1147, 2016 Miss. App. LEXIS 733 (Miss. Ct. App. 2016).

§ 91-7-105. Failure to return inventory.

If any executor, administrator, or temporary administrator fail to return proper inventories within the time prescribed by law or by order of the court, a summons returnable in not less than five days may, on application of any person interested, be issued for such executor, administrator, or collector to show cause why such inventory hath not been returned. If the summons be returned executed and such party do not appear or, appearing, fail to show good cause, the court, or clerk in vacation, shall revoke the letters and grant administration anew.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (85); 1857, ch. 60, art. 77; 1871, § 1131; 1880, § 2023; 1892, § 1870; 1906, § 2045; Hemingway’s 1917, § 1710; 1930, § 1650; 1942, § 546.

RESEARCH REFERENCES

ALR.

Delay of executor or administrator in filing inventory, account, or other report, or in completing administration and distribution of estate, as ground for removal. 33 A.L.R.4th 708.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 490.

§ 91-7-107. Perfect inventory may be compelled.

If any person interested discover that the inventory returned does not contain a full account of all the property, goods, chattels, and effects of the deceased, such person may, on petition to the court, have the executor, administrator, or temporary administrator cited to appear and show cause why an additional inventory should not be returned. If, on hearing, the court be satisfied that a true inventory was not originally returned, it may order the executor or administrator to return a new one; and on his failure to do so, his letters may be revoked. If the title to any property not inventoried be in dispute, it shall be sufficient for the executor, administrator, or collector so to report; and he shall not be required to return an additional inventory until the title be settled in his favor. It shall also be the duty of every executor and administrator to return additional inventories at least once in each year of the increase of the property of the estate, if there be any such increase.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (87); 1857, ch. 60, art. 79; 1871, § 1133; 1880, § 2024; 1892, § 1871; 1906, § 2046; Hemingway’s 1917, § 1711; 1930, § 1651; 1942, § 547.

JUDICIAL DECISIONS

1. In general.

In a contest between residuary legatees of a will and beneficiaries of an alleged gift inter vivos of certain separate stock which was by the will directed to be sold by the executors along with other assets of the estate for the payment of numerous legacies, wherein the residuary legatee sought to compel a more complete inventory by including such corporate stock, the burden of proof was upon the surviving executor and those claiming the stock, not as purchasers for value, to prove that such stock was not a part of the assets of the estate being administered. Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790, 1940 Miss. LEXIS 13 (Miss. 1940).

RESEARCH REFERENCES

ALR.

Delay of executor or administrator in filing inventory, account, or other report, or in completing administration and distribution of estate, as ground for removal. 33 A.L.R.4th 708.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 490, 491.

CJS.

34 C.J.S., Executors and Administrators § 172.

§ 91-7-109. Inventory and appraisement by qualified disinterested persons.

The executor or administrator may employ a qualified and disinterested appraiser to assist him in ascertaining the fair market value as of the date of the decedent’s death of any asset the value of which may be subject to reasonable doubt. Different persons may be employed to appraise different kinds of assets included in the estate. The names and addresses of any appraiser shall be indicated on the inventory with the item or items he appraised.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (72); 1857, ch. 60, art. 70; 1871, § 1124; 1880, § 2014; 1892, § 1872; 1906, § 2047; Hemingway’s 1917, § 1712; 1930, § 1652; 1942, § 548; Laws, 2019, ch. 458, § 3, eff from and after July 1, 2019.

Amendment Notes —

The 2019 amendment rewrote the section, which read: “The goods, chattels, and personal estate of the decedent, other than money and choses in action, shall be inventoried and appraised unless the court or clerk, for good cause, order it dispensed with. On granting letters testamentary, or of administration, or of temporary administration, unless otherwise ordered, a warrant or warrants shall issue under the seal of the court, commanding three or more discreet persons not related to the deceased or interested in the estate to make the inventory and appraisement, any three or more of whom may act. The warrant shall command the appraisers to set apart to those entitled thereto the property exempt by law from execution, and to make the allowance for one year’s support and tuition of those entitled to receive it.”

Cross References —

Compensation of appraisers, see §25-7-67.

Inventory by temporary administrator, see §91-7-55.

Report of appraisers, see §91-7-137.

JUDICIAL DECISIONS

1. In general.

An administrator has nothing to do with the appointment of appraisers. O'Brian Bros. v. Wilson, 82 Miss. 93, 33 So. 946 (Miss. 1903).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 493.

9A Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 421 et seq. (appointment and qualification of appraisers).

§ 91-7-111. Repealed.

Repealed by Laws, 2019, ch. 458, § 23, eff from and after July 1, 2019.

§91-7-111. [Codes, Hutchinson’s 1848, ch. 49, art. 1 (71); 1857, ch. 60, art. 69; 1871, § 1123; 1880, § 2015; 1892, § 1873; 1906, § 2048; Hemingway’s 1917, § 1713; 1930, § 1653; 1942, § 549.]

Editor's Notes —

Former §91-7-111 provided for the use of three or more appraisers in each county in which property of personal estates was located.

§ 91-7-113. Repealed.

Repealed by Laws, 2019, ch. 458, § 25, eff from and after July 1, 2019.

§91-7-113. [Codes, Hutchinson’s 1848, ch. 49, art. 1 (72); 1857, ch. 60, art. 70; 1871, § 1124; 1880, § 2014; 1892, § 1874; 1906, § 2049; Hemingway’s 1917, § 1714; 1930, § 1654; 1942, § 550.]

§ 91-7-115. Repealed.

Repealed by Laws, 2019, ch. 458, § 24, eff from and after July 1, 2019.

§91-7-115. [Codes, 1892, § 1875; 1906, § 2050; Hemingway’s 1917, § 1715; 1930, § 1655; 1942, § 551.]

§ 91-7-117. Executor or administrator to set apart exempt property.

It shall be the duty of the executor or administrator to set apart to the widow and children, or to the widow if there be no children, or to the children if there be no widow, such personal property as is exempt by law from execution. The action of the executor or administrator shall not be necessary to the title of the widow and children to the exempt property, which shall vest in them by operation of law on the death of the husband and father.

HISTORY: Codes, 1871, § 1290; 1880, § 1278; 1892, § 1876; 1906, § 2051; Hemingway’s 1917, § 1716; 1930, § 1656; 1942, § 552; Laws, 2019, ch. 458, § 4, eff from and after July 1, 2019.

Amendment Notes —

The 2019 amendment rewrote the section, which read: “It shall be the duty of the appraisers to set apart to the widow and children, or to the widow if there be no children, or to the children if there be no widow, such personal property as is exempt by law from execution, and make report thereof and attach it to the appraisement, which shall be approved by the court if found correct, or may be referred back to them by the court with instructions as to what to allow. The action of the appraisers or the court shall not be necessary to the title of the widow and children to the exempt property, which shall vest in them by operation of law on the death of the husband and father.”

Cross References —

Homestead exemption generally, see §85-3-31 et seq.

Descent of exempt property, see §91-1-19.

Designation of exempt property in appraisers’ report, see §91-7-137.

JUDICIAL DECISIONS

1. In general.

Title to household furniture vested in testator’s children, and was not chargeable to administrator. Fidelity & Deposit Co. v. Doughtry, 181 Miss. 586, 179 So. 846, 1938 Miss. LEXIS 99 (Miss. 1938).

Where deceased share tenant left nothing except exempt property, administration was unnecessary; hence widow and children having unsuccessfully demanded tenant’s share from landlord could recover in replevin. Williams v. Sykes, 170 Miss. 88, 154 So. 267, 154 So. 727, 1934 Miss. LEXIS 100 (Miss. 1934).

Widow, as administratrix de bonis non, could not be charged with entire personal property received, but only as to part not exempt, though appraisers did not set exempt property apart. Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515, 1934 Miss. LEXIS 67 (Miss. 1934).

Exempt property descends freed not only from debts incurred by owner in lifetime, but also expenses of last illness and funeral, regardless of whether estate is solvent. De Baum v. Hulett Undertaking Co., 169 Miss. 488, 153 So. 513, 1934 Miss. LEXIS 66 (Miss. 1934).

Homestead is not subject to sale to pay year’s allowance to widow. Miers v. Miers, 160 Miss. 746, 133 So. 133, 1931 Miss. LEXIS 135 (Miss. 1931).

RESEARCH REFERENCES

ALR.

Right of nonresident surviving spouse or minor children to allowance of property exempt from administration or to family allowance from local estate of nonresident decedent. 51 A.L.R.2d 1026.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 677-681.

9A Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 491 et seq. (exempt property).

CJS.

34 C.J.S., Executors and Administrators §§ 460-462, 466 et seq.

§§ 91-7-119 through 91-7-133. Repealed.

Repealed by Laws, 1976, ch. 407, § 44, eff from and after April 1, 1977.

§91-7-119. [Codes, 1942, § 553; Laws, 1936, ch. 237]

§91-7-121. [Codes, 1892, § 1909; 1906, § 2084; Hemingway’s 1917, § 1751; 1930, § 1657; 1942, § 554]

§91-7-123. [Codes, 1892, § 1910; 1906, § 2085; Hemingway’s 1917, § 1752; 1930, § 1658; 1942, § 555]

§91-7-125. [Codes, 1892, § 1911; 1906, § 2086; Hemingway’s 1917, § 1753; 1930, § 1659; 1942, § 556]

§91-7-127. [Codes, 1892, § 1912; 1906, § 2087; Hemingway’s 1917, § 1754; 1930, § 1660; 1942, § 557]

§91-7-129. [Codes, 1892, § 1913; 1906, § 2088; Hemingway’s 1917, § 1755; 1930, § 1661; 1942, § 558]

§91-7-131. [Codes, 1892, § 1914; 1906, § 2089; Hemingway’s 1917, § 1756; 1930, § 1662; 1942, § 559]

§91-7-133. [Codes, 1892, § 1915; 1906, § 2090; Hemingway’s 1917, § 1757; 1930, § 1663; 1942, § 560]

Editor’s Notes —

Former §91-7-119 was entitled: Sale of partnership interest.

Former §91-7-121 was entitled: Inventory of partnership estates.

Former §91-7-123 was entitled: Property delivered to surviving partner.

Former §91-7-125 was entitled: Condition of partner’s bond.

Former §91-7-127 was entitled: Status of surviving partner.

Former §91-7-129 was entitled: Survivor refusing to act.

Former §91-7-131 was entitled: Executor’s further bond in such case.

Former §91-7-133 was entitled: Duties of surviving partners.

§ 91-7-135. Court or chancellor to set apart one year’s support for family.

It shall be the duty of the court or the chancellor to set apart out of the effects of the decedent, for the spouse and children who were being supported by the decedent, or for the spouse if there be no such children, or for such children if there be no spouse, one (1) year’s provision, including such provision as may be embraced in the exempt property set apart. If there be no provisions, or an insufficient amount, the court or the chancellor shall determine the sum necessary for the comfortable support of the spouse and children, or spouse or children, as the case may be, for one (1) year.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 17 (1); 1857, ch. 60, art. 172; 1871, §§ 1290, 1957; 1880, § 1279; 1892, § 1877; 1906, § 2052; Hemingway’s 1917, § 1717; 1930, § 1664; 1942, § 561; Laws, 1992, ch. 321 § 1, eff from and after passage (approved April 20, 1992); Laws, 2019, ch. 458, § 5, eff from and after July 1, 2019.

Amendment Notes —

The 2019 amendment substituted “court or the chancellor” for “appraisers” and “appraiser” in the first and second sentences; substituted “shall determine the sum necessary” for “shall allow money in lieu thereof or in addition thereto necessary” in the second sentence; and deleted the former last two sentences, which read: “In addition to the provisions or money in lieu thereof, the appraisers shall ascertain and allow what sum of money will be needed to purchase necessary wearing apparel for the spouse and such children, or the spouse or children, as the case may be, and to pay tuition for the children for one (1) year. If a parent dies leaving children who are infants and were being maintained by the parent, the same provisions and allowance shall be set apart and made for them as above provided.”

Cross References —

Exempt property generally, see §85-3-1 et seq.

Descent of exempt property, see §91-7-167.

Allowance for maintenance and education of ward, see §93-13-35.

JUDICIAL DECISIONS

1. In general; nature of entitlement.

2. Who is entitled.

3. Effect of terms of, lack of, or renunciation of, will.

4. Authority, role of court.

5. Non-residents.

6. Spouse living apart from spouse; children living apart from parent.

7. Amount; payment.

8. Miscellaneous.

1. In general; nature of entitlement.

Real estate owned as tenants by the entirety vested exclusively in surviving wife upon husband’s death, and thus did not become asset of husband’s probate estate and was not available to be distributed in kind as widow’s allowance. In re Osborne, 120 B.R. 64, 1990 Bankr. LEXIS 2184 (Bankr. N.D. Miss. 1990).

Right of widow to year’s allowance is absolute, whatever may be condition of estate, and application therefor is matter with which administrator has no concern. Harwell v. Woody, 206 Miss. 863, 41 So. 2d 35, 1949 Miss. LEXIS 308 (Miss. 1949).

Administrator, as such, is without right to prosecute appeal from order of court decreeing year’s allowance to widow of decedent, in absence of issue involving her status as widow entitled to allowance. Harwell v. Woody, 206 Miss. 863, 41 So. 2d 35, 1949 Miss. LEXIS 308 (Miss. 1949).

The right of a widow to an allowance for a year’s support is absolute and cannot be conditioned on the payment by her to the administrator of her deceased husband’s wages which she has collected. Westbrook v. Shotts, 200 Miss. 456, 27 So. 2d 683, 1946 Miss. LEXIS 309 (Miss. 1946).

Making a year’s allowance for support of deceased’s widow is part of jurisdiction of chancery court, which cannot be taken away nor impaired by legislature, so that authority in appraisers to set aside year’s support does not deprive chancellor of authority. Prentiss v. Turner, 170 Miss. 496, 155 So. 214, 1934 Miss. LEXIS 158 (Miss. 1934).

Right of widow to year’s support superior to lien of enrolled judgment. First Nat'l Bank v. Donald, 112 Miss. 681, 73 So. 723, 1916 Miss. LEXIS 162 (Miss. 1916).

Wife entitled to year’s support under will of husband devising all his property to sisters to exclusion of wife. Whitehead v. Kirk, 106 Miss. 706, 64 So. 658, 1914 Miss. LEXIS 10 (Miss. 1914).

2. Who is entitled.

In order to be entitled to the widow’s allowance, a widow need only show that she and decedent were living together as husband and wife at the time of his death. Waldrup v. United States, 499 F. Supp. 820, 1980 U.S. Dist. LEXIS 16059 (N.D. Miss. 1980).

A widow’s allowance was properly denied where the widow did not make a motion for or in any other manner indicate that she wanted a widow’s allowance set aside to her before the estate was finally closed, and where there was no suggestion of fraud. Thomas v. Bailey, 375 So. 2d 1049, 1979 Miss. LEXIS 2607 (Miss. 1979), overruled in part, Clark v. Neese, 131 So.3d 556, 2013 Miss. LEXIS 643 (Miss. 2013).

Where widow and decedent were living together as husband and wife at time of decedent’s death and he was under a duty to support her, widow’s allowance was proper under Code 1942 § 561. Mills v. Mills, 279 So. 2d 917, 1973 Miss. LEXIS 1495 (Miss. 1973).

One claiming this allowance has the burden of showing that she was being supported by decedent. In re Will of Marshall, 243 Miss. 472, 138 So. 2d 482, 1962 Miss. LEXIS 364 (Miss. 1962).

A posthumous child has rights in the year’s support. Womack v. Boyd, 31 Miss. 443, 1856 Miss. LEXIS 97 (Miss. 1856).

3. Effect of terms of, lack of, or renunciation of, will.

A widow is entitled to the statutory widow’s allowance, regardless of a will, unless it clearly appears that the provisions of the will for the widow are in lieu of the year’s support provided by statute. Rush v. Rush, 360 So. 2d 1240, 1978 Miss. LEXIS 2341 (Miss. 1978).

This section [Code 1942 § 561] applies to cases of testacy and intestacy alike except in the case of wills where it clearly appears that the provisions in the will for the widow and minor children of the decedent are in lieu of the 1 year’s support provided for by the statute. Mills v. Mills, 279 So. 2d 917, 1973 Miss. LEXIS 1495 (Miss. 1973).

Allowance of a year’s support to a widow renouncing her husband’s will is within the chancellor’s discretion. Sandifer v. Sandifer, 237 Miss. 464, 115 So. 2d 46, 1959 Miss. LEXIS 491 (Miss. 1959).

Widow’s contract reciting that she waived right to renounce will of husband and take by inheritance held too indefinite to preclude widow from $3,000 as year’s allowance provided by statute. Gidden v. Gidden, 176 Miss. 98, 167 So. 785, 1936 Miss. LEXIS 116 (Miss. 1936).

Will held not to show intention on part of testator that provisions therein for widow were to be in lieu of statutory allowance for support for year. Gilmer v. Gilmer, 151 Miss. 23, 117 So. 371, 1928 Miss. LEXIS 286 (Miss. 1928).

Widow and minor children entitled to year’s support in case of will where provision of will not made in lieu of all other claim, or there is no inconsistency between will and provision for allowance. Stewart v. Stewart, 132 Miss. 515, 96 So. 694, 1923 Miss. LEXIS 74 (Miss. 1923).

4. Authority, role of court.

The fixing of the amount of the widow’s allowance by the appraisers is not final, but is subject to approval or disapproval of the chancery court. Beckett v. Howorth, 237 Miss. 394, 115 So. 2d 48, 1959 Miss. LEXIS 483 (Miss. 1959).

Making a year’s allowance for support of deceased’s widow is part of jurisdiction of chancery court, which cannot be taken away nor impaired by legislature, so that authority in appraisers to set aside year’s support does not deprive chancellor of authority. Prentiss v. Turner, 170 Miss. 496, 155 So. 214, 1934 Miss. LEXIS 158 (Miss. 1934).

Action of appraisers in making allowance for year’s support to widow of decedent is not final, but only advisory to chancellor, and subject to his approval or disapproval. Prentiss v. Turner, 170 Miss. 496, 155 So. 214, 1934 Miss. LEXIS 158 (Miss. 1934).

If appraisers make no allowance for widow’s support for a year, court or chancellor in vacation may, on proper petition therefor, make allowance. Gilmer v. Gilmer, 151 Miss. 23, 117 So. 371, 1928 Miss. LEXIS 286 (Miss. 1928).

5. Non-residents.

The statute has no application in favor of nonresidents. Barber v. Ellis, 68 Miss. 172, 8 So. 390, 1890 Miss. LEXIS 33 (Miss. 1890).

6. Spouse living apart from spouse; children living apart from parent.

Widow’s allowance under Miss. Code Ann. §§91-7-135 and91-7-141 was improper as the widow did not show that she was being supported by the decedent at the time of his death or that she was away from him without fault on her part since she had left the decedent’s home by her own volition after his leg was amputated, and was living in her own home when he died. In re Estate of Estes, 111 So.3d 1223, 2012 Miss. App. LEXIS 820 (Miss. Ct. App. 2012).

Where husband’s obligation to support wife was terminated by a property settlement, the wife is not entitled to the statutory support allowance out of his estate. Will of Best v. Brewer, 236 Miss. 359, 111 So. 2d 262, 1959 Miss. LEXIS 325 (Miss. 1959).

A wife being supported by her husband at the time of his death in compliance with a decree for temporary alimony was entitled to an allowance for a year’s support. Stringer v. Arrington, 202 Miss. 798, 32 So. 2d 879, 1947 Miss. LEXIS 342 (Miss. 1947).

Allowance to widow of support for one year was authorized where evidence warranted court in believing that separation of deceased and wife resulted from no fault of wife but was the fault of deceased and that his duty to support her continued. Vaughan v. Vaughan, 195 Miss. 463, 16 So. 2d 23, 1943 Miss. LEXIS 175 (Miss. 1943).

Wife living apart from husband without his fault, and not supported by him, is not entitled to a year’s support from his estate. Byars v. Gholson, 147 Miss. 460, 112 So. 578, 1927 Miss. LEXIS 287 (Miss. 1927).

7. Amount; payment.

Where a decedent left an estate of an approximate value of $139,000, an allowance to the widow of $6,000 for one year’s support was not excessive. Bryan v. Quinn, 233 Miss. 366, 102 So. 2d 124, 1958 Miss. LEXIS 392 (Miss. 1958).

Amount of widow’s allowance is discretionary with chancellor where fees of administrator and counsel have been paid and award is $800 less than that recommended by appraisers. Harwell v. Woody, 206 Miss. 863, 41 So. 2d 35, 1949 Miss. LEXIS 308 (Miss. 1949).

The amount allowed by the appraisers to the widow for year’s support is advisory to, but not binding upon, the chancellor. Moseley v. Harper, 202 Miss. 442, 32 So. 2d 192, 1947 Miss. LEXIS 296 (Miss. 1947).

In determining the amount of the widow’s allowance, the chancellor should consider the value of the estate, the rights of others having an interest therein, the manner of living to which the widow was accustomed during her husband’s life, her station in life and the demands of that station. Moseley v. Harper, 202 Miss. 442, 32 So. 2d 192, 1947 Miss. LEXIS 296 (Miss. 1947).

Refusal of chancellor to increase appraiser’s allowance for widow’s support from $5,000 to $8,500 was not an abuse of discretion, where items presented by widow to substantiate her petition for increase included improper items such as expenses for repairs, taxes and insurance upon her separate property, lot and clothing for burial of decedent, and other excessive costs. Moseley v. Harper, 202 Miss. 442, 32 So. 2d 192, 1947 Miss. LEXIS 296 (Miss. 1947).

Executor must turn over money awarded widow for year’s support to her in cash; he cannot withhold it on ground she has property which belongs to estate. Pratt v. Pratt, 155 Miss. 237, 124 So. 323, 1929 Miss. LEXIS 275 (Miss. 1929).

Amount of allowance for support of widow is within discretion of chancellor. Gilmer v. Gilmer, 151 Miss. 23, 117 So. 371, 1928 Miss. LEXIS 286 (Miss. 1928); Whitehead v. Kirk, 106 Miss. 706, 64 So. 658, 1914 Miss. LEXIS 10 (Miss. 1914); Bryan v. Quinn, 233 Miss. 366, 102 So. 2d 124, 1958 Miss. LEXIS 392 (Miss. 1958).

Allowance of $2,400 for support of widow during year following decedent’s death held not excessive. Gilmer v. Gilmer, 151 Miss. 23, 117 So. 371, 1928 Miss. LEXIS 286 (Miss. 1928).

In proceeding to set aside decree granting widow allowance for year’s support, evidence regarding her separate income and income from property bequeathed held properly excluded. Gilmer v. Gilmer, 151 Miss. 23, 117 So. 371, 1928 Miss. LEXIS 286 (Miss. 1928).

8. Miscellaneous.

Homestead is not subject to sale to pay year’s allowance to widow. Miers v. Miers, 160 Miss. 746, 133 So. 133, 1931 Miss. LEXIS 135 (Miss. 1931).

Notice to executor or legatees of proceedings by widow for year’s allowance for support is not required. Gilmer v. Gilmer, 151 Miss. 23, 117 So. 371, 1928 Miss. LEXIS 286 (Miss. 1928).

RESEARCH REFERENCES

ALR.

Right of nonresident surviving spouse or minor children to allowance of property exempt from administration or to family allowance from local estate of nonresident decedent. 51 A.L.R.2d 1026.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 677-681.

9A Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 451 et seq. (family allowance).

CJS.

34 C.J.S., Executors and Administrators §§ 460-462, 466 et seq.

§ 91-7-137. Repealed.

Repealed by Laws, 2019, ch. 458, § 19, eff from and after July 1, 2019.

§91-7-137. [Codes, Hutchinson’s 1848, ch. 49, art. 1 (75); 1857, ch. 60, arts. 71, 72; 1871, §§ 1125, 1126; 1880, §§ 2016, 2017; 1892, § 1878; 1906, § 2053; Hemingway’s 1917, § 1718; 1930, § 1665; 1942, § 562.]

§ 91-7-139. Repealed.

Repealed by Laws 2019, ch. 458, § 20, eff from and after July 1, 2019.

§91-7-139. [Codes, 1892, § 1879; 1906, § 2054; Hemingway’s 1917, § 1719; 1930, § 1666; 1942, § 563.]

§ 91-7-141. Court or chancellor may apportion year’s allowance.

The court or the chancellor may apportion the one (1) year’s allowance, or any part of it, according to the situation, rights, and interests of any of the children or the widow, and may direct the payment of any portion of the allowance which may be found necessary or proper to any of them.

HISTORY: Codes, 1871, § 1959; 1880, § 1281; 1892, § 1880; 1906, § 2055; Hemingway’s 1917, § 1720; 1930, § 1667; 1942, § 564; Laws, 2019, ch. 458, § 6, eff from and after July 1, 2019.

Amendment Notes —

The 2019 amendment substituted “The court or the chancellor may apportion the one (1) year's allowance” for “The chancery court may apportion the one year's allowance.”

JUDICIAL DECISIONS

1. In general.

2. Allowance improper.

1. In general.

If the widow be not the mother of the children, and they live apart, the latter will be entitled to have a fair proportion of the year’s allowance, and the court will apportion it. Womack v. Boyd, 31 Miss. 443, 1856 Miss. LEXIS 97 (Miss. 1856).

2. Allowance improper.

Widow’s allowance under Miss. Code Ann. §§91-7-135 and91-7-141 was improper as the widow did not show that she was being supported by the decedent at the time of his death or that she was away from him without fault on her part since she had left the decedent’s home by her own volition after his leg was amputated, and was living in her own home when he died. In re Estate of Estes, 111 So.3d 1223, 2012 Miss. App. LEXIS 820 (Miss. Ct. App. 2012).

RESEARCH REFERENCES

ALR.

Right of nonresident surviving spouse or minor children to allowance of property exempt from administration or to family allowance from local estate of nonresident decedent. 51 A.L.R.2d 1026.

§ 91-7-143. Minor distributee or legatee maintained.

An executor or administrator of a solvent estate may defray the necessary and reasonable expenses of the maintenance and education of legatees or distributees who are minors and have no guardian, and may be allowed a credit therefor against the shares of the estate to which such minors are entitled on distribution. Before making such expenditures, he shall obtain the order of the court, or of the chancellor in vacation, authorizing him to make them.

HISTORY: Codes, 1880, § 2094; 1892, § 1954; 1906, § 2128; Hemingway’s 1917, § 1796; 1930, § 1668; 1942, § 565.

Cross References —

Maintenance of child under guardianship, see §93-13-35 et seq.

§ 91-7-145. Notice to creditors of estate.

  1. The executor or administrator shall make reasonably diligent efforts to identify persons having claims against the estate. Such executor or administrator shall mail a notice to persons so identified, at their last known address, informing them that a failure to have their claim probated and registered by the clerk of the court granting letters within ninety (90) days after the first publication of the notice to creditors will bar such claim as provided in Section 91-7-151.
  2. The executor or administrator shall file with the clerk of the court an affidavit stating that such executor or administrator has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail as required in subsection (1) of this section to all persons so identified. Upon filing such affidavit, it shall be the duty of the executor or administrator to publish in some newspaper in the county a notice requiring all persons having claims against the estate to have the same probated and registered by the clerk of the court granting letters, which notice shall state the time when the letters were granted and that a failure to probate and register within ninety (90) days after the first publication of such notice will bar the claim. The notice shall be published for three (3) consecutive weeks, and proof of publication shall be filed with the clerk. If a paper be not published in the county, notice by posting at the courthouse door and three (3) other places of public resort in the county shall suffice, and the affidavit of such posting filed shall be evidence thereof in any controversy in which the fact of such posting shall be brought into question.
  3. The filing of proof of publication as provided in this section shall not be necessary to set the statute of limitation to running, but proof of publication shall be filed with the clerk of the court in which the cause is pending at any time before a decree of final discharge shall be rendered; and the time for filing proof of publication shall not be limited to the ninety-day period in which creditors may probate claims.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (115); 1857, ch. 60, art. 81; 1871, § 1135; 1880, § 2026; 1892, § 1929; 1906, § 2103; Hemingway’s 1917, § 1771; 1930, § 1669; 1942, § 566; Laws, 1920, ch. 302; Laws, 1928, ch. 69; Laws, 1975, ch. 373, § 4; Laws, 1989, ch. 582, § 2; Laws, 1994, ch. 430 § 1, eff from and after passage (approved March 17, 1994).

Cross References —

Publication where estate is insolvent, see §91-7-267.

JUDICIAL DECISIONS

1. In general.

2. Sufficiency of notice.

3. Failure to give notice.

1. In general.

The role played by the chancery court in probate proceedings under §91-7-143, upon which the statute’s time bar is dependent in that notice may be published only after an affidavit is filed with the clerk of court, is sufficient state action to implicate the due process clause of the Fourteenth Amendment to the United States Constitution; thus, a creditor’s claim against an estate was a property interest protected by the Fourteenth Amendment. Vann v. Mississippi Neurosurgery, P.A. (In re Estate of Petrick), 635 So. 2d 1389, 1994 Miss. LEXIS 205 (Miss. 1994).

The time bar of §91-7-145 did not apply, and therefore a creditor’s untimely claim against an estate was valid, where the creditor was “reasonably ascer-tainable” and the administratrix merely published notice rather than providing notice by mail as mandated by the statute; furthermore, the insufficient notice violated the due process clause of the Fourteenth Amendment to the United States Constitution.Vann v. Mississippi Neurosurgery, P.A. (In re Estate of Petrick), 635 So. 2d 1389, 1994 Miss. LEXIS 205 (Miss. 1994).

Notice to creditors of decedent’s estate signed by the then duly appointed and qualified administrator was valid, notwithstanding that he was removed, on motion of decedent’s widow, on the same date that notice to the creditors was first published, and a creditor’s claim filed some 2 months after expiration of the 90 day period from first publication date was time barred. Estate of Myers v. Myers, 498 So. 2d 376, 1986 Miss. LEXIS 2844 (Miss. 1986).

Whether the publication of notice to creditors required by §91-7-145 is made in an appropriate newspaper brings into bearing §13-3-31, which sets forth the requirements a newspaper must meet in order to qualify as a valid publisher of legal notices. Estate of Myers v. Myers, 498 So. 2d 376, 1986 Miss. LEXIS 2844 (Miss. 1986).

Contention that notice to creditors was not published in a newspaper which qualified as a valid publisher of legal notices, which was not raised in the court below, would not be considered by the Supreme Court on appeal. Estate of Myers v. Myers, 498 So. 2d 376, 1986 Miss. LEXIS 2844 (Miss. 1986).

Where decedent’s first wife failed to file a claim for unpaid alimony against his estate within the statutory period of 90 days, she was estopped under §91-7-145 from bringing her claim. Medders v. Ryle, 458 So. 2d 685, 1984 Miss. LEXIS 1871 (Miss. 1984).

Administrator is required to speedily publish notice to creditors requiring probate of claims within six months. McDowell v. Minor, 158 Miss. 360, 130 So. 484, 1930 Miss. LEXIS 57 (Miss. 1930).

Administrator could not delay in his duty to make prompt publication of notice to creditors and thereafter take advantage of delay in his own behalf. McDowell v. Minor, 158 Miss. 360, 130 So. 484, 1930 Miss. LEXIS 57 (Miss. 1930).

A decedent’s estate is not liable for an assessment against the decedent as stockholder in a failed national bank, made in the decedent’s lifetime, where a claim therefor was not presented within the time limited by the Mississippi statute. Mann v. Kleisdorff, 16 F.2d 997, 1927 U.S. App. LEXIS 3682 (5th Cir. Miss. 1927).

Claim not presented within six months after publication is not barred where notice not published for three consecutive weeks and no proof of publication is made and filed with clerk. Boutwell v. Farmers' & Traders' Bank, 118 Miss. 50, 79 So. 1, 1918 Miss. LEXIS 48 (Miss. 1918).

Court cannot after publication make a second publication shortening time allowed in first publication for probating and registering claims. Geisenberger v. Progress Knitting Mills, 113 Miss. 495, 74 So. 331, 1917 Miss. LEXIS 126 (Miss. 1917).

2. Sufficiency of notice.

Chancellor erred in holding that a creditor’s claim against the decedent’s estate was time barred under Miss. Code Ann. §91-7-145, as no determination was even made as to whether the creditor was a reasonably ascertainable creditor. Further, §91-7-145 did not specifically allow for notice by publication as a substitute for actual notice by mail; rather, notice by publication was a requirement in addition to providing the creditor notice by mail. Holston v. Ladner (In re Estate of Ladner), 911 So. 2d 673, 2005 Miss. App. LEXIS 663 (Miss. Ct. App. 2005).

Notice to creditors of estate to have claims probated and registered before chancery court clerk of certain county within specified six-month period held sufficient as against contention that notice was fatally defective because it did not indicate to creditors what court had granted letters of executorship. Floyd v. Chatham, 178 Miss. 137, 172 So. 504, 1937 Miss. LEXIS 191 (Miss. 1937).

Executor’s notice to creditors not void because date in notice not that on which letters granted. George T. Webb & Co. v. Fogg, 134 Miss. 605, 99 So. 504, 1924 Miss. LEXIS 317 (Miss. 1924).

“Notice is hereby given to all creditors having claims against said estate to present same to the clerk of said court for probate and registration according to law, within six months from this date, or they will be forever barred,” dated and signed by administrator, is sufficient. Stevens v. D. R. Dunlap Mercantile Co., 108 Miss. 690, 67 So. 160, 1914 Miss. LEXIS 260 (Miss. 1914).

Publication of notice dated May 26, 1910, in newspaper on June 3, 10 and 17, sufficient. Stevens v. D. R. Dunlap Mercantile Co., 108 Miss. 690, 67 So. 160, 1914 Miss. LEXIS 260 (Miss. 1914).

Notice stating that person publishing it was appointed administrator and advising all persons having claims to deal as law directs was not sufficient. Marshall v. John Deere Plow Co., 99 Miss. 284, 54 So. 948, 1911 Miss. LEXIS 209 (Miss. 1911).

Administrator’s notice not void for use of word “file” instead of “register.” Stokes v. Lemon & Gale Co., 96 Miss. 868, 52 So. 457, 1910 Miss. LEXIS 210 (Miss. 1910).

3. Failure to give notice.

Because the executrix failed in the executrix’s statutory duty to provide notice to any creditors regarding the probate of the decedent’s estate, the filing period for probate claims did not expire as the executrix failed to provide the required statutory notice to trigger the running of the filing period. Avakian v. Wilmington Trust N.A. (In re Estate of Avakian), 231 So.3d 208, 2017 Miss. App. LEXIS 201 (Miss. Ct. App.), cert. denied, 229 So.3d 122, 2017 Miss. LEXIS 492 (Miss. 2017).

RESEARCH REFERENCES

ALR.

What constitutes rejection of claim against estate to commence running of statute of limitations applicable to rejected claims. 36 A.L.R.4th 684.

Validity of nonclaim statute or rule provision for notice by publication to claimants against estate – post-1950 cases. 56 A.L.R.4th 458.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 620, 623.

9A Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 641 et seq. (notice to creditors).

8 Am. Jur. Legal Forms 2d, Executors and Administrators § 104:157 et seq. (creditors’ claims).

CJS.

34 C.J.S., Executors and Administrators § 561.

§ 91-7-147. Newspaper notices dispensed with in small estates.

Where the value of an estate shall not be more than Five Hundred Dollars ($500.00), the court shall dispense with newspaper notices; and notices in lieu thereof shall be posted for thirty (30) days at the courthouse door and two (2) other public places in the county. Failure of persons having claims against the estate to have their claims probated and registered by the clerk of the court granting letters within ninety (90) days after the date on which notice is posted will bar such claims as provided in Section 91-7-151.

HISTORY: Codes, 1857, ch. 60, art. 97; 1871, § 1157; 1880, § 2066; 1892, § 1891; 1906, § 2066; Hemingway’s 1917, § 1731; 1930, § 1670; 1942, § 567; Laws, 1994, ch. 430, § 2, eff from and after passage (approved March 17, 1994).

RESEARCH REFERENCES

ALR.

Validity of nonclaim statute or rule provision for notice by publication to claimants against estate-post-1950 cases. 56 A.L.R.4th 458.

§ 91-7-149. Probate of claims.

Any person desiring to probate his claim shall present to the clerk the written evidence thereof, if any, or if the claim be a judgment or decree, a duly certified copy thereof, or if there be no written evidence thereof, an itemized account or a statement of the claim in writing, signed by the creditor, and make affidavit, to be attached thereto, to the following effect, viz.: That the claim is just, correct, and owing from the deceased; that it is not usurious; that neither the affiant nor any other person has received payment in whole or in part thereof, except such as is credited thereon, if any; and that security has not been received therefor except as stated, if any. Thereupon, if the clerk shall approve, he shall indorse upon the claim the words following: “Probated and allowed for $ _______________and registered this_______________day of_______________ , A.D.,_______________ ,” and shall sign his name officially thereto. Probate registration and allowance shall be sufficient presentation of the claim to the executor or administrator; provided, that should the clerk probate and allow and register the claim, but fail or neglect to indorse thereon the words, “Probated and allowed for $ _______________and registered the_______________day of_______________ , A.D.,_______________ ,” and officially sign his name thereto, the court may, upon proper showing, allow the clerk to indorse on the claim, nunc pro tunc, the words, “Probated and allowed for $ _______________and registered, this the_______________day of_______________ , A.D.,_______________ ,” and sign his name officially thereto. If the claim be based upon a demand of which there is no written evidence or upon an itemized account, the statement of said claim or the itemized account shall be retained and kept by the clerk among the official papers pertaining to the estate; and if the claim be based upon a promissory note or other instrument purporting to have been executed by the decedent, the creditor shall file with his claim either the original thereof or a duplicate of such original in the discretion of the creditor. If the original writing is presented to the clerk, it may be withdrawn by the creditor, and the clerk shall make a duplicate thereof. No specific writing or certificate shall be required to be made by the clerk on either the original writing or the duplicate retained by the clerk. In no instance shall an original writing be required to be presented to the clerk unless (a) a question is raised by the personal representative of the estate, or by any party in interest, as to the authenticity of the original or (b) in the circumstances it would be unfair to admit into evidence the duplicate in lieu of the original. In either of the above situations, the court or chancellor, upon good cause being shown, may require the creditor to produce the original before the court or clerk for the inspection of the personal representative or other party in interest, who may examine the original and who may make photographic copies thereof under the supervision of the clerk.

Notwithstanding the foregoing, any record, voucher, claim, check, draft, receipt, writing, account, statement, note or other evidence which may be furnished, filed, probated, presented or produced, or required to be produced, by a federally regulated bank, thrift or trust company shall be deemed to be an original admitted, furnished, filed, probated, presented, or produced for all purposes and with the same effect as the original, if such financial institution produces a copy of such evidence from a format of storage commonly used by financial institutions, whether electronic, imaged, magnetic, microphotographic or otherwise.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (90); 1857, ch. 60, art. 82; 1871, § 1137; 1880, § 2027; 1892, § 1932; 1906, § 2106; Hemingway’s 1917, § 1774; 1930, § 1671; 1942, § 568; Laws, 1934, ch. 304; Laws, 1991, ch. 413, § 1; Laws, 1996, ch. 400, § 42, eff from and after passage (approved March 19, 1996).

Cross References —

Power of chancery clerk to allow and register claims against estate, see §9-5-141.

Register of claims to be kept by chancery clerk, see §9-5-173.

Notice of contest of claim, see §91-7-165.

Proceedings in insolvent estates, see §91-7-261 et seq.

JUDICIAL DECISIONS

1. In general.

2. Mandatory nature of statute.

3. Claims subject to probate.

4. —Claim of executor or trustee.

5. Statement of claims.

6. Clerk’s certificate.

7. Withdrawal of instruments.

8. Defective probate.

9. Affidavit.

10. Payment of claims.

11. Unprobated claims.

12. Limitations.

13. Written evidence.

1. In general.

Because a hospital was not entitled to sovereign immunity on its probated claim against an estate, the chancellor did not err by denying its sovereign-immunity claim; the chancellor had jurisdiction to adjudicate the probated claim filed by the hospital and contested by the estate because what was before the chancery court was the validity of the hospital’s probated claim, not the estate’s counterclaim for emotional distress, fraud, and punitive damages. In re Estate of Matute, — So.3d —, 2020 Miss. LEXIS 43 (Miss. Feb. 20, 2020).

The amendment to §91-7-149 which deleted the requirement of filing the original promissory note when a creditor makes a claim against the estate, would be retroactively applied to a case which was before the court when the amendment was enacted. Bell v. Mitchell, 592 So. 2d 528, 1991 Miss. LEXIS 968 (Miss. 1991).

In order for a claimant to introduce evidence to support a claim against an estate for medical expenses upon contest, the claimant may proceed under §41-9-119, but to do this, he or she must be allowed to go into court to present the bills incurred and to testify for what purpose they were incurred. Since a summary judgment, by its nature, disposes of a case before a trial is commenced, summary judgment practice under Rule 56, Miss. R. Civ. P. is inapplicable in contests of probated claims because it is inconsistent with the statutory procedure which necessitates that a claimant enter court to introduce evidence in support of his or her claim and permits a personal representative to rebut the claim. Thus, the procedure for summary judgment is not applicable to dispose of claims made under §91-7-149. Biloxi Regional Medical Center, Inc. v. Estate of Ross, 546 So. 2d 667, 1989 Miss. LEXIS 297 (Miss. 1989).

A substantial compliance with the statute is sufficient. Central Optical Merchandising Co. v. Estate of Lowe, 249 Miss. 61, 160 So. 2d 673, 1964 Miss. LEXIS 376 (Miss. 1964).

The purposes of nonclaim statutes are to furnish the legal representative with evidence of the validity of the claim, give him an opportunity to contest the same, and enable him to justify the payment and be allowed credit therefor in his account. Whitaker v. Davenport, 193 Miss. 523, 10 So. 2d 202, 1942 Miss. LEXIS 135 (Miss. 1942).

Probating, allowing, and registering of claims against estate are not “judicial acts” on part of clerk. Poyner v. Gilmore, 171 Miss. 859, 158 So. 922, 1935 Miss. LEXIS 25 (Miss. 1935).

Purpose of additional provisions, incorporated into statute regulating manner of filing claims for probate was to require evidences of debt to remain on file in clerk’s office, where heirs, or other creditors or parties in interest, could better examine into facts, so as to avoid collection of false claims. Jordan v. Love, 171 Miss. 523, 157 So. 877, 1934 Miss. LEXIS 262 (Miss. 1934).

Claim against estate of deceased stockholder in insolvent bank, for personal liability filed and marked “probated” by clerk, held not void because lost or mislaid by clerk. Carothers v. Love, 169 Miss. 250, 152 So. 483, 153 So. 389, 1934 Miss. LEXIS 8 (Miss. 1934).

Law providing manner for filing claims against estate of decedent should be strictly construed against creditors. Jennings v. Lowery & Berry, 147 Miss. 673, 112 So. 692, 1927 Miss. LEXIS 304 (Miss. 1927).

2. Mandatory nature of statute.

A claimant’s pleadings were adequate under §91-7-149 where she did all that the statute required with the limited exception of the label on her pleading, in that she set forth the nature of her claim and summarized its factual basis, and she complied with the important verification requirements of the statute. Williams v. Mason, 556 So. 2d 1045, 1990 Miss. LEXIS 34 (Miss. 1990).

Whenever claim against estate of decedent, to which affidavit in compliance with statute is attached, is presented to clerk for probate, he has mandatory duty to admit it to probate by attaching his certificate thereto. Poyner v. Gilmore, 171 Miss. 859, 158 So. 922, 1935 Miss. LEXIS 25 (Miss. 1935).

Technical precision of form is not required to satisfy statute regulating manner of probating claims, although statute is mandatory as to its substance. Deposit Guaranty Bank & Trust Co. v. Jordan's Estate, 171 Miss. 332, 157 So. 876, 1934 Miss. LEXIS 260 (Miss. 1934); Fidelity Mut. Life Ins. Co. v. Goldstein, 187 Miss. 285, 192 So. 584, 1940 Miss. LEXIS 206 (Miss. 1940).

Substance of law on subject of probating claims against estate is mandatory. Merchants & Mfrs. Bank v. Fox, 165 Miss. 833, 147 So. 789, 1933 Miss. LEXIS 313 (Miss. 1933); Ellsworth v. Fox, 147 So. 790 (Miss. 1933); Jordan v. Love, 171 Miss. 523, 157 So. 877, 1934 Miss. LEXIS 262 (Miss. 1934); Strange v. Strange, 189 Miss. 349, 197 So. 830, 1940 Miss. LEXIS 126 (Miss. 1940).

Statute requiring endorsement of clerk is mandatory. Stevens v. D. R. Dunlap Mercantile Co., 108 Miss. 690, 67 So. 160, 1914 Miss. LEXIS 260 (Miss. 1914).

The statute is mandatory and an affidavit which is not in effect a compliance with it will not give validity to the probation, allowance and registration of a claim. Cheairs v. Cheairs, 81 Miss. 662, 33 So. 414, 1902 Miss. LEXIS 180 (Miss. 1902).

3. Claims subject to probate.

A former wife proved a valid claim against her former husband’s estate for $30,600, where there was a prior court judgment finding that the husband was $600 in arrears in alimony payments, and their divorce decree required the husband to carry a $30,000 life insurance policy on his own life naming the wife as the policy’s primary beneficiary after payment of then existing pledged debts, but the husband had let the policy lapse. Raspilair v. Estate of Raspilair, 583 So. 2d 970, 1991 Miss. LEXIS 458 (Miss. 1991).

In an action seeking to compel a perfect inventory, void certain conveyances, partition property, and establish a claim against an estate, §§91-7-149,91-7-251 had no application and petitioner’s claim was improperly dismissed as untimely, where the claim was not for a specific money demand due or to become due but rather was an inchoate and contingent claim involving the ownership by co-tenancy of specific property. Maxwell v. Yuncker, 419 So. 2d 580, 1982 Miss. LEXIS 2165 (Miss. 1982).

Defaulted instalments of alimony can be recovered against the husband’s personal representative and claim therefor may be probated as a decree. Schaffer v. Schaffer, 209 Miss. 220, 46 So. 2d 443, 1950 Miss. LEXIS 381 (Miss. 1950).

Purchaser’s claim against decedent’s estate for purchase price of royalty interest in oil and gas lease because of breach of warranty based on decedent’s prior conveyance of his interest is a probatable claim against the estate of decedent, there having been no production of oil and gas under the lease prior to decedent’s death. Dale v. Hickman, 207 Miss. 606, 42 So. 2d 810, 1949 Miss. LEXIS 373 (Miss. 1949).

A secured creditor is free to stand upon his security and is under no duty to probate his debt. Campbell v. Cason, 206 Miss. 420, 40 So. 2d 258, 1949 Miss. LEXIS 271 (Miss. 1949).

A claim that certain funds in a bank belong to one other than the decedent does not constitute a claim against the estate capable of being probated. Matthews v. Redmond, 202 Miss. 253, 32 So. 2d 123, 1947 Miss. LEXIS 268 (Miss. 1947).

Person who took paralytic into her home and continuously cared for him for a period of two and one-half years until his death, pursuant to an oral agreement that in return such paralytic would make will leaving her his entire estate consisting of realty and personalty, where paralytic did execute such a will but subsequently executed a new will leaving all his property to his nephew, at least had a right to establish her claim quantum meruit. Johnston v. Tomme, 199 Miss. 337, 24 So. 2d 730, 1946 Miss. LEXIS 202 (Miss. 1946).

A claim against a decedent’s estate for maintenance, nursing and other care furnished by an old men’s home upon the decedent’s false and fraudulent representation that he was a pauper was not a claim for unliquidated damages for a tort, which under the statute could not be probated, but a claim for reasonable compensation for care and support. Old Men's Home, Inc. v. Lee's Estate, 191 Miss. 669, 2 So. 2d 791, 4 So. 2d 235, 1941 Miss. LEXIS 144 (Miss. 1941).

Judgments obtained against foreign administrator cannot be probated under statute and cannot be basis of claim against estate administered in state. Voyles v. Robinson, 151 Miss. 585, 118 So. 420, 1928 Miss. LEXIS 338 (Miss. 1928).

Physicians’ and druggists’ bills should be separately probated. Gaulden v. Ramsey, 123 Miss. 1, 85 So. 109, 1920 Miss. LEXIS 1 (Miss. 1920).

4. —Claim of executor or trustee.

Under law permitting executor to probate individual account, fact that trustee, acting with an executor and trustee in petitioning for sale of realty to pay debts, had a probated account did not show fraud and his good faith presumed. Brickell v. Lightcap, 115 Miss. 417, 76 So. 489, 1917 Miss. LEXIS 218 (Miss. 1917), overruled, Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

5. Statement of claims.

No fixed form of claim is ordinarily required, nor is the technical accuracy and certainty of description essential in pleading necessary, so long as it gives such information concerning the nature and amount of the demand as to enable the representative to act intelligently upon it. Central Optical Merchandising Co. v. Estate of Lowe, 249 Miss. 61, 160 So. 2d 673, 1964 Miss. LEXIS 376 (Miss. 1964).

Though a claim may satisfy minimum requirements the personal representative may require the creditor to make it more definite and certain where it does not sufficiently advise him of its essential details or nature. Central Optical Merchandising Co. v. Estate of Lowe, 249 Miss. 61, 160 So. 2d 673, 1964 Miss. LEXIS 376 (Miss. 1964).

Where a claimant presents in good faith a claim in substantial compliance with the statute, it is not equitable for the decedent’s representation to wait until the time for filing claims has expired and then to assert that the itemized account is not technically sufficient and thereby to bar the claim. Central Optical Merchandising Co. v. Estate of Lowe, 249 Miss. 61, 160 So. 2d 673, 1964 Miss. LEXIS 376 (Miss. 1964).

A claim for premiums upon insurance policies is sufficiently itemized where it shows the kind of policy, the policy number, the period covered, the amount due on final audit, and the due date. Stewart v. Estate of Williamson, 243 Miss. 450, 138 So. 2d 742, 1962 Miss. LEXIS 361 (Miss. 1962).

The statute clearly contemplates that, in presenting claims against the estate of a decedent, the evidence or statement of same probated must on its face show a prima facie right in the claimant to recover from the estate the amount claimed, and that it must disclose the nature and amount of the claim with sufficient prevision to bar, when paid, an action therefor. Johnson v. Hannon, 211 Miss. 207, 51 So. 2d 283, 1951 Miss. LEXIS 350 (Miss. 1951).

Where a claim was for services rendered as a servant of deceased for washing, ironing, cooking, cleaning house and etc., for 842 days at a $1.00 per day and night totalling the sum of $842, the statement of claim was sufficient on its face to inform the administrator that the services were rendered under an implied, if not an express, promise to pay for the same and the claimant should be permitted to introduce her proof to establish either an express or implied promise to pay for the services. Johnson v. Hannon, 211 Miss. 207, 51 So. 2d 283, 1951 Miss. LEXIS 350 (Miss. 1951).

A claim for “personal services” is too broad and indefinite; the statement of such a claim must specify the nature and character of the services rendered and that they were rendered pursuant to a contract with the decedent during his lifetime, either express or implied, that the services were to be compensated for. Johnson v. Odom, 202 Miss. 213, 31 So. 2d 120, 1947 Miss. LEXIS 261 (Miss. 1947).

Omission of the middle name or initial of the decedent does not invalidate a claim presented for probate against an estate. Boggan v. Scruggs, 200 Miss. 747, 29 So. 2d 86, 1947 Miss. LEXIS 358 (Miss. 1947), overruled, Talbert v. Ellzey, 203 Miss. 612, 35 So. 2d 628, 1948 Miss. LEXIS 313 (Miss. 1948).

A form of claim merely stating that it is in account with the named decedent, setting forth the items and signed at the end is not defective as failing to disclose whether the debt claimed is due from or to the decedent’s estate, and if from, to whom. Boggan v. Scruggs, 200 Miss. 747, 29 So. 2d 86, 1947 Miss. LEXIS 358 (Miss. 1947), overruled, Talbert v. Ellzey, 203 Miss. 612, 35 So. 2d 628, 1948 Miss. LEXIS 313 (Miss. 1948).

Certified copies of petitions in suit against foreign administrator in foreign state with statutory affidavits attached held sufficient statement of claim against estate. Voyles v. Robinson, 151 Miss. 585, 118 So. 420, 1928 Miss. LEXIS 338 (Miss. 1928).

Defective description of some of the several items of a claim does not render the probate of the claim void. Gaulden v. Ramsey, 123 Miss. 1, 85 So. 109, 1920 Miss. LEXIS 1 (Miss. 1920).

“To care and attention including board, lodging . . . and service for 3 years prior to the death of said Mrs. O. D. Graves, and being from April 20, 1913, to April 20, 1916,” properly states claim. Gaulden v. Ramsey, 123 Miss. 1, 85 So. 109, 1920 Miss. LEXIS 1 (Miss. 1920).

Where purchaser of claims did not itemize them for probate, but listed each, giving amount and name of original creditor, this was not sufficient. Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958, 1918 Miss. LEXIS 158 (Miss. 1918).

The itemized account need not show days of month of doctor’s visits; due date of each item held to be first day of month in which charged. Duffy v. Kilroe, 116 Miss. 7, 76 So. 681, 1917 Miss. LEXIS 281 (Miss. 1917).

Statement of claim sufficiently signed where creditor signed affidavit attached thereto. Bankston v. Coopwood, 99 Miss. 511, 55 So. 48, 1911 Miss. LEXIS 221 (Miss. 1911).

A claim for professional services not based upon an itemized account is sufficiently stated for probate if in writing and if it specifies a definite sum as due “for legal advice and services rendered” to deceased. Foster v. Shaffer, 84 Miss. 197, 36 So. 243, 1904 Miss. LEXIS 24 (Miss. 1904).

6. Clerk’s certificate.

Defendants’ promissory notes were properly probated where the clerk’s certificate showed that each note was a true and correct copy of the original note and that after each original note was filed and numbered it was withdrawn and the copy substituted; the fact that the clerk did not mark on any of the original notes the word “filed” and did not number the original notes did not invalidate the probation of the notes. Estate of Wilson v. National Bank of Commerce, 364 So. 2d 1117, 1978 Miss. LEXIS 2239 (Miss. 1978).

Where a creditor’s claim against a decedent’s estate is filed with the chancery clerk within the statutory six-month period, it is the purpose of the 1934 amendment to this section [Code 1942, § 568] to allow the clerk to enter a nunc pro tunc indorsement on the claim after the expiration of the statutory period. Ethridge v. Estate of Paul, 196 So. 2d 530, 1967 Miss. LEXIS 1492 (Miss. 1967).

Bill against chancery clerk and his surety for failure to attach certificate to claim showing it was probated, allowed, and registered, because of which failure claim was disallowed, held not demurrable since claimant would at least be entitled to nominal damages. Poyner v. Gilmore, 171 Miss. 859, 158 So. 922, 1935 Miss. LEXIS 25 (Miss. 1935).

Claim rendered invalid by failure of clerk to make any endorsement showing probate, registration and allowance. Stevens v. D. R. Dunlap Mercantile Co., 108 Miss. 690, 67 So. 160, 1914 Miss. LEXIS 260 (Miss. 1914).

Statute requiring endorsement of clerk is mandatory, but court within time period before claim is barred, where clerk’s failure was due to ignorance of duty, may enter order nunc pro tunc authorizing clerk to approve and allow claim. Stevens v. D. R. Dunlap Mercantile Co., 108 Miss. 690, 67 So. 160, 1914 Miss. LEXIS 260 (Miss. 1914).

Clerk’s certificate not invalidated by omission of word “probated” where shown statute complied with by claimant. Davis v. Blumenberg, 107 Miss. 432, 65 So. 503, 1914 Miss. LEXIS 102 (Miss. 1914).

7. Withdrawal of instruments.

Defendants’ promissory notes were properly probated where the clerk’s certificate showed that each note was a true and correct copy of the original note and that after each original note was filed and numbered it was withdrawn and the copy substituted; the fact that the clerk did not mark on any of the original notes the word “filed” and did not number the original notes did not invalidate the probation of the notes. Estate of Wilson v. National Bank of Commerce, 364 So. 2d 1117, 1978 Miss. LEXIS 2239 (Miss. 1978).

Clerk keeps original note probated against estate until creditor requests withdrawal thereof, and clerk’s statutory obligation to make certified copy to be retained by him arises only on claimant’s request to withdraw original and exists only while original yet remains in clerk’s hands. Merchants' & Mfrs' Bank v. Busby, 172 Miss. 394, 160 So. 577, 1935 Miss. LEXIS 154 (Miss. 1935).

Clerk held not liable for failure to certify copies of notes filed against estate, resulting in disallowance of claim, in absence of allegations that he had assured creditor at time of withdrawal of originals that certified copies had been made and filed, or promised to make and file certified copies after withdrawal. Merchants' & Mfrs' Bank v. Busby, 172 Miss. 394, 160 So. 577, 1935 Miss. LEXIS 154 (Miss. 1935).

Probate of note withdrawn by claimant held void for absence of clerk’s seal on certificate on copy of note, although certificate of probate was sealed. King v. Jones, 171 Miss. 886, 158 So. 457, 158 So. 796, 1935 Miss. LEXIS 19 (Miss. 1935).

Statute requires creditor probating claim against estate on deceased’s note, in order to withdraw original note from clerk’s office, to furnish for administrator, heirs, and other parties in interest full and true copy made or verified by clerk, accompanied by clerk’s certificate, indorsed on copy or appended thereto, which certificate and copy must both remain on file among papers in clerk’s office. Jordan v. Love, 171 Miss. 523, 157 So. 877, 1934 Miss. LEXIS 262 (Miss. 1934).

Where clerk certified copy of deceased’s note filed for probate and sent certificate and original note back to claimant, who filed them away without observing irregularity until after period for probation had expired, claim was not allowable, since statute was not complied with. Jordan v. Love, 171 Miss. 523, 157 So. 877, 1934 Miss. LEXIS 262 (Miss. 1934).

Statute regulating probate of claims and authorizing withdrawal of original note where clerk retains copy, held to authorize withdrawal of original attached affidavit where clerk retained a certified copy. Deposit Guaranty Bank & Trust Co. v. Jordan's Estate, 171 Miss. 332, 157 So. 876, 1934 Miss. LEXIS 260 (Miss. 1934).

Statute requires clerk of court, when original instruments executed by decedent are withdrawn from files, to make and retain certified copies. Merchants & Mfrs. Bank v. Fox, 165 Miss. 833, 147 So. 789, 1933 Miss. LEXIS 313 (Miss. 1933).

Clerk’s certificate on copies retained when original instruments executed by decedent are withdrawn from files, must be under hand and seal of clerk and must show clerk has had originals placed before him and that copies retained are true copies. Merchants & Mfrs. Bank v. Fox, 165 Miss. 833, 147 So. 789, 1933 Miss. LEXIS 313 (Miss. 1933).

It is sufficient for clerk to indorse on copy retained of instrument executed by decedent and withdrawn from files that same is “true copy of original this day exhibited to me,” dating certificate, signing same, and affixing thereto his official seal. Merchants & Mfrs. Bank v. Fox, 165 Miss. 833, 147 So. 789, 1933 Miss. LEXIS 313 (Miss. 1933).

Where original note of decedent is withdrawn from files, all indorsements and credits must be shown by copy retained and certificate. Merchants & Mfrs. Bank v. Fox, 165 Miss. 833, 147 So. 789, 1933 Miss. LEXIS 313 (Miss. 1933).

8. Defective probate.

A claim upon a note is properly disallowed where the original is not filed. Stewart v. Estate of Williamson, 243 Miss. 450, 138 So. 2d 742, 1962 Miss. LEXIS 361 (Miss. 1962).

Claim by deceased’s brother for a doctor’s bill incurred by the decedent in his last illness, there being no evidence that the brother paid the claim at the request of the deceased, was properly refused since under the law such a claim should be separately probated on the affidavit of the original creditor. Martin v. De Jarnette, 185 Miss. 76, 187 So. 202, 1939 Miss. LEXIS 123 (Miss. 1939).

Holder of note against estate must probate original note or account for loss; claimant on open account must itemize as to dates and sums furnished. Levy v. Merchants' Bank & Trust Co., 124 Miss. 325, 86 So. 807, 1920 Miss. LEXIS 512 (Miss. 1920).

Decree disallowing claim not probated according to law affirmed where record does not contain note or account attempted to be probated. Horne v. McAlpin, 101 Miss. 129, 57 So. 420, 1911 Miss. LEXIS 107 (Miss. 1911).

In suit against executor for debt due by testator, proof of correctness of claim properly rejected where not signed by the creditor and no affidavit attached. Walker v. Nelson, 87 Miss. 268, 39 So. 809, 1905 Miss. LEXIS 139 (Miss. 1905).

9. Affidavit.

Where the timely affidavit filed by the creditor designated as the credit account the decedent’s business rather than the decedent himself, and it neither presented written evidence of the claim nor an itemized account thereof, it provided no information to the administrator of the estate from which he could reasonably act in either allowing or disallowing the claim, and the trial court properly refused to allow the creditor to amend his complaint after the expiration of 6 months. Stuart C. Irby Co. v. Patton, 301 So. 2d 845, 1974 Miss. LEXIS 1665 (Miss. 1974).

Where statute of limitations would not run against claim of brother for services and necessaries furnished to his insane sister with expectation of repayment, until her death, it is not required that the affidavit state the time when decedent died, since the death is already established by the record giving jurisdiction of the case to the chancery court. Talbert v. Ellzey, 203 Miss. 612, 35 So. 2d 628, 1948 Miss. LEXIS 313 (Miss. 1948).

A claim based on a loan to the deceased to buy hotel bonds which were to be a gift to the creditor, evidenced by a check allegedly signed by the creditor, was not properly probated as required hereunder, where there was a variance in the initials of the name of the creditor as it appeared on the statement of accounts, check and affidavit in support of the accounts, with no showing that the various names described the same person. Strange v. Strange, 189 Miss. 349, 197 So. 830, 1940 Miss. LEXIS 126 (Miss. 1940).

Affidavit by creditor’s agent amounts to no affidavit at all. Persons v. Griffin, 112 Miss. 643, 73 So. 624, 1916 Miss. LEXIS 159 (Miss. 1916).

Affidavit failing to allege that claim “is not usurious” is insufficient. Cudahy Packing Co. v. Miller's Estate, 103 Miss. 435, 60 So. 574, 1912 Miss. LEXIS 190 (Miss. 1912).

Affidavit by creditor’s husband as her agent, fatally defective as statute requires that it be by creditor. Saunders v. Stephenson, 94 Miss. 676, 47 So. 783, 1909 Miss. LEXIS 328 (Miss. 1909).

The clerk had no jurisdiction to allow and register a claim where the probate failed to conform to the statute in the following particulars: The affidavit did not after the word “correct” incorporate the words “and owing from the deceased,” and did not contain the words “that it is not usurious” nor the words “and that neither the affiant nor any person has received payment.” Cheairs v. Cheairs, 81 Miss. 662, 33 So. 414, 1902 Miss. LEXIS 180 (Miss. 1902).

10. Payment of claims.

Will provision directing probate of claims against decedent’s estate and excepting “secured debts not due” cannot defeat obligation of the estate to pay a probated secured claim. Campbell v. Cason, 206 Miss. 420, 40 So. 2d 258, 1949 Miss. LEXIS 271 (Miss. 1949).

An administrator has no right to pay a probated claim for services rendered to the deceased in his lifetime, in the absence of either an express or implied promise on the part of the decedent to pay for the same. Johnson v. Odom, 202 Miss. 213, 31 So. 2d 120, 1947 Miss. LEXIS 261 (Miss. 1947).

Claims for services rendered by intestate’s next of kin in looking after intestate, were properly disallowed where there was no promise, agreement or circumstances from which it could be reasonably inferred that the intestate expected to pay, or that such next of kin expected to receive pay, for such services. Wells v. Brooks, 199 Miss. 327, 24 So. 2d 533, 1946 Miss. LEXIS 201 (Miss. 1946).

Claim for services rendered by husband of daughter of intestate’s nephew in assisting the nephew in managing the intestate’s farm, was properly disallowed where there was no circumstances justifying any assent, express or implied, on the part of the intestate to pay the husband, and where he failed to show that he rendered any service of substantial benefit. Wells v. Brooks, 199 Miss. 327, 24 So. 2d 533, 1946 Miss. LEXIS 201 (Miss. 1946).

Husband of daughter of deceased’s nephew by half blood was entitled to fair and adequate compensation on a quantum meruit basis for services rendered in managing deceased’s farm, where such services were performed in expectation that deceased would carry out unenforceable promise to leave her property to the daughter if husband performed such services. Wells v. Brooks, 199 Miss. 327, 24 So. 2d 533, 1946 Miss. LEXIS 201 (Miss. 1946).

Claim against testator’s estate, which purported to be itemized account or statement of claim in writing, which charged estate with purchase of note on which there was balance due, would be disallowed, where evidence clearly disclosed that there was no sale of note by claimant to testator, but that testator agreed to collect note for claimant, pay certain amount on debt of testator’s son to testator and turn over balance to claimant, and that testator merely became claimant’s agent or trustee for collection of note. First Columbus Nat'l Bank v. Holesapple-Dillman, 174 Miss. 234, 164 So. 232, 1935 Miss. LEXIS 73 (Miss. 1935).

Administrator is without authority to pay claim not presented as provided by this section [Code 1942, § 568].A. A. Lehman & Co. v. Powe, 95 Miss. 446, 49 So. 622, 1909 Miss. LEXIS 286 (Miss. 1909).

Decree directing distribution among heirs does not affect right to payment of probated claim; fact that claimant is also administrator who has filed its final account is immaterial. Oliver v. Smith, 94 Miss. 879, 49 So. 1, 1909 Miss. LEXIS 364 (Miss. 1909).

11. Unprobated claims.

Services rendered under an oral agreement between a father and daughter whereby the former agreed to leave the daughter her home in consideration of her living with him and taking care of him, constituted an unliquidated claim which could not be probated as required by this section [Code 1942, § 568], and being a liability in the strictest sense of the word, the daughter was not barred because the claim was not probated but was entitled to recover the reasonable value of her services. Stephens v. Duckworth, 188 Miss. 626, 196 So. 219, 1940 Miss. LEXIS 66 (Miss. 1940).

The court has no power upon ex parte petitions to authorize a payment of an unprobated claim. Townsend v. Beavers, 185 Miss. 312, 188 So. 1, 1939 Miss. LEXIS 154 (Miss. 1939).

While heirs and distributees, so far as they are each concerned, may consent to the payment by the administrator of unprobated debts against the estate, and after such consent and the payment in pursuance thereof will, in the absence of fraud or misrepresentation, be precluded from any attempt on their part to charge the administrator therewith, this does not bind or affect the interests of those who did not so consent. Townsend v. Beavers, 185 Miss. 312, 188 So. 1, 1939 Miss. LEXIS 154 (Miss. 1939).

Payment of promissory notes which were not probated as required by this section [Code 1942, § 568] could not be surcharged against the administrator as to those distributees of the estate who consented thereto, although such consent was not binding on heirs and devisees who did not consent to such payment. Townsend v. Beavers, 185 Miss. 312, 188 So. 1, 1939 Miss. LEXIS 154 (Miss. 1939).

Court cannot assume justice or correctness of claim not duly probated. Persons v. Griffin, 112 Miss. 643, 73 So. 624, 1916 Miss. LEXIS 159 (Miss. 1916).

Refusal to permit administrator to file plea, after close of evidence, setting up failure to probate within time fixed by statute, was erroneous. Johnson v. Success Brick Machinery Co., 93 Miss. 169, 46 So. 957, 1908 Miss. LEXIS 117 (Miss. 1908).

Setoff cannot be based on unprobated claim. Cohn v. Carter, 92 Miss. 627, 46 So. 60, 1908 Miss. LEXIS 202 (Miss. 1908).

12. Limitations.

The rule that facts which prevented the running of the statute of limitations against a probated claim should appear in some form on probate thereof and cannot be made to appear for the first time by evidence offered when the claim is under consideration in administration of deceased’s estate, does not apply to services and necessaries furnished by a brother to his insane sister, since limitations in such case does not begin to run until her death. Talbert v. Ellzey, 203 Miss. 612, 35 So. 2d 628, 1948 Miss. LEXIS 313 (Miss. 1948).

Motion of claimant, who after expiration of six months for probate, moved that clerk be allowed to make proper certificates of true copies of notes withdrawn and to sign probate and allowance, held properly overruled. Merchants & Mfrs. Bank v. Fox, 165 Miss. 833, 147 So. 789, 1933 Miss. LEXIS 313 (Miss. 1933).

Estate of nonresident within state administered as though there were no other administration, and creditor may probate claim barred in other state but not in this state. Buckingham Hotel Co. v. Kimberly, 138 Miss. 445, 103 So. 213, 1925 Miss. LEXIS 62 (Miss. 1925).

Full faith and credit clause held not to require treating order of dismissal in another state of probate claim for late filing as bar to claim in this state. Buckingham Hotel Co. v. Kimberly, 138 Miss. 445, 103 So. 213, 1925 Miss. LEXIS 62 (Miss. 1925).

No action can be maintained on note not probated within time fixed. Johnson v. Success Brick Machinery Co., 93 Miss. 169, 46 So. 957, 1908 Miss. LEXIS 117 (Miss. 1908).

13. Written evidence.

In a case in which appellant, along with her children, filed claims against her ex-husband’s estate for child support arrears, other unpaid support obligations, and for life insurance proceeds, appellant’s presentation of the divorce decree, the property settlement agreement, and other various documents was sufficient to satisfy the requirements of Miss. Code Ann. §91-7-14. To the extent the chancellor dismissed appellant’s claims on the merits, such action was improper, as the merits were not before the chancellor to decide. Strickland v. Estate of Broome, 179 So.3d 1088, 2015 Miss. LEXIS 604 (Miss. 2015).

In a probate proceeding involving a claim based upon an oral contract between the claimant and the decedent whereby the claimant would lend the decedent $11,000 and the decedent would leave a bequest of certain real property to the claimant, the chancellor properly admitted into evidence the claimant’s cancelled check and the document reporting to be the defective holographic will of the decedent, neither of which had been attached as exhibits to the claim, where the claim itself was based upon the oral contract and the exhibits were merely introduced as evidence in support of the claim. Estate of McKellar v. Brown, 404 So. 2d 550, 1981 Miss. LEXIS 2229 (Miss. 1981).

The chancellor properly dismissed an amended probate of claim where the alleged written contract between the decedent and the claimant did not in and of itself sufficiently state a claim against the estate and where the claimant failed to allege and prove compliance with the various conditions of the agreement. French v. Druetta, 399 So. 2d 1327, 1981 Miss. LEXIS 1966 (Miss. 1981).

Where the timely affidavit filed by the creditor designated as the credit account the decedent’s business rather than the decedent himself, and it neither presented written evidence of the claim nor an itemized account thereof, it provided no information to the administrator of the estate from which he could reasonably act in either allowing or disallowing the claim, and the trial court properly refused to allow the creditor to amend his complaint after the expiration of 6 months. Stuart C. Irby Co. v. Patton, 301 So. 2d 845, 1974 Miss. LEXIS 1665 (Miss. 1974).

Where the respective proofs of two notes presented as claim against an estate recited that the claim was “annexed” and that the original was presented therewith, and described the claim with great particularity and with such accuracy that there could be no mistake as to what claims were referred to, there was a sufficient compliance with this section [Code 1942, § 568], notwithstanding that the proofs were not physically attached to the claims, this section being mandatory as to substance but not as to letter. Fidelity Mut. Life Ins. Co. v. Goldstein, 187 Miss. 285, 192 So. 584, 1940 Miss. LEXIS 206 (Miss. 1940).

Claims, giving claimant’s name and stating that specified amount is due for clearing land, should be allowed where correctness proved by evidence of amount of work and price per acre is shown by written agreement signed by deceased. Fairley v. Fairley, 120 Miss. 400, 82 So. 267 (Miss. 1919).

Joint and several note of claimant and deceased husband with attached receipt of payment in full by claimant, was written evidence on its face of her claim for one-half the payment. Wells v. McCollough, 113 Miss. 401, 74 So. 289, 1917 Miss. LEXIS 115 (Miss. 1917).

It was error to disallow claim of creditor who lost original of his claim after probate, but filed copies thereof on day set for filing. Keiffer Bros. Co. v. Bank of Commerce, 105 Miss. 662, 63 So. 189, 1913 Miss. LEXIS 246 (Miss. 1913).

Claim properly disallowed where claimant filed only copy of receipt signed by decedent, evidencing his claim. McMahon v. Foy, 104 Miss. 309, 61 So. 421, 1913 Miss. LEXIS 38 (Miss. 1913).

RESEARCH REFERENCES

ALR.

Appealability of probate orders allowing or disallowing claims against estate. 84 A.L.R.4th 269.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 628.

19 Am. Jur. Trials, Actions by or against a decedent’s estate, § 1 et seq.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

§ 91-7-151. Claims to be registered in ninety days or barred; amendment of affidavits.

All claims against the estate of deceased persons, whether due or not, shall be registered, probated and allowed in the court in which the letters testamentary or of administration were granted within ninety (90) days after the first publication of notice to creditors to present their claim. Otherwise, the same shall be barred and a suit shall not be maintained thereon in any court, even though the existence of the claim may have been known to the executor or administrator. Where the affidavit is made in good faith and the claim is registered, probated and allowed by the clerk but the affidavit is defective or insufficient, the court may allow the affidavit to be amended so as to conform to the requirements of the statute, at any time before the estate is finally settled; whereupon the probate shall be as effective and the claim as valid against the estate as if the affidavit had been correct and sufficient in the first instance.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 20 (5); 1857, ch. 60, art. 83; 1871, § 1141; 1880, § 2028; 1892, § 1933; 1906, § 2107; Hemingway’s 1917, § 1775; 1930, § 1672; 1942, § 569; Laws, 1926, ch. 157; Laws, 1975, ch. 373, § 5, eff from and after January 1, 1976.

JUDICIAL DECISIONS

1. In general; applicability.

2. —Applicability to particular circumstances.

3. Timeliness.

4. Waiver of bar.

5. Accrual of claim before or after death.

6. Claims on suits brought before or after death.

7. Defective notice.

8. Amendment of claim or affidavit.

1. In general; applicability.

Section 91-7-151 applies only to monetary claims against an estate. Allen v. Mayer, 587 So. 2d 255, 1991 Miss. LEXIS 673 (Miss. 1991).

Executrix was properly surcharged for payment of decedent’s debts which had not been probated, registered, or allowed. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

The statute is not applicable to a situation where a party denies that it is indebted to an estate and raises no claim against the estate. Bible Ministry Asso. v. Merritt, 391 So. 2d 641, 1980 Miss. LEXIS 2166 (Miss. 1980).

The six months statute of limitations as to claims of creditors is irrelevant to an action against the personal representative and heirs of a decedent seeking adjudication of the existence of a partnership and an accounting of the partnership property. Kelly v. Windham, 204 So. 2d 477, 1967 Miss. LEXIS 1206 (Miss. 1967).

An unliquidated claim is not probatable. Powell v. Buchanan, 245 Miss. 4, 147 So. 2d 110, 1962 Miss. LEXIS 526 (Miss. 1962).

This section [Code 1942, § 569] operates to bar a claim for services, notwithstanding a dispute as to rate of compensation. Love v. Estate of Strong, 234 Miss. 869, 108 So. 2d 215, 1959 Miss. LEXIS 561 (Miss. 1959).

This section [Code 1942, § 569] applies only to contractual claims and not to those in tort. Mossler Acceptance Co. v. Moore, 218 Miss. 757, 67 So. 2d 868, 1953 Miss. LEXIS 601 (Miss. 1953); Hancock v. Pyle, 191 Miss. 546, 3 So. 2d 851, 1941 Miss. LEXIS 175 (Miss. 1941).

The term “claim” in statutes relating to claims against estates includes not only debts already due, but unmatured debts, but it applies only to specific money demands due or to become due and not to inchoate and contingent claims. Reedy v. Alexander, 202 Miss. 80, 30 So. 2d 599, 1947 Miss. LEXIS 244 (Miss. 1947).

A claim against the estate of a deceased person is a demand of a pecuniary nature, which could have been enforced against the decedent during his lifetime; the term does not include a claim to the proceeds of the sale of personal property of an estate. Reedy v. Alexander, 202 Miss. 80, 30 So. 2d 599, 1947 Miss. LEXIS 244 (Miss. 1947).

That widow’s petition, claiming the proceeds of certain personalty sold by order of the court as her own rather than that of the estate, had the oath of probate attached to it, and the clerk certified it had been probated, registered and allowed, did not convert it to a probatable or probated claim. Reedy v. Alexander, 202 Miss. 80, 30 So. 2d 599, 1947 Miss. LEXIS 244 (Miss. 1947).

The statute of limitations does not bar the claim of an administrator against the estate for an individual debt duly probated and not barred at the time of his appointment. Oliver v. Smith, 94 Miss. 879, 49 So. 1, 1909 Miss. LEXIS 364 (Miss. 1909).

Claim for damages is not within this section [Code 1942, § 569]; the section refers to contractual claims only. Feld v. Borodofski, 87 Miss. 727, 40 So. 816, 1905 Miss. LEXIS 216 (Miss. 1905).

This section [Code 1942, § 569] has no application to a surviving partner administering partnership assets. Lance v. Calhoun, 85 Miss. 375, 37 So. 1014, 1904 Miss. LEXIS 171 (Miss. 1904).

2. —Applicability to particular circumstances.

Claim for reimbursement of funeral expenses was not untimely under this section because the expenses were not required to be probated; such claims were considered to be a part of the cost of the administration of the estate, and the requirement to probate a claim applied to obligations incurred by a decedent during his lifetime. In re Estate of Whitley v. Love, 129 So.3d 260, 2013 Miss. App. LEXIS 789 (Miss. Ct. App. 2013).

Clearly, more than 90 days after the first notice to creditors had elapsed when plaintiff (a surviving child), filed his claim against the estate, claiming he was entitled to all the insurance proceeds per the decedent’s property settlement with a former wife. However, when the decedent died, plaintiff was a minor, and according to the terms of the decedent’s will, the decedent’s second and surviving spouse had been appointed testamentary guardian of plaintiff’s person and estate; defendant was in a fiduciary relationship with plaintiff, and in that capacity, she not only had an obligation to initiate any and all claims which plaintiff may have had, but she had an obligation to initiate them timely, and therefore, the chancery court erred in granting defendant’s Miss. R. Civ. P. 12(b) motion since a constructive trust was possibly at issue. Thornhill v. Thornhill, 905 So. 2d 747, 2004 Miss. App. LEXIS 1083 (Miss. Ct. App. 2004).

Statute was inapplicable to a claim for furniture, since the claim was not pecuniary in nature and was therefore not a probatable claim within the meaning of the statute. Allen v. Mayer, 587 So. 2d 255, 1991 Miss. LEXIS 673 (Miss. 1991).

Since the liability of the deceased guarantor of a promissory note was contingent, and would possibly never occur, §91-7-151 did not require that it be filed for probate within a period of 90 days following first notice to creditors, and thus the trial court erred in dismissing the lender bank’s suit against the guarantor’s estate. Peoples Bank of Mendenhall v. Wyatt, 441 So. 2d 117, 1983 Miss. LEXIS 3018 (Miss. 1983).

In an action seeking to compel a perfect inventory, void certain conveyances, partition property, and establish a claim against an estate, §§91-7-149,91-7-251 had no application and petitioner’s claim was improperly dismissed as untimely, where the claim was not for a specific money demand due or to become due but rather was an inchoate and contingent claim involving the ownership by co-tenancy of specific property. Maxwell v. Yuncker, 419 So. 2d 580, 1982 Miss. LEXIS 2165 (Miss. 1982).

A creditor’s claim against decedent’s estate for default on an unsecured note assumed by decedent was barred by this section’s 90 day statute of limitations, where the balance due under the note was not an inchoate or contingent claim excepted from the statute, but was a claim enforceable against decedent during his lifetime. Barrett v. Moffitt, 381 So. 2d 624, 1980 Miss. LEXIS 1924 (Miss. 1980).

The claim of a bank, based on an agreement between the decedent and the managing director of the bank for services to be rendered the decedent in consideration of an assignment of 30 percent of the decedent’s interest in another’s estate, was not a joint, undivided and inchoate interest or a contingent unliquidated claim not subject to probate provisions and the time limitation with which to file the claim against an estate, but was instead a claim for personal services which was barred by the bank’s failure to file its claim until 6 months had elapsed from the first publication notice to creditors by the administrator. Vacek v. Hoerner-Bank of West Berlin, 258 So. 2d 793, 1972 Miss. LEXIS 1513 (Miss. 1972).

Where payee failed to timely probate a claim on a note of deceased, and was barred from asserting claim on the note as an unsecured creditor, he was entitled to recovery of the salvage value of the destroyed automobile which had been mortgaged to secure the note. Mossler Acceptance Co. v. Moore, 218 Miss. 757, 67 So. 2d 868, 1953 Miss. LEXIS 601 (Miss. 1953).

Purchaser’s claim against decedent’s estate for purchase price of royalty interest in oil and gas lease because of breach of warranty based on decedent’s prior conveyance of his interest, there having been no production of oil and gas under the lease prior to decedent’s death, was a probatable claim against decedent’s estate which was barred for failure to probate same within the period prescribed by this section [Code 1942, § 569]. Dale v. Hickman, 207 Miss. 606, 42 So. 2d 810, 1949 Miss. LEXIS 373 (Miss. 1949).

Claims for the proceeds of timber sold from land purchased at an invalid foreclosure sale, and rents received by the purchaser, are not required to be probated within six months, the claims coming within the purview of such requirement being such as, if paid by the executor or administrator, would prima facie entitle him to credit therefor. Hancock v. Pyle, 191 Miss. 546, 3 So. 2d 851, 1941 Miss. LEXIS 175 (Miss. 1941).

Where executor failed to probate claim against estate secured by mortgage, devisee was not entitled to have land exonerated and claim paid out of general assets. Howell v. Ott, 182 Miss. 252, 180 So. 52, 181 So. 740, 1938 Miss. LEXIS 139 (Miss. 1938), limited, Kent v. McCaslin, 238 Miss. 129, 117 So. 2d 804, 1960 Miss. LEXIS 387 (Miss. 1960).

Unliquidated claim against negligent bank director is not a claim for probate against his estate. Boyd v. Applewhite, 121 Miss. 879, 84 So. 16, 1920 Miss. LEXIS 128 (Miss. 1920).

The limitation provided under this section [Code 1942, § 569] does not apply where a will creates an express trust for the payment of debts and the executor follows the directions of the will as provided in Code 1942, § 518. Gordon v. McDougall, 84 Miss. 715, 37 So. 298, 1904 Miss. LEXIS 96 (Miss. 1904).

The liability of a surety on a guardian’s bond is not a probatable claim against the estate of a deceased surety and is not barred by any statute of limitations relating to the probate of claims. Savings Bldg. & Loan Ass'n v. Tart, 81 Miss. 276, 32 So. 115, 1902 Miss. LEXIS 103 (Miss. 1902).

3. Timeliness.

Because the executrix failed in the executrix’s statutory duty to provide notice to any creditors regarding the probate of the decedent’s estate, the filing period for probate claims did not expire as the executrix failed to provide the required statutory notice to trigger the running of the filing period. Avakian v. Wilmington Trust N.A. (In re Estate of Avakian), 231 So.3d 208, 2017 Miss. App. LEXIS 201 (Miss. Ct. App.), cert. denied, 229 So.3d 122, 2017 Miss. LEXIS 492 (Miss. 2017).

A claim presented for probate on December 27, 1946, was not presented within the six-months period where the first notice to creditors was published June 26, 1946. Paine Plumbing & Supply Co. v. McMurtray's Estate, 203 Miss. 334, 34 So. 2d 676, 1948 Miss. LEXIS 274 (Miss. 1948).

Where it appeared that on the death of one partner, the surviving partner had agreed to hold the shares of two of the decedent’s heirs as an active trust for their benefit until demand was made by them for payment of the principal, that all of the parties to the agreement had died and the estate of the surviving partner had been administered, with due notice given to creditors, a bill filed by heirs of the first deceased partner, more than three and one-half years after the death of the surviving partner and after the estate had been administered and the personal property distributed, and without a claim having been presented to the administratrix of his estate, to fix and impose a money decree upon the administratrix and the heirs at law of the surviving partner, was barred by the nonclaim statute, and also by the statute relating to limitation of actions on unwritten contracts. Whitaker v. Davenport, 193 Miss. 523, 10 So. 2d 202, 1942 Miss. LEXIS 135 (Miss. 1942).

4. Waiver of bar.

The bar of the statute cannot be waived by the conduct of the administrator, however misleading or designing. Harkness v. Kansas C., M. & B. R. Co., 33 So. 77 (Miss. 1902).

5. Accrual of claim before or after death.

Executrix would be surcharged for the amount the testamentary trust property was damaged or put in jeopardy due to her mortgaging of estate’s unencumbered real property as security for debt incurred by testator which was never probated. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

A vendor’s election to probate and register a promissory note executed in conjunction with a deed of trust against the purchaser’s estate, which was not pursued, was lost at the end of the 90 day limitation period of §91-7-151; however, that section, as qualified by §91-7-167, did not bar the vendor’s election to pursue the trust or lien establishment against the specific real estate, which arose at the time the deed of trust was mistakenly cancelled by the bank. First Nat'l Bank v. Huff, 441 So. 2d 1317, 1983 Miss. LEXIS 3003 (Miss. 1983).

Where statutory liability of bank stockholder had accrued prior to stockholder’s death but claim had not been probated, suit to recover such statutory liability instituted after expiration of statutory period for presenting claims held barred. Gray v. Love, 173 Miss. 390, 161 So. 679, 1935 Miss. LEXIS 222 (Miss. 1935).

Claim against bank stockholder for statutory liability having accrued prior to stockholder’s death, which occurred after bank became insolvent and closed, was required to be probated the same as other unsecured debts. Gray v. Love, 173 Miss. 390, 161 So. 679, 1935 Miss. LEXIS 222 (Miss. 1935).

Compliance with statute providing that all claims against estate of deceased persons, whether due or not shall be registered, probated, and allowed in court in which letters testamentary or of administration were granted within six months after first publication of notice to creditors, is mandatory. Gray v. Love, 173 Miss. 390, 161 So. 679, 1935 Miss. LEXIS 222 (Miss. 1935).

A decedent’s estate is not liable for an assessment against the decedent as a stockholder in a failed national bank, made in the decedent’s lifetime, where a claim therefor was not presented within the time limited by statute. Mann v. Kleisdorff, 16 F.2d 997, 1927 U.S. App. LEXIS 3682 (5th Cir. Miss. 1927).

Liability of endorser of note as collateral security for another, not having matured at endorser’s death, need not be probated as claim. Sledge & Norfleet Co. v. Dye, 140 Miss. 779, 106 So. 519, 1926 Miss. LEXIS 482 (Miss. 1926).

Claim against estate of deceased stockholder in bank, for double liability, is barred unless probated, where stockholder died after liability accrued. Board of Bank Examiners v. Grenada Bank, 135 Miss. 242, 99 So. 903, 1924 Miss. LEXIS 38 (Miss. 1924).

Claims maturing before decedent’s death are barred, notwithstanding probate, by failure to sue thereon within four years and six months from grant of letters. Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958, 1918 Miss. LEXIS 158 (Miss. 1918).

6. Claims on suits brought before or after death.

Law requiring claims to be probated within six months applies only to claims on which suit was not brought during decedent’s lifetime. Henry v. W. T. Rawleigh Co., 152 Miss. 320, 120 So. 188, 1929 Miss. LEXIS 214 (Miss. 1929); Dillard & Coffin Co. v. Woollard, 124 Miss. 677, 87 So. 148, 1920 Miss. LEXIS 554 (Miss. 1920).

7. Defective notice.

The failure of the illegitimate children of a decedent to assert any claim in the decedent’s estate until after the expiration of 90 days from the date of the first publication of notice to creditors did not bar their claim of heirship or wrongful action where the petition for letters of administration specifically named the illegitimate children as the natural children of the decedent and the administratrix failed to give them notice of the letters’ issuance. Leflore v. Coleman, 521 So. 2d 863, 1988 Miss. LEXIS 170 (Miss. 1988).

Note executed by deceased held not barred by limitations, though over six months had elapsed since probate proceedings, where proceedings were had without proper notice because of omission of word “claims” in notice to creditors, and having no equivalent word since, though creditors may file and prove claims, whether statutory notice was given or not, they are not barred from right to probate unless notice conforms to statute. Bankston v. First Nat'l Bank & Trust Co., 177 Miss. 719, 171 So. 18, 1936 Miss. LEXIS 271 (Miss. 1936).

Administrator who invoked strict doctrine that probate of note was invalid because clerk’s name and seal of court were not on copy of note held required to conform to strict compliance with statutory notice for probate proceedings. Bankston v. First Nat'l Bank & Trust Co., 177 Miss. 719, 171 So. 18, 1936 Miss. LEXIS 271 (Miss. 1936).

Where notice given to creditors is insufficient to set six months’ statute in motion, creditors may amend probate of claims at any time before estate is closed, without court’s leave. Bell v. Union & Planters' Bank & Trust Co., 158 Miss. 486, 130 So. 486, 1930 Miss. LEXIS 58 (Miss. 1930).

Claim not barred by failure to probate where notice not published for three consecutive weeks and no proof of publication made and filed with clerk. Boutwell v. Farmers' & Traders' Bank, 118 Miss. 50, 79 So. 1, 1918 Miss. LEXIS 48 (Miss. 1918).

8. Amendment of claim or affidavit.

The chancellor properly dismissed an amended probate of claim where the alleged written contract between the decedent and the claimant did not in and of itself sufficiently state a claim against the estate and where the claimant failed to allege and prove compliance with the various conditions of the agreement. French v. Druetta, 399 So. 2d 1327, 1981 Miss. LEXIS 1966 (Miss. 1981).

Where the timely affidavit filed by the creditor designated as the credit account the decedent’s business rather than the decedent himself, and it neither presented written evidence of the claim nor an itemized account thereof, it provided no information to the administrator of the estate from which he could reasonably act in either allowing or disallowing the claim, and the trial court properly refused to allow the creditor to amend his complaint after the expiration of 6 months. Stuart C. Irby Co. v. Patton, 301 So. 2d 845, 1974 Miss. LEXIS 1665 (Miss. 1974).

Amendment of a claim after the time for filing is permissible unless it increases the amount of the claim, sets up a new cause of action, and materially changes the basis for the claim. Central Optical Merchandising Co. v. Estate of Lowe, 249 Miss. 61, 160 So. 2d 673, 1964 Miss. LEXIS 376 (Miss. 1964).

A claim for the unpaid balance on an open account for merchandise sold is a sufficient “itemized account” to be amended after the period for filing and to be applified by evidence where contested. Central Optical Merchandising Co. v. Estate of Lowe, 249 Miss. 61, 160 So. 2d 673, 1964 Miss. LEXIS 376 (Miss. 1964).

A claim for a balance due on account for merchandise sold is susceptible of amendment after expiration of the time for filing where it revealed debits and credits, alleged the balance, and was accompanied by photostats of invoices. Central Optical Merchandising Co. v. Estate of Lowe, 249 Miss. 61, 160 So. 2d 673, 1964 Miss. LEXIS 376 (Miss. 1964).

Where certain accounts against an estate were supported by affidavits which did not show the authority of the person signing, amended affidavits could be filed in each of the claims under this section [Code 1942, § 569]. Hughes v. Box, 224 Miss. 513, 81 So. 2d 242, 1955 Miss. LEXIS 516 (Miss. 1955).

Statute requiring court order authorizing amendment of affidavit to probated claims applies to amendments after expiration of six months’ period. Bell v. Union & Planters' Bank & Trust Co., 158 Miss. 486, 130 So. 486, 1930 Miss. LEXIS 58 (Miss. 1930).

RESEARCH REFERENCES

ALR.

Amendment of claim against decedent’s estate after expiration of time for filing claims. 56 A.L.R.2d 627.

Power and responsibility of executor or administrator to compromise claim against estate. 72 A.L.R.2d 243.

What constitutes rejection of claim against estate to commence running of statute of limitations applicable to rejected claims. 36 A.L.R.4th 684.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 1188, 1190, 1194.

CJS.

34 C.J.S., Executors and Administrators §§ 897-915.

§ 91-7-153. Registration of claim stops limitation.

The presentation of a claim, and having it probated and registered as required by law, shall stop the running of the general statute of limitations as to such claim, whether the estate be solvent or insolvent.

HISTORY: Codes, 1880, § 2062; 1892, § 1936; 1906, § 2110; Hemingway’s 1917, § 1778; 1930, § 1673; 1942, § 570.

JUDICIAL DECISIONS

1. In general.

In a probate proceeding based upon an oral contract whereby the decedent promised to bequeath to the claimant a parcel of real property in return for a loan of $11,000, the cause of action for breach of the oral contract arising out of the failure of the will to be admitted to probate did not arise until the death of the decedent; therefore, where the claim for probate was filed within three months of the decedent’s death, it was not barred by the three-year statute of limitations for all contracts set forth in §15-1-29. Estate of McKellar v. Brown, 404 So. 2d 550, 1981 Miss. LEXIS 2229 (Miss. 1981).

Probated claim maturing before decedent’s death barred, notwithstanding probate, by failure to sue thereon within four years and six months. Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958, 1918 Miss. LEXIS 158 (Miss. 1918).

Presentation, probating, and registering claim stops running of general statute of limitations. Duffy v. Kilroe, 116 Miss. 7, 76 So. 681, 1917 Miss. LEXIS 281 (Miss. 1917).

Claim for medical services during deceased’s last illness not barred until after 4 years and 6 months. Hardenstein v. Brien, 96 Miss. 493, 50 So. 979, 1910 Miss. LEXIS 152 (Miss. 1910).

RESEARCH REFERENCES

ALR.

What constitutes rejection of claim against estate to commence running of statute of limitations applicable to rejected claims. 36 A.L.R.4th 684.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 1188, 1190, 1194.

§ 91-7-155. Executor to pay probated, registered debts.

It shall be the duty of an executor or administrator to speedily pay the debts due by the estate out of the assets, if the estate be solvent; but he shall not pay any claim against the deceased unless the same has been probated, allowed, and registered.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (90); 1857, ch. 60, art. 81; 1871, §§ 1135, 1137; 1880, §§ 2026, 2027; 1892, § 1931; 1906, § 2105; Hemingway’s 1917, § 1773; 1930, § 1674; 1942, § 571.

Cross References —

Duty of legal representative of public officer who dies having public money in his hands to pay over the same, see §25-1-67.

Payment of debts from escheated property, see §§89-11-17,89-11-19.

Duty of administrator with the will annexed in regard to the payment of debts, see §91-7-47.

Directions of will regarding payment of debts, see §91-7-49.

Payment of debts by temporary administrator, see §91-7-57.

Payment of debts prior to adjudication of insolvency of estate, see §91-7-269.

JUDICIAL DECISIONS

1. In general.

Executrix would be surcharged for the amount the testamentary trust property was damaged or put in jeopardy due to her mortgaging of estate’s unencumbered real property as security for debt incurred by testator which was never probated. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

Executrix was properly surcharged for payment of decedent’s debts which had not been probated, registered, or allowed. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

This provision, being in derogation of the common-law rule, must be construed strictly. Riegelhaupt v. Ostroffsky, 237 Miss. 521, 115 So. 2d 331, 1959 Miss. LEXIS 499 (Miss. 1959).

Executor should be surcharged in his final account with sum which he paid out of funds of estate in settlement of just claims against estate which were required by law to be duly probated but which were not probated within six-month period after publication of first notice by executor to creditors of estate, as such expenditures are without authority of law unless claims had been probated. Oberst v. Mullens, 43 So. 2d 560 (Miss. 1949).

The court has no power upon ex parte petitions to authorize a payment of an unprobated debt or claim. Townsend v. Beavers, 185 Miss. 312, 188 So. 1, 1939 Miss. LEXIS 154 (Miss. 1939).

Administrator may pay claim for funeral expenses without probate. Gaulden v. Ramsey, 123 Miss. 1, 85 So. 109, 1920 Miss. LEXIS 1 (Miss. 1920).

Administrator without authority to pay claim not presented according to law. A. Lehman & Co. v. Powe, 95 Miss. 446, 49 So. 622, 1909 Miss. LEXIS 286 (Miss. 1909).

Setoff cannot be based on unprobated claim. Cohn v. Carter, 92 Miss. 627, 46 So. 60, 1908 Miss. LEXIS 202 (Miss. 1908).

RESEARCH REFERENCES

ALR.

Necessity of presenting spouse’s claim under separation agreement to personal representative of other spouse’s estate. 58 A.L.R.2d 1283.

Power and responsibility of executor or administrator to compromise claim against estate. 72 A.L.R.2d 243.

Garnishment against executor or administrator by creditor of estate. 60 A.L.R.3d 1301.

Appealability of probate orders allowing or disallowing claims against estate. 84 A.L.R.4th 269.

§ 91-7-157. Executor to pay taxes.

An executor or administrator shall pay all taxes that may be due on real and personal property belonging to the estate.

HISTORY: Codes, 1892, § 1930; 1906, § 2104; Hemingway’s 1917, § 1772; 1930, § 1675; 1942, § 572.

Cross References —

Income tax returns by fiduciaries, see §27-7-35.

Time for filing income tax return, see §27-7-41.

Tax upon settlement of fiduciary’s account, see §27-7-69.

Inheritance tax generally, see §27-9-1 et seq.

Inheritance tax returns by executor, see §27-9-23.

When inheritance tax shall be due, see §27-9-27.

Lien for payment of estate taxes, see §27-9-35.

Executor’s personal liability for estate taxes, see §27-9-37.

Tax upon settlement of executor’s account, see §27-9-41.

Payment of estate taxes as prerequisite to approval of final account, see §27-9-41.

Enforcement of payment of taxes by tax collector, see §27-41-11.

JUDICIAL DECISIONS

1. In general.

Executrix was properly surcharged with amount of interest and penalties paid from decedent’s estate funds for the late filing of federal and state estate tax returns. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

Unpaid taxes did not constitute valid defense to executrix’s suit for specific performance against purchaser of realty sold under power of sale in will, since executrix has duty under this section [Code 1942, § 572] to pay the taxes and such obligation can be readily accounted for under the decree for specific performance. Davis v. Sturdivant, 197 Miss. 139, 19 So. 2d 499, 1944 Miss. LEXIS 284 (Miss. 1944).

In compliance with decree for specific performance of realty sold by executrix under power of sale in will, purchaser is entitled to deed free from lien for unpaid taxes. Davis v. Sturdivant, 197 Miss. 139, 19 So. 2d 499, 1944 Miss. LEXIS 284 (Miss. 1944).

Decision of umpire designated by will to settle disputes between executors, determining that taxes on real estate devised subject to the mortgage debt thereon were not payable by the estate but by the devisee, was not binding on the devisee, where the provision for action by such umpire was designed to bring about harmony between the executors, and such decision was contrary to the manifest intention of the testatrix. Eatherly v. Winn, 185 Miss. 742, 189 So. 99, 1939 Miss. LEXIS 184 (Miss. 1939).

Where the testatrix provided for the payment by her executors of all her just and legal debts, taxes on real estate accruing and due for the year prior to her death, were to be paid by her executors and were not chargeable against the devisee of such real estate devised to him subject to one-half of the mortgage debt thereon. Eatherly v. Winn, 185 Miss. 742, 189 So. 99, 1939 Miss. LEXIS 184 (Miss. 1939).

Administrator was properly permitted to take credit for payment of taxes on realty and merchandise. Crescent Furniture & Mattress Co. v. Morgan, 178 Miss. 824, 173 So. 290, 1937 Miss. LEXIS 211 (Miss. 1937).

Legatees and distributees not required to pay taxes. Tonnar v. Wade, 153 Miss. 722, 121 So. 156, 1929 Miss. LEXIS 56 (Miss. 1929).

Administrator on accounting was entitled to allowance for taxes paid on land of the estate. Davis v. Blumenberg, 107 Miss. 432, 65 So. 503, 1914 Miss. LEXIS 102 (Miss. 1914).

RESEARCH REFERENCES

ALR.

Liability of executor, administrator, trustee, or his counsel, for interest, penalty, or extra taxes assessed against estate because of tax law violations. 47 A.L.R.3d 507.

Liability of executor or administrator to estate because of overpaying or unnecessarily paying tax. 55 A.L.R.3d 785.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 581, 582.

CJS.

34 C.J.S., Executors and Administrators § 526.

§ 91-7-159. Agreement with commissioner of internal revenue to exercise discretion in distributing assets of estate or trust.

The executor, trustee, or other fiduciary having discretionary powers under a last will and testament or transfer in trust shall be authorized to enter into agreements with the commissioner of internal revenue of the United States of America and other taxing authorities to exercise the fiduciary’s discretion so that the assets to be distributed in satisfaction of a bequest or transfer in trust will be selected in such a manner that cash and other properties distributed will have an aggregate fair market value representative of the pecuniary legatee’s or transferee’s proportionate share of the appreciation or depreciation in value to the date, or dates, of distribution of all property then available for distribution in satisfaction of such bequest or transfer. It is the purpose of this section to authorize such fiduciary to enter into any agreement that may be necessary or advisable in order to secure for federal estate tax purposes the maximum marital deduction available under the Internal Revenue Laws of the United States of America, and to do and perform all acts incident to such purpose.

HISTORY: Codes, 1942, § 572.5; Laws, 1964, ch. 295, eff from and after passage (approved June 6, 1964).

§ 91-7-161. Creditors whose claims are not due must accept payment.

The executor or administrator may pay any debt, duly probated, allowed and registered, which is not due. After ninety (90) days from the grant of letters, the creditor shall accept payment thereof and give a full discharge therefor, upon the payment or tender to him of an amount equal to what the debt would have been had it been made payable on the day the payment or tender is made.

HISTORY: Codes, 1892, § 1938; 1906, § 2112; Hemingway’s 1917, § 1780; 1930, § 1676; 1942, § 573; Laws, 1975, ch. 373, § 6, eff from and after January 1, 1976.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 573] is indicative of a public policy favoring the early closing of estates of decedents as against delays on account of unmatured claims. In re Estate of Kennington, 204 So. 2d 444, 1967 Miss. LEXIS 1194 (Miss. 1967).

Where a marital settlement agreement provided for monthly payments to the divorced wife throughout her lifetime or until she remarried, and the agreement bound her divorced husband and his heirs, executors, and assigns even after his death, future and unmatured payments under the agreement constituted a valid claim against the deceased husband’s estate, which this section [Code 1942, § 573] and the principles of equity required to be commuted to a lump sum equal to its fair cash value. In re Estate of Kennington, 204 So. 2d 444, 1967 Miss. LEXIS 1194 (Miss. 1967).

RESEARCH REFERENCES

ALR.

Power and responsibility of executor or administrator to compromise claim against estate. 72 A.L.R.2d 243.

§ 91-7-163. Claim of executor or administrator to be treated same as other claims.

An executor or administrator shall not be allowed to retain any part of the assets in payment of his own claim against the deceased, unless the same be probated and registered as other claims and passed by the court. Every such claim shall stand upon an equal footing with other claims of the same nature.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (108); 1857, ch. 60, art. 85; 1871, § 1143; 1880, § 2030; 1892, § 1935; 1906, § 2109; Hemingway’s 1917, § 1777; 1930, § 1677; 1942, § 574.

Cross References —

Disposal of debt owing from executor or administrator to deceased, see §91-7-101.

JUDICIAL DECISIONS

1. In general.

Where testatrix, after executing will devising her right, title and interest in land gave deed of trust to executor covering same land and clothed him with full discretion, executor was entitled to stand on his security and not probate claim. Howell v. Ott, 182 Miss. 252, 180 So. 52, 181 So. 740, 1938 Miss. LEXIS 139 (Miss. 1938), limited, Kent v. McCaslin, 238 Miss. 129, 117 So. 2d 804, 1960 Miss. LEXIS 387 (Miss. 1960).

Administrator, whose individual claims were barred because not timely filed, could not have claims for items accruing before decedent’s death allowed under guise of accounting. McDowell v. Minor, 169 Miss. 339, 142 So. 491, 1932 Miss. LEXIS 5 (Miss. 1932).

Where administrator did not file his individual claim within six months after notice to creditors should have been given, probate of claim was nullity. McDowell v. Minor, 158 Miss. 360, 130 So. 484, 1930 Miss. LEXIS 57 (Miss. 1930).

Claim of administrator against estate for individual debt not barred by limitations where duly probated and not barred at time of appointment. Oliver v. Smith, 94 Miss. 879, 49 So. 1, 1909 Miss. LEXIS 364 (Miss. 1909).

RESEARCH REFERENCES

ALR.

Appealability of probate orders allowing or disallowing claims against estate. 84 A.L.R.4th 269.

§ 91-7-165. Claims may be contested.

The executor or administrator, legatee, heir, or any creditor may contest a claim presented against the estate. The court or clerk may refer the same to auditors, who shall hear and reduce to writing the evidence on both sides, if any be offered, and report their findings with the evidence to the court. Thereupon the court may allow or disallow the claim, but such proceeding shall not be had without notice to the claimant.

HISTORY: Codes, 1857, ch. 60, art. 84; 1871, § 1142; 1880, § 2029; 1892, § 1934; 1906, § 2108; Hemingway’s 1917, § 1776; 1930, § 1678; 1942, § 575.

JUDICIAL DECISIONS

1. In general.

2. Burden of proof of claims.

3. Evidence.

4. Decree.

1. In general.

Because a hospital was not entitled to sovereign immunity on its probated claim against an estate, the chancellor did not err by denying its sovereign-immunity claim; the chancellor had jurisdiction to adjudicate the probated claim filed by the hospital and contested by the estate because what was before the chancery court was the validity of the hospital’s probated claim, not the estate’s counterclaim for emotional distress, fraud, and punitive damages. In re Estate of Matute, — So.3d —, 2020 Miss. LEXIS 43 (Miss. Feb. 20, 2020).

A former wife proved a valid claim against her former husband’s estate for $30,600, where there was a prior court judgment finding that the husband was $600 in arrears in alimony payments, and their divorce decree required the husband to carry a $30,000 life insurance policy on his own life naming the wife as the policy’s primary beneficiary after payment of then existing pledged debts, but the husband had let the policy lapse. Raspilair v. Estate of Raspilair, 583 So. 2d 970, 1991 Miss. LEXIS 458 (Miss. 1991).

In order for a claimant to introduce evidence to support a claim against an estate for medical expenses upon contest, the claimant may proceed under §41-9-119, but to do this, he or she must be allowed to go into court to present the bills incurred and to testify for what purpose they were incurred. Since a summary judgment, by its nature, disposes of a case before a trial is commenced, summary judgment practice under Rule 56, Miss. R. Civ. P. is inapplicable in contests of probated claims because it is inconsistent with the statutory procedure which necessitates that a claimant enter court to introduce evidence in support of his or her claim and permits a personal representative to rebut the claim. Thus, the procedure for summary judgment is not applicable to dispose of claims made under §91-7-149. Biloxi Regional Medical Center, Inc. v. Estate of Ross, 546 So. 2d 667, 1989 Miss. LEXIS 297 (Miss. 1989).

There is no conflict between §91-7-165 and the discovery rules and, therefore, in a proceeding to contest a claim probated against an estate, the estate had the right under Rules 26 and 33, Miss. R. Civ. P. to propound interrogatories and secure all relief appropriate for failure to answer. Biloxi Regional Medical Center, Inc. v. Estate of Ross, 546 So. 2d 667, 1989 Miss. LEXIS 297 (Miss. 1989).

Time for taking appeal by administrator or executor unhappy with decree allowing contested claim runs from date of decree on claim, not from date of decree finally closing estate; efficient and orderly administration of estates and payment of all just debts without unjustified delay compels this result. Braxton v. Johnson, 514 So. 2d 1232 (1987).

On filing of contest of probated claim, claimant need file no pleading in absence of demand or necessity for bill of particulars. Ellis v. Berry, 145 Miss. 652, 110 So. 211, 1926 Miss. LEXIS 1 (Miss. 1926).

2. Burden of proof of claims.

One filing claim for services rendered deceased has burden to establish by clear and convincing evidence that the services were rendered pursuant to an understanding, express or implied. Wells v. Brooks, 199 Miss. 327, 24 So. 2d 533, 1946 Miss. LEXIS 201 (Miss. 1946).

The burden of establishing a claim if contested, is upon the claimant although the claim has been admitted to probate by the clerk. Wooley v. Wooley, 194 Miss. 751, 12 So. 2d 539, 1943 Miss. LEXIS 82 (Miss. 1943).

Where it appeared that in a hearing on contested claims against an estate, the administratrix proceeded first with her testimony, claimant’s contention that she thereby assumed the burden of proof and adopted the legal effect of a probated claim announced in the chancellor’s opinion, and that she was estopped to take a different position on appeal, was untenable in view of the effect and weight the chancellor erroneously attached to the mere fact that the claim had been admitted to probate. Wooley v. Wooley, 194 Miss. 751, 12 So. 2d 539, 1943 Miss. LEXIS 82 (Miss. 1943).

3. Evidence.

Where a claim meets certain minimum requirements, both the person asserting the claim and the personal representative, on a contest, have the right to introduce evidence to support their positions. Central Optical Merchandising Co. v. Estate of Lowe, 249 Miss. 61, 160 So. 2d 673, 1964 Miss. LEXIS 376 (Miss. 1964).

Decision of chancellor that admission to probate of claims against an estate established a presumption of its correctness was erroneous as being a misconception of the effect of a probated claim, since a claim against an estate, although duly probated and registered, must be established by clear and reasonably positive evidence, if contested by the administratrix. Wooley v. Wooley, 194 Miss. 751, 12 So. 2d 539, 1943 Miss. LEXIS 82 (Miss. 1943).

A claim against the estate of a decedent, although duly probated and registered, must be established by clear and reasonably positive evidence, if objected to by the administrator, or by any legatee, heir, or any creditor, and contested by such party in interest. Nicholson v. Dent, Robinson & Ward, 189 Miss. 658, 198 So. 552, 1940 Miss. LEXIS 148 (Miss. 1940).

Claim against testator’s estate, which purported to be itemized account or statement of claim in writing, which charged estate with purchase of note on which there was a balance due, would be disallowed where evidence clearly disclosed that there was no sale of note by claimant to testator, but that testator agreed to collect note for claimant, pay certain amount on debt of testator’s son to testator and turn over balance to claimant, and that testator merely became claimant’s agent or trustee for collection of note. First Columbus Nat'l Bank v. Holesapple-Dillman, 174 Miss. 234, 164 So. 232, 1935 Miss. LEXIS 73 (Miss. 1935).

Under contract for services between claimant and intestate, at a fixed compensation, declarations of intestate to third person indicating willingness to pay claimant for services then being rendered, not sufficient to establish agreement to pay extra compensation therefor. Bell v. Oates, 97 Miss. 790, 53 So. 491, 1910 Miss. LEXIS 308 (Miss. 1910).

4. Decree.

In contest of claim against decedent’s estate, only decree allowing or disallowing claim can be rendered, and monetary judgment against administrator for sum for which claim is allowed, if allowed, would be erroneous. Trippe v. O'Cavanagh, 203 Miss. 537, 36 So. 2d 166, 1948 Miss. LEXIS 304 (Miss. 1948).

RESEARCH REFERENCES

ALR.

Power and responsibility of executor or administrator to compromise claim due estate. 72 A.L.R.2d 191.

Power and responsibility of executor or administrator to compromise claim against estate. 72 A.L.R.2d 243.

Validity of nonclaim statute or rule provision for notice by publication to claimants against estate – post-1950 cases. 56 A.L.R.4th 458.

Appealability of probate orders allowing or disallowing claims against estate. 84 A.L.R.4th 269.

§ 91-7-167. Creditor having lien failing to present claim.

A creditor of a decedent who has a lien of any kind on property of the decedent shall not be barred of his right to enforce the lien against the property by a failure to present his claim and have it probated and registered, but shall be barred of all claim to be satisfied out of the assets not affected by such lien. A person claiming to have a lien on any property of the decedent may be made a party to any proper proceeding by the executor or administrator or a creditor to test the validity of such claim to a lien, and to determine upon the right of such claim. This may be in a proceeding to sell property, which may be ordered to be sold free from such lien, or subject to it; and the decree may be made as to a sale and disposition of the proceeds of the sale of the property, as may be according to the rights of parties before the court.

HISTORY: Codes, 1880, § 2031; 1892, § 1937; 1906, § 2111; Hemingway’s 1917, § 1779; 1930, § 1679; 1942, § 576.

Cross References —

Enforcement of lien by representative of lienor, see §85-7-261.

Renewal of lien by executors and administrators, see §91-7-227.

JUDICIAL DECISIONS

1. In general.

2. Jurisdiction.

1. In general.

A vendor’s election to probate and register a promissory note executed in conjunction with a deed of trust against the purchaser’s estate, which was not pursued, was lost at the end of the 90 day limitation period of §91-7-151; however, that section, as qualified by §91-7-167, did not bar the vendor’s election to pursue the trust or lien establishment against the specific real estate, which arose at the time the deed of trust was mistakenly cancelled by the bank. First Nat'l Bank v. Huff, 441 So. 2d 1317, 1983 Miss. LEXIS 3003 (Miss. 1983).

There payee failed to timely probate claim on note of deceased, and was barred from asserting claim on the note as an unsecured creditor, he was entitled to recovery of the salvage value of the destroyed automobile which had been mortgaged to secure the note. Mossler Acceptance Co. v. Moore, 218 Miss. 757, 67 So. 2d 868, 1953 Miss. LEXIS 601 (Miss. 1953).

The widow and adopted daughter of an intestate were not necessary parties to a proceeding against the administratrix to foreclose a deed of trust on realty constituting a part of the estate, where the estate had been declared insolvent, the realty was in the possession of the administratrix, who was also the widow of the decedent but was made a party only as administratrix, and the daughter advised her regarding the foreclosure matters. Hubbard v. Massey, 192 Miss. 95, 4 So. 2d 230, 4 So. 2d 494, 1941 Miss. LEXIS 3 (Miss. 1941).

Where testatrix, after executing will devising her right, title and interest in land, gave deed of trust to executor covering same land and clothed him with full discretion, executor was entitled to stand on his security and not probate claim. Howell v. Ott, 182 Miss. 252, 180 So. 52, 181 So. 740, 1938 Miss. LEXIS 139 (Miss. 1938), limited, Kent v. McCaslin, 238 Miss. 129, 117 So. 2d 804, 1960 Miss. LEXIS 387 (Miss. 1960).

Lien of trust held to exist from misapplication of funds, making probate of same unnecessary to enforce it as against all but bona fide purchaser. Sandy v. Crump, 139 Miss. 163, 103 So. 804, 1925 Miss. LEXIS 122 (Miss. 1925).

An ex parte petition of an administrator erroneously stating that a lien exists on certain assets and asking permission to apply the assets to the satisfaction of the alleged lien is not a proceeding to test the validity of a claim within the meaning of this section [Code 1942, § 576]. O'Brien Bros. v. Wilson, 86 Miss. 540, 38 So. 509, 1905 Miss. LEXIS 58 (Miss. 1905).

2. Jurisdiction.

Creditor properly brought its claim before a justice court, and then appealed to the circuit court, even though a debtor’s estate was still open, because creditor’s action was purely a possessory action. Gandy v. Citicorp, 985 So. 2d 371, 2008 Miss. App. LEXIS 360 (Miss. Ct. App. 2008).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 585, 586.

CJS.

34 C.J.S., Executors and Administrators § 555.

§ 91-7-169. Growing crop.

The court or chancellor may, on the application of an executor or administrator, decree the sale of the crop growing at the time of the death of the testator or intestate, upon such terms and in such manner as may be deemed best. If the interest of the estate would be promoted by the cultivation and completion of the crop, on application therefor by the executor or administrator, it shall be so ordered by the court or chancellor; and in such case the executor or administrator shall take charge of the farm and manage the same until the crop be completed and gathered, retaining for that purpose so much of the property thereon as may be necessary. The proceeds shall be assets in his hands, the necessary expenses being first deducted; and, in either case, the executor or administrator shall render a true account of the crop. In case of the sale of the growing crop, the purchaser thereof may at all reasonable times enter upon the lands to cultivate and gather the same.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (84); 1857, ch. 60, art. 96; 1871, § 1156; 1880, § 2063; 1892, § 1882; 1906, § 2057; Hemingway’s 1917, § 1722; 1930, § 1680; 1942, § 577.

Cross References —

Growing crop not subject to judgment lien, see §11-7-199.

Treatment of growing crops in event of forfeiture under mortgage or deed of trust, see §§11-25-25,11-25-115.

Growing crop not subject to levy for execution or attachment, see §13-3-137.

JUDICIAL DECISIONS

1. In general.

Crops growing on devised land at time of death of testatrix which are not needed by executor for payment of debts or cost of administration of estate pass to devisee of land rather than into estate for benefit of residuary legatees, where will devised land and all trucks, farm implements, tractors and equipment thereon and directed that immediately after death of devisor devisee should be vested with entire control over her part of property. Oberst v. Mullens, 43 So. 2d 560 (Miss. 1949).

Under this section [Code 1942, § 577], crops remaining on the lands at the date of his death, whether gathered or still in the field, and whether they are matured or not, are assets of decedent, whether testate or intestate, and as such pass into the hands of the personal representative for the payment of the debts and expenses of administration. Gordon v. James, 86 Miss. 719, 39 So. 18, 1905 Miss. LEXIS 93 (Miss. 1905).

Crops remaining on land are assets of estate passing to personal representative. Gordon v. James, 86 Miss. 719, 39 So. 18, 1905 Miss. LEXIS 93 (Miss. 1905).

A contract by a farmer to obtain supplies for making crops, under which he mortgages his personalty and crops to secure payment, does not terminate with his death, but can be enforced by and against his administrator, and such mortgage secures advances made to an administrator empowered to complete the crop. Cox v. Martin, 75 Miss. 229, 21 So. 611, 1897 Miss. LEXIS 82 (Miss. 1897).

The proceeds of crops growing on exempted property are assets in the hands of the personal representative of the deceased owner. Dickey v. Wilkins, 17 So. 374 (Miss. 1895).

Debts incurred by the administrator in cultivating the crop are privileged claims thereon, and limited thereto. Emanuel v. Norcum, 8 Miss. 150, 1843 Miss. LEXIS 69 (Miss. 1843); Hagan v. Barksdale, 44 Miss. 186, 1870 Miss. LEXIS 99 (Miss. 1870); Farley, Jurey & Co. v. Hord, 45 Miss. 96, 1871 Miss. LEXIS 55 (Miss. 1871); Hardee v. Cheatham, 52 Miss. 41, 1876 Miss. LEXIS 161 (Miss. 1876).

RESEARCH REFERENCES

Am. Jur.

21A Am. Jur. 2d, Crops §§ 29-31.

§ 91-7-171. Farm may be cultivated or rented.

The court or chancellor, upon the application of executor or administrator, may allow him to cultivate or lease the farm or lands of the decedent for a period of not exceeding fifteen months from the grant of letters testamentary or of administration, if the interest of the estate, in the opinion of the court or chancellor, would be promoted thereby; or the court or chancellor, upon the application of the executor or administrator, may allow him to cultivate or lease the farm or lands of the decedent from year to year for the purpose of paying the debts of the decedent.

HISTORY: Codes, 1892, § 1883; 1906, § 2058; Hemingway’s 1917, § 1723; 1930, § 1681; 1942, § 578; Laws, 1918, ch. 125.

Cross References —

Lease of lands to pay debts, see §91-7-225.

JUDICIAL DECISIONS

1. In general.

An administrator, by consent of the heirs, may lease decedent’s lands for the purpose of paying his debts. Ashley v. Young, 79 Miss. 129, 29 So. 822, 1901 Miss. LEXIS 16 (Miss. 1901).

§ 91-7-173. Executor or administrator may continue business for limited time.

The chancery court or the chancellor in vacation shall have the power to authorize the executor or administrator of a decedent, when not contrary to the provisions of a will, to continue as a going concern for a period of not exceeding three (3) years after the grant of letters, the business in which the decedent was engaged at the time of his death and, where such business is a mercantile or other business of like nature, to allow the purchase of goods in small quantities necessary to replenish the stock and promote the sale thereof, and to permit the sale of the stock of goods at retail in the regular course of business. Said stock of goods, however, shall not be sold at less than cost thereof, except by a previous order of the court or chancellor.

HISTORY: Codes, 1930, § 1682; 1942, § 579; Laws, 1926, ch. 142; Laws, 1964, ch. 298; Laws, 1966, ch. 323, § 1, eff from and after passage (approved February 8, 1966).

Cross References —

Additional provisions governing the conduct of executors, administrators, and other fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et seq.

JUDICIAL DECISIONS

1. In general.

Surcharge upon executrix based upon her per se failure to secure court authority to operate a closely held corporation, which sustained losses both before and after testator’s death, was not proper where the estate owned only stock in the corporation, not the business itself; further the proof failed to show that losses were caused by the failure of the executrix to act prudently in the administration of the estate. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

The management of a corporation is vested in its board of directors and not the stockholders. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

Court authority is not per se necessary to authorize an executrix with will annexed to exercise the estate’s stock voting rights in a closely held corporation. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

Mississippi Code §91-7-173 refers to unincorporated businesses and not incorporated ones in which the decedent owns a stock interest, even if it is a controlling stock interest. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

Chancery court has power to authorize an executor to continue the business of the testator. Barry v. Barry, 198 Miss. 677, 21 So. 2d 922, 1945 Miss. LEXIS 239 (Miss. 1945).

Administrator held unauthorized to operate intestate’s business without an order of court being filed with clerk, which order was not effective until it reached hands of clerk. Crescent Furniture & Mattress Co. v. Morgan, 178 Miss. 824, 173 So. 290, 1937 Miss. LEXIS 211 (Miss. 1937).

Administrator was properly allowed sums for purchase of new goods and supplies, clerks’ salaries and other expenses in operating intestate’s business notwithstanding order of court had not been obtained where master found that during period business was so operated nothing was lost to estate. Crescent Furniture & Mattress Co. v. Morgan, 178 Miss. 824, 173 So. 290, 1937 Miss. LEXIS 211 (Miss. 1937).

RESEARCH REFERENCES

ALR.

Liability of personal representative for losses incurred in carrying on, without testamentary authorization, decedent’s nonpartnership mercantile or manufacturing business. 58 A.L.R.2d 365.

Preference or priority of claims arising out of continuation of decedent’s business by personal representative. 83 A.L.R.2d 1406.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 525, 527, 533.

CJS.

34 C.J.S., Executors and Administrators § 213 et seq.

§ 91-7-175. Sale of perishable property.

The court or clerk may order the sale of perishable property on such notice as may be prescribed, whether required for the payment of debts or not.

HISTORY: Codes, 1857, ch. 60, art. 87; 1871, § 1145; 1880, § 2034; 1892, § 1885; 1906, § 2060; Hemingway’s 1917, § 1725; 1930, § 1683; 1942, § 580.

Cross References —

Sale of perishable goods levied on generally, see §13-3-167.

§ 91-7-177. Private sale of personal property.

The court, or the chancellor in vacation, may authorize the executor or administrator to sell personal property at a private sale.

HISTORY: Codes, 1857, ch. 60, art. 87; 1871, § 1146; 1880, § 2035; 1892, § 1886; 1906, § 2061; Hemingway’s 1917, § 1726; 1930, § 1684; 1942, § 581.

Cross References —

Authority of chancellor or chancery court to order private sales, see §11-5-117.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 581] allows private sale of personal property by an administrator for less than its appraised value, but in making such sale without a prior court order the administrator runs the risk of the court’s subsequent disapproval. Dabbs v. Fisher, 27 So. 2d 342 (Miss. 1946).

§ 91-7-179. Sale for appraised value without order.

The executor or administrator, without an order therefor, may sell for cash, either at public or private sale, perishable goods or chattels or livestock of the decedent, whether it be necessary for the payment of debts and expenses of administration or not. He may likewise sell any personal property of the decedent necessary for the payment of the debts and expenses, but he shall realize therefor at least the appraised value of such property.

HISTORY: Codes, 1880, § 2038; 1892, § 1888; 1906, § 2063; Hemingway’s 1917, § 1728; 1930, § 1685; 1942, § 582.

§ 91-7-181. Certain property may be sold without being present.

An executor or administrator may sell the interest of his testator or intestate in a ship, vessel, steamboat, other water craft, or other property which he cannot produce, without the same being present at the time and place of sale.

HISTORY: Codes, 1857, ch. 60, art. 87; 1871, § 1146; 1880, § 2036; 1892, § 1887; 1906, § 2062; Hemingway’s 1917, § 1727; 1930, § 1686; 1942, § 583.

§ 91-7-183. Public sale of personal property.

If it be necessary to sell personal property for the payment of debts, or in case there are no debts and it is to the best interest of all parties concerned, the executor or administrator shall file a petition for an order of sale in which the reasons for the same shall be made known. In case there are no debts, five days’ notice to the parties in interest who have not joined in said petition shall be given of the time and place of hearing said petition, or publication made, as provided by law, for nonresident or unknown defendants in chancery. If the court or chancellor in vacation be satisfied that a sale is necessary or proper, an order may be made for the sale of part or the whole of the personal estate; and if a part be ordered sold, the court or chancellor in vacation in selecting such part shall have in view the best interest of the creditors and distributees. The executor or administrator shall advertise in three or more public places in the county ten days before the sale, and shall sell the property designated in the order at public sale to the highest bidder, either for cash or credit, as the order of sale may direct. The executor or administrator shall not become the purchaser of any property which he may sell, either directly or indirectly, nor shall any executor or administrator take the estate or any part thereof at the appraised value.

HISTORY: Codes, 1857, ch. 60. art. 86; 1871, § 1144; 1880, § 2032; 1892, § 1884; 1906, § 2059; Hemingway’s 1917, § 1724; 1930, § 1687; 1942, § 584.

Cross References —

Sales under decree by chancery court, see §11-5-93 et seq.

Where property under execution or other process shall be sold, see §13-3-161 et seq.

JUDICIAL DECISIONS

1. In general.

Sale of decedent’s property without legal citation to beneficiaries in will is valid where will relieves executor from legal citation to interested parties. Walker v. First Nat'l Bank, 204 Miss. 696, 38 So. 2d 98, 1948 Miss. LEXIS 398 (Miss. 1948).

Objection to executor’s sale of wholesale grocery business on ground that it was not sufficiently advertised is not well taken when, under the terms of will under which sale was made, no public notice of proposed sale was required to be given. Walker v. First Nat'l Bank, 204 Miss. 696, 38 So. 2d 98, 1948 Miss. LEXIS 398 (Miss. 1948).

Objection to executor’s sale of wholesale grocery business on ground that it was not sufficiently advertised is not well taken where publication containing elements of sale was made in three newspapers for period of approximately a week, prospective bidders were notified by telephone and letters, many people inspected property, successful bid exceeded appraised value, and objectors produced no proof more than possibility or speculation that had sale been postponed for ten or twenty days there would have been higher, or more numerous, bids on the later date. Walker v. First Nat'l Bank, 204 Miss. 696, 38 So. 2d 98, 1948 Miss. LEXIS 398 (Miss. 1948).

RESEARCH REFERENCES

ALR.

Right of an administrator with the will annexed, or trustee other than the person named in the will as such, to execute power of sale conferred by will. 9 A.L.R.2d 1324.

Power of sale conferred on executor by testator as authorizing private sale. 11 A.L.R.2d 955.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 725, 728.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 741 et seq. (sale of personal property).

CJS.

34 C.J.S., Executors and Administrators § 700 et seq.

§ 91-7-185. Report of sale and proceedings.

Whenever personal property shall be sold by an executor or administrator, he shall make report thereof in writing to the next term of the court, stating the time and place of sale, the name of the purchaser, and the amount of the purchase-money, and shall satisfy the court that the directions prescribed in the order for sale, if the sale be under an order, were followed. Thereupon the court shall confirm the sale, unless cause be shown to the contrary. If such sale be not reported at the next term, the court may compel the making of such report at a subsequent term, and may confirm or set aside the same. Any executor or administrator failing to make report in due time may be fined for a contempt, not exceeding One Hundred Dollars ($100.00).

HISTORY: Codes, 1857, ch. 60, art. 87; 1871, § 1147; 1880, § 2037; 1892, § 1889; 1906, § 2064; Hemingway’s 1917, § 1729; 1930, § 1688; 1942, § 585.

JUDICIAL DECISIONS

1. In general.

Supreme court will not say that confirmation of sale of wholesale grocery business by executor, acting under authority of will, was manifestly wrong, when it is not pointed out by what means or manner a higher price could have been obtained for the assets of the estate nor in what respect beneficiaries in will suffered any loss. Walker v. First Nat'l Bank, 204 Miss. 696, 38 So. 2d 98, 1948 Miss. LEXIS 398 (Miss. 1948).

§ 91-7-187. Sale of land in preference to personalty.

When the estate of any deceased person consists of real and personal property and it shall be necessary to sell a portion thereof, the chancery court, on petition of the executor, administrator, legatees or distributees, being satisfied that it would be to the interest of the distributees or legatees, may decree a sale of the real estate in preference to the personal estate.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 8 (2); 1857, ch. 60, art. 93; 1871, § 1153; 1880, § 2042; 1892, § 1900; 1906, § 2075; Hemingway’s 1917, § 1742; 1930, § 1689; 1942, § 586.

JUDICIAL DECISIONS

1. In general.

Sale of real estate made by heir was in his individual capacity as owner of property, as sole surviving heir at law of his father, and suit for commission by real estate agent, who alleged she procured purchaser for home, could not be maintained against estate, because conditions for sale of real estate by administrator of estate established in §§91-7-187 and91-7-191 had not been shown to exist. Estate of Manscoe v. Simmons, 512 So. 2d 682, 1987 Miss. LEXIS 2781 (Miss. 1987).

Sale under execution of land of decedent pursuant to decree recovered against administrator held void for noncompliance with statutes regulating proceedings for sale of decedent’s land for payment of debts. Dolan v. Tate, 161 Miss. 615, 137 So. 515, 1931 Miss. LEXIS 291 (Miss. 1931).

Heirs of decedent suing to remove, as cloud on title, claim asserted through purchase at execution sale under judgment against ancestor’s representative, need not offer to pay judgment or amount for which land was sold. Dolan v. Tate, 161 Miss. 615, 137 So. 515, 1931 Miss. LEXIS 291 (Miss. 1931).

Under this section [Code 1942, § 586] and other sections providing for the sale of property by the personal representative for the payment of debts, it is the legal duty of such representative to pay the taxes on lands for the purpose of preserving them for the benefit of creditors. Tonnar v. Wade, 153 Miss. 722, 121 So. 156, 1929 Miss. LEXIS 56 (Miss. 1929).

This section [Code 1942, § 586] applies whether the property is devised by will or descends by operation of law. Brickell v. Lightcap, 115 Miss. 417, 76 So. 489, 1917 Miss. LEXIS 218 (Miss. 1917), overruled, Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

RESEARCH REFERENCES

ALR.

Right of an administrator with the will annexed, or trustee other than the person named in the will as such, to execute power of sale conferred by will. 9 A.L.R.2d 1324.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 725, 730 et seq.

§ 91-7-189. Sale to pay the purchase-money of land.

If a person purchase land and die before paying therefor, the court may order the sale of personal property for the payment of the debt due for the land. If the personal property will not be sufficient, if sold, to pay the debt, or if it be advisable that the land be sold in preference to personal property to make payment therefor, the court may order the sale of such land on such terms as may be proper. In such case the vendor of the deceased and his assignee of the debt, if any, shall be made defendants to the petition for the sale of the land.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (96); 1857, ch. 60, art. 138; 1871, § 1196; 1880, § 2043; 1892, § 1901; 1906, § 2076; Hemingway’s 1917, § 1743; 1930, § 1690; 1942, § 587.

Cross References —

Preference of purchase money mortgage, see §89-1-45.

JUDICIAL DECISIONS

1. In general.

A sale made under this section [Code 1942, § 587] is not for the benefit of creditors at large, nor is the fund subject to pro rata distribution. Wells v. Smith, 44 Miss. 296, 1870 Miss. LEXIS 110 (Miss. 1870).

§ 91-7-191. Sale of land upon insufficiency of personalty.

Whenever it shall be necessary for an executor or administrator to sell property to pay the debts and expenses of the estate, he may file a petition in the chancery court for the sale of the land of the deceased, or so much of it as may be necessary, and exhibit to the court a true account of the personal estate and debts due from the deceased, and the expenses and a description of the land to be sold. Any sale of land shall be subject to the abatement provisions of Section 91-7-90.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (98); 1857, ch. 60, art. 88; 1871, § 1148; 1880, § 2039; 1892, § 1893; 1906, § 2068; Hemingway’s 1917, § 1735; 1930, § 1691; 1942, § 588; Laws, 2019, ch. 458, § 13, eff from and after July 1, 2019.

Amendment Notes —

The 2019 amendment substituted “Whenever it shall be necessary for an executor or administrator to sell property to pay the debts and expenses of the estate” for “When an executor or administrator shall discover that the personal property will not be sufficient to pay the debts and expenses” in the first sentence; and added the last sentence.

Cross References —

When exempt property shall be liable for debts, see §91-1-21.

JUDICIAL DECISIONS

1. In general.

Sale of real estate made by heir was in his individual capacity as owner of property, as sole surviving heir at law of his father, and suit for commission by real estate agent, who alleged she procured purchaser for home, could not be maintained against estate, because conditions for sale of real estate by administrator of estate established in §§91-7-187 and91-7-191 had not been shown to exist. Estate of Manscoe v. Simmons, 512 So. 2d 682, 1987 Miss. LEXIS 2781 (Miss. 1987).

A will manifests the testator’s intention that the property transferred to his wife be free of estate taxes where “Item IV” exempts from the payment of estate taxes and administration costs those bequests made earlier in the will to his wife and “Item III” specifically states that his wife is to receive $4,800 a year “free of any debts” and therefore this property cannot bear the burden of estate taxes. Waldrup v. United States, 499 F. Supp. 820, 1980 U.S. Dist. LEXIS 16059 (N.D. Miss. 1980).

In the absence of a direction to the contrary by the testator, estate taxes must be paid first from personal property not specifically devised by will, secondly from other personalty of the estate, and thirdly, if necessary, from the real estate. Stovall v. Stovall, 360 So. 2d 679, 1978 Miss. LEXIS 2295 (Miss. 1978).

No court other than chancery court in which letters of administration have been granted has jurisdiction over petition for sale of decedent’s nonexempt lands for payment of decedent’s debts. Trippe v. O'Cavanagh, 203 Miss. 537, 36 So. 2d 166, 1948 Miss. LEXIS 304 (Miss. 1948).

Petition for sale of nonexempt lands of estate for payment of decedent’s debts when personalty is insufficient should be filed by executor or administrator, but may be filed by creditor of decedent whose claim against estate is registered. Trippe v. O'Cavanagh, 203 Miss. 537, 36 So. 2d 166, 1948 Miss. LEXIS 304 (Miss. 1948).

Petition for sale of decedent’s lands in one county to pay debts may be heard by chancellor in second county within same chancery district. Whitley v. Towle, 163 Miss. 418, 141 So. 571, 1932 Miss. LEXIS 57 (Miss. 1932).

Under this section [Code 1942, § 588] and Code 1942, § 539, the personal estate must be exhausted before the lands may be resorted to for the payment of debts, unless a contrary intent be manifested in the will of the decedent. Gordon v. James, 86 Miss. 719, 39 So. 18, 1905 Miss. LEXIS 93 (Miss. 1905).

Personal estate must be exhausted before resort to land whether decedent died testate or intestate, unless contrary intent manifested by will, and specific bequest must be exhausted before specific devises can be compelled to contribute. Gordon v. James, 86 Miss. 719, 39 So. 18, 1905 Miss. LEXIS 93 (Miss. 1905).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 725, 730 et seq.

CJS.

34 C.J.S., Executors and Administrators § 704 et seq.

Law Reviews.

1978 Mississippi Supreme Court Review: Miscellaneous. 50 Miss. L. J. 165, March, 1979.

§ 91-7-193. Waste of personal estate no bar.

The fact that the insufficiency of the personal estate arose from the waste of the executor or administrator shall not be a defense to an application to sell land to pay debts, if such executor or administrator and sureties on his bond as such, if any, are insolvent or nonresidents of this state.

HISTORY: Codes, 1880, § 2041; 1892, § 1899; 1906, § 2074; Hemingway’s 1917, § 1741; 1930, § 1692; 1942, § 589.

§ 91-7-195. Creditors may apply for sale of property.

Any creditor of the decedent whose claim against the estate is registered shall have the right to file a petition, as the executor or administrator may, for the sale of land or personal property of the decedent for the payment of debts. The court shall hear and decide upon such petition, and decree as if the application had been made by the executor or administrator, and may order the executor or administrator to make the sale. Any sale of land shall be subject to the abatement provisions of Section 91-7-90.

HISTORY: Codes, 1880, § 2047; 1892, § 1895; 1906, § 2070; Hemingway’s 1917, § 1737; 1930, § 1693; 1942, § 590; Laws, 2019, ch. 458, § 14, eff from and after July 1, 2019.

Amendment Notes —

The 2019 amendment added the last sentence.

JUDICIAL DECISIONS

1. In general.

Dismissal of an action alleging waste due to the cutting of timber was improperly dismissed on the basis that an estate lacked standing to bring the action since it had no interest therein and no power to bring such an action; the trial court should have allowed a substitution of the heirs as parties to the action. Tolbert v. Southgate Timber Co., 943 So. 2d 90, 2006 Miss. App. LEXIS 868 (Miss. Ct. App. 2006).

In a suit by a devisee to remove and cancel clouds on her title to an undivided 1/2 interest in minerals in land which was sold at an execution sale, the 2-year statute of limitations on actions to recover property sold by an order of the chancery court [Code 1972, §15-1-37] was inapplicable since “order of a chancery court” contemplates an order entered after compliance with Code 1972, §91-7-195, providing that a petition be filed with the court by creditors of a decedent having registered claims against an estate for the sale of land or personal property for payment of debts, and Code 1972, §91-7-197, providing that all interested parties shall be cited by summons or publication specifying the time and place of the hearing on the petition. Simmons v. Abney, 292 So. 2d 168, 1974 Miss. LEXIS 1762 (Miss. 1974).

Petition for sale of nonexempt lands of estate for payment of decedent’s debts when personalty is insufficient should be filed by executor or administrator, but may be filed by creditor of decedent whose claim against estate is registered. Trippe v. O'Cavanagh, 203 Miss. 537, 36 So. 2d 166, 1948 Miss. LEXIS 304 (Miss. 1948).

No court other than chancery court in which letters of administration have been granted has jurisdiction over petition for sale of decedent’s nonexempt lands for payment of decedent’s debts. Trippe v. O'Cavanagh, 203 Miss. 537, 36 So. 2d 166, 1948 Miss. LEXIS 304 (Miss. 1948).

Sale under execution of land of decedent pursuant to decree recovered against administrator held void for noncompliance with statutes regulating proceedings for sale of decedent’s land for payment of debts. Dolan v. Tate, 161 Miss. 615, 137 So. 515, 1931 Miss. LEXIS 291 (Miss. 1931).

Heirs of decedent suing to remove, as cloud on title, claim asserted through purchase at execution sale under judgment against ancestor’s representative, need not offer to pay judgment or amount for which land was sold. Dolan v. Tate, 161 Miss. 615, 137 So. 515, 1931 Miss. LEXIS 291 (Miss. 1931).

Creditor who had properly registered claim may file bill in chancery for sale of lands of estate to pay debts. Halliburton v. Crichton, 147 Miss. 621, 111 So. 743, 1927 Miss. LEXIS 276 (Miss. 1927).

This section [Code 1942, § 590] authorizes a petition by a creditor only when his claim is properly registered, after being probated and allowed. Cheairs v. Cheairs, 81 Miss. 662, 33 So. 414, 1902 Miss. LEXIS 180 (Miss. 1902).

Where the probate fails to conform to the requirements of Code 1942, § 568, a creditor cannot file a petition to sell land or personalty. Cheairs v. Cheairs, 81 Miss. 662, 33 So. 414, 1902 Miss. LEXIS 180 (Miss. 1902).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 797.

CJS.

34 C.J.S., Executors and Administrators §§ 711-713.

§ 91-7-197. Interested parties to be cited upon petition to sell property.

When a petition shall be filed to sell or lease land to pay debts or otherwise affecting the real estate of a deceased person, all parties interested shall be cited by summons or publication, which shall specify the time and place of hearing the petition. If the petition be filed by a creditor or by a purchaser to correct a mistake in the description of the land, the executor or administrator shall be cited.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (98); 1857, ch. 60, art. 117; 1871, § 1148; 1880, §§ 2039, 2042, 2043, 2047; 1892, § 1904; 1906, § 2079; Hemingway’s 1917, § 1746; 1930, § 1694; 1942, § 591.

JUDICIAL DECISIONS

1. In general.

Beneficiaries under residual testamentary trusts are “parties interested” so as to be entitled to the notice required under Mississippi Code §91-7-197; Brickell v. Lightcap (1917) 115 Miss 417, 76 So 489 is thus overruled; however, this new rule of law will apply prospectively only. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

Petitioner, who had entered into a contract whereby an executrix agreed to sell and convey certain property to petitioner after the probate of a will, was not a “party interested” within the meaning of §91-7-197, but was rather one with a contingent interest, and therefore lacked standing to file a direct action in the estate proceeding to change and modify a previous order thereto, since the executrix’ title to the property was the will itself and petitioner’s interest in the property was merely contingent and depended solely on the outcome of the suit to contest the will. Turner v. Estate of Hightower, 417 So. 2d 919, 1982 Miss. LEXIS 2091 (Miss. 1982).

In a suit by a devisee to remove and cancel clouds on her title to an undivided 1/2 interest in minerals in land which was sold at an execution sale, the 2-year statute of limitations on actions to recover property sold by an order of the chancery court [Code 1972, §15-1-37] was inapplicable since “order of a chancery court” contemplates an order entered after compliance with Code 1972, §91-7-195, providing that a petition be filed with the court by creditors of a decedent having registered claims against an estate for the sale of land or personal property for payment of debts, and Code 1972, §91-7-197, providing that all interested parties shall be cited by summons or publication specifying the time and place of the hearing on the petition. Simmons v. Abney, 292 So. 2d 168, 1974 Miss. LEXIS 1762 (Miss. 1974).

Judgment creditors, solely as such, of the heirs or devisees, or of some of them, are not necessary or interested parties with respect to the question of notice under this section [Code 1942, § 591]. Townsend v. Beavers, 185 Miss. 312, 188 So. 1, 1939 Miss. LEXIS 154 (Miss. 1939).

Failure of creditors instituting proceedings against widow as administratrix to have deceased’s land sold to pay debts to make widow in individual capacity and adult children parties held to require reversal and remandment, although decree adjudged that land was exempt. Eastman Gardiner Lumber Co. v. Carr, 175 Miss. 36, 166 So. 401, 1936 Miss. LEXIS 28 (Miss. 1936).

Decree for sale of land to pay debts of deceased which affects rights of heirs at law or devisees and which is rendered without process upon them is void. Eastman Gardiner Lumber Co. v. Carr, 175 Miss. 36, 166 So. 401, 1936 Miss. LEXIS 28 (Miss. 1936).

Where chancellor had jurisdiction of minor heirs and subject-matter in administratrix’s petition for leave to sell, any defects in process and insufficiency of time held not to prevent application of two years’ limitations. Neely v. Craig, 162 Miss. 712, 139 So. 835, 1932 Miss. LEXIS 147 (Miss. 1932).

Sale under execution of land of decedent pursuant to decree recovered against administrator held void for noncompliance with statutes regulating proceedings for sale of decedent’s land for payment of debts. Dolan v. Tate, 161 Miss. 615, 137 So. 515, 1931 Miss. LEXIS 291 (Miss. 1931).

Where heirs at law, after the death of their intestate, conveyed his land, and then attempted to have it subjected to the payment of debts, thereby relieving the personal estate, the grantee of the land was a vitally interested party. Blum v. Planters' Bank & Trust Co., 154 Miss. 800, 122 So. 784, 1929 Miss. LEXIS 177 (Miss. 1929).

Contingent remaindermen not necessary parties to proceeding for sale of real estate to discharge accumulated annuities without affirmative showing of existence of persons with vested interest. Swayze v. Powell, 153 Miss. 829, 121 So. 852, 1929 Miss. LEXIS 92 (Miss. 1929).

Heirs and devisees entitled to notice and hearing on proceeding by executor to obtain possession of real estate, where specific control not conferred by will and there was sufficient cash to pay debts. Miles v. Fink, 119 Miss. 147, 80 So. 532, 1918 Miss. LEXIS 24 (Miss. 1918).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 799 et seq.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 831 et seq. (notice).

CJS.

34 C.J.S., Executors and Administrators §§ 732-735.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

§ 91-7-199. Hearing and decree.

The court, after service of summons or proof of publication, shall hear and examine the allegations and evidence in support of the petition and the objections to and evidence against it, if any. If on such hearing the court be satisfied that the land ought to be sold to pay the debts of the descendent and expenses of the estate, it may make a decree for the sale of a part or the whole of the land; and when a part only is decreed to be sold, the decree shall specify what part. If the real estate be so situated that a part cannot be sold without manifest prejudice to the heirs or devisees, the court may decree that the whole shall be sold; and the overplus arising from such sale, after the payment of debts and expenses, shall be distributed amongst the heirs according to the law of descents, or amongst the devisees according to the will. The sale of the land and distribution of the proceeds of the sale shall be subject to the abatement provisions of Section 91-7-90.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (98); 1857, ch. 60, art. 89; 1871, § 1149; 1880, § 2040; 1892, § 1894; 1906, § 2069; Hemingway’s 1917, § 1736; 1930, § 1695; 1942, § 592; Laws, 2019, ch. 458, § 15, eff from and after July 1, 2019.

Amendment Notes —

The 2019 amendment substituted “land ought to be sold to pay the debts of the descendent and expenses of the estate” for “personal estate is insufficient to pay the debts of the deceased and that the land ought to be sold for that purpose” in the second sentence; deleted the former last sentence, which read: “The heir or devisee whose lands shall be sold may compel all others holding or claiming under such intestate or testator to contribute in proportion to their respective interests, so as to equalize the burden of the loss”; and added the present last sentence.

JUDICIAL DECISIONS

1. In general.

2. Decree, and its effect.

1. In general.

A chancellor improperly ordered a sale of the property in an estate to satisfy debts thereof, where there was no proof as to the debts due and expenses of the estate. Brown v. McAfee, 421 So. 2d 1061, 1982 Miss. LEXIS 2279 (Miss. 1982).

Upon denial of parties in interest, summoned on petition of creditor to sell land to pay debts, that the personalty was insufficient therefor, it was the duty of the court to hear evidence on the issue made. Blum v. Planters' Bank & Trust Co., 154 Miss. 800, 122 So. 784, 1929 Miss. LEXIS 177 (Miss. 1929).

Creditor filing petition to sell land to pay debts had burden of proving personalty was insufficient therefor. Blum v. Planters' Bank & Trust Co., 154 Miss. 800, 122 So. 784, 1929 Miss. LEXIS 177 (Miss. 1929).

Court had duty of hearing evidence on issue made by pleadings in proceeding by creditor to sell land to pay debts. Blum v. Planters' Bank & Trust Co., 154 Miss. 800, 122 So. 784, 1929 Miss. LEXIS 177 (Miss. 1929).

Court, on petition of creditor to sell land to pay debts, had duty of adjudicating asserted vendor’s lien on cross-petition of party in interest. Blum v. Planters' Bank & Trust Co., 154 Miss. 800, 122 So. 784, 1929 Miss. LEXIS 177 (Miss. 1929).

Executor cannot purchase at chancery sale to pay debts, and his vendees do not acquire title. Belt v. Adams, 124 Miss. 194, 86 So. 584, 1920 Miss. LEXIS 485 (Miss. 1920).

2. Decree, and its effect.

In proceedings divesting title to lands out of the legatees or heirs and vesting the same in the executor or administrator the statutes must necessarily be complied with to effect such a divestiture, and where the decree of court ordering sale did not adjudicate that the personal estate was insufficient to pay debts and that land ought to be sold for that purpose, did not decree the sale of a part or the whole of the land, and described no land, it was wholly insufficient to order a judicial sale. McWilliams v. Estate of Brown, 183 So. 2d 820, 1966 Miss. LEXIS 1443 (Miss. 1966).

Where sale of land to pay debts is shown to have been made under a solemn decree of chancery court, with proper notice and appearance by all parties in interest, and that decree of confirmation was unappealed from, the presumption is that chancery court had acted in good faith in ordering the sale and that administratrix was guilty of no bad faith in conducting the sale and conveying the property to the purchaser, the court necessarily adjudicating that the property had brought a fair price in confirming the sale. Gill v. Johnson, 206 Miss. 707, 40 So. 2d 600, 1949 Miss. LEXIS 295 (Miss. 1949).

Decree for sale of land to pay debts of deceased which affects rights of heirs at law or devisees and which is rendered without process upon them is void. Eastman Gardiner Lumber Co. v. Carr, 175 Miss. 36, 166 So. 401, 1936 Miss. LEXIS 28 (Miss. 1936).

Sale under execution of land of decedent pursuant to decree recovered against administrator held void for noncompliance with statutes regulating proceedings for sale of decedent’s land for payment of debts. Dolan v. Tate, 161 Miss. 615, 137 So. 515, 1931 Miss. LEXIS 291 (Miss. 1931).

Heirs of decedent suing to remove, as cloud on title, claim asserted through purchase at execution sale under judgment against ancestor’s representative, need not offer to pay judgment or amount for which land was sold. Dolan v. Tate, 161 Miss. 615, 137 So. 515, 1931 Miss. LEXIS 291 (Miss. 1931).

Decree ordering sale of land to pay debts was final decree as regards appeal. Blum v. Planters' Bank & Trust Co., 154 Miss. 800, 122 So. 784, 1929 Miss. LEXIS 177 (Miss. 1929).

A sale decreed to be made for cash is void if part of the purchase money is not paid, but credited on a debt due from the purchaser to the executor individually; and a confirmation upon a report concealing the facts is fraudulent and does not validate the sale. Sharpley v. Plant, 79 Miss. 175, 28 So. 799, 1901 Miss. LEXIS 3 (Miss. 1901).

A decree ordering lands sold for the payment of debts, without notice to the parties in interest, is void. United States v. Curry, 47 U.S. 106, 12 L. Ed. 363, 1848 U.S. LEXIS 302 (U.S. 1848).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 804 et seq.

CJS.

34 C.J.S., Executors and Administrators § 738 et seq.

§ 91-7-201. Mistake in description of land may be corrected.

If any mistake shall be made in the description of any land of a decedent sold or leased, either in the petition, decree, or other part of the proceedings, the same may be corrected by the court on petition of the creditor or purchaser or his assigns, and on citation to the executor or administrator.

HISTORY: Codes, 1892, § 1897; 1906, § 2072; Hemingway’s 1917, § 1739; 1930, § 1696; 1942, § 593.

JUDICIAL DECISIONS

1. In general.

Sale of land not included in petition, nor in decree of confirmation, not “mistake in description.” Pearson v. Caldwell, 93 Miss. 637, 47 So. 436, 1908 Miss. LEXIS 141 (Miss. 1908).

§ 91-7-203. Bond to pay debts may be given and decree for sale not made.

A decree for the sale or lease of land shall not be made if any person interested will give bond, describing therein the land sought to be sold, payable to the executor or administrator in a sum to be fixed and with sureties approved by the court, conditioned to pay all the debts duly registered against the estate and the expenses of the administration, so far as the personal estate of the deceased shall be insufficient to pay the same. Such bond shall be filed among the papers of administration and entered on the minutes of the court, and shall have the force and effect of a judgment, upon which execution and other necessary process may be issued in the name of the executor or administrator, after the expiration of six months from the date it shall have been given, against the obligors therein from time to time, until such debts and expenses of administration be paid or the penalty of the bond exhausted. The same may be levied on the lands described in the bond, and the entire interest of the deceased therein may be sold as if the court had decreed the sale in the first instance; and the property of the sureties on said bond may be sold for whatever the land may be insufficient to pay. Instead of enforcing said bond, the executor or administrator or any creditor may petition anew for the sale of the land, as if such bond had not been given; and after the sale under such proceedings, the bond may be enforced, in the manner provided, for whatever the land may be insufficient to pay, and no other bond shall be allowed to prevent a decree for a sale or lease of the land.

HISTORY: Codes, 1892, § 1898; 1906, § 2073; Hemingway’s 1917, § 1740; 1930, § 1697; 1942, § 594.

§ 91-7-205. Bond required in decree for sale of lands; waiver of bond.

  1. Except as otherwise provided in subsection (2) of this section, whenever an executor or administrator sells land pursuant to a decree of the court or chancellor in vacation, said executor or administrator shall execute bond with sufficient sureties in an amount equal to the proceeds of the sale of the land. Said bond shall be executed any time before confirmation of sale, either by the court or chancellor in vacation, and may be approved by the court, chancellor in vacation, or the clerk of the chancery court. Such bond shall be payable to the state and shall be conditioned for the faithful application of the proceeds of the sale. When, however, decree ordering the sale of land shall fix an amount or estimated amount to be paid in cash before confirmation, the executor or administrator shall, before sale, execute bond with sufficient sureties to cover such amount or estimated amount to be paid in cash, conditioned for the faithful application of the same which bond may be approved by the court, the chancellor in vacation, or the clerk of the chancery court.

    After the expiration of the time in which all claims against the estate of deceased persons must be registered, probated and allowed as provided in Section 91-7-151, Mississippi Code of 1972, the chancellor may waive all or any part of the bond when all the beneficiaries to the proceeds of the sale petition the court to authorize the sale and waive the necessity of a bond.

  2. At the discretion of the court or chancellor, all or any part of the bond described in subsection (1) of this section may be waived but, in such case, the chancellor shall make adequate and sufficient provision for the maintenance and safety of the assets of the estate. Upon waiver of such bond, the court or chancellor may require the proceeds from the sale of land to be held in trust by an executor, administrator or other qualified person and may require such proceeds to be maintained as otherwise ordered by the court in such manner as the court may direct, consistent with the provisions of this subsection.

HISTORY: Codes, 1880, § 2045; 1892, § 1905; 1906, § 2080; Hemingway’s 1917, § 1747; 1930, § 1698; 1942, § 595; Laws, 1914, ch. 210; Laws, 1975, ch. 405; Laws, 2015, ch. 324, § 1, eff from and after July 1, 2015.

Amendment Notes —

The 2015 amendment added the exception at the beginning of (1); and added (2).

JUDICIAL DECISIONS

1. In general.

Administratrix de bonis non entitled to allowance for premium on special bond executed to collect money for land sold by her predecessor under order of court. Davis v. Blumenberg, 107 Miss. 432, 65 So. 503, 1914 Miss. LEXIS 102 (Miss. 1914).

Parol testimony by an administrator that he executed the statutory bond is incompetent in the absence of a showing that search had been made for the bond itself by the person charged with its custody in the place where by law it should be kept. Shannon v. Summers, 86 Miss. 619, 38 So. 345, 1905 Miss. LEXIS 41 (Miss. 1905).

An executor must give the bond required for the faithful application of the proceeds, although the will authorizes him to administer the estate without bond, and if he fails to do so the sale will be void. Sharpley v. Plant, 79 Miss. 175, 28 So. 799, 1901 Miss. LEXIS 3 (Miss. 1901).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 811.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 871 et seq. (posting of bond).

CJS.

34 C.J.S., Executors and Administrators §§ 758, 759.

§ 91-7-207. Failure to give bond.

If an executor or administrator who has been ordered to sell land of a decedent fail to give the bond required, the court may, after five days’ notice to the executor or administrator, direct a master or special commissioner to make the sale, who shall give bond with sureties, as the executor or administrator was required to do, and make sale and report it and, after a confirmation of the sale, convey the land as the executor or administrator might have done under the decree. The master or commissioner shall be allowed by the court such commissions as would accrue from the sale to the executor or administrator, or such compensation as the court may order.

HISTORY: Codes, 1880, § 2046; 1892, § 1906; 1906, § 2081; Hemingway’s 1917, § 1748; 1930, § 1699; 1942, § 596.

§ 91-7-209. Purchase-money a charge on property.

Where the property of a decedent shall be sold by order of the court in which the estate is being administered, and the price paid at such sale for the property has been applied to the payment of debts for which the property might lawfully have been sold, or has been distributed to the heirs, legatees, or distributees, or to the guardians of such as have guardians, the property, if such sale were illegal, shall be charged in favor of the purchaser and his assigns with a lien for the purchase-money paid for it at such sale, and interest thereon. Such lien may be enforced in chancery or may be availed of in defense of any action for the land, in the same manner in which a claim for valuable improvements may be allowed in equity. In case of personal property, the possessor having such lien shall be entitled to retain possession until his claim be paid or tendered, unless the party having the title shall resort to the chancery court to adjust the rights of the parties and to sell said property.

HISTORY: Codes, 1880, § 2052; 1892, § 1907; 1906, § 2082; Hemingway’s 1917, § 1749; 1930, § 1700; 1942, § 597.

Cross References —

Preference of purchase money mortgages, see §89-1-45.

JUDICIAL DECISIONS

1. In general.

But if the money in such cases were paid by the administrator to the creditors of the estate, the purchaser has only a lien on the land, and his injunction should be limited accordingly. Hill v. Billingsly, 53 Miss. 111, 1876 Miss. LEXIS 43 (Miss. 1876).

If the heir, after majority, receive or retain the purchase money of a void sale of land, he will be estopped from executing a judgment in ejectment therefor, and may be restrained by any party claiming under the purchaser. Gaines v. Kennedy, 53 Miss. 103, 1876 Miss. LEXIS 42 (Miss. 1876).

One who, through an illegal sale of decedent’s land, paid money into the hands of an administrator, which was used to pay debts of the decedent, is entitled, in equity, to be reimbursed out of the proceeds of a subsequent valid sale. Short v. Porter, 44 Miss. 533, 1871 Miss. LEXIS 11 (Miss. 1871); Cole v. Johnson, 53 Miss. 94, 1876 Miss. LEXIS 41 (Miss. 1876); Gaines v. Kennedy, 53 Miss. 103, 1876 Miss. LEXIS 42 (Miss. 1876).

The purchaser of the lands at a void sale by an administrator can claim no equity with respect to the land purchased, as against the heirs, except so far as the purchase money has been paid and applied to their benefit. Jayne v. Boisgerard, 39 Miss. 796, 1861 Miss. LEXIS 16 (Miss. 1861).

§ 91-7-211. Estoppel from receipt of purchase-money.

Nothing in Section 91-7-209 shall hinder the application of the doctrine of estoppel to assert title to adult heirs who received a share of the purchase-money of land as heretofore announced and applied in this state. The same rule may be applied to minors, persons of unsound mind, convicts of felony, and other wards whose guardians received for them a share of the purchase-money, whether it were actually applied to the benefit of or received by such person under disability or not.

HISTORY: Codes, 1880, § 2053; 1892, § 1908; 1906, § 2083; Hemingway’s 1917, § 1750; 1930, § 1701; 1942, § 598.

JUDICIAL DECISIONS

1. In general.

If a ward, after majority, receive from the guardian the proceeds of a void sale, it will be an affirmance of the sale. Handy v. Noonan, 51 Miss. 166, 1875 Miss. LEXIS 29 (Miss. 1875); Gaines v. Kennedy, 53 Miss. 103, 1876 Miss. LEXIS 42 (Miss. 1876); Hill v. Billingsly, 53 Miss. 111, 1876 Miss. LEXIS 43 (Miss. 1876).

Under doctrine referred to in the section [Code 1942, § 598], if the heir, after majority, receive from the administrator the proceeds of a void sale, it will be an affirmance of the sale. Lee v. Gardiner, 26 Miss. 521, 1853 Miss. LEXIS 135 (Miss. 1853); Kempe v. Pintard, 32 Miss. 324, 1856 Miss. LEXIS 212 (Miss. 1856); Wilie v. Brooks, 45 Miss. 542, 1871 Miss. LEXIS 99 (Miss. 1871).

§ 91-7-213. Borrowing money to pay claims.

When an executor or administrator shall discover that the personal property will not be sufficient to pay the debts of the decedent and the expenses of the administration of the estate, he may file a petition in the chancery court in which the estate is being administered, for the purpose of borrowing money to be secured by a deed of trust, mortgage, or other encumbrance on the lands of the decedent, except the exempt property or homestead which shall not be so encumbered save to pay an indebtedness which constitutes a lien on such exempt property or homestead, and then not without the consent of the exemptionist. The money, when so borrowed, shall be used to pay said claims and expenses.

HISTORY: Codes, 1930, § 1702; 1942, § 599; Laws, 1930, ch. 14.

§ 91-7-215. Procedure for borrowing.

With such petition the executor or administrator shall file and exhibit to the court a true account of the personal estate, debts due from the deceased, the expenses, and a description of the land to be used as security for the money so borrowed. The court, after service of summons or proof of publication of summons, shall hear and examine the allegations and evidence in support of the petition and the objections to and the evidence against it, if any. If on the hearing, the court be satisfied that the personal estate is insufficient to pay the debts of the deceased and said expenses, and that the land ought to be encumbered for such purposes, it may make a decree for the encumbrance of a part or the whole of the land; and when a part only is decreed to be so encumbered, the decree shall specify what part.

HISTORY: Codes, 1930, § 1703; 1942, § 600; Laws, 1930, ch. 14.

§ 91-7-217. Overplus and contribution.

In the event the land so encumbered should be thereafter sold by foreclosure or otherwise to satisfy the said debt, interest, attorney’s fee, trustee’s fees, or expenses of such sale, and there shall exist an overplus of money above the debt, interest, attorney’s fees, trustee’s fees, and expenses of such sale, the overplus shall be distributed among the heirs according to the law of descent, or among the devisees according to the will. The heir or devisee whose land shall be sold may compel all others holding or claiming under such intestate or testator to contribute in proportion to their respective interests, so as to equalize the burden of loss.

HISTORY: Codes, 1930, § 1704; 1942, § 601; Laws, 1930, ch. 14.

§ 91-7-219. Procedure in vacation.

Such decree may be rendered by the presiding chancellor of the court in vacation at any time or place within his district, provided summons has been served on the heirs of the decedent, or devisees under the will of the testator, in the manner provided by law for the service of summons on defendants in chancery for at least ten days before the hearing. In such summons, the time and place of the hearing and the purpose of the proceeding shall be definitely stated; and should the summons be published, such publication shall be completed at least ten days before the hearing.

HISTORY: Codes, 1940, § 1705; 1942, § 602; 1930, ch. 14.

Cross References —

Additional powers of chancellor in vacation, see §9-5-97.

§ 91-7-221. Executor or administrator to make title to land.

If any person sell lands, enter into contract to make title, and die before the title be made, then the person to whom the title was to be made, his heirs or assigns, may petition the court which granted the letters on the estate of the vendor, for an order on the executor or administrator to make title agreeably to the contract. After the parties interested have been cited by summons or by publication, the court shall hear the petition and evidence, and may decree that the executor or administrator make title according to the contract.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (114); 1857, ch. 60, art. 137; 1871, § 1195; 1880, § 2092; 1892, § 1902; 1906, § 2077; Hemingway’s 1917, § 1744; 1930, § 1706; 1942, § 603.

Cross References —

Form of conveyance by executor or administrator, see §89-1-67.

JUDICIAL DECISIONS

1. In general.

Contract for sale was not rendered void by the seller’s death, though the fact of her death did render her attorney in fact legally incapable of proceeding to carry out the remaining terms of the contract; however, the contract remained a binding agreement that could be enforced against the seller’s estate in a probate proceeding. Van Etten v. Johnson (In re Estate of Pickett), 879 So. 2d 467, 2004 Miss. App. LEXIS 67 (Miss. Ct. App. 2004), cert. denied, 2004 Miss. LEXIS 994 (Miss. Aug. 5, 2004).

A deed will not be ordered where it appears that the deceased made a valid sale of the land to another prior to the contract with the petitioner, and of which the petitioner had notice. White v. Gilbert, 39 Miss. 802, 1861 Miss. LEXIS 18 (Miss. 1861).

§ 91-7-223. Executors and administrators may make deeds of conveyance.

The administrator, executor, or testamentary trustee may at any time, by and with the consent of the chancery court or the chancellor in vacation, when the chancellor deems it to the best interests of the estate, execute a deed of conveyance conveying any real property formerly owned by the decedent, where said decedent during his lifetime had executed any bond for title, optional contract, or other instrument conferring upon any party the right to purchase and secure title to said real property, where the execution of such conveyance is necessary in order to carry out the terms, provisions, or stipulation of the said bond for title, optional contract, or other instrument.

HISTORY: Codes, Hemingway’s 1917, § 1733; 1930, § 1707; 1942, § 604; Laws, 1912, ch. 143.

§ 91-7-225. Lands may be leased to pay debts.

In case it shall be made to appear to the court that a lease of the lands of the deceased can be made to raise the money necessary for the payment of the debts of the deceased, and that the leasing thereof will be to the interest of the devisees, legatees, heirs, or distributees, the court may, in its discretion, decree the same to be leased. If a lease of the lands, or any part thereof, be decreed, the executor or administrator shall, upon giving the notice as in like case of sale, lease the same at public outcry or privately, as directed by the decree, to the person who will take the lands for the fewest number of years, not exceeding fifteen, and pay, either in cash or at such time as shall be fixed by the decree, the specific sum to be stated therein, equal to the amount of the debts of the deceased to be paid and the expenses of administration. If the lease be on credit, the lessee shall give security for the payment of the sum, to be approved by the executor or administrator.

HISTORY: Codes, 1892, § 1896; 1906, § 2071; Hemingway’s 1917, § 1738; 1930, § 1708; 1942, § 605.

Cross References —

Action by administrator or executor for rent due deceased, see §89-7-13.

Lease of farm lands, see §91-7-171.

JUDICIAL DECISIONS

1. In general.

Under this section [Code 1942, § 605] and sections providing for the sale of lands by a personal representative for the payment of debts in case the personal property is insufficient, it was the duty of a personal representative to pay the taxes on the lands of the estate for the purpose of preserving the lands for the benefit of creditors, as well as for the legatees and distributees. Tonnar v. Wade, 153 Miss. 722, 121 So. 156, 1929 Miss. LEXIS 56 (Miss. 1929).

Approved sale of lease by administrator valid, though administrator a minor. Giglio v. Woollard, 126 Miss. 6, 88 So. 401, 1921 Miss. LEXIS 5 (Miss. 1921).

The lease of a decedent’s lands by the administrator, with the consent of the heirs, for the purpose of paying the debts of the estate is valid. Ashley v. Young, 79 Miss. 129, 29 So. 822, 1901 Miss. LEXIS 16 (Miss. 1901).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 540 et seq.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 922 et seq. (lease of property).

CJS.

34 C.J.S., Executors and Administrators §§ 426-429.

§ 91-7-227. Executors and administrators to renew obligation and encumbrances of estate.

The chancery court or the chancellor in vacation, when he deems it to the best interest of the estate, may authorize the administrator, executor, or testamentary trustee to renew for a specified time any obligation of the deceased and, if such obligation be secured by encumbrance on any property, to renew such encumbrance upon such property. If it be shown to the interest of the estate, such chancery court or chancellor in vacation may direct said administrator, executor, or testamentary trustee to obtain money to pay off said obligation or encumbrance and to execute a new obligation or encumbrance to secure said money; and such obligation or encumbrance extended, renewed, or made shall be a valid charge on the estate or the property included in said encumbrance. Such encumbrance, whether renewed, extended, or made, shall not include any other property not embraced in the pre-existing encumbrance.

HISTORY: Codes, Hemingway’s 1917, § 1732; 1930, § 1709; 1942, § 606; Laws, 1912, ch. 143.

JUDICIAL DECISIONS

1. In general.

Where note sued on purported to have been executed by defendant as administratrix, it devolved on plaintiff suing her personally to aver in declaration whether note was executed without authority. Orgill Bros. v. Perry, 157 Miss. 543, 128 So. 755, 1930 Miss. LEXIS 340 (Miss. 1930).

Executors and trustees of residue of estate not authorized to borrow money for estate and pledge stock therefor, could not do so under decree of chancery court. Luckett v. Brickell, 115 Miss. 457, 76 So. 502, 1917 Miss. LEXIS 219 (Miss. 1917).

§ 91-7-229. Claims may be sold or compromised.

The court or chancellor in vacation, on petition for that purpose, may authorize the executor or administrator to sell or compromise any claim belonging to the estate which cannot be readily collected; but an order authorizing a sale of any claim shall not be made until after six months from the grant of the letters. The court or chancellor shall specify the terms, conditions, and notice of such sale. In compromising any claim, the executor or administrator may receive property, real or personal, in his name as such, and he shall account for the same as assets of the estate. The executor or administrator shall report, in writing, all sales and compromises to the next term of the court.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 20 (6); 1857, ch. 60, art. 95; 1871, § 1155; 1880, § 2065; 1892, § 1890; 1906, § 2065; Hemingway’s 1917, § 1730; 1930, § 1710; 1942, § 607; Laws, 1936, ch. 238.

Cross References —

Petitions for authority to compromise claims for wrongful death or injury, see Miss. Uniform Chancery Court Rule 6.11.

RESEARCH REFERENCES

ALR.

Power and responsibility of executor or administrator to compromise claim due estate. 72 A.L.R.2d 191.

Power and responsibility of executor or administrator to compromise claim against estate. 72 A.L.R.2d 243.

Power and responsibility of executor or administrator as to compromise or settlement of action or cause of action for death. 72 A.L.R.2d 285.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 616 et seq.

9A Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 581 et seq. (compromise, release, and settlement of claims due estate).

8 Am. Jur. Legal Forms 2d, Executors and Administrators, §§ 104:160, 104:161, 104:163 (will provision granting authority to settle claims and obligations).

§ 91-7-231. Actions which accrue in administration.

An executor, administrator, or temporary administrator may maintain any action or suit which shall accrue to him in the due course of administration, on any contract which he is authorized to make as such, or for the recovery of personal property, or for injuries thereto.

HISTORY: Codes, 1857, ch. 60, art. 119; 1871, § 1176; 1880, § 2081; 1892, § 1920; 1906, § 2095; Hemingway’s 1917, § 1762; 1930, § 1711; 1942, § 608.

Cross References —

Suits for rent by executor or administrator, see §89-7-13.

Institution of suit by administrator, see §91-7-61.

Actions between corepresentatives, see §91-7-247.

Suits by foreign executor or administrator, see §91-7-259.

Requirement that, unless he is licensed to practice law, executor or administrator must retain solicitor, see Miss. Uniform Chancery Court Rules 6.01.

JUDICIAL DECISIONS

1. In general.

Dismissal of an action alleging waste due to the cutting of timber was improperly dismissed on the basis that an estate lacked standing to bring the action since it had no interest therein and no power to bring such an action; the trial court should have allowed a substitution of the heirs as parties to the action. Tolbert v. Southgate Timber Co., 943 So. 2d 90, 2006 Miss. App. LEXIS 868 (Miss. Ct. App. 2006).

An administrator has the right to bring an action to protect the assets of the estate. Estate of Jackson v. Mississippi Life Ins. Co., 755 So. 2d 15, 1999 Miss. App. LEXIS 278 (Miss. Ct. App. 1999).

In an accountant negligence action arising from the accountant’s alleged negligence in performing accounting services for an estate, the trial court did not err in allowing plaintiffs other than the executrix to remain in the suit as nominal parties only; by naming the residuary beneficiaries plaintiffs, the executrix was protecting herself against any possible future lawsuits. Wirtz v. Switzer, 586 So. 2d 775, 1991 Miss. LEXIS 597 (Miss. 1991), overruled in part, Upchurch Plumbing, Inc. v. Greenwood Utils. Comm'n, 964 So. 2d 1100, 2007 Miss. LEXIS 495 (Miss. 2007).

Code 1972 §11-7-13 must be considered in pari materia with Code 1972 §§91-7-231,91-7-233, which authorize only a personal representative to sue to recover the assets of the deceased. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 1124 et seq.

CJS.

34 C.J.S., Executors and Administrators § 847 et seq.

Law Reviews.

Arnold, Damages Recoverable in Mississippi for the Wrongful Death of an Adult. 53 Miss. L. J. 637, December, 1983.

Brady, Hedonic damages. 59 Miss. L. J. 495, Fall, 1989.

§ 91-7-233. What actions survive to executor or administrator.

Executors, administrators, and temporary administrators may commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted. They shall also be liable to be sued in any court in any personal action which might have been maintained against the deceased.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (111); 1857, ch. 60, art. 119; 1871, § 1176; 1880, § 2078; 1892, § 1916; 1906, § 2091; Hemingway’s 1917, § 1758; 1930, § 1712; 1942, § 609.

Cross References —

Requirement that, unless he is licensed to practice law, executor or administrator must retain solicitor, see Miss. Uniform Chancery Court Rule 6.01.

Petition for authority to compromise claims for wrongful death or injury, see Miss. Uniform Chancery Court Rule 6.11.

JUDICIAL DECISIONS

1. In general.

2. Actions on behalf of estate or beneficiaries.

3. Actions against estate.

4. Limitation of actions.

1. In general.

Code 1972 §11-7-13 must be considered in pari materia with Code 1972 §§91-7-231,91-7-233, which authorize only a personal representative to sue to recover the assets of the deceased. Thornton v. Insurance Co. of North America, 287 So. 2d 262, 1973 Miss. LEXIS 1329 (Miss. 1973).

This section [Code 1942, § 609] does not operate to authorize an administrator to exercise his decedent’s right of election against a spouse’s will. Estate of Mullins v. Estate of Mullins, 239 Miss. 751, 125 So. 2d 93, 1960 Miss. LEXIS 350 (Miss. 1960).

This section [Code 1942, § 609] is in derogation of the common law. Southern Package Corp. v. Walton, 196 Miss. 786, 18 So. 2d 458, 1944 Miss. LEXIS 257 (Miss.), cert. denied, 323 U.S. 762, 65 S. Ct. 93, 89 L. Ed. 609, 1944 U.S. LEXIS 247 (U.S. 1944).

This section [Code 1942, § 609] being in derogation of common law must be strictly construed. McNeely v. Natchez, 148 Miss. 268, 114 So. 484, 1927 Miss. LEXIS 55 (Miss. 1927).

Administrator’s failure to file letters testamentary waived by failure to object before verdict. Linton v. Skinner, 122 Miss. 613, 84 So. 800, 1920 Miss. LEXIS 460 (Miss. 1920).

2. Actions on behalf of estate or beneficiaries.

Power of attorney prohibited the decedent’s attorneys-in-fact from profiting from their role, commingling their funds with hers, or taking ownership of her assets, and during the decedent’s lifetime, she could have commenced an action to set aside relatives’ joint ownership of certain certificates of deposit; thus, upon her death, her estate became the proper party to commence such an action, and thus the estate had standing to challenge actions taken by a relative that violated the terms of the power of attorney. Swank v. Covington (In re Estate of Hemphill), 186 So.3d 920, 2016 Miss. App. LEXIS 60 (Miss. Ct. App. 2016).

Survival action provided in the wrongful death statute is an extension of Mississippi’s survival statute, Miss. Code Ann. §91-7-233, which allows personal actions of a decedent to be pursued after his or her death. Caves v. Yarbrough, 991 So. 2d 142, 2008 Miss. LEXIS 617 (Miss. 2008).

Where summary judgment was granted in a daughter, wrongful death complaint, and upon remand the complaint was amended to allege a survival action under Miss. Code Ann. §91-7-233 with the estate added as a party, the real party in interest joined the suit within a reasonable time after objection pursuant to Miss. R. Civ. P. 17. Methodist Hosp. of Hattiesburg, Inc. v. Richardson, 909 So. 2d 1066, 2005 Miss. LEXIS 74 (Miss. 2005).

Dismissal of an action alleging waste due to the cutting of timber was improperly dismissed on the basis that an estate lacked standing to bring the action since it had no interest therein and no power to bring such an action; the trial court should have allowed a substitution of the heirs as parties to the action. Tolbert v. Southgate Timber Co., 943 So. 2d 90, 2006 Miss. App. LEXIS 868 (Miss. Ct. App. 2006).

Where a decedent was allegedly injured by medication during her life, and allegedly died from it, the estate administrator was to assert both a wrongful death action and a survival action against the drug manufacturer; if the jury found that the drug caused the decedent’s death, then the recovery belonged to the wrongful death heirs. If the jury found that the drug did not cause the death, the estate could recover for any personal injuries caused by the drug, and the decedent’s ex-husband could recover from the estate amounts he was entitled to under the decedent’s holographic instrument. England v. England (In re Estate of England), 846 So. 2d 1060, 2003 Miss. App. LEXIS 473 (Miss. Ct. App. 2003).

Heirs of deceased smoker could not recover damages for injuries suffered by smoker during his lifetime in wrongful death action where jury found that cause of death was unrelated to smoker’s lung cancer or chronic obstructive pulmonary disease, but rather was pulmonary embolism caused by complications resulting from treatment for gonorrhea in 1940’s, and heirs did not also assert claim under survival statute. Wilks v. American Tobacco Co., 680 So. 2d 839, 1996 Miss. LEXIS 493 (Miss. 1996).

An action for loss of consortium survives the death of the party asserting it, and may be brought as any other action by the executor or administrator or personal representative of the deceased party. Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1992 Miss. LEXIS 447 (Miss. 1992).

Nonpossessory equitable claim of intervenor in replevin action survives death of intervenor, whose executor is permitted to revive claim by intervention. Hall v. Corbin, 478 So. 2d 253, 1985 Miss. LEXIS 2274 (Miss. 1985).

Decedent’s mother had no standing to bring a wrongful death action under §11-7-13, even though decedent’s will named her as executrix of his estate and sole primary beneficiary, where decedent left surviving him his wife, who was injured in the same accident and died approximately 30 minutes after her husband; a cause of action accrued to the wife even though she survived decedent for only a few minutes, and this cause of action was an asset in her estate, upon which it was entitled to sue pursuant to §91-7-233; furthermore, decedent’s will could not circumvent the wrongful death statute, which created a new and independent cause of action in favor of those named in the statute, and recovery under the statute would become an asset of decedent’s estate only if none of the statutory heirs had survived him. Partyka v. Yazoo Development Corp., 376 So. 2d 646, 1979 Miss. LEXIS 2374 (Miss. 1979).

Action under the Federal Fair Labor Standards Act for overtime compensation, liquidated damages, and attorney’s fees, survives the death of the employee. Southern Package Corp. v. Walton, 196 Miss. 786, 18 So. 2d 458, 1944 Miss. LEXIS 257 (Miss.), cert. denied, 323 U.S. 762, 65 S. Ct. 93, 89 L. Ed. 609, 1944 U.S. LEXIS 247 (U.S. 1944).

Recovery for pain and suffering of deceased probably caused by alleged negligence of doctor in treating deceased between time of gunshot wound and deceased’s death could be had only in suit by personal representative and not by next of kin or heirs at law. Berryhill v. Nichols, 171 Miss. 769, 158 So. 470, 1935 Miss. LEXIS 6 (Miss. 1935).

Action to recover personal property, or to enforce contract, or recover damages for breach of contract, or for injury to person or property survives; pure penalty intended as punishment for misconduct does not survive. J. H. Leavenworth & Son, Inc. v. Hunter, 150 Miss. 245, 116 So. 593, 1928 Miss. LEXIS 127 (Miss. 1928).

Term “personal action” in this section [Code 1942, § 609] means action for recovery of personal property, for breach of contract, or for injury to person or property. Hamel v. Southern R. Co., 108 Miss. 172, 66 So. 426, 1914 Miss. LEXIS 188 (Miss. 1914).

Administratrix may revive suit for personal injuries to decedent and may thereafter sue for his negligent death. Hamel v. Southern R. Co., 108 Miss. 172, 66 So. 426, 1914 Miss. LEXIS 188 (Miss. 1914).

Action for penalty imposed by ordinance for failure to observe regulations in operating ferry did not survive. Hamel v. Southern R. Co., 108 Miss. 172, 66 So. 426, 1914 Miss. LEXIS 188 (Miss. 1914).

The right to sue for trespass to lands upon the death of the owner survives to the executor or administrator, and his heirs cannot sue. Conklin v. Alabama & V. R. Co., 81 Miss. 152, 32 So. 920, 1902 Miss. LEXIS 127 (Miss. 1902).

In a proper case, the administrator may recover exemplary damages of the defendant for assaulting and beating his intestate. Wagner v. Gibbs, 80 Miss. 53, 31 So. 434, 1902 Miss. LEXIS 217 (Miss. 1902).

3. Actions against estate.

The liability of a decedent’s widow in a personal action which survived his death is derivative only to her husband’s estate, and to the maximum extent only of the amount of her inheritance from that estate, and this section [Code 1942, § 609] does not authorize a suit against the widow in her individual capacity, in an action to establish liability of the estate. State ex rel. Patterson v. Warren, 254 Miss. 314, 182 So. 2d 234, 1966 Miss. LEXIS 1543 (Miss. 1966).

An action to recover misappropriated county funds from members of the board of supervisors is a personal action and upon their deaths survives against their personal representatives. State ex rel. Patterson v. Warren, 254 Miss. 314, 182 So. 2d 234, 1966 Miss. LEXIS 1543 (Miss. 1966).

This statute controls a claim against a decedent’s estate for personal injuries sustained in an automobile accident. Powell v. Buchanan, 245 Miss. 4, 147 So. 2d 110, 1962 Miss. LEXIS 526 (Miss. 1962).

A personal representative is liable to suit on a claim arising from the alleged negligence of his decedent, notwithstanding the estate has been declared insolvent. Bullock v. Young, 243 Miss. 146, 137 So. 2d 777, 1962 Miss. LEXIS 326 (Miss. 1962).

Claim against estate to recover amount paid on usurious contract may be probated, and action on such claim is “personal action,” which survives death. Chandlee v. Tharp, 161 Miss. 623, 137 So. 540, 1931 Miss. LEXIS 296 (Miss. 1931).

4. Limitation of actions.

Mississippi wrongful death statute, Miss. Code Ann. §11-7-13, despite the Mississippi Legislature’s assigned nomenclature, encompasses all claims, including survival claims, which could have been brought by a decedent, wrongful-death claims, estate claims, and other claims resulting from a tort which proximately caused a death. And where death is not an immediate result of the tort, the limitation periods for the various kinds of claims may not begin to run at the same time. Caves v. Yarbrough, 991 So. 2d 142, 2008 Miss. LEXIS 617 (Miss. 2008).

RESEARCH REFERENCES

ALR.

Validity of exception for specific kind of tort action in survival statute. 77 A.L.R.3d 1349.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 435 et seq.

CJS.

34 C.J.S., Executors and Administrators § 847 et seq.

Law Reviews.

Damages Recoverable in Mississippi for the Wrongful Death of an Adult. 53 Miss. L. J. 637, December, 1983.

Brady, Hedonic damages. 59 Miss. L. J. 495, Fall, 1989.

§ 91-7-235. What actions survive against executor or administrator.

When any decedent shall in his lifetime have committed any trespass, the person injured, or his executor or administrator, shall have the same action against the executor or administrator of the decedent as he might have had or maintained against the testator or intestate, and shall have like remedy as in other actions against executors and administrators. Vindictive damages shall not be allowed, and such action shall be commenced within one year after publication of notice to creditors to probate and register their claims.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (119); 1857, ch. 60, art. 119; 1871, § 1176; 1880, § 2080; 1892, § 1917; 1906, § 2092; Hemingway’s 1917, § 1759; 1930, § 1713; 1942, § 610.

Cross References —

Service of process on one of several executors or administrators, see §13-3-53.

Service of process on executor or administrator of nonresident motorist, see §13-3-63.

Statute of limitations for actions against executors or administrators, see §15-1-25.

JUDICIAL DECISIONS

1. In general.

The statute does not allow the recovery of punitive damages against an estate because of a prior tort committed by the decedent. Wilbanks v. Gray, 795 So. 2d 541, 2001 Miss. App. LEXIS 103 (Miss. Ct. App. 2001).

This section [Code 1942, § 610] prohibits the award of vindictive damages against an estate of a decedent. Mervis v. Wolverton, 211 So. 2d 847, 1968 Miss. LEXIS 1285 (Miss. 1968).

This section [Code 1942, § 610] does not limit the bringing of action against the estate for decedent’s negligence. Jones v. Evans, 247 Miss. 285, 156 So. 2d 742, 1963 Miss. LEXIS 299 (Miss. 1963).

This statute is inapplicable to a claim against a decedent’s estate for damages for personal injuries sustained in an automobile accident. Powell v. Buchanan, 245 Miss. 4, 147 So. 2d 110, 1962 Miss. LEXIS 526 (Miss. 1962).

This section [Code 1942, § 610] is in derogation of the common law. Southern Package Corp. v. Walton, 196 Miss. 786, 18 So. 2d 458, 1944 Miss. LEXIS 257 (Miss.), cert. denied, 323 U.S. 762, 65 S. Ct. 93, 89 L. Ed. 609, 1944 U.S. LEXIS 247 (U.S. 1944).

The provision against the allowance of vindictive damages is not applicable to an action by an administrator against a defendant for assaulting and beating his intestate. Wagner v. Gibbs, 80 Miss. 53, 31 So. 434, 1902 Miss. LEXIS 217 (Miss. 1902).

RESEARCH REFERENCES

ALR.

Validity of exception for specific kind of tort action in survival statute. 77 A.L.R.3d 1349.

Claim for punitive damages in tort action as surviving death of tortfeasor or person wronged. 30 A.L.R.4th 707.

§ 91-7-237. Death of party not to abate suit in certain cases.

When either of the parties to any personal action shall die before final judgment, the executor or administrator of such deceased party may prosecute or defend such action, and the court shall render judgment for or against the executor or administrator. If such executor or administrator, having been duly served with a scire facias or summons five days before the meeting of the court, shall neglect or refuse to prosecute or defend the suit, the court may render judgment in the same manner as if such executor or administrator had voluntarily made himself a party to the suit. The executor or administrator who shall become a party shall be entitled to a continuance of the cause until the next term of the court.

HISTORY: Codes, Hutchinson’s 1848, ch. 58, art. 1 (47); 1857, ch. 61, art. 49; 1871, § 677; 1880, § 1513; 1892, § 1918; 1906, § 2093; Hemingway’s 1917, § 1760; 1930, § 1714; 1942, § 611.

Cross References —

Effect of death of party before expiration of statute of limitations, see §15-1-55.

Non-abatement of suits upon insolvency of estate, see §91-7-273.

JUDICIAL DECISIONS

1. In general.

2. Suits brought by decedent.

3. Suits brought against decedent.

1. In general.

Pursuant to Miss. Code Ann. §91-7-237, the estate executor stepped into the decedent’s shoes in prosecuting an action against the decedent’s nephew for unlawfully withdrawing funds; thus, the executor was entitled to the same remedy due the decedent had he been alive at judgment, and the proceeds of suit should have been returned to the estate. Estate of Beckley v. Beckley, 961 So. 2d 707, 2007 Miss. LEXIS 342 (Miss. 2007).

An action for loss of consortium survives the death of the party asserting it, and may be brought as any other action by the executor or administrator or personal representative of the deceased party. Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1992 Miss. LEXIS 447 (Miss. 1992).

Where statute was re-enacted by legislature without change after decision holding that term “personal action” is one brought for recovery of personalty, for enforcement of some contract or to recover damages for its breach, or for recovery of damages for commission of injury to person or property, interpretation became part of statute, and could not be changed or modified except by legislature. Catchings v. Hartman, 178 Miss. 672, 174 So. 553, 1937 Miss. LEXIS 259 (Miss. 1937).

Term “personal action” as used in statute providing that, where either of parties to “personal action” shall die before final judgment, executor or administrator may prosecute or defend such action, does not include an action of slander, so as to entitle administratrix to continue the action, since statute, being in derogation of common law, must be strictly construed. Catchings v. Hartman, 178 Miss. 672, 174 So. 553, 1937 Miss. LEXIS 259 (Miss. 1937).

This section [Code 1942, § 611] being in derogation of common law must be strictly construed. McNeely v. Natchez, 148 Miss. 268, 114 So. 484, 1927 Miss. LEXIS 55 (Miss. 1927).

Term “personal action” in this section [Code 1942, § 611] means action for recovery of personal property for breach of contract, or for injury to person or property. McNeely v. Natchez, 148 Miss. 268, 114 So. 484, 1927 Miss. LEXIS 55 (Miss. 1927).

Action for penalty imposed by ordinance for failure to observe regulations in operating ferry did not survive. McNeely v. Natchez, 148 Miss. 268, 114 So. 484, 1927 Miss. LEXIS 55 (Miss. 1927).

2. Suits brought by decedent.

Due process claim that a city unlawfully impounded and forfeited ownership in a dog survived the owner’s death to the extent it sought injunctive relieve or damages for the commission of an injury to the person or property. A constitutional challenge to the impoundment ordinance did not survive because it was not a personal action. Estate of Holt v. City of Hattiesburg, 800 Fed. Appx. 228, 2020 U.S. App. LEXIS 3621 (5th Cir. Miss. 2020).

According to established precedent and Miss. Code Ann. §91-7-237, an executrix’s medical malpractice action against a doctor and a medical practice survived a decedent’s death and did not have to be recommenced because the executrix complied with Miss. R. Civ. P. 25 as the doctor and medical practice made no suggestion of death upon the record to trigger the ninety-day time requirement set out by the rule; nowhere does Rule 25 state that the substitution of parties is a commencement of a new action, but instead, it is the continuation of a prior action. Harris v. Darby, 17 So.3d 1076, 2009 Miss. LEXIS 447 (Miss. 2009).

Where a cancer patient died while a medical malpractice suit he filed was pending, and his daughter was substituted as plaintiff and was appointed executrix of his estate, the trial court erred in dismissing the suit for failing to state a claim, because the amended complaint filed by the daughter on behalf of the estate sought recovery for injuries the patient suffered during his lifetime. Necaise v. Sacks, 841 So. 2d 1098, 2003 Miss. LEXIS 137 (Miss. 2003).

In an action to recover for damage to a life estate, the life tenant’s sole heir could not be substituted as the plaintiff following the life tenant’s death where no estate had been opened for the deceased life tenant and no administrator had been appointed, since the life tenant’s sole heir did not automatically become her legal representative on her death (§91-7-237). Madison v. Vintage Petroleum, 872 F. Supp. 340, 1994 U.S. Dist. LEXIS 18918 (S.D. Miss. 1994), dismissed, 85 F.3d 625, 1996 U.S. App. LEXIS 12907 (5th Cir. Miss. 1996), aff'd, 87 F.3d 1311, 1996 U.S. App. LEXIS 16949 (5th Cir. Miss. 1996).

Actions for defamation are not personal actions for purposes of survival statute. Caine v. Hardy, 943 F.2d 1406, 1991 U.S. App. LEXIS 22455 (5th Cir. Miss. 1991), cert. denied, 503 U.S. 936, 112 S. Ct. 1474, 117 L. Ed. 2d 618, 1992 U.S. LEXIS 1727 (U.S. 1992).

Action by anesthesiologist against hospital challenging suspension of his privileges was not rendered moot by plaintiff’s death, as such parts of claim which alleged wrongful discharge were preserved under state survival statute. Caine v. Hardy, 943 F.2d 1406, 1991 U.S. App. LEXIS 22455 (5th Cir. Miss. 1991), cert. denied, 503 U.S. 936, 112 S. Ct. 1474, 117 L. Ed. 2d 618, 1992 U.S. LEXIS 1727 (U.S. 1992).

Action under the Federal Fair Labor Standards Act for overtime compensation, liquidated damages, and attorney’s fees, survives the death of the employee. Southern Package Corp. v. Walton, 196 Miss. 786, 18 So. 2d 458, 1944 Miss. LEXIS 257 (Miss.), cert. denied, 323 U.S. 762, 65 S. Ct. 93, 89 L. Ed. 609, 1944 U.S. LEXIS 247 (U.S. 1944).

Judgment in action for injuries revived in name of wife as executrix held res judicata in her subsequent action for damages sustained by herself and children. Edward Hines Yellow Pine Trustees v. Stewart, 135 Miss. 331, 100 So. 12, 1924 Miss. LEXIS 85 (Miss. 1924).

Dismissal of suit brought by two parties upon death of one of them without motion or other preliminary proceeding will be set aside on proper application and cause reinstated. Merchants' Bank & Trust Co. v. Mississippi Nat'l Bank, 108 Miss. 356, 66 So. 537, 1914 Miss. LEXIS 194 (Miss. 1914).

Administratrix may revive action for personal injuries, and may thereafter sue for negligent death of decedent. Hamel v. Southern R. Co., 108 Miss. 172, 66 So. 426, 1914 Miss. LEXIS 188 (Miss. 1914).

Railroad defendant in suit for personal injury not entitled to move for revocation of letters of administration granted for purpose of bringing suit. Yazoo & M. V. R. Co. v. Jeffries, 99 Miss. 534, 55 So. 354, 1911 Miss. LEXIS 224 (Miss. 1911).

3. Suits brought against decedent.

An action against a member of a board of supervisors for the illegal appropriation of money survives against his estate. State ex rel. Patterson v. Warren, 254 Miss. 314, 182 So. 2d 234, 1966 Miss. LEXIS 1543 (Miss. 1966).

Provision for revival of pending action against deceased defendant’s representative does not permit collection by execution of judgment rendered against representative. Dolan v. Tate, 161 Miss. 615, 137 So. 515, 1931 Miss. LEXIS 291 (Miss. 1931).

Suit against deceased defendant may proceed to judgment without probating claim against estate. Dillard & Coffin Co. v. Woollard, 124 Miss. 677, 87 So. 148, 1920 Miss. LEXIS 554 (Miss. 1920).

RESEARCH REFERENCES

ALR.

Death of party to arbitration agreement before award as revocation or termination of submission. 63 A.L.R.2d 754.

Validity of exception for specific kind of tort action in survival statute. 63 A.L.R.2d 1327.

Claim for punitive damages in tort action as surviving death of tortfeasor or person wronged. 30 A.L.R.4th 707.

§ 91-7-239. Executor or administrator not to be sued for ninety days.

A suit or action shall not be brought against an executor or administrator until after the expiration of ninety (90) days from the date of letters testamentary or of administration.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 6 (1); 1857, ch. 60, art. 126; 1871, § 1184; 1880, § 2086; 1892, § 1922; 1906, § 2096a; Hemingway’s 1917, § 1764; 1930, § 1715; 1942, § 612; Laws, 1975, ch. 373, § 7, eff from and after January 1, 1976.

Cross References —

Statute of limitations in regard to actions against executors and administrators, see §15-1-25 et seq.

JUDICIAL DECISIONS

1. In general.

Health care providers’ claim against the decedent’s estate was time-barred because the four-year statute of limitations began to run ninety days after the executor was issued letters of administration, but the providers did not bring their cause of action until after the expiration of the limitations period. Rush Found. Hosp. v. Carlisle, 269 So.3d 222, 2018 Miss. App. LEXIS 111 (Miss. Ct. App. 2018).

The purpose of this section [Code 1942, § 612] is to allow time to the administrator to examine and understand the condition of the estate, to provide the means of paying debts, if practicable, without suit by collection of assets, and to be advised of any demands against the estate which it may be necessary to defend. Great Southern Box Co. v. Barrett, 231 Miss. 101, 94 So. 2d 912, 1957 Miss. LEXIS 494 (Miss. 1957).

Where an action was brought against the administrator of an estate and two other defendants within four days after the administrator was issued letters, but the administrator did not raise the objection that the action was prematurely brought, the codefendants of the administrator could not raise the question. Great Southern Box Co. v. Barrett, 231 Miss. 101, 94 So. 2d 912, 1957 Miss. LEXIS 494 (Miss. 1957).

Suit could not properly be brought against an administratrix to have funds in a bank adjudged to belong to the plaintiff rather than to the estate until six months after date of letters of administration. Matthews v. Redmond, 202 Miss. 253, 32 So. 2d 123, 1947 Miss. LEXIS 268 (Miss. 1947).

Statute allows four years and six months within which an executor or administrator can be sued. Toler v. Wells, 158 Miss. 628, 130 So. 298, 1930 Miss. LEXIS 50 (Miss. 1930).

Claims maturing before decedent’s death are barred, notwithstanding probate, by failure to sue thereon within 4 years and 6 months from grant of letters. Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958, 1918 Miss. LEXIS 158 (Miss. 1918).

Claim for medical services rendered during last illness of intestate not barred until after 4 years and 6 months. Hardenstein v. Brien, 96 Miss. 493, 50 So. 979, 1910 Miss. LEXIS 152 (Miss. 1910).

A petition against the administrator and heirs to subject exempt property owned by decedent in his lifetime to a debt for labor performed, the amount of which has been allowed by the chancery court, is not a suit against an administrator, the proceeding not being a suit on a claim, and the administrator not being a necessary party thereto. Mitchener v. Robins, 73 Miss. 383, 19 So. 103, 1895 Miss. LEXIS 134 (Miss. 1895).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 134 et seq.

CJS.

34 C.J.S., Executors and Administrators §§ 890-892.

§ 91-7-241. Suit by or against administrator not to abate.

If any executor or administrator die, resign, or be removed, suits or actions commenced by or against him shall not, for that reason, abate; but the same may be prosecuted by or against his successor, who may make himself a party by proper suggestion or, if he fail to do so, may be brought in by the opposite party by summons or scire facias. Judgments recovered by or against an executor or administrator who has died, resigned, or been removed may be revived for or against his successor in the same way.

HISTORY: Codes, 1857, ch. 60, art. 124; 1871, § 1181; 1880, § 1514; 1892, § 1919; 1906, § 2094; Hemingway’s 1917, § 1761; 1930, § 1716; 1942, § 613.

Cross References —

Limitation of actions against executor or administrator, see §15-1-25.

Abatement of suits upon insolvency of estate, see §91-7-273.

JUDICIAL DECISIONS

1. In general.

The statute applies to administrators appointed in this state only. Bowen v. Bonner, 45 Miss. 10, 1871 Miss. LEXIS 44 (Miss. 1871).

The administrator de bonis non may suggest the death of his predecessor, and ask that a judgment recovered by him be revived; he need not resort to scire facias. Dibble v. Norton, 44 Miss. 158, 1870 Miss. LEXIS 96 (Miss. 1870); Bowen v. Bonner, 45 Miss. 10, 1871 Miss. LEXIS 44 (Miss. 1871).

If a plaintiff die after the rendition of a judgment in his favor, the defendant may appeal before the judgment is revived in favor of the administrator. New Orleans, J., & G. N. R. Co. v. Rollins, 36 Miss. 384, 1858 Miss. LEXIS 109 (Miss. 1858).

RESEARCH REFERENCES

ALR.

Validity of exception for specific kind of tort action in survival statute. 77 A.L.R.3d 1349.

§ 91-7-243. Not bound to plead specially.

Executors, administrators, and temporary administrators shall not be bound to plead specially to any action or suit at law brought against them, but they may give any special matter in evidence under the general issue. An executor or administrator, or the sureties on his bond, shall not be chargeable beyond the amount of the assets of the testator or intestate by reason of any mistake, omission, or false pleading of the executor or administrator.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (105); 1857, ch. 60, art. 125; 1871, § 1183; 1880, § 2089; 1892, § 1923; 1906, § 2097; Hemingway’s 1917, § 1765; 1930, § 1717; 1942, § 614.

JUDICIAL DECISIONS

1. In general.

Under the statute, the failure to plead plene administravit does not raise a presumption of assets. Dobbins v. Halfacre, 52 Miss. 561, 1876 Miss. LEXIS 255 (Miss. 1876).

If the administrator elect to plead specially, he will be held to the strictness of pleading. Wren's Adm'r v. Span's Adm'r, 2 Miss. 115, 1834 Miss. LEXIS 22 (Miss. 1834).

§ 91-7-245. Any one interested may defend suit.

Any legatee, heir, distributee, or creditor may be admitted by the court to defend any suit against the executor or administrator of the estate in which he is interested, and the case shall be tried and judgment rendered as if the suit had been defended by the executor or administrator; but judgment shall be given against the party for costs incurred in consequence of his becoming a party, if judgment shall be had against the executor or administrator.

HISTORY: Codes, 1880, § 2090; 1892, § 1924; 1906, § 2098; Hemingway’s 1917, § 1766; 1930, § 1718; 1942, § 615.

§ 91-7-247. Actions which accrue between administrators.

When there are two (2) or more administrators of an estate, and one or more of them take all the assets, or the greatest part thereof, and refuse to pay the debts or funeral expenses of the deceased, or to account with the other, the court, on petition of the aggrieved administrator and five (5) days’ notice thereof to the other, may make an order requiring the delivery or payment to the aggrieved administrator of the proportionate share of the estate to which he is entitled. To enforce compliance, the court may revoke the letters of the administrator in default, and may fine him not exceeding One Hundred Dollars ($100.00) or imprison him not exceeding three (3) months as for contempt. Any executor being a residuary legatee may proceed in the same way and with like effect against his co-executor to recover his part of the estate.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (110); 1857, ch. 60, art. 120; 1871, § 1177; 1880, § 2082; 1892, § 1921; 1906, § 2096; Hemingway’s 1917, § 1763; 1930, § 1719; 1942, § 616.

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 1155 et seq.

CJS.

34 C.J.S., Executors and Administrators § 853.

§ 91-7-249. Executor in his own wrong.

If any person shall alienate or embezzle any of the goods, chattels, personal property, or money of a person deceased, before taking out letters testamentary or of administration, such person shall be liable to the action of creditors and other persons aggrieved, as being executor in his own wrong.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (121); 1857, ch. 60, art. 127; 1871, § 1185; 1880, § 2087; 1892, § 1926; 1906, § 2100; Hemingway’s 1917, § 1768; 1930, § 1720; 1942, § 617.

JUDICIAL DECISIONS

1. In general.

Personal liability of administrator for value of cotton taken from land of intestate and sold by him did not preclude him from bringing action against purchaser for value thereof. McGraw v. Robinson Mercantile Co., 95 Miss. 828, 49 So. 260, 1909 Miss. LEXIS 270 (Miss. 1909).

After having jointly converted promissory notes which had never been returned as assets, executors de son tort cannot claim that the notes were assets and only collectible by an administrator to be appointed. Weaver v. Williams, 75 Miss. 945, 23 So. 649, 1898 Miss. LEXIS 45 (Miss. 1898).

Charges paid by executors de son tort cannot be availed of as a set-off against a claim of an estate when unsupported by evidence showing that they were legal demands against the estate. Weaver v. Williams, 75 Miss. 945, 23 So. 649, 1898 Miss. LEXIS 45 (Miss. 1898).

RESEARCH REFERENCES

ALR.

Liability of estate for tort of executor, administrator, or trustee. 82 A.L.R.3d 892.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 34 et seq.

26 Am. Jur. Proof of Facts 2d 663, Surcharge of Executor for Nonpayment of Estate’s Tax Liability.

CJS.

34 C.J.S., Executors and Administrators § 1216 et seq.

§ 91-7-251. Liability of executor or administrator of an executor de son tort.

The executor or administrator of an executor de son tort shall be liable to a recovery to the extent of the value of the property received or held by such executor de son tort, if sufficient assets shall have been received to pay the same. Any one who may have become liable as executor de son tort in any other state shall be liable to be sued in this state as such by any creditor, legatee, or distributee.

HISTORY: Codes, 1857, ch. 60, art. 133; 1871, § 1191; 1880, § 2088; 1892, § 1927; 1906, § 2101; Hemingway’s 1917, § 1769; 1930, § 1721; 1942, § 618.

RESEARCH REFERENCES

ALR.

Liability of estate for tort of executor, administrator, or trustee. 82 A.L.R.3d 892.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 1029 et seq.

CJS.

34 C.J.S., Executors and Administrators §§ 1217-1219 et seq.

§ 91-7-253. Fiduciary not to use funds; investment by fiduciary bank in time certificates of deposit.

No executor, administrator, guardian, receiver or other fiduciary appointed by or acting pursuant to the authority of any chancery court may borrow or use for his own benefit, directly or indirectly, any of the funds or property of the estate committed or entrusted to him by such court, nor purchase or acquire, directly or indirectly, any interest therein adverse to any creditor or beneficiary of such estate. Nor may he loan the same, or any part thereof, to any parent, brother, sister, son, daughter of, or one in loco parentis to the ward or himself, nor to any attorney or agent representing him or such estate, nor to the wife or any child of such attorney or agent. Nor may any court or chancellor authorize or ratify any such prohibited use, acquisition or loan.

Provided, however, the above prohibitions shall not extend to prohibit the investment by a banking corporation of the funds of an estate committed or entrusted to it in time certificates of deposit, provided such be approved by the chancellor, and the banking corporation shall first secure such certificates of deposit in excess of the portion insured by the Federal Deposit Insurance Corporation, as provided in section 81-5-33, Mississippi Code of 1972.

HISTORY: Codes, 1942, § 619; Laws, 1936, ch. 243; Laws, 1977, ch. 493, eff from and after passage (approved April 15, 1977).

Cross References —

Additional provisions governing the conduct of executors, administrators, and other fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et seq.

Petition for authority to make loans or investments, see Miss. Uniform Chancery Court Rule 6.10.

JUDICIAL DECISIONS

1. In general.

A conservator’s wife could be held liable in an action alleging intentional misappropriation of funds and defrauding of the estate, even though the wife asserted that she was only a “scrivener” for her husband and was not responsible for any of the transactions in the conservatorship account, where the wife received payment for keeping the books and received the benefit of direct loans and gifts from the conservatorship monies, she also received the indirect benefit of the use of other items purchased with the monies, she participated in the disbursal of the monies by writing the checks though she did not sign them, and she clearly knew where the monies were going. Bryan v. Holzer, 589 So. 2d 648, 1991 Miss. LEXIS 762 (Miss. 1991).

A finding that a conservator and his wife violated the fiduciary duty to the ward and converted the ward’s funds to their own use was supported by evidence that the ward’s funds had been used to purchase a van which was used by the conservator and his wife, and that the conservator, his wife, and their children were the recipients of loans and gifts from monies in the conservatorship account, without previous court approval. Bryan v. Holzer, 589 So. 2d 648, 1991 Miss. LEXIS 762 (Miss. 1991).

The Chancellor properly removed an administrator under §91-7-253, where the administrator admitted that he had spent or lent large sums of funds taken from estate for which he was unable to account. Kelly v. Shoemake, 460 So. 2d 811, 1984 Miss. LEXIS 2019 (Miss. 1984).

Where the testator bequeathed half of his stock to his daughter and the other half to his son for life, with remainder to the daughter and the daughter as executrix surrendered the certificate and obtained two certificates, one of which was issued in the son’s name and thereafter the son transferred the certificate to daughter, retaining beneficial interest therein for life, this section [Code 1942, § 619] was not applicable. Maples v. Howell, 217 Miss. 322, 64 So. 2d 364, 1953 Miss. LEXIS 435 (Miss. 1953).

RESEARCH REFERENCES

ALR.

Validity and construction of trust provision authorizing trustee to purchase trust property. 39 A.L.R.3d 836.

Am. Jur.

7 Am. Jur. Pl & Pr Forms (Rev), Conversion, Form 81.3 (complaint, petition, or declaration – for conversion – by conservatee against conservator).

§ 91-7-255. Fiduciary not to transfer negotiable papers.

An executor, administrator, guardian, receiver, or other fiduciary appointed by or acting pursuant to the authority of any chancery court may sell, assign, or transfer any note, bill of exchange, bond, stock certificate, or other negotiable paper belonging to the estate committed or entrusted to him by such court under the standard of care applicable to trustees as set forth in Section 91-8-101 et seq. If the exercise of power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from breach of his fiduciary duty to the same extent as a trustee of an express trust under the Mississippi Uniform Trust Code.

HISTORY: Codes, 1942, § 620; Laws, 1936, ch. 243; Laws, 2019, ch. 458, § 7, eff from and after July 1, 2019.

Amendment Notes —

The 2019 amendment rewrote the section, which read: “No executor, administrator, guardian, receiver, or other fiduciary appointed by or acting pursuant to the authority of any chancery court may sell, assign, or transfer any note, bill of exchange, bond, stock certificate, or other negotiable paper belonging to the estate committed or intrusted to him by such court, unless he shall be authorized so to do by an order of the court or chancellor, or by the last will and testament of the decedent. Every such prohibited sale, assignment, or transfer shall be void, whether the vendee, assignee, or transferee shall have had notice or knowledge of the want or lack of authority of such fiduciary to sell, assign, or transfer the same or not.”

Cross References —

Additional provisions governing the conduct of executors, administrators, and other fiduciaries, see Miss. Uniform Chancery Court Rules 6.01 et seq.

Mississippi Uniform Trust Code, see §91-8-101 et seq.

JUDICIAL DECISIONS

1. In general.

This section [Code 1942, § 620] was enacted to protect creditors and those interested in the estate under disposition of the assets by the executor and where there is no claim that the estate is insolvent, or that there are any creditors and that all beneficiaries have not received the specific bequests bequeathed to them, or that abatement among the beneficiaries is needed, this section is inapplicable. Maples v. Howell, 217 Miss. 322, 64 So. 2d 364, 1953 Miss. LEXIS 435 (Miss. 1953).

§ 91-7-257. Repealed.

Repealed by Laws 2019, ch. 458, § 21, eff from and after July 1, 2019.

§91-7-257. [Codes, Hutchinson’s 1848, ch. 49, art. 1 (93); 1857, ch. 60, arts. 128, 129; 1871, §§ 1186, 1187; 1880, §§ 2010, 2011; 1892, § 1928; 1906, § 2102; Hemingway’s 1917, § 1770; 1930, § 1722; 1942, § 621.]

§ 91-7-259. Foreign executor or administrator may sue.

Executors and administrators who have qualified in other states or countries may sue in the courts of this state, or may receive without suit and give a valid acquittance for any property of, or debts due to, their testators or intestates, after filing in the office of the clerk of the chancery court of the county where there may be some person indebted to the decedent or having some of his effects in possession, a certified copy of the record of the appointment and qualification of the executor or administrator according to the law of the state or country where he is qualified, and a certificate of the officer before whom he is liable to account as such that he is there liable to account for the thing sued for or received.

HISTORY: Codes, 1857, ch. 60, art. 131; 1871, § 1189; 1880, § 2091; 1892, § 1925; 1906, § 2099; Hemingway’s 1917, § 1767; 1930, § 1723; 1942, § 622.

Cross References —

Venue of actions against nonresident executors, see §11-11-9.

Recording of foreign wills, see §91-7-33.

Revocation of orders testamentary or letters of administration of nonresident, see §91-7-89.

Suits against nonresident fiduciary, see §91-7-313.

Suits by nonresident guardians, see §93-13-183.

JUDICIAL DECISIONS

1. In general.

Failure to comply with this section [Code 1942, § 622] is ground for dismissing a suit brought by a foreign administrator. Davis v. Meridian & B. R. Co., 248 Miss. 707, 161 So. 2d 171, 1964 Miss. LEXIS 296 (Miss. 1964).

Qualification by a former administrator after expiration of the time within which suit for wrongful death must be brought, is ineffective to enable him to maintain a suit brought within such time. Davis v. Meridian & B. R. Co., 248 Miss. 707, 161 So. 2d 171, 1964 Miss. LEXIS 296 (Miss. 1964).

An administratrix lawfully appointed in another state could sue in state for employee’s death under Federal Employers’ Liability Act without taking out ancillary letters. Gulf, M. & N. R. Co. v. Wood, 164 Miss. 765, 146 So. 298, 1933 Miss. LEXIS 267 (Miss.), cert. denied, 289 U.S. 759, 53 S. Ct. 791, 77 L. Ed. 1502, 1933 U.S. LEXIS 416 (U.S. 1933), limited, Davis v. Meridian & B. R. Co., 248 Miss. 707, 161 So. 2d 171, 1964 Miss. LEXIS 296 (Miss. 1964).

Payment of debt to foreign administrator no defense to suit by heirs unless certified copy of appointment filed. Richardson v. Neblett, 122 Miss. 723, 84 So. 695, 1920 Miss. LEXIS 472 (Miss. 1920).

Defendant paying money belonging to decedent to foreign administrator not qualified in this state, was liable to local administrator for the amount although 2 years later proper certificate was filed. City Sav. & Trust Co. v. Branchieri, 111 Miss. 774, 72 So. 196, 1916 Miss. LEXIS 390 (Miss. 1916).

§ 91-7-261. Procedures for insolvent estates.

The executor or administrator shall take proper steps speedily to ascertain whether the estate be solvent or insolvent. If both the real and personal estate be insufficient to pay the debts of the deceased, he shall exhibit to the court a true account of all the personal estate, assets of every description, the land of the deceased, and all the debts due from the deceased; and if it appears to the court that the estate is insolvent, it shall make an order for the sale of all the property. The proceeds of such sale and all other assets shall be equally distributed among all the creditors whose claims shall be duly filed and established, in proportion to the sums due and owing to them respectively, the expenses of the last sickness, the funeral, and the administration, including commissions, being first paid. The sale of the land and distribution of the proceeds of the sale shall be subject to the abatement provisions of Section 91-7-90. Before any decree for sale is made, the devisees or heirs shall be made parties to the proceeding.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (103); 1857, ch. 60, art. 98; 1871, § 1158; 1880, § 2054; 1892, § 1939; 1906, § 2113; Hemingway’s 1917, § 1781; 1930, § 1724; 1942, § 623; Laws, 2019, ch. 458, § 16, eff from and after July 1, 2019.

Amendment Notes —

The 2019 amendment added the next-to-last sentence.

Cross References —

Reports of insolvency by tax collector, see §27-49-1 et seq.

Rights of administrator de bonis non in regard to insolvent estates, see §91-7-71.

Probate of claims, see §91-7-149 et seq.

JUDICIAL DECISIONS

1. In general.

2. Expenses of last illness and funeral.

3. Attorney fees.

4. Jurisdiction.

1. In general.

A year’s allowance to a widow and children in insolvent estates is a claim of next priority, is to be paid before creditors, and such allowance may be paid out of exempt personal property, in cases where the exempt property is disposed of by the will of a testator; in cases of intestacy, it descends as provided by statute, and, where administration is not necessary, is not subject to administrative expenses. Mills v. Mills, 279 So. 2d 917, 1973 Miss. LEXIS 1495 (Miss. 1973).

Duty of administrator to collect debts of insolvent estate without order of court. McGraw v. Robinson Mercantile Co., 95 Miss. 828, 49 So. 260, 1909 Miss. LEXIS 270 (Miss. 1909).

2. Expenses of last illness and funeral.

If estate be insolvent, expenses of last illness and funeral are preferred, but in determining solvency, exempt property is not considered. De Baum v. Hulett Undertaking Co., 169 Miss. 488, 153 So. 513, 1934 Miss. LEXIS 66 (Miss. 1934).

Where estate was insolvent, rent due landlord for store occupied by decedent before death, while claim superior to that of general creditors, was not preferred over claims for expenses of last illness, funeral, and administration, where administrator sold goods in store building under court order. Walker v. First Nat'l Bank, 168 Miss. 487, 151 So. 740, 1934 Miss. LEXIS 350 (Miss. 1934).

Expenses of last illness and funeral expenses constitute preference claim over enrolled judgment upon which execution has not been issued and levied. Dabney v. Continental Jewelry Co., 163 Miss. 1, 140 So. 338, 1932 Miss. LEXIS 9 (Miss. 1932).

Claim for expenses of funeral and last sickness not filed for examination pursuant to administrator’s notice, though preference claims, not allowed except out of surplus left after payment of filed claims. Merchants' & Farmers Bank v. Kelleher, 119 Miss. 232, 80 So. 697, 1918 Miss. LEXIS 33 (Miss. 1918).

3. Attorney fees.

It was not an abuse of discretion to appoint attorneys representing a decedent’s son appointed as temporary administrator of the decedent’s estate a fee from the insolvent estate because the attorneys were creditors of the estate who were entitled to payment before any distributions to heirs. Flowers v. Flowers (In re Estate of Flowers), 269 So.3d 120, 2018 Miss. App. LEXIS 2 (Miss. Ct. App. 2018).

In their cross-appeal, the co-executrixes of an estate that was the center of a long, drawn-out dispute, argued that the chancellor had not followed proper procedure for determining that the estate was insolvent, as stated in Miss. Code Ann. §§91-7-261 and91-7-265. The appellate court ruled that the chancellor had not abused his discretion in denying the payment of attorney’s fees from the estate assets. Lynn v. Lynn (In re Will of Lynn), 878 So. 2d 1052, 2004 Miss. App. LEXIS 695 (Miss. Ct. App. 2004).

4. Jurisdiction.

Creditor properly brought its claim before a justice court, and then appealed to the circuit court, even though a debtor’s estate was still open, because creditor’s action was purely a possessory action. Gandy v. Citicorp, 985 So. 2d 371, 2008 Miss. App. LEXIS 360 (Miss. Ct. App. 2008).

RESEARCH REFERENCES

ALR.

Amount of funeral expenses allowable against decedent’s estate. 4 A.L.R.2d 995.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 832 et seq.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 1401 et seq. (insolvent estates).

CJS.

34 C.J.S., Executors and Administrators § 829 et seq.

§ 91-7-263. Creditor may institute insolvency proceedings.

Any creditor of the decedent may represent to the court that the estate is insolvent, and thereupon the executor or administrator and heirs or devisees shall be summoned to answer whether or not it be insolvent. If it shall be found so, like proceedings shall be had as when an estate is represented to be insolvent by the executor or administrator.

HISTORY: Codes, 1880, § 2055; 1892, § 1940; 1906, § 2114; Hemingway’s 1917, § 1782; 1930, § 1725; 1942, § 624.

§ 91-7-265. Decree of insolvency after all property sold.

Where an estate is found to be insolvent after a sale of all the property, real and personal, it may be decreed to be insolvent and be proceeded with accordingly.

HISTORY: Codes, 1880, § 2058; 1892, § 1941; 1906, § 2115; Hemingway’s 1917, § 1783; 1930, § 1726; 1942, § 625.

JUDICIAL DECISIONS

1. In general.

In their cross-appeal, the co-executrixes of an estate that was the center of a long, drawn-out dispute, argued that the chancellor had not followed proper procedure for determining that the estate was insolvent, as stated in Miss. Code Ann. §91-7-261 and91-7-265. The appellate court ruled that the chancellor had not abused his discretion in denying the payment of attorney’s fees from the estate assets. Lynn v. Lynn (In re Will of Lynn), 878 So. 2d 1052, 2004 Miss. App. LEXIS 695 (Miss. Ct. App. 2004).

§ 91-7-267. Publication and claims presented in insolvent estate.

If an estate be declared insolvent after the executor or administrator has made publication to the creditors to present their claims and have them probated and registered, another publication to present claims shall not be necessary. If an estate be declared insolvent before the executor or administrator has made such publication, the court shall order the executor or administrator to make publication, requiring the creditors to present their claims within ninety (90) days and have them probated and registered. Any creditor who shall not register his claim by the day stated in the publication shall be forever barred.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 21 (5); 1857, ch. 60, art. 101; 1871, § 1161; 1880, § 2059; 1892, § 1942; 1906, § 2116; Hemingway’s 1917, § 1784; 1930, § 1727; 1942, § 626; Laws, 1975, ch. 373, § 8, eff from and after January 1, 1976.

Cross References —

Notice to creditors of estate, see §91-7-145.

Probate of claims against estate, see §§91-7-149 et seq.

§ 91-7-269. Filing, examination, and adjudication of claims in insolvent estate.

When the time for probating and registering claims has elapsed, the court shall cause notice to be inserted for three successive weeks in some newspaper published in the county that at a time fixed the claims will be taken up for examination and adjudication by the court or by the clerk in vacation, as the order may designate, that all claims not required by law to be probated and registered must be filed with the clerk by the day named in the notice, and that all creditors may attend. At the time appointed the court shall examine into the validity of each claim which has been probated and registered and such other claims as may have been filed with the clerk. The executor or administrator or any creditor may object to any claim, and the court shall hear evidence in support of the objection, shall allow any claim that should be allowed, and shall reject in whole or in part any which is in whole or in part not well founded. It shall not be necessary for any creditor to refile with the clerk any claim which has been duly probated and registered within the time and in the manner required by law. All other claims, unless filed with the clerk by the day named in the notice, shall not be allowed; but lawful claims, not required to be probated and registered, which are not filed with the clerk by the day named in the notice shall not be barred as to any surplus that remains after paying in full all claims allowed by the court at the examination and adjudication named in the notice. Provided, however, that in cases where the executor or administrator shall have, prior to the adjudication of insolvency, paid any claim or claims, whether probated and registered or not, such executor or administrator shall have the right by the day named in the notice, to file with the clerk a verified itemized statement of the amount which has been paid thereon, and obtain allowance therefor in the same amount to which the creditor or creditors, whose claim or claims had been so paid, would have been entitled had such creditor filed the claim.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 21 (5); 1857, ch. 60, art. 101; 1871, § 1161; 1880, § 2059; 1892, § 1943; 1906, § 2117; Hemingway’s 1917, § 1785; 1930, § 1728; 1942, § 627; Laws, 1926, ch. 146; Laws, 1936, ch. 242.

Cross References —

Register of claims to be maintained by chancery clerk, see §9-5-173.

Docketing proceedings in chancery court, see §§9-5-205,9-5-215.

Balance of mutual dealings on death of one party, see §11-7-67.

JUDICIAL DECISIONS

1. In general.

Decree allowing or disallowing contested claim against decedent’s estate can be rendered only by chancellor having jurisdiction of estate being administered. Trippe v. O'Cavanagh, 203 Miss. 537, 36 So. 2d 166, 1948 Miss. LEXIS 304 (Miss. 1948).

In contest of claim against decedent’s estate, only decree allowing or disallowing claim can be rendered, and monetary judgment against administrator for sum for which claim is allowed, if allowed, would be erroneous. Trippe v. O'Cavanagh, 203 Miss. 537, 36 So. 2d 166, 1948 Miss. LEXIS 304 (Miss. 1948).

Under this section [Code 1942, § 627] claims must be refiled with clerk of chancery court for adjudication; judgment as to priority of claim cannot be collaterally attacked. Maxey v. Goolsby, 133 Miss. 554, 98 So. 99, 1923 Miss. LEXIS 171 (Miss. 1923).

RESEARCH REFERENCES

ALR.

Exclusiveness of grounds enumerated in statute providing, under specified circumstances, extension of time for filing claims against decedent’s estate. 57 A.L.R.2d 1304.

Appealability of order, of court processing probate jurisdiction court order, allowing or denying tardy presentation of claim to personal representative. 66 A.L.R.2d 659.

Executors and administrators: construction of statutory provisions giving priority on distribution to claims for wages of servants, employees, or the like. 52 A.L.R.3d 940.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 832 et seq.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 1411 et seq. (settlement of accounts and distribution of insolvent estate).

CJS.

34 C.J.S., Executors and Administrators § 829 et seq.

§ 91-7-271. Distribution of assets in insolvent estate.

When the claims are established and the amount of assets ascertained, the court shall adjudge the pro rata share of each creditor, deducting first the preference claims and deducting from debts not due the legal interest from the time of payment up to the time of their maturity; and the executor or administrator shall distribute all money amongst the creditors, in proportion to their demands. The payment of the claims of the creditors shall be subject to the abatement provisions of Section 91-7-90. A creditor whose pro rata share has been so adjudged, after ten (10) days from the date of the decree ascertaining his share, the same not having been paid, may have execution against the executor or administrator and the sureties on his bond for such sum as may be due him, and costs of execution.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (103); 1857, ch. 60, art. 102; 1871, § 1162; 1880, § 2060; 1892, § 1944; 1906, § 2118; Hemingway’s 1917, § 1786; 1930, § 1729; 1942, § 628; Laws, 2019, ch. 458, § 17, eff from and after July 1, 2019.

Amendment Notes —

The 2019 amendment added the second sentence; and inserted “(10)” in the last sentence.

JUDICIAL DECISIONS

1. In general.

Representative of insolvent estate may in proceeding before chancellor adjudicating claims of creditors set up bar of statute requiring action on claims against decedent to be brought within 4 years from grant of letters. Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958, 1918 Miss. LEXIS 158 (Miss. 1918).

An attorney employed by some of the creditors of an insolvent estate who realizes by his services a fund for distribution among all the creditors cannot have the fund charged with his fees, but must look alone to those who employed him for compensation. Rives v. Patty, 74 Miss. 381, 20 So. 862, 1896 Miss. LEXIS 119 (Miss. 1896).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 833.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 1420 et seq. (judgment or decree of distribution of insolvent estate).

CJS.

34 C.J.S., Executors and Administrators §§ 842-844 et seq.

§ 91-7-273. Suits not to abate on insolvency.

A suit or action which may be pending against an executor or administrator at the time the estate is reported insolvent shall not, on that account, abate, but may be prosecuted to final judgment. The judgment shall constitute a claim against the estate, if probated and registered as other claims, but shall not have priority over general creditors. If any such suit be undetermined when the claims are to be examined and allowed by the court and the distributive shares ascertained and declared, such examination and allowance may be postponed until the suit be finally determined, or the validity of the claims sued on may be determined by the chancery court.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 2 (1); 1857, ch. 60, art. 103; 1871, § 1163; 1880, § 2061; 1892, § 1945; 1906, § 2119; Hemingway’s 1917, § 1787; 1930, § 1730; 1942, § 629.

§ 91-7-275. Suit not allowed after decree of insolvency.

A suit or action shall not be brought against an executor or administrator on any claim against the decedent after the estate has been declared insolvent.

HISTORY: Codes, 1880, § 2062; 1892, § 1946; 1906, § 2120; Hemingway’s 1917, § 1788; 1930, § 1731; 1942, § 630.

JUDICIAL DECISIONS

1. In general.

This provision bars only actions on contract, not actions in tort. Bullock v. Young, 243 Miss. 146, 137 So. 2d 777, 1962 Miss. LEXIS 326 (Miss. 1962).

A personal representative is liable to suit on a claim arising from the alleged negligence of his decedent, notwithstanding the estate has been declared insolvent. Bullock v. Young, 243 Miss. 146, 137 So. 2d 777, 1962 Miss. LEXIS 326 (Miss. 1962).

§ 91-7-277. Annual accounts.

Every executor or administrator, at least once in each year or oftener if required by the court, shall present under oath an account of his administration, showing the disbursements, every item of which and the amount thereof to be distinctly stated, and it shall also show the receipts of money and from what sources. The failure to account annually shall be a breach of the administration bond, for which it may be put in suit, or the executor or administrator may be removed; but the court may, on application and on cause shown, extend the time for accounting. The court shall examine all such accounts and if satisfied that the account is just and true, it shall decree the same approved and allowed as a correct annual settlement.

There shall be no requirement for filing annual accounts if the requirement of filing accountings is waived in the testator’s will. The court or the chancellor may also waive the requirement for filing annual accounts in an intestate estate upon petition to the court by the administrator. Even though the requirement of filing annual accounts is waived in the testator’s will or waived by the court or the chancellor upon petition to the court by the administrator in an intestate estate, the court or the chancellor may later order the executor or administrator to file annual accounts upon the petition of a beneficiary or other interested party if the court or the chancellor determines that the filing of annual accounts is necessary or advisable.

HISTORY: Codes, 1857, ch. 60, art. 104; 1871, § 1164; 1880, § 2067; 1892, § 1947; 1906, § 2121; Hemingway’s 1917, § 1789; 1930, § 1732; 1942, § 631; Laws, 1960, ch. 217, § 5; Laws, 1968, ch. 306, § 1; Laws, 1996, ch. 400, § 43, eff from and after passage (approved March 19, 1996); Laws, 2019, ch. 458, § 8, eff from and after July 1, 2019.

Editor’s Notes —

Section 81-1-57 provides that wherever the words “Department of bank supervision”, or “department” when referring to the department of bank supervision, appear they shall be construed to mean the department of banking and consumer finance.

Amendment Notes —

The 2019 amendment rewrote the section.

Cross References —

Duty of chancery clerk to keep record of accounts allowed, see §9-5-137.

Payment of inheritance tax before settlement of executor’s accounts, see §27-9-41.

Final accounts, see §91-7-291.

Annual accounts by guardians, see §93-13-67.

Provision that accounts be personally signed and sworn to by executor or administrator, see Miss. Uniform Chancery Court Rule 6.14.

JUDICIAL DECISIONS

1. In general.

2. Failure to provide accounting.

1. In general.

Denial of daughters’ accounting request was not an abuse of discretion because the chancellor correctly held that under the mother’s will, the daughters’ had so remote an interest with such a mere expectancy of a future inheritance that they were not entitled to an accounting until that interest vested; neither daughter was entitled to an accounting because there was no showing of waste, loss, mismanagement, or fraud. Flowers v. Estate of Flowers (In re Estate of Flowers), 264 So.3d 775, 2019 Miss. LEXIS 95 (Miss. 2019).

Denial of daughters’ accounting request was not an abuse of discretion because the daughters’ had so remote an interest with such a mere expectancy of a future inheritance that they were not entitled to an accounting until that interest vested; chancellors had long been vested with discretionary authority to decide matters of equity, and in the daughters’ case against the mother’s estate, equity required a denial of the daughters’ accounting request for such a remote interest. Flowers v. Estate of Flowers (In re Estate of Flowers), 264 So.3d 775, 2019 Miss. LEXIS 95 (Miss. 2019).

Daughter did not show that the son had not made a sufficient accounting of estate assets, as required by Miss. Code Ann. §91-7-277, and, thus, no additional accounting was required regarding them in a case where the daughter sought to challenge the will of the testator, who was the father of the daughter and son. The testator’s will did not require the son to furnish any accounting to any court, file an inventory of property received by the beneficiaries, or to report to any court with respect to the duties imposed upon the beneficiaries or regarding the estate administration, and there was not evidence that the estate had been mismanaged. Ellzey v. McCormick, 17 So.3d 583, 2009 Miss. App. LEXIS 118 (Miss. Ct. App. 2009).

The Chancellor properly removed an administrator under §91-7-277, where the administrator failed to file sufficiently specific accountings and inventories. Kelly v. Shoemake, 460 So. 2d 811, 1984 Miss. LEXIS 2019 (Miss. 1984).

The requirement of §91-7-277 that annual accountings be made is mandatory and not simply advisory, and the fact that co-executors’ failure to make annual accountings resulted in no loss to the estate was of no consequence. Abernathy v. Smith, 458 So. 2d 691 (Miss. 1984).

Statutory requirement that executor file vouchers for disbursements for annual accounts mandatory. Ridgeway v. Jones, 125 Miss. 22, 87 So. 461, 1921 Miss. LEXIS 103 (Miss. 1921).

Executor may not pay claims not probated and allowed. Ridgeway v. Jones, 125 Miss. 22, 87 So. 461, 1921 Miss. LEXIS 103 (Miss. 1921).

Expenditures for funeral expenses and monument may be allowed if reasonable. Ridgeway v. Jones, 125 Miss. 22, 87 So. 461, 1921 Miss. LEXIS 103 (Miss. 1921).

2. Failure to provide accounting.

Finding against the executrix was appropriate because she mismanaged the decedent’s estate and was thus accountable for her actions. She further failed to provide an accounting as required by Miss. Code Ann. §91-7-277. Frazier v. Shackelford (In re Estate of Carter), 912 So. 2d 138, 2005 Miss. LEXIS 662 (Miss. 2005).

RESEARCH REFERENCES

ALR.

Application of dead man’s statute in proceeding involving account of personal representative. 2 A.L.R.2d 349.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 903.

CJS.

34 C.J.S., Executors and Administrators § 1038.

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

§ 91-7-279. Repealed.

Repealed by Laws, 2019, ch. 458, § 22, eff from and after July 1, 2019.

§91-7-279. [Codes, 1892, § 1948; 1906, § 2122; Hemingway’s 1917, § 1790; 1930, § 1733; 1942, § 632; Laws, 1960, ch. 217, § 6; Laws, 1966, ch. 324, § 1, eff from and after passage (approved March 2, 1966).]

§ 91-7-281. Attorney’s fees allowable.

In annual and final settlements, the executor, administrator, or guardian shall be entitled to credit for such reasonable sums as he may have paid for the services of an attorney in the management or in behalf of the estate, if the court be of the opinion that the services were proper and rendered in good faith. Where the executor, administrator, or guardian acts also as attorney, the court may allow such executor, administrator, or guardian credit for his reasonable compensation as attorney in lieu of his compensation as executor, administrator, or guardian.

HISTORY: Codes, 1892, § 1957; 1906, § 2131; Hemingway’s 1917, § 1799; 1930, § 1734; 1942, § 633; Laws, 1882, p. 113; Laws, 1928, ch. 153.

Cross References —

Attorney’s fees in guardianship proceedings, see §93-13-79.

Petitions for allowance of attorney’s fees, see Miss. Uniform Chancery Court Rule 6.13.

JUDICIAL DECISIONS

1. In general.

2. Amount of fees.

3. Executor, administrator, or guardian acting as attorney.

1. In general.

Attorney’s fees are not authorized where services are rendered for sole benefit of individual interested in estate; administratrix should not have been allowed attorney’s fees, to be paid out of estate, where she was the only creditor of estate and record revealed that only pleading for motion filed by her not in furtherance of recovering her claim against estate was payment of outstanding funeral bill. Braxton v. Johnson, 514 So. 2d 1232 (1987).

The payment of attorneys’ fees is an expense of the administration of a decedent’s estate, and since such fees are incurred after testator’s death, they do not have to be probated; the testator may waive the testatrix’s duty to account, but upon a charge of the devisees of mismanagement by the executrix, the chancery court may properly require an accounting, with the result that an executrix may act at her peril in paying attorneys’ fees without court approval. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

Although attorney’s fees are the personal obligation of the administrator or executor, they may be paid out of the estate as administration expenses. Scott v. Hollingsworth, 487 So. 2d 811, 1986 Miss. LEXIS 2438 (Miss. 1986).

The supreme court would not require an estate to pay for legal services rendered by an attorney in the interest of the executrix in her individual capacity and which was of no benefit to the estate itself. Ruffin v. Burkhalter, 238 Miss. 358, 118 So. 2d 357, 1960 Miss. LEXIS 413 (Miss. 1960).

Attorney’s fees in the management of statutory estates are not a charge upon the estate itself, but are personal obligations of the administrator or executor or guardian, and an allowance for attorney’s fees must be done on the request or petition of the administrator or executor or guardian and not on the direct petition of the attorney himself. Hutton v. Gwin, 188 Miss. 763, 195 So. 486, 1940 Miss. LEXIS 55 (Miss. 1940).

Where the testator prescribes that his wife should be the guardian of the person and estate of his minor son until he should become twenty-one years of age and should give a bond as guardian effective during that time, and that after the minor had reached his majority the guardian should thereupon become trustee and should furnish bond as such trustee until the son should attain thirty-one years old, at which time the balance of the estate was to be distributed, a period of minority constituted a statutory guardianship and attorney’s fees for services rendered during that period could not be allowed on the direct petition of the attorney himself. Hutton v. Gwin, 188 Miss. 763, 195 So. 486, 1940 Miss. LEXIS 55 (Miss. 1940).

Attorneys’ fees incurred by the personal representative in the administration of an estate in his custody are his personal obligations, for which he may be reimbursed if the court be of the opinion that the services were necessary and rendered in good faith. Clarksdale Hospital v. Wallis, 187 Miss. 834, 193 So. 627, 1940 Miss. LEXIS 238 (Miss. 1940).

Allowance for attorneys’ fees is unauthorized where services are rendered for sole benefit of an individual, or group of individuals, interested in the estate, as against the others interested. Clarksdale Hospital v. Wallis, 187 Miss. 834, 193 So. 627, 1940 Miss. LEXIS 238 (Miss. 1940).

Where hospital’s claim to legacy was against the interest of all the other legatees and devisees under a will, and its successful termination resulted in decreasing their claims, the hospital was not entitled to reasonable attorneys’ fees incurred in defending its rights to the legacy, notwithstanding that the decision as to the validity of the bequest involved a construction of the will which was of interest to all concerned. Clarksdale Hospital v. Wallis, 187 Miss. 834, 193 So. 627, 1940 Miss. LEXIS 238 (Miss. 1940).

Attorney’s fees held personal debts of administrator, and not of estate. Reedy v. Allen, 181 Miss. 471, 179 So. 569, 1938 Miss. LEXIS 89 (Miss. 1938).

Ordinarily administrator is personally liable to attorney, and entitled, in connection with annual and final settlement, to credit for reasonable attorney’s services on behalf of estate if court thinks they were proper and in good faith. Reedy v. Allen, 181 Miss. 471, 179 So. 569, 1938 Miss. LEXIS 89 (Miss. 1938).

Chancellor had no authority to allow attorney’s fees where there was no evidence of employment contract. Reedy v. Allen, 181 Miss. 471, 179 So. 569, 1938 Miss. LEXIS 89 (Miss. 1938).

Order allowing attorney’s fee in ex parte proceeding for services rendered predecessor of present administratrix and trustee could not be sustained on ground administratrix should have objected to filing petition, where neither petition nor proof showed any power in administratrix or trustee to bind estate, and it was not shown that predecessor was insolvent or out of state. Reedy v. Allen, 181 Miss. 471, 179 So. 569, 1938 Miss. LEXIS 89 (Miss. 1938).

Where will empowered executor and trustee to employ persons necessary to manage trust estate, attorney’s fees could be made charge against trust estate. Gwin v. Fountain, 159 Miss. 619, 126 So. 18, 132 So. 559, 1930 Miss. LEXIS 354 (Miss. 1930).

Ordinarily debts contracted by administrator are only personal obligations, and this is especially true of attorneys’ fees. Howell v. Myer, 105 Miss. 771, 63 So. 233, 1913 Miss. LEXIS 261 (Miss. 1913).

Statute is intended to prevent necessity of suit by attorney against administrator to establish claim for services to estate; statute has no reference to claim which attorney seeks to enforce over administrator’s protest. Murphy v. Harris, 93 Miss. 286, 48 So. 232, 1908 Miss. LEXIS 166 (Miss. 1908).

The funeral expenses of decedent and an administrator’s attorney’s fees are not debts against him, and the administrator may pay them with the proceeds of a life insurance policy which is exempt from liability for his debts. Dobbs v. Chandler, 84 Miss. 372, 36 So. 388, 1904 Miss. LEXIS 43 (Miss. 1904).

2. Amount of fees.

The chancellor did not abuse his discretion by not allowing additional attorneys fees where the executrix was found in civil and criminal contempt for failing to abide by a previous court order and was subsequently jailed, and where the executrix received legal advice in connection with the contempt action from the same counsel whom she retained on behalf of the estate and thus did not have the purpose of benefiting the estate. In re Estate of Collins v. Collins, 742 So. 2d 147, 1999 Miss. App. LEXIS 251 (Miss. Ct. App. 1999).

Lawyer should submit time sheet to chancellor listing hours spent serving estate and fee normally charged for such service when pursuing attorneys fees under §91-7-281; attorney’s fees are not recoverable from estate for services performed before appointment of administrator. Braxton v. Johnson, 514 So. 2d 1232 (1987).

The chancellor did not abuse his discretion in allowing the payment of attorney’s fees for services rendered prior to the date the decedent’s estate could and should have been closed, nor in surcharging the executrix for the balance of the legal fees incurred after that date. Harper v. Harper, 491 So. 2d 189, 1986 Miss. LEXIS 2508 (Miss. 1986).

Award of $1500 as fees for attorney retained by an estate valued in excess of $229,000 was not so inadequate as to amount to an abuse of the chancellor’s discretion. Scott v. Hollingsworth, 487 So. 2d 811, 1986 Miss. LEXIS 2438 (Miss. 1986).

Where the proper management, handling, and preservation of funds of a decedent’s estate in the sum of $13,750, derived from condemnation proceedings, required the executor and life tenant to seek the aid of the chancery court and to submit the matter to its jurisdiction for proper decrees in regard to the disposition of the funds, the allowance of an attorney’s fee in the sum of $1,000 was justified. Bradley v. Bradley, 185 So. 2d 655, 1966 Miss. LEXIS 1518 (Miss. 1966).

Allowance of compensation and attorney’s fees to an administrator within the limits prescribed by statute is a matter addressed to the sound discretion of the chancery court, and the supreme court will not interfere with the exercise of that discretion except in cases of its manifest and flagrant abuse. Schwander v. Rubel, 221 Miss. 875, 75 So. 2d 45, 1954 Miss. LEXIS 603 (Miss. 1954).

Chancery court’s allowance for attorney’s fees which was slightly less than four per cent of estate, held not abuse of discretion. King v. Wade, 175 Miss. 72, 166 So. 327, 1936 Miss. LEXIS 8 (Miss. 1936).

Instead of paying attorneys and asking credit therefor, executrix may ask court to fix fees. Brown v. Franklin, 166 Miss. 899, 145 So. 752, 1933 Miss. LEXIS 328 (Miss. 1933).

Amount allowable as attorney’s fee for services rendered in administration of estate rests in sound discretion of chancery court. Brown v. Franklin, 166 Miss. 899, 145 So. 752, 1933 Miss. LEXIS 328 (Miss. 1933).

Time is not the only element involved in fixing attorney’s fee for services rendered executrix, since skill, responsibility, and amount involved must also be considered. Brown v. Franklin, 166 Miss. 899, 145 So. 752, 1933 Miss. LEXIS 328 (Miss. 1933).

Opinions of attorneys concerning propriety of fee for services rendered to executrix were not binding on chancery court, which might act on its own knowledge. Brown v. Franklin, 166 Miss. 899, 145 So. 752, 1933 Miss. LEXIS 328 (Miss. 1933).

Allowance of attorney’s fee of $750 for services rendered executrix in estate amounting to $29,104.95, where litigation was carried to supreme court, held not abuse of discretion. Brown v. Franklin, 166 Miss. 899, 145 So. 752, 1933 Miss. LEXIS 328 (Miss. 1933).

3. Executor, administrator, or guardian acting as attorney.

As long as no duplication of services is shown, an executor is not prevented from seeking payment for services rendered purely in his fiduciary capacity that may not necessarily involve legal work, while, at the same time, seeking additional compensation for other work of a purely legal nature in lieu of payment for those other discrete services as the fiduciary. Thomas v. Evans (In re Estate of Thomas), 740 So. 2d 332, 1999 Miss. App. LEXIS 117 (Miss. Ct. App. 1999).

There is no prohibition in this section that would prevent a fiduciary who is also an attorney from petitioning for some part of his itemized services to be paid under §91-7-299, where his right to compensation would not necessarily be commensurate with prevailing legal fees; nor is there a prohibition for that same fiduciary, as to those separately identified services that were unquestionably performed in his capacity as an attorney, seeking compensation under this section, in lieu of being paid for those particular services under §91-7-299. Thomas v. Evans (In re Estate of Thomas), 740 So. 2d 332, 1999 Miss. App. LEXIS 117 (Miss. Ct. App. 1999).

RESEARCH REFERENCES

ALR.

Allowance of fees for guardian ad litem appointed for infant defendant, as costs. 30 A.L.R.2d 1148.

Right to allowance out of estate of attorneys’ fees incurred in attempt to establish or defeat will. 40 A.L.R.2d 1407.

Right of executor or administrator to extra compensation for legal services rendered by him. 65 A.L.R.2d 809.

Personal liability of executor or administrator for fees of attorney employed by him for the benefit of the estate. 13 A.L.R.3d 518.

Amount of attorneys’ compensation in matters involving guardianship and trusts. 57 A.L.R.3d 550.

Amount of attorneys’ compensation in proceedings involving wills and administration of decedents’ estates. 58 A.L.R.3d 317.

Liability of estate for legal services of attorney employed by estate attorney without consent of executor or administrator. 83 A.L.R.3d 1160.

Award of attorneys’ fees out of trust estate in action by trustee against cotrustee. 24 A.L.R.4th 624.

Attorneys’ fees: cost of services provided by paralegals or the like as compensable element of award in state court. 73 A.L.R.4th 938.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 428, 430.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 1451 et seq. (compensation and allowances).

CJS.

34 C.J.S., Executors and Administrators § 1072.

Law Reviews.

1978 Mississippi Supreme Court Review: Torts. 50 Miss. L. J. 137, March, 1979.

§ 91-7-283. Defaulters to be listed and cited.

Unless the court or chancellor has, by order entered on the minutes, designated another annual term for that purpose, it shall be the duty of the clerk at the first term of the chancery court of his county in each year to make up a complete and impartial list of all executors and administrators and guardians who have failed to present and settle their accounts within the year preceding. In each and every such case, the clerk shall enter the same on the motion docket and thereby move the court for an order on the defaulter; and the court shall, in each and every such case, order a citation to be issued for the defaulter and for the surety or sureties on his bond, returnable forthwith or at the next term of court. On the return thereof, unless sufficient cause be shown for such failure and that the same was not the result of negligence or contumacy, the court shall proceed against the delinquent executor, administrator, or guardian for a contempt, and may also remove him from office. If there be no such defaulter, the clerk shall so report and obtain an order reciting his said report to that effect, which order shall be entered on the minutes of the term. If there be any defaulter and the clerk shall fail to fully prepare the list and to enter the motions herein required, he shall not be entitled to any allowance for attendance on the term nor to any annual compensation for ex officio services to the court. Any allowance by the court contrary to the terms of this section may nevertheless be recovered from the said clerk on his bond by the state tax commission, or by any other office similarly empowered, for the benefit of the county treasury; in addition to which, the clerk shall be liable on his bond at the suit of any party in interest who has been damaged in any case by the said failure of the clerk.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (94); 1857, ch. 60, art. 105; 1871, § 1165; 1880, § 2068; 1892, § 1949; 1906, § 2123; Hemingway’s 1917, § 1791; 1930, § 1735; 1942, § 634.

Editor’s Notes —

Section 27-3-4 provides that the terms “ ‘Mississippi State Tax Commission,’ ‘State Tax Commission,’ “Tax Commission’ and ‘commission’ appearing in the laws of this state in connection with the performance of the duties and functions by the Mississippi State Tax Commission, the State Tax Commission or Tax Commission shall mean the Department of Revenue.”

Cross References —

Docketing in matters testamentary, see §9-5-203.

JUDICIAL DECISIONS

1. In general.

Supreme court will not interfere with action of chancery court in removing trustee on its own motion, unless palpably unjust. Nutt v. State, 96 Miss. 473, 51 So. 401, 1910 Miss. LEXIS 171 (Miss. 1910).

§ 91-7-285. Process for derelict fiduciary.

Whenever it shall appear of record, or otherwise, that any executor, administrator, guardian, receiver, or fiduciary appointed by any chancery court is derelict in the performance of any duty required of him by law or the orders of the court or chancellor, or is liable to be punished or removed for any cause prescribed by law, then such court or the chancellor in vacation may, on the application of any interested party or of his or its own motion, order a citation for such executor, administrator, guardian, receiver, or other fiduciary, as the case may be, to be issued by the clerk of the court in which such cause or matter is pending, returnable forthwith or at such time and place, in term time or vacation, as may be specified in such order, to appear and show cause why he should not be removed or punished for contempt, either or both, as may be directed in such order. The citation shall be directed to the sheriff of the county of the residence of such fiduciary, if known to the clerk; otherwise, it shall be directed to the sheriff of the county where such matter or cause is pending, and shall be executed without advance payment of fees.

HISTORY: Codes, 1942, § 635; Laws, 1936, ch. 239.

JUDICIAL DECISIONS

1. In general.

2. Notice.

1. In general.

In a father’s petition to remove a conservator under Miss. Code Ann. §91-7-285 and to set aside an allegedly fraudulent conveyance, a chancery court erred by dismissing based on a lack of standing because the father was an interested party due to the fact that his daughters were beneficiaries under their mother’s will. Peyton v. Longo (In re Davis), 954 So. 2d 521, 2007 Miss. App. LEXIS 251 (Miss. Ct. App. 2007).

An administrator’s failure to file sufficiently specific accountings and inventories and his admission that he had spent or lent large sums of funds taken from the estate for which he was unable to account formed a sufficient basis for the chancellor to remove him, under §91-7-285, as executor of the estate. Kelly v. Shoemake, 460 So. 2d 811, 1984 Miss. LEXIS 2019 (Miss. 1984).

2. Notice.

A conservator is entitled to notice and a hearing prior to his removal. Jackson v. Jackson, 732 So. 2d 916, 1999 Miss. LEXIS 54 (Miss. 1999).

§ 91-7-287. Publication of process for defaulter.

If the citation be returned unexecuted because such fiduciary cannot be found after diligent search by the sheriff to whom it is directed, then the clerk shall make and file among the papers in the cause an affidavit stating such information as he may have been able to ascertain after diligent inquiry concerning the whereabouts and post office address of such fiduciary. If by such affidavit it shall appear that the whereabouts of such fiduciary is unknown to the clerk or that he is a nonresident of, or absents himself from, this state, then the court or chancellor shall make an order directing the issuance and publication of an alias citation for such fiduciary to appear and show cause why he should not be removed, at a time and place specified therein, not less than thirty days from the date of such order. The sheriff of the county where such matter or cause is pending shall thereupon make publication of such citation by posting a true copy thereof at three public places in his county, one of which shall be at the courthouse, not less than twenty-one days before the return day thereof, and shall make return of the citation showing such publication and the date and places where such copies were posted. If the clerk’s affidavit shall show the post office address of such fiduciary, then the clerk shall, at the time of issuing such alias citation for publication, mail postage prepaid a true copy thereof to him at such address and note the fact on his general docket in the same manner and with the same effect as in other like cases. On the return of such alias citation, executed by publication as aforesaid, the court or chancellor shall be as fully empowered to proceed as if such fiduciary had been personally served in this state.

HISTORY: Codes, 1942, § 636; Laws, 1936, ch. 239.

§ 91-7-289. Hearing for derelict fiduciary.

If on the return day it shall appear that the citation has been served in this state, or publication made in the manner required by Section 91-7-287, the court or chancellor may proceed to hear the matter, and may remove or punish such fiduciary, either or both, or make such other order therein as may seem just and proper; or the court or chancellor may continue the matter for further hearing and final determination to such time and place as may be designated in the order of continuance.

HISTORY: Codes, 1942, § 637; Laws, 1936, ch. 239.

§ 91-7-291. Final accounts.

When the estate has been administered by payment of the debts and the collection of the assets, it shall be the duty of the executor or administrator, unless the court or chancellor, on cause shown, shall otherwise order, to make and file a final settlement of the administration by making out and presenting to the court, under oath, his final account, which shall contain a distinct statement of all the balances of the annual accounts, either as debits or credits, all other charges and disbursements, amounts received and not contained in any previous annual account, and a statement of the kind and condition of all assets in his hands. There shall be no requirement for filing a final account if the requirement of filing accountings is waived in the testator’s will. The court or the chancellor may also waive the requirement for filing a final account in an intestate estate upon petition to the court by the administrator. Even though the requirement of filing accountings or the final account is waived in the testator’s will or waived by the court or the chancellor upon petition to the court by the administrator in an intestate estate, the court or the chancellor may later order the executor or administrator to file a final account upon the timely petition of a beneficiary or other interested party if the court or the chancellor determines that the filing of a final account is necessary or advisable and the petition is timely filed.

HISTORY: Codes, 1857, ch. 60, art. 106; 1871, § 1166; 1880, § 2069; 1892, § 1950; 1906, § 2124; Hemingway’s 1917, § 1792; 1930, § 1736; 1942, § 638; Laws, 1960, ch. 217, § 7; Laws, 2019, ch. 458, § 9, eff from and after July 1, 2019.

Editor’s Notes —

Section 81-1-57 provides that wherever the words “Department of bank supervision”, or “department” when referring to the department of bank supervision, appear they shall be construed to mean the department of banking and consumer finance.

Amendment Notes —

The 2019 amendment deleted “supported by legal vouchers” following “all other charges and disbursements” in the first sentence; deleted the former last two sentences, which read: “In the event that the account shall be presented by a bank or trust company which is subject to the supervision of the department of bank supervision of the State of Mississippi or of the comptroller of the currency of the United States and such account, or the petition for the approval of same, shall contain a statement under oath by an officer of said bank or trust company showing that the vouchers covering the disbursements in the account presented are on file with the said bank or trust company, such bank or trust company shall not be required to file vouchers. Provided, however, that said bank or trust company shall produce said vouchers for inspection of any interested party or his or her attorney at any time during legal banking hours at the office of said bank or trust company; and provided, further, that the court on its own motion, or on the motion of any interested party, may require that said vouchers be produced and inspected at the time of hearing of any objections that may be filed to any final account”; and added the present last three sentences.

Cross References —

Payment of income tax as prerequisite to approval of final account, see §27-7-69.

Payment of estate taxes as prerequisite to approval of final account, see §27-9-41.

Annual accounts, see §91-7-277.

Reopening of accounts after final accounting, see §91-7-309.

Production of vouchers in guardianship proceedings, see §93-13-73.

Requirement that account be personally signed and sworn to by executor or administrator, see Miss. Uniform Chancery Court Rule 6.14.

JUDICIAL DECISIONS

1. In general.

In a proceeding by a widow to reopen the estate of her deceased husband more than two years after entry of a final decree on the ground that the final account had never been filed and that the final decree was therefore a nullity, the trial court properly denied the petition where the transcript was a part of the record and it indicated that, although the final account had not be stamped “Filed” until three years later, there was no dispute that it had been presented to the court, that it had been a part of the record on presentation of same, and that the decree had been based upon said account and evidence heard for the approval thereof, and where there was no specific charge of fraud against the executor which would constitute a bar to the statute of limitations. Byrd v. Page, 384 So. 2d 1038, 1980 Miss. LEXIS 2015 (Miss. 1980).

Chancellor in vacation may approve executor’s final account. United States Fidelity & Guaranty Co. v. State, 110 Miss. 16, 69 So. 1007, 1915 Miss. LEXIS 20 (Miss. 1915).

Administratrix de bonis non entitled to allowance for premium on special bond executed to collect money for land sold by predecessor under order of court. Davis v. Blumenberg, 107 Miss. 432, 65 So. 503, 1914 Miss. LEXIS 102 (Miss. 1914).

In a suit by a distributee to compel an accounting by the surviving executor it is proper upon the latter’s application to make a personal representative of the deceased executor a party to the proceeding. Owens v. Owens' Estate, 84 Miss. 673, 37 So. 149, 1904 Miss. LEXIS 95 (Miss. 1904).

Where executors deposited money collected in their own bank, where it remained for ten years credited to them as guardians, when they were not guardians, and rendered no accounts for more than two years, in the meantime lending money to the distributees at interest and selling them property, taking interest-bearing notes therefor, they are chargeable with interest at the legal rate during the time the money was in the bank. Owens v. Owens' Estate, 84 Miss. 673, 37 So. 149, 1904 Miss. LEXIS 95 (Miss. 1904).

Where executors without excuse left money due the estate in the hands of the debtor for nearly fifteen years, not collecting it until compelled to do so in a proceeding for an accounting, they were chargeable with interest. Owens v. Owens' Estate, 84 Miss. 673, 37 So. 149, 1904 Miss. LEXIS 95 (Miss. 1904).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 878 et seq.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 1101 et seq. (final account).

CJS.

34 C.J.S., Executors and Administrators § 968 et seq.

§ 91-7-293. Names of interested parties to be stated.

The executor or administrator shall file with his final account a written statement, under oath, of the names of the heirs or devisees and legatees of the estate, so far as known, specifying particularly which, if any, are under the age of twenty-one years, of unsound mind, or convict of felony; the places of residence of each and their post-office address if they be nonresidents or, if the post-office address be unknown, the statement must aver that diligent inquiry has been made to learn the same without avail and giving the names and places of residence of the guardians of all who have guardians, so far as known.

HISTORY: Codes, 1892, § 1951; 1906, § 2125; Hemingway’s 1917, § 1793; 1930, § 1737; 1942, § 639.

Cross References —

Requirement that account be personally signed and sworn to by executor or administrator, see Miss. Uniform Chancery Court Rule 6.14.

JUDICIAL DECISIONS

1. In general.

Administratrix’s duty to protect estate assets required administratrix to contest all claims against estate that may properly and in good faith be contested and to use reasonable diligence to ascertain potential heirs, and to file names of heirs in final account. Shepard v. Jones by & Through Jones (In re Estate of Stowers), 678 So. 2d 660, 1996 Miss. LEXIS 329 (Miss. 1996).

A chancery court did not have jurisdiction to hear a will contest where the executor failed to properly designate the beneficiaries as necessary parties, since the “interested and necessary parties” were not timely noticed and properly joined in the lawsuit; the chancellor should have joined all necessary and proper parties before exercising jurisdiction. Padron v. Martell (In re Estate of McClerkin), 651 So. 2d 1052, 1995 Miss. LEXIS 135 (Miss. 1995).

In an action to probate a will, the chancellor erred in sustaining the executor’s and beneficiaries’ motions to dismiss a caveat against probate filed by will contestants on the ground that the will was not contested within 2 years as required by §91-7-23 where the beneficiaries were not listed as interested parties on the petition to probate the will, since the beneficiaries were necessary parties entitled to notice of the action. Padron v. Martell (In re Estate of McClerkin), 651 So. 2d 1052, 1995 Miss. LEXIS 135 (Miss. 1995).

An administratrix perpetrated a fraud on the court where she intentionally chose not to reveal the existence of a potential heir to the court, relying on her and her attorney’s determination that an alleged illegitimate daughter of the decedent was not an heir, where the administratrix, who was the decedent’s widow, claimed to be the sole heir at law and benefited from her silence regarding the existence of the illegitimate daughter. Smith v. Estate of King, 579 So. 2d 1250, 1991 Miss. LEXIS 250 (Miss. 1991).

An administratrix is under an affirmative duty to disclose to the court the existence of known potential heirs and claimants. Smith v. Estate of King, 501 So. 2d 1120, 1987 Miss. LEXIS 2287 (Miss. 1987).

This section [Code 1942, § 639], while it prescribed who are necessary parties to the final account of an administrator, does not preclude as proper parties those having an interest in the net amount to be distributed by the administrator. Stone v. Townsend, 190 Miss. 547, 1 So. 2d 237, 1941 Miss. LEXIS 81 (Miss. 1941).

Judgment creditors of the heirs of an intestate were proper parties to a proceeding involving the final account of the administrator. Stone v. Townsend, 190 Miss. 547, 1 So. 2d 237, 1941 Miss. LEXIS 81 (Miss. 1941).

RESEARCH REFERENCES

Law Reviews.

Symposium on Mississippi Rules of Civil Procedure: Pretrial Procedure, Applicability of Rules, and Jurisdiction and Venue – Rules 16, 81 and 82. 52 Miss. L. J. 105, March, 1982.

§ 91-7-295. Summons or publication for final account.

The final account so presented, with the statement as to parties, shall remain on file, subject to the inspection of any person interested. Summons shall be issued or publication be made for all parties interested, as in other suits in the chancery court, to appear at a term of the court, or before the chancellor in vacation, not less than thirty (30) days from the service of the summons or the completion of the publication, and show cause, if any they can, why the final account of the executor, administrator, or guardian should not be allowed and approved.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 20 (12); 1857, ch. 60, art. 106; 1871, § 1167; 1880, § 2069; 1892, § 1952; 1906, § 2126; Hemingway’s 1917, § 1794; 1930, § 1738; 1942, § 640; Laws, 1960, ch. 222.

JUDICIAL DECISIONS

1. In general.

Trial court properly found that a law firm was not an interested party entitled to notice of an estate’s final accounting pursuant to the notice statute because the firm did not probate a claim or have a contract with the estate or otherwise show a direct pecuniary interest in the estate. Ferrell v. Cole (In re Estate of Cole), 256 So.3d 1156, 2018 Miss. LEXIS 366 (Miss. 2018).

Similar standard used in will contests should be used to define interested parties regarding the final accounting; to be an interested party under the statute, the party must have some legal tie to the estate in the fashion of a direct pecuniary interest. Ferrell v. Cole (In re Estate of Cole), 256 So.3d 1156, 2018 Miss. LEXIS 366 (Miss. 2018).

After the final account has been filed, it is the administratrix duty to cause summons to be issued for all parties interested as far as known to her at the hearing on the final account. Smith v. Estate of King, 501 So. 2d 1120, 1987 Miss. LEXIS 2287 (Miss. 1987).

A minor seeking to be declared an heir of the decedent as an illegitimate daughter and to share in the estate should have been allowed to amend her complaint to allege that the widow and former executrix knew of the existence of the minor as an illegitimate child of the decedent, but fraudulently failed to so inform the court, notwithstanding that the minor’s petition was filed more than 90 days after the publication of notice to the creditors of the estate. Smith v. Estate of King, 501 So. 2d 1120, 1987 Miss. LEXIS 2287 (Miss. 1987).

It is competent for the parties in interest to waive process and consent to the hearing of a final account. Pollock v. Buie, 43 Miss. 140, 1870 Miss. LEXIS 16 (Miss. 1870).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 868, 869.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 1133 et seq. (notice).

CJS.

34 C.J.S., Executors and Administrators § 957.

§ 91-7-297. Hearing and adjudication of final account.

If process be returned executed, or publication has been made, the court shall examine the final account so presented and filed, hear the evidence in support of it, and the objections and evidence against it. If the court shall be satisfied that the account is correct, it shall make a final decree of approval and allowance, and shall, at the same time, order the executor or administrator to make distribution of the property in his hands. In proceedings for a final settlement, the court may allow any party interested to surcharge and falsify any annual or partial settlement of the executor or administrator.

HISTORY: Codes, 1857, ch. 60, art. 107; 1871, § 1169; 1880, § 2070; 1892, § 1953; 1906, § 2127; Hemingway’s 1917, § 1795; 1930, § 1739; 1942, § 641; Laws, 1960, ch. 217, § 8; Laws, 2019, ch. 458, § 10, eff from and after July 1, 2019.

Amendment Notes —

The 2019 amendment deleted “and supported by legal vouchers where required to be filed or produced for inspection” following “the account is correct” in the second sentence.

Cross References —

Tax upon settlement of fiduciary’s account, see §27-7-69.

Payment of income tax as prerequisite to approval of final account, see §27-7-69.

Executor’s or administrator’s liability for inheritance taxes, see §27-9-37.

Payment of estate taxes as prerequisite to approval of final account, see §27-9-41.

JUDICIAL DECISIONS

1. In general.

2. Discharge of representative.

1. In general.

Executor should be surcharged in his final account with sum which he paid out of funds of estate in settlement of just claims against estate, which were required by law to be duly probated but which were not probated within six-month period after publication of first notice by executor to creditors of estate, as such expenditures are without authority of law unless claims had been probated. Oberst v. Mullens, 43 So. 2d 560 (Miss. 1949).

Liability of surety may not be fixed in proceeding for final accounting by executor. Walton v. Walton's Estate, 143 Miss. 666, 109 So. 707, 1926 Miss. LEXIS 306 (Miss. 1926).

Surviving partner administering partnership estate properly allowed credit in his final account for payment of partnership debt out of his individual funds. Byrd v. King, 120 Miss. 435, 82 So. 312, 1919 Miss. LEXIS 104 (Miss. 1919).

Decree directing distribution to heirs does not affect right to payment of probated claims; fact claimant was administrator who had filed his final account immaterial. Oliver v. Smith, 94 Miss. 879, 49 So. 1, 1909 Miss. LEXIS 364 (Miss. 1909).

Until an executor has finally accounted the statute of limitations does not run in his favor against a legatee even where under the will he was to own the entire estate as long as he remained single, and the legatee’s right to the legacy accrued only upon his subsequent marriage. Edwards v. Kelly, 83 Miss. 144, 35 So. 418, 1903 Miss. LEXIS 22 (Miss. 1903).

An administrator is not chargeable with property of which he had no knowledge, and is bound only to exercise the care of a prudent man in the management of his own business. O'Brian Bros. v. Wilson, 82 Miss. 93, 33 So. 946 (Miss. 1903).

2. Discharge of representative.

Where a decree made the discharge of the administrator of a decedent’s estate conditioned on the administrator’s filing of vouchers showing the distribution of all funds, payments of all debts, and all other expenses, and the administrator had not filed such vouchers and there was no showing that there had been a waiver of the filing of the vouchers with the consent and approval of the chancellor who issued the decree, the administrator had authority to act in an administrative capacity for all the heirs of the decedent and to institute a suit on a note against the defendant after the entry of the decree. Twilley v. McLain, 233 So. 2d 794, 1970 Miss. LEXIS 1675 (Miss. 1970).

RESEARCH REFERENCES

ALR.

Conclusiveness of allowance of account of trustee or personal representative as respects self-dealing in assets of estate. 1 A.L.R.2d 1060.

Application of dead man’s statute in proceeding involving account of personal representative. 2 A.L.R.2d 349.

Right of executor or administrator to appeal from order granting or denying distribution. 16 A.L.R.3d 1274.

Right to partial distribution of estate or distribution of particular assets, prior to final closing. 18 A.L.R.3d 1173.

Right to probate subsequently discovered will as affected by completed prior proceedings in intestate administration. 2 A.L.R.4th 1315.

CJS.

34 C.J.S., Executors and Administrators § 1017 et seq.

§ 91-7-299. Allowance to executor or administrator.

On the final settlement the court shall make allowance to the executor or administrator for the property or the estate which has been lost, or has perished or decreased in value, without his fault; and profit shall not be allowed him in consequence of increase. The court shall allow to an executor or administrator, as compensation for his trouble, either in partial or final settlements, such sum as the court deems proper considering the value and worth of the estate and considering the extent or degree of difficulty of the duties discharged by the executor or administrator; in addition to which the court may allow him his necessary expenses, including a reasonable attorney’s fee, to be assessed out of the estate, in an amount to be determined by the court.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 4 (3); 1857, ch. 60, art. 109; 1871, § 1171; 1880, § 2072; 1892, § 1956; 1906, § 2130; Hemingway’s 1917, § 1798; 1930, § 1740; 1942, § 642; Laws, 1989, ch. 443, § 1, eff from and after July 1, 1989.

Cross References —

Compensation of temporary administrator, see §91-7-59.

Petition by executor or administrator for allowance of commissions, or for compensation for extra services and expenses, see Miss. Uniform Chancery Court Rule 6.12.

JUDICIAL DECISIONS

1. In general.

2. Court’s discretion.

3. Compensation fixed by will.

4. Continuing a business.

5. Executor, administrator, or guardian acting as attorney.

6. Allowance for necessary expenses.

7. Propriety of particular awards.

8. Miscellaneous.

1. In general.

Under this section [Code 1942, § 642] the executors are entitled to an allowance of compensation, which should be fixed within the limits of the statute on the gross personal estate actually accounted for by the executors in good faith. Schwander v. Rubel, 221 Miss. 875, 75 So. 2d 45, 1954 Miss. LEXIS 603 (Miss. 1954).

Acceptance by an executor or trustee of an appointment under a will, whether under a stated compensation or where none is provided, except where a statute fixes it, is conclusive of any right to an increased compensation. Barry v. Barry, 198 Miss. 677, 21 So. 2d 922, 1945 Miss. LEXIS 239 (Miss. 1945).

An executor or trustee cannot accept his appointment and reject the condition as to compensation upon which it is made. Barry v. Barry, 198 Miss. 677, 21 So. 2d 922, 1945 Miss. LEXIS 239 (Miss. 1945).

In fixing amount of compensation under this section [Code 1942, § 642], there are numerous elements to be considered, such as: the mechanical work of making out the reports and of collecting the money and of disbursing it; the skill, responsibility, and amount involved; skillful, prompt and efficient service in the speedy disposition of winding up and settling the estate, responsibility and skill being important elements. Ralston v. Bank of Clarksdale, 188 Miss. 345, 194 So. 923, 1940 Miss. LEXIS 35 (Miss. 1940).

Surviving partner not entitled to compensation for administering partnership estate, unless authorized by statute, partnership agreement, or some other valid understanding. Byrd v. King, 120 Miss. 435, 82 So. 312, 1919 Miss. LEXIS 104 (Miss. 1919).

2. Court’s discretion.

The supreme court will not interfere with the chancery court’s exercise of discretion in regard to the allowance of compensation for administrator’s fees within the limits prescribed by this section [Code 1942, § 642], except in cases of its manifest and flagrant abuse. Bryan v. Quinn, 233 Miss. 366, 102 So. 2d 124, 1958 Miss. LEXIS 392 (Miss. 1958).

The matter of the allowance of fees to executors and administrators for services rendered in the administration of an estate rests in the sound discretion of the chancery court, there being a minimum allowance of not less than one per cent and the maximum amount of seven per cent. Ralston v. Bank of Clarksdale, 188 Miss. 345, 194 So. 923, 1940 Miss. LEXIS 35 (Miss. 1940).

Unless the record discloses an abuse of discretion vested in the chancery court, the supreme court will not disturb the chancellor’s action in fixing administrator’s fees within the limits provided by this section [Code 1942, § 642]. Ralston v. Bank of Clarksdale, 188 Miss. 345, 194 So. 923, 1940 Miss. LEXIS 35 (Miss. 1940).

3. Compensation fixed by will.

Executor accepting appointment under will which fixes executor’s compensation is entitled to no other compensation. Vicksburg Public Library v. First Nat'l Bank & Trust Co., 168 Miss. 88, 150 So. 755, 1933 Miss. LEXIS 183 (Miss. 1933).

Where will fixes executor’s compensation, this section [Code 1942, § 642] does not apply. Vicksburg Public Library v. First Nat'l Bank & Trust Co., 168 Miss. 88, 150 So. 755, 1933 Miss. LEXIS 183 (Miss. 1933).

Where will appointed same corporation as executor and trustee, directed that “executor” be paid certain percentage of proceeds from sale of realty, and, for its services as “trustee,” certain percentage of trust fund, and used words “executor” and “trustee” interchangeably, corporation held not entitled to executor’s statutory compensation as to personal estate administered. Vicksburg Public Library v. First Nat'l Bank & Trust Co., 168 Miss. 88, 150 So. 755, 1933 Miss. LEXIS 183 (Miss. 1933).

4. Continuing a business.

Without authority from the chancery court to continue the business of a testator, the estate is not liable to an executor for his services upon any basis of quantum meruit. Barry v. Barry, 198 Miss. 677, 21 So. 2d 922, 1945 Miss. LEXIS 239 (Miss. 1945).

In administering estates of decedents, operation of a mercantile business should not be made alluring to administrators by allowance of salaries or exorbitant commissions, estates being administered for benefit of parties in interest, creditors, and distributees. Crescent Furniture & Mattress Co. v. Morgan, 178 Miss. 824, 173 So. 290, 1937 Miss. LEXIS 211 (Miss. 1937).

Administrator was not entitled to salary for conducting intestate’s business in view of statute fixing compensation at not less than one or more than seven per cent of estate and necessary expenses. Crescent Furniture & Mattress Co. v. Morgan, 178 Miss. 824, 173 So. 290, 1937 Miss. LEXIS 211 (Miss. 1937).

5. Executor, administrator, or guardian acting as attorney.

Where an executor, administrator, or guardian also acts as attorney for the estate, there is no potential for double compensation, at least in the circumstance where the fiduciary fully itemizes his services in order to show the extent and degree of difficulty of his work and any separate legal work is separately itemized. Thomas v. Evans (In re Estate of Thomas), 740 So. 2d 332, 1999 Miss. App. LEXIS 117 (Miss. Ct. App. 1999).

There is no prohibition in the statute that would prevent a fiduciary who is also an attorney from petitioning for some part of his itemized services to be paid under this section, where his right to compensation would not necessarily be commensurate with prevailing legal fees; nor is there a prohibition for that same fiduciary, as to those separately identified services that were unquestionably performed in his capacity as an attorney, seeking compensation under §91-7-281, in lieu of being paid for those particular services under this section. Thomas v. Evans (In re Estate of Thomas), 740 So. 2d 332, 1999 Miss. App. LEXIS 117 (Miss. Ct. App. 1999).

6. Allowance for necessary expenses.

Where heirs to an estate were unable to agree among themselves as to being appraisers and later agreed on disinterested parties to appraise the estate, the chancellor correctly allowed the administrator reimbursement of allowance of appraiser’s fees in amount of $5 each, to two appraisers. Hughes v. Box, 224 Miss. 513, 81 So. 2d 242, 1955 Miss. LEXIS 516 (Miss. 1955).

Where at a sale of personal property an administrator employed an auctioneer and a bookkeeper and allowed them a total of $75 on the ground that their services were necessary and were to the best interests of the estate, the expense was properly allowed. Hughes v. Box, 224 Miss. 513, 81 So. 2d 242, 1955 Miss. LEXIS 516 (Miss. 1955).

Where in the course of administration of an estate the heirs petitioned for sale of cotton gin property owned by decedent, and the court appointed an administrator as a special commissioner to make the sale and the administrator obtained allowances for services of a surveyor, auctioneer and bookkeeper, the total amount of these expenses being $114, and the cotton gin property brought $53,000 at a sale which far exceeded its appraised value, these items of expense were properly allowed to the administrator. Hughes v. Box, 224 Miss. 513, 81 So. 2d 242, 1955 Miss. LEXIS 516 (Miss. 1955).

The allowance by the chancellor of payment by the administrator of a liberal commission to a broker for private sale of cattle was sustained hesitantly where the administrator was paid the maximum of seven per cent of the funds coming into his hands. Dabbs v. Fisher, 27 So. 2d 342 (Miss. 1946).

7. Propriety of particular awards.

Attorney fees granted to an executor’s attorney were not excessive because the fees were reasonable and not out of line with the fees claimed by the trustee who challenged them. Carson Family Trust v. Carson (In re Estate of Carson), 986 So. 2d 1072, 2008 Miss. App. LEXIS 434 (Miss. Ct. App. 2008).

The chancery court properly denied executrix fees where the chancellor found that the estate was administered in a grossly negligent manner; in support of this finding of negligent administration, or maladministration, the chancellor cited the executrix’s noncompliance with court orders that eventually culminated in her being found guilty of civil and criminal contempt. In re Estate of Collins v. Collins, 742 So. 2d 147, 1999 Miss. App. LEXIS 251 (Miss. Ct. App. 1999).

An administrator’s fee, an attorney’s fee, and accounting fees were excessive where (1) the $3.1 million estate was very simple, (2) the executor, attorney, and accountant had ready access to information which made their jobs considerably easier, and (3) the fees equated to approximately $1200 per hour for the administrator and attorney and $300 per hour for the accountant. Rich v. Moore (In re Estate of Johnson), 735 So. 2d 231, 1999 Miss. LEXIS 114 (Miss. 1999).

Absent maladministration, compensation for an executor of an estate with a gross value in excess of $229,000 should be awarded within the statutory guidelines, rather than at $1500 or 6/10 of one percent of the value of the estate. Scott v. Hollingsworth, 487 So. 2d 811, 1986 Miss. LEXIS 2438 (Miss. 1986).

Where the decedent left an estate of the approximate value of $139,000, the allowance to the executrix of a fee of $5,000 was not a manifest and flagrant abuse of discretion by the chancellor. Bryan v. Quinn, 233 Miss. 366, 102 So. 2d 124, 1958 Miss. LEXIS 392 (Miss. 1958).

Allowance of $3,000 to executor as compensation for his services is not excessive when total assets of estate amounted to $48,126.43, total disbursements amounted to $42,109.05 and he was successful in making sale of 500 acres of land for sum of $36,000, which was $8,000 in excess of all prior offers. Oberst v. Mullens, 43 So. 2d 560 (Miss. 1949).

Allowance to administrator of $2,000 as his compensation for services rendered in an estate consisting of something over $65,000 did not indicate an abuse of discretion of the chancery court. Ralston v. Bank of Clarksdale, 188 Miss. 345, 194 So. 923, 1940 Miss. LEXIS 35 (Miss. 1940).

8. Miscellaneous.

Appellant’s delay in closing the estate and his other indiscretions as executor, most notably his decision to borrow thousands of dollars from the estate without court approval, provided ample reason for the chancery court to refuse to reimburse appellant for his work as executor. Dodson v. Dodson (In re Estate of Dodson), 20 So.3d 73, 2009 Miss. App. LEXIS 716 (Miss. Ct. App. 2009).

Compensation allowed executor should not be reduced on ground that he did not comply with law as to payment of unprobated claims, when amounts expended by him without authority of law were restored by him to estate although claims were actually owed by testatrix and estate would have been liable had they been duly probated in time required by law. Oberst v. Mullens, 43 So. 2d 560 (Miss. 1949).

An executor who renders services to an estate beyond what his duties require and for which he had the right to employ another cannot receive additional compensation therefor, unless by agreement with the court or beneficiaries before he performed the service. Barry v. Barry, 198 Miss. 677, 21 So. 2d 922, 1945 Miss. LEXIS 239 (Miss. 1945).

Administrator was not entitled to commissions based upon that part of estate for which he did not account. Crescent Furniture & Mattress Co. v. Morgan, 178 Miss. 824, 173 So. 290, 1937 Miss. LEXIS 211 (Miss. 1937).

Where it appeared that an executor intended to return his commission to the estate it was improper to treat his intention as a donation to a part of the distributees, as each was entitled to a share therein. Owens v. Owens' Estate, 84 Miss. 673, 37 So. 149, 1904 Miss. LEXIS 95 (Miss. 1904).

RESEARCH REFERENCES

ALR.

Costs and other expenses incurred by fiduciary whose appointment was improper as chargeable against estate. 4 A.L.R.2d 160.

Right of executor or administrator to extra compensation for his legal services rendered by him. 65 A.L.R.2d 809.

Right of executor or administrator to extra compensation for his accounting services rendered by him. 65 A.L.R.2d 838.

Right to double compensation where same person (natural or corporate) acts as executor and trustee. 85 A.L.R.2d 537.

Resignation or removal of executor, administrator, guardian, or trustee, before final administration or before termination of trust, as affecting his compensation. 96 A.L.R.3d 1102.

Attorneys’ fees: cost of services provided by paralegals or the like as compensable element of award in state court. 73 A.L.R.4th 938.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 836 et seq.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 1471 et seq. (compensation and allowances; extra compensation).

8 Am. Jur. Legal Forms 2d, Executors and Administrators § 104:226 et seq. (compensation for executors and administrators).

CJS.

34 C.J.S., Executors and Administrators § 970 et seq.

§ 91-7-301. Personal estate sold for division.

When personal property of a deceased person cannot be equally divided in kind, the court may, on petition, decree a sale of such property and order a distribution of the proceeds; and such sale may be for cash or on credit, as the court may direct. All parties interested as distributees or legatees shall be cited by summons or by publication, but if the value of the property do not exceed Five Hundred Dollars ($500.00), notice to the distributees or legatees shall not be necessary.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (82); 1857, ch. 60, art. 116; 1871, § 1173; 1880, § 2077; 1892, § 1903; 1906, § 2078; Hemingway’s 1917, § 1745; 1930, § 1741; 1942, § 643.

Cross References —

Bringing advancements into hotchpot, see §91-1-17.

JUDICIAL DECISIONS

1. In general.

As long as the parties in interest are before the court, either as plaintiffs or defendants, it does not matter whether the petition be filed by the administrator or the distributees. Nabors v. McKay, 27 Miss. 799, 1854 Miss. LEXIS 134 (Miss. 1854).

§ 91-7-303. Distribution compelled.

Any person entitled to a distributive share of an intestate’s estate, or to a legacy under a last will and testament, may, at any time after the expiration of six months from the grant of letters testamentary or of administration, petition the court therefor, setting forth his claim; and the administrator or executor and all persons interested as distributees or legatees shall be cited to appear. Upon return of summons executed or publication made, the court may order the administrator or executor to make the distribution or to pay the legacies according to the rights of the parties, as may be adjudged; but the administrator or executor shall not be compelled, before final settlement, to make distribution or to pay any legacy until bond, with sufficient sureties, be given by the distributee or legatee, conditioned to refund his proportionate part of any debts or demands that may afterwards appear against the estate, and the costs of recovering the same.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (91); 1857, ch. 60, art. 118; 1871, § 1175; 1880, § 2076; 1892, § 1961; 1906, § 2137; Hemingway’s 1917, § 1805; 1930, § 1742; 1942, § 644; Laws, 1924, ch. 152.

Cross References —

Partition of land by agreement or by arbitration, see §11-21-1.

Ordering sale of land rather than partition, see §11-21-11.

Bringing advancements into hotchpot, see §91-1-17.

Distribution of insolvent estate, see §§91-7-261,91-7-271.

Appointment of custodian for unclaimed distributive share, see §91-7-321.

JUDICIAL DECISIONS

1. In general.

2. Refunding bonds.

1. In general.

Residuary legatee cannot recover from estate of decedent’s sister such sums as were expended by sister in her own behalf after acquiring possession of decedent’s estate on setting aside of will as court would have compelled trustees under will, if it had not been set aside, to expend for her benefit. Rice v. McMullen, 207 Miss. 706, 43 So. 2d 195, 1949 Miss. LEXIS 382 (Miss. 1949).

Residuary legatee who was to receive on death of decedent’s sister a one-fifth part of property remaining in hands of trustees under will is not guilty of laches by failure to demand anything of trustees until death of decedent’s sister as he had no right to anything until her death. Rice v. McMullen, 207 Miss. 706, 43 So. 2d 195, 1949 Miss. LEXIS 382 (Miss. 1949).

Beneficiary of testamentary trust has right to follow trust property which has been wrongfully transferred to third party with notice of trust and to recover res if he can identify it in hands of third party, or he can have judgment against third party for value of trust property if such identification or tracing is impossible. Rice v. McMullen, 207 Miss. 706, 43 So. 2d 195, 1949 Miss. LEXIS 382 (Miss. 1949).

Distributee may sue in chancery but not at law to recover personal property of decedent where there are no outstanding debts against estate and no administration, or final settlement of administration. Jones v. R. L. Clemmer & Son, 98 Miss. 508, 54 So. 4, 1910 Miss. LEXIS 90 (Miss. 1910).

No proceeding for distribution of any of the estate before expiration of statutory time period from grant of letters is permissible. Jones v. Jones, 94 Miss. 460, 49 So. 115, 1909 Miss. LEXIS 367 (Miss. 1909).

Proceeds of sale of timber being only assets of estate of deceased wife, assignee of husband, entitled to share thereof, could maintain bill for distribution of the funds in hands of administrator. McIntosh Bros. v. Rutland, 88 Miss. 718, 41 So. 372, 1906 Miss. LEXIS 182 (Miss. 1906).

2. Refunding bonds.

After the expiration of the statutory time period, if there be assets, the distributees are prima facie entitled to distribution upon the execution of the refunding bonds. Packwood v. Elliott, 43 Miss. 504, 1870 Miss. LEXIS 59 (Miss. 1870).

The distributees may compel distribution of any balance not required for the immediate exigencies of the estate, upon the execution of refunding bonds. Allison v. Abrams, 40 Miss. 747, 1866 Miss. LEXIS 110 (Miss. 1866).

RESEARCH REFERENCES

ALR.

Ademption of bequest of proceeds of property. 45 A.L.R.3d 10.

Proper disposition under will providing for allocation of express percentages or proportions amounting to more or less than whole of residuary estate. 35 A.L.R.4th 788.

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 974 et seq.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 1181 et seq. (orders for distribution).

CJS.

34 C.J.S., Executors and Administrators § 675 et seq.

§ 91-7-305. Distribution of assets in kind to surviving spouse.

  1. Whenever under any last will and testament or trust indenture the executor, trustee, or other fiduciary is required to, or has an option to, satisfy a bequest, devise, or transfer in trust to or for the benefit of the surviving spouse of a decedent by a transfer of assets of the estate or trust in kind at the values as finally determined for federal estate tax purposes, the executor, trustee, or other fiduciary shall, in the absence of contrary provisions in such will or trust indenture, satisfy such bequest, devise, or transfer by the distribution of assets, including cash, fairly representative of the appreciation or depreciation in the value of all property available for distribution in satisfaction of such bequest, devise, or transfer.
  2. This section shall apply to wills of decedents dying before or after May 20, 1966, and to trust agreements executed before or after such date; provided, however, that this section shall not be applied so as to require repayment to the fiduciary of any distributions actually made prior to such date, nor to impose any obligation or liability upon the fiduciary by reason of distributions actually made prior to such date.
  3. The enactment of this statute is not intended to imply that the present law of this state, relating to selection of property by fiduciaries in the circumstances herein described, has been otherwise than as set forth in subsection (1) hereof.

HISTORY: Codes, 1942, § 644.7; Laws, 1966, ch. 393, §§ 1-4, eff from and after passage (approved May 20, 1966).

Cross References —

Payment of indebtedness or delivery of personal property of decedent to decedent’s successor, see §91-7-322.

RESEARCH REFERENCES

ALR.

Statutory or constitutional provision allowing widow but not widower to take against will and receive dower interests, allowances, homestead rights, or the like as denial of equal protection of law. 18 A.L.R.4th 910.

§ 91-7-307. Delaying settlement.

If an executor or administrator improperly delay making a final settlement, he shall be summoned to show cause why a final settlement should not be made. On the return of summons executed, if a final settlement be not made or cause shown why it cannot then be made, the court may fine such delinquent in any sum not exceeding Five Hundred Dollars ($500.00) and imprison him not exceeding three months, for a contempt. Any executor or administrator whose letters have been revoked may be dealt with in like manner for failure to make settlement.

HISTORY: Codes, 1857, ch. 60, art. 108; 1871, § 1170; 1880, § 2071; 1892, § 1955; 1906, § 2129; Hemingway’s 1917, § 1797; 1930, § 1743; 1942, § 645.

RESEARCH REFERENCES

ALR.

Personal liability of executor or administrator for interest on legacies or distributive shares where payment is delayed. 18 A.L.R.2d 1384.

§ 91-7-309. Accounts may be opened and falsified in two years.

Any person interested may, at any time within two years after final settlement, by bill or petition, open the account of any executor, administrator, or guardian and surcharge and falsify the same, and not after, saving to minors and persons of unsound mind the same time after the removal of their disabilities. Such bills or petitions may be filed without leave of the court or chancellor, and evidence shall be admissible in such cases to show the falsity of the account. Such bills and petitions shall not be governed by the rules applicable to bills of review in chancery, but in such cases it will be the duty of the court to correct any errors of law or fact occurring in the final settlement of the executor, administrator, or guardian.

HISTORY: Codes, 1880, § 2075; 1892, § 1960; 1906, § 2136; Hemingway’s 1917, § 1804; 1930, § 1744; 1942, § 646; Laws, 1894, ch. 53.

Cross References —

Contents of final accounts, see §91-7-291.

JUDICIAL DECISIONS

1. In general.

2. Applicability.

1. In general.

Chancellor did not err in dismissing a nephew’s case against his uncles on the ground that his claim was time-barred pursuant to Miss. Code Ann. §91-7-309 because if either the two-year statute of limitations under §91-7-309 or the three-year statute of limitations for an action to set aside a deed based on fraud was applied, the nephew’s claim was still time-barred; the statute of limitations began running against the nephew on November 26, 1999, his twenty-first birthday, but the nephew did not file his lawsuit until May 21, 2009, which was well outside of the statute of limitations. Walton v. Walton, 52 So.3d 468, 2011 Miss. App. LEXIS 32 (Miss. Ct. App. 2011).

Decedent’s grandson, who was not an heir at law, failed to set out in his complaint basic available information, such as the time of the alleged fraud on the part of the decedent’s administrator; the allegation of fraud was not stated with the required particularity to overcome the two-year statute of limitations. McClendon v. Hudson (In re Estate of Hudson), 962 So. 2d 90, 2007 Miss. App. LEXIS 489 (Miss. Ct. App. 2007).

In a proceeding by a widow to reopen the estate of her deceased husband more than two years after entry of a final decree on the ground that the final account had never been filed and that the final decree was therefore a nullity, the trial court properly denied the petition where the transcript was a part of the record and it indicated that, although the final account had not be stamped “Filed” until three years later, there was no dispute that it had been presented to the court, that it had been a part of the record on presentation of same, and that the decree had been based upon said account and evidence heard for the approval thereof, and where there was no specific charge of fraud against the executor which would constitute a bar to the statute of limitations. Byrd v. Page, 384 So. 2d 1038, 1980 Miss. LEXIS 2015 (Miss. 1980).

The action of an administratrix of a decedent, attacking final decrees entered in her decedent’s guardianship and in settlement of the decedent’s deceased father’s estate, claiming an interest in the after-acquired property of coheirs, was barred by the section [Code 1942, § 646] where no petition was filed to falsify the settlement of the two administrations within two years after the date of the decrees. Barrett v. Turner, 229 So. 2d 563, 1969 Miss. LEXIS 1249 (Miss. 1969).

This provision does not apply to one entitled to participate in the distribution who was not made a party to the administration proceeding, where there was no statutory proceeding to determine heirs. Shepherd v. Townsend, 249 Miss. 383, 163 So. 2d 746, 1964 Miss. LEXIS 401 (Miss. 1964).

Petition by war veteran’s widow against administratrix and her bondsmen to review previous proceedings whereby administratrix distributed to various persons sums due to veteran under federal acts held not demurrable because distributees were not joined as parties, where money involved, under federal and state statutes, belonged to widow as sole distributee, and persons to whom administratrix distributed money were strangers to estate so far as widow’s rights were concerned. Lewis v. Jefferson, 173 Miss. 657, 161 So. 669, 1935 Miss. LEXIS 217 (Miss. 1935).

Since heirs under statute could challenge administrator’s final steps until two years after final account was approved, judgment approving administrator’s sale was interlocutory, and hence court at subsequent term could require administrator to charge himself with true value of merchandise sold and subsequently repurchased by administrator after fraudulently inducing widow not to bid. Rea v. Smith, 172 Miss. 238, 159 So. 845, 1935 Miss. LEXIS 132 (Miss. 1935).

Person interested in estate after dismissal of exception to account was without right to reopen, falsify, and surcharge account on same issue. Bright v. Bright, 156 Miss. 766, 126 So. 901, 1930 Miss. LEXIS 223 (Miss. 1930).

Where heir did not demand accounting, his heirs cannot do so after 30 years. Norris v. Burnett, 108 Miss. 407, 66 So. 332, 1914 Miss. LEXIS 174 (Miss. 1914).

2. Applicability.

Chancellor erred when he dismissed the contempt petition that the decedent’s granddaughter filed in the decedent’s conservatorship matter as her claims were not governed by the two-year statute of limitations as her claims were not premised on reopening or falsifying the conservator’s final accounting; instead, the seven-year statute of limitations governed her contempt claim that the conservator disregarded the chancellor’s order to transfer the balance of the decedent’s account to the decedent’s estate; and the granddaughter’s remaining claims, including breach of the conservator’s fiduciary duty and other claims related to opening the joint account, fell under the three-year ‘‘catch-all’’ statute of limitations. Fitzmaurice v. Vandevort (In re Margarette Smith), 237 So.3d 852, 2017 Miss. App. LEXIS 447 (Miss. Ct. App. 2017), cert. denied, — So.3d —, 2018 Miss. LEXIS 118 (Miss. 2018), cert. denied, 237 So.3d 1268, 2018 Miss. LEXIS 120 (Miss. 2018).

§ 91-7-311. Bonds to be recorded; suits thereon.

All bonds required and given in the administration of estate, testate and intestate, and the bond or bonds of the county administrator shall be recorded in the office of the clerk of the chancery court of the county, in a book kept for that purpose, and may be put in suit by any person injured by a breach thereof, he being responsible for costs. Any such bond shall not be void upon the first recovery, but may be sued on from time to time until the whole penalty shall have been recovered. When the whole penalty shall be recovered, the chancery court shall apportion the recovery, according to the rights of parties.

HISTORY: Codes, 1892, § 1854; 1906, § 2028; Hemingway’s 1917, § 1693; 1930, § 1745; 1942, § 647.

Cross References —

Chancery court’s concurrent jurisdiction over suits on bonds of fiduciaries, see Miss. Const. Art. 6, § 161.

Bond of executor or administrator with will annexed, see §91-7-41.

When bond is not required, see §91-7-45.

Administrator’s bond, see §91-7-67.

Bond of administrator de bonis non, see §91-7-69.

Right of administrator de bonis non to maintain action on bond of former executor or administrator, see §91-7-71.

County administrator’s bond, see §91-7-75.

Suit on bond for failure to account, see §91-7-277.

JUDICIAL DECISIONS

1. In general.

On appeal from decree on exceptions to final account of administrator, supreme court would render decree against surety on administrator’s bond, where surety waived process on petition filed showing breach of bond, appeared in court and controlled exceptions to final account, agreed to appointment of master, excepted to his report, appeared in supreme court and made no objection to form of petition. Crescent Furniture & Mattress Co. v. Morgan, 178 Miss. 824, 173 So. 290, 1937 Miss. LEXIS 211 (Miss. 1937).

Liability of surety on administrator’s bond held not limited to those creditors who appealed from decree on exceptions to final account. Crescent Furniture & Mattress Co. v. Morgan, 178 Miss. 824, 173 So. 290, 1937 Miss. LEXIS 211 (Miss. 1937).

Suit maintainable in Mississippi on bond of executor, in name of Tennessee to compel executor appointed in Tennessee to pay over money converted in Mississippi, to be administered according to Tennessee law. Cutrer v. Tennessee, 98 Miss. 841, 54 So. 434, 1910 Miss. LEXIS 132 (Miss. 1910).

Courts of Mississippi have jurisdiction of suit on executrix’s bond for concealing assets, though she resides in Alabama, where she resided in Mississippi at the decedent’s death, administration undertaken here, situs of assets here, and surety resides here. Myers v. Martinez, 95 Miss. 104, 48 So. 291, 1909 Miss. LEXIS 206 (Miss. 1909).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators §§ 1105, 1114.

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 1601 et seq. (actions on administration bonds).

§ 91-7-313. Suit for devastavit.

Parties interested in an estate as legatees, distributees, or creditors may, either jointly or severally, institute proceedings upon the bond of the executor or administrator or guardian for a devastavit against the principal and his surety without first having instituted suit against the executor or administrator or guardian to establish a devastavit. When any executor, administrator or guardian is a nonresident of, or shall absent himself from, or conceal himself within this state so that personal service of summons or citation or attachment cannot be made upon him, and such nonresident, absent or concealed executor, administrator, or guardian shall fail to file his accounts and make his settlements as required by law, or shall have unlawfully removed any of the property committed to his trust, or shall have been guilty of any misappropriation or devastavit, it shall be the duty of the court, on the motion of the clerk as elsewhere provided in this chapter, or on the motion of any party in interest, to proceed against the surety or sureties on the bond of said executor, administrator, or guardian, in respect to all of which matters the said surety or sureties shall be taken and held as principal. In proceeding as aforementioned, the default of the said executor, administrator, or guardian in failing to file and settle his accounts as required by law shall be taken as prima facie evidence that the said defaulter has misappropriated the money or property, or both, which may be disclosed by the inventory, appraisement, or by any other of the official papers in the case, or which may be shown by competent evidence outside of said record, to have come into the possession of said defaulter.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 12 (4); 1857, ch. 60, art. 123; 1871, § 1180; 1880, § 2084; 1892, § 1855; 1906, § 2030; Hemingway’s 1917, § 1695; 1930, § 1746; 1942, § 648.

Cross References —

Chancery court’s concurrent jurisdiction over suits on bonds of fiduciaries, see Miss. Const. Art. 6, § 161.

Limitation of actions against executors or administrators, see §15-1-25.

Penalty for removal of estate property from state, see §91-7-257.

§ 91-7-315. New bond of executors and administrators may be required.

If the bond of an executor or an administrator, whether taken at the time of the grant of letters or afterwards, be insufficient, the court or chancellor or clerk may, on five days’ notice to the executor or administrator, require him to give a new bond; and in default thereof the letters shall be revoked and administration de bonis non granted to some competent person. If such new bond be given, it shall be cumulative security and shall bind the obligors therein for past as well as future liabilities.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (64); 1857, ch. 60, art. 66; 1871, § 1121; 1880, § 2012; 1892, § 1862; 1906, § 2037; Hemingway’s 1917, § 1702; 1930, § 1747; 1942, § 649.

Cross References —

Bond of executor or administrator with will annexed, see §91-7-41.

Administrator’s bond, see §91-7-67.

County administrator’s bond, see §91-7-75.

JUDICIAL DECISIONS

1. In general.

Certificate whereby defendant assumed liability for losses under administrator’s bond arising out of acts committed after May 1, 1933, was not “new bond” so as to bind defendant under statute for past as well as future liability, but was merely written evidence of limited assumption of liability, and hence defendant was liable for amount wrongfully disbursed by administrator after May 1, 1933, but not for amounts wrongfully disbursed prior to that time. National Surety Corp. v. Laughlin, 178 Miss. 499, 172 So. 490, 1937 Miss. LEXIS 187 (Miss. 1937).

RESEARCH REFERENCES

ALR.

What funds, not part of the estate, are received under color of office so as to render liable surety on executor’s or administrator’s bond. 82 A.L.R.3d 869.

Am. Jur.

9A Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Forms 361 et seq. (additional bond).

CJS.

34 C.J.S., Executors and Administrators § 1080.

§ 91-7-317. Relief of sureties and new bond.

A surety on any bond of an executor, administrator, county administrator, or any other administrator apprehending danger of loss because of his suretyship may petition the court, chancellor, or clerk to require the executor or administrator to give a new bond and that he may be discharged from further liability. The court, chancellor, or clerk, on five days’ notice to the executor or administrator, shall grant such petition and require a new bond, within a reasonable time, to be prescribed. In case of refusal or failure to give such new bond, the executor or administrator shall be removed and administration de bonis non granted. The acts done by the executor or administrator, and all proceedings that may have been instituted against him, shall be treated and conducted by or against his successor, as in case of the death of an executor or administrator. If the executor or administrator shall give new bond as required, the original bond shall from that time cease to be operative in future, but not as to previous liabilities; and the effect of such new bond shall be to bind the obligors therein for past as well as future liabilities.

HISTORY: Codes, Hutchinson’s 1848, ch. 49, art. 1 (65); 1857, ch. 60, art. 66; 1871, § 1121; 1880, §§ 2002, 2012; 1892, § 1863; 1906, § 2038; Hemingway’s 1917, § 1703; 1930, § 1748; 1942, § 650.

Cross References —

Cancellation of bond of executor or administrator by chancery court, see §9-5-103.

Sureties generally, see §87-5-1 et seq.

JUDICIAL DECISIONS

1. In general.

A surety on an administrator’s bond is entitled under this section [Code 1942, § 650] as a matter of right to be discharged of liability without arriving or proving any facts giving rise to an apprehension of loss. In re Estate of Rowell, 247 Miss. 571, 156 So. 2d 812, 1963 Miss. LEXIS 326 (Miss. 1963).

§ 91-7-319. Executors may receive credit for costs of bond in surety company.

Any receiver, assignee, guardian, executor, administrator, or other fiduciary required by law or the order of any court or judge to give bond or other obligation, as such, may include, as a part of the lawful expense of executing this trust, and may receive credit for the sum paid to a guaranty or surety company, authorized under the laws of this state so to do, for becoming his surety on such bond, not to exceed the sum paid for such bond as determined by the rate on file with and approved by the Commissioner of Insurance for such company.

HISTORY: Codes, 1906, §§ 2029, 2440; Hemingway’s 1917, §§ 1694, 2001; 1930, § 760; 1942, § 1675; Laws, 1900, chs. 93, 96; Laws, 1956, ch. 235; Laws, 1987, ch. 422, § 56, eff from and after January 1, 1988.

JUDICIAL DECISIONS

1. In general.

Premium of bond of surviving partner proper charge against partnership property under this section [Code 1942, § 1675]. Rose v. Jones, 118 Miss. 494, 78 So. 771, 1918 Miss. LEXIS 41 (Miss. 1918).

§ 91-7-321. Custodian appointed for distributive share.

If any person entitled, under a decree of the chancery court, to a distributive share of an estate, or any other funds under the control of the court, shall not apply for it within six months after the decree of the court adjudicating his right thereto, a custodian of such share or interest may be appointed by the court, or the chancellor in vacation, without notice to any one. The court may make such order for the safekeeping or secure investment of the fund as may be proper.

HISTORY: Codes, 1880, § 2074; 1892, § 1959; 1906, § 2135; Hemingway’s 1917, § 1803; 1930, § 1750; 1942, § 652.

OPINIONS OF THE ATTORNEY GENERAL

Under Miss. Code Section 91-7-321, court may “make such order for the safekeeping or secure investment of the fund as may be proper”; however, these funds are not public funds; rather they are private funds being held in trust for beneficiaries; as such, deposit into account of county treasury would not be appropriate. Salter, Apr. 28, 1993, A.G. Op. #93-0227.

§ 91-7-322. Payment of indebtedness or delivery of personal property of decedent to decedent’s successor; affidavit of successor.

  1. Except as may be otherwise provided by Sections 81-5-63, 81-12-135, 81-12-137 and 91-7-323, at any time after thirty (30) days from the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent shall make payment when due of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action to a person claiming to be the successor of the decedent, as defined herein, upon being presented an affidavit made by the successor stating:
    1. That the value of the entire probate estate of the decedent, wherever located, excluding all liens and encumbrances thereon, does not exceed Fifty Thousand Dollars ($50,000.00);
    2. That at least thirty (30) days have elapsed since the death of the decedent;
    3. That no application or petition for the appointment of a personal representative of the decedent is pending, nor has a personal representative of the decedent been appointed in any jurisdiction; and
    4. The facts of relationship establishing the affiant as a successor of the decedent.
  2. For the purposes of this section, “successor” means:
    1. The decedent’s spouse;
    2. If there is no surviving spouse of the decedent, then children of the decedent;
    3. If there is no surviving spouse or children of the decedent, then to descendants per stripes of the decedent;
    4. If there is no surviving spouse, children or descendants per stripes of the decedent, then either parent or any siblings of the decedent; or
    5. If none of the above successors can be found, then to the decedent’s heirs at law.
  3. Any minor or incapacitated adult who is a successor of the decedent may be represented by a guardian, natural or appointed, conservator, custodian, or other personal representative, as appointed by the court or by power of attorney.
  4. The representative of a minor or incapacitated adult as defined in subsection (3) shall receive any property or payments from the decedent’s estate for the sole use and benefit of said minor or incapacitated adult.
  5. The successor of a decedent, upon complying with the provisions of subsection (1) of this section, shall be empowered to negotiate, transfer ownership and exercise all other incidents of ownership with respect to the personal property and instruments described in subsection (1) of this section.
  6. Any person paying, delivering, transferring or issuing personal property or the evidence thereof pursuant to the provisions of subsection (1) of this section shall be discharged and released to the same extent as if such person had dealt with a personal representative of the decedent. Such person shall not be required to see to the proper application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered, in accordance with the provisions of subsection (1) of this section, refuses to pay, deliver, transfer or issue any personal property or evidence thereof to the successor, such property or evidence thereof may be recovered or its payment, delivery, transfer or issuance compelled upon proof of the successor’s right in a proceeding brought in chancery court for such purpose by or on behalf of the persons entitled thereto. Any person to whom payment, delivery, transfer or issuance is made shall be answerable and accountable to the personal representative of the estate, if any, or to any other person having a superior right.

HISTORY: Laws, 1982, ch. 403, § 1; Laws, 1983, ch. 407; Laws, 1984, ch. 333; Laws, 1986, ch. 386; Laws, 2003, ch. 408, § 1; Laws, 2009, ch. 390, § 1, eff from and after July 1, 2009; Laws, 2019, ch. 458, § 18, eff from and after July 1, 2019.

Amendment Notes —

The 2003 amendment substituted “Thirty Thousand Dollars ($30,000.00)” for “Twenty Thousand Dollars ($20,000.00)” in (1)(a).

The 2009 amendment substituted “Fifty Thousand Dollars ($50,000.00)” for “Thirty Thousand Dollars ($30,000.00)” in (1)(a).

The 2019 amendment inserted “probate” following “entire” in (1)(a); rewrote (2), which read: “For the purposes of this section, “successor” means the decedent’s spouse; or, if there is no surviving spouse of the decedent, then the adult with whom any minor children of the decedent are residing; or, if there is no surviving spouse or minor children of the decedent, then any adult child of the decedent; or, if there is no surviving spouse or children of the decedent, then either parent of the decedent”; rewrote (3), which read: “Any person who is the successor of the decedent, because the person is an adult with whom the minor children of the decedent are living, shall receive any property or payments of or for the decedent for the use and benefit of said children”; added (4); and redesignated former (4) and (5) as (5) and (6).

§ 91-7-323. Wages due deceased employee.

When any person, male or female, shall die leaving wages, salary or other compensation due him, it shall be lawful for the debtor to pay said wages, salary or other compensation to the wife or husband, as the case may be, of said deceased creditor if he or she leaves a wife or husband, as the case may be, surviving him or her; and if he or she shall leave no wife or husband surviving him or her, then to his or her children if adults; and if he or she shall leave no children and no wife or husband surviving him or her, then to his or her mother; and if he or she shall leave no wife or husband or children or mother surviving him or her, then to his or her father; and if he or she shall leave no wife or children or husband or mother or father surviving him or her, then to his or her brothers and sisters if adults. If such creditor shall have left no wife, husband, children, nor brothers nor sisters, nor father nor mother surviving him or her, or if any of his or her children surviving him or her shall be minors, or if any of his or her brothers or sisters surviving him or her, entitled to inherit, shall be minors, then it shall be lawful for said debtor to pay said wages, salary or other compensation to the chancery clerk of the county in which said creditor resided at the time of his or her death, or of the county where he or she died.

HISTORY: Codes, 1906, § 2133; Hemingway’s 1917, § 1801; 1930, § 1751; 1942, § 653; Laws, 1920, ch. 304; Laws, 1981, ch. 394, § 1, eff from and after July 1, 1981.

Cross References —

Payment of indebtedness or delivery of personal property of decedent to decedent’s successor, see §91-7-322.

OPINIONS OF THE ATTORNEY GENERAL

Consistent with and pursuant to IRS Revenue Ruling 86-109, neither federal nor state income taxes would be deducted from payments of accrued wages or vacation pay issued to a deceased state employee's designee or successor. Ranck, June 18, 1999, A.G. Op. #99-0230.

RESEARCH REFERENCES

Am. Jur.

9A Am. Jur. Pl & Pr Forms (Rev), Estates, Form 4.1 (Complaint, petition, or declaration – To collect compensation owed to deceased spouse).

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Form 1507.1 (Affidavit or declaration – To collect compensation owed deceased spouse).

§ 91-7-325. Suit to recover wages if not paid within sixty days.

After the sixty days referred to in Section 91-7-323 have passed, the parties hereinbefore designated as being the person to whom the wages so due the deceased creditor may be paid shall have the right, if they be adults, to maintain a suit to recover the amount due to the deceased creditor. When the party or parties entitled to receive said amount are minors, suit may be brought and maintained for them, by and in the name of the chancery clerk who is entitled to receive same.

HISTORY: Codes, Hemingway’s 1921 Supp. § 1801a; Laws, 1930, § 1752; Laws, 1942, § 654; Laws, 1920, ch. 304.

RESEARCH REFERENCES

Am. Jur.

9A Am. Jur. Pl & Pr Forms (Rev), Estates, Form 4.1 (Complaint, petition, or declaration – To collect compensation owed to deceased spouse).

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Form 1507.1 (Affidavit or declaration – To collect compensation owed deceased spouse).

§ 91-7-327. Duty of chancery clerk when wages paid to him.

Where such wages are paid to the chancery clerk as provided in Sections 91-7-323 and 91-7-325, it shall be the duty of the chancery clerk to pay that portion of the wages of such employee which may belong to the adult children or brothers and sisters of such deceased employe, and to report to the next term of the chancery court who are the minor brothers or sisters or children of said employe and how much is coming to each one of the heirs of said employe. Thereupon the chancery court shall enter an order upon the minutes of the court, directing the payment by the chancery clerk of the shares of such minor children or brothers and sisters of such deceased employe. In any case where the employer shall pay such wages to the chancery clerk, he shall be discharged from all further liability. For receiving and disbursing the wages which may be paid to him, the clerk shall receive the commissions allowed to administrators and executors for collecting and distributing moneys belonging to the estate of a decedent.

HISTORY: Codes, 1906, § 2134; Hemingway’s 1917, § 1802; 1930, § 1753; 1942, § 655.

RESEARCH REFERENCES

Am. Jur.

9A Am. Jur. Pl & Pr Forms (Rev), Estates, Form 4.1 (Complaint, petition, or declaration – To collect compensation owed to deceased spouse).

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Form 1507.1 (Affidavit or declaration – To collect compensation owed deceased spouse).

§ 91-7-329. Not to apply to estates administered upon.

Sections 91-7-323 through 91-7-327 shall not apply in cases where the estate of deceased creditor is administered upon.

HISTORY: Codes, Hemingway’s 1921 Supp. § 1801b; 1930, § 1754; 1942, § 656; Laws, 1920, ch. 304.

RESEARCH REFERENCES

Am. Jur.

9A Am. Jur. Pl & Pr Forms (Rev), Estates, Form 4.1 (Complaint, petition, or declaration – To collect compensation owed to deceased spouse).

10 Am. Jur. Pl & Pr Forms (Rev), Executors and Administrators, Form 1507.1 (Affidavit or declaration – To collect compensation owed deceased spouse).

§ 91-7-331. “Administrator” defined.

The word administrator in this chapter shall embrace a temporary administrator whenever the contrary is not clearly inferable from the context.

HISTORY: Codes, 1880, § 2093; 1892, § 1962; 1906, § 2138; Hemingway’s 1917, § 1806; 1930, § 1749; 1942, § 651.

JUDICIAL DECISIONS

1. In general.

Temporary administrator held entitled to compensation on same basis as regular administrator. King v. Wade, 175 Miss. 72, 166 So. 327, 1936 Miss. LEXIS 8 (Miss. 1936).

Chapter 8. Mississippi Uniform Trust Code

Article 1. General Provisions and Definitions.

§ 91-8-101. Short title.

This chapter may be cited as the Mississippi Uniform Trust Code.

HISTORY: Laws, 2014, ch. 421, § 1, eff from and after July 1, 2014.

Editor’s Notes —

Laws of 2014, ch. 421, § 104 provides:

“SECTION 104. The codifier is directed to codify Sections 1 through 104 of this act as Title 91, Chapter 8, Mississippi Code of 1972.” At the direction of the co-counsel for the Joint Legislative Committee on Compilation, Revision and Publication of Legislation, Section 104 has not been codified as it is only directory language.

Comparable Laws from other States —

Alabama: Code of Ala. §19-3B-101 et seq.

District of Columbia: D.C. Code § 19-1301.01 et seq.

Kansas: K.S.A. § 58a-101 et seq.

Maine: 18-B M.R.S. § 101 et seq.

Missouri: §§ 456.1-101 through 456.11-1106 R.S. Mo.

Nebraska: R.R.S. Neb. § 30-3801 et seq.

New Hampshire: RSA 564-B:1-101 et seq.

New Mexico: N.M. Stat. Ann. § 46A-1-101 et seq.

North Carolina: N.C. Gen. Stat. § 36C-1-101 et seq.

North Dakota: N.D. Cent. Code §§59-09-01 through59-19-02.

Ohio: O.R.C. §§ 5801.01 through 5811.03.

Oregon: ORS § 130.001 et seq.

Pennsylvania: 20 Pa.C.S. §§ 7701 through 7790.3.

South Carolina: S.C. Code Ann. §62-7-101 et seq.

Tennessee: Tenn. Code Ann. §35-15-101 et seq.

Utah: Utah Code Ann. §§75-7-101 through75-7-1201.

Vermont: 14A V.S.A. § 101 et seq.

Virginia: Va. Code Ann. § 64.2-700 et seq.

West Virginia: W. Va. Code § 44D-1-101 et seq.

Wyoming: Wyo. Stat. §4-10-101 et seq.

§ 91-8-102. Scope.

This chapter applies to express trusts, charitable or noncharitable, and trusts created pursuant to a statute, judgment, or decree that requires the trust to be administered in the manner of an express trust.

HISTORY: Laws, 2014, ch. 421, § 2, eff from and after July 1, 2014.

§ 91-8-103. Definitions.

[Effective from and after January 1, 2020, this section will read as follows:]

In this chapter:

  1. “Action,” with respect to an act of a trustee, includes a failure to act.
  2. “Ascertainable standard” means a standard relating to an individual’s health, education, support, or maintenance within the meaning of Section 2041(b)(1)(A) or 2514(c)(1) of the Internal Revenue Code of 1986, as in effect on July 1, 2014, or as later amended.
  3. “Beneficial interest” means a distribution interest or a remainder interest; provided, however, a beneficial interest specifically excludes a power of appointment or a power reserved by a settlor.
  4. “Beneficiary” means a person that:
  5. “Beneficiary surrogate” means a person, including a trust protector or trust advisor, other than a trustee, designated by the settlor in the trust instrument or in a writing delivered to the trustee, or designated in a writing delivered to the trustee by a trust protector or trust advisor with power under the terms of the trust instrument to receive notices, information, and reports otherwise required to be provided to a beneficiary under Section 91-8-813(a) and (b), or to represent a beneficiary under Section 91-8-303(8).
  6. “Charitable trust” means a trust, or portion of a trust, created for a charitable purpose described in Section 91-8-405(a).
  7. “Conservator” means a person appointed by the court to administer the estate of a minor or adult individual as defined in Section 93-20-102.
  8. “Directed trust” means a trust where through the terms of the trust, one or more persons are given the authority to direct or consent to a fiduciary’s actual or proposed investment decision, distribution decision, or any other decision of the fiduciary.
  9. “Distribution interest” means:

    a. All income shall be distributed to a named beneficiary; or

    b. One Hundred Thousand Dollars ($100,000.00) a year shall be distributed to a named beneficiary;

    a. The trustee shall make distributions for health, education, maintenance, and support;

    b. Notwithstanding the distribution language used, if a trust instrument containing such distribution language specifically provides that the trustee exercise discretion in a reasonable manner with regard to a discretionary interest, then notwithstanding any other provision of this subparagraph defining distribution interests, the distribution interest shall be classified as a support interest;

    a. The trustee may, in the trustee’s sole and absolute discretion, make distributions for health, education, maintenance, and support;

    b. The trustee, in the trustee’s sole and absolute discretion, shall make distributions for health, education, maintenance, and support;

    c. The trustee may make distributions for health, education, maintenance, and support;

    d. The trustee shall make distributions for health, education, maintenance, and support; however, the trustee may exclude any of the beneficiaries or may make unequal distributions among them; or

    e. The trustee may make distributions for health, education, maintenance, support, comfort, and general welfare;

    f. A discretionary interest may also be evidenced by:

    1. Permissive distribution language such as “may make distributions”;

    2. Mandatory distribution language that is negated by the discretionary distribution language contained in the trust such as “the trustee shall make distributions in the trustee’s sole and absolute discretion”;

    g. An interest that includes mandatory distribution language such as “shall” but is subsequently qualified by discretionary distribution language shall be classified as a discretionary interest and not as a support or a mandatory interest;

    a. The trust shall be a mandatory interest only to the extent of the mandatory distribution language;

    b. The trust shall be a support interest only to the extent of such support distribution language; and

    c. The remaining trust property shall be held as a discretionary interest;

  10. “Environmental law” means a federal, state, or local law, rule, regulation, or ordinance relating to protection of the environment.
  11. “Excluded fiduciary” means any trustee, trust advisor, or trust protector to the extent that, under the terms of a trust:
  12. “Fiduciary” means:
  13. “Guardian” means a person appointed by the court to make decisions regarding the support, care, education, health, and welfare of a minor or adult individual as defined in Section 93-20-102. The term does not include a guardian ad litem.
  14. “Interests of the beneficiaries” means the beneficial interests provided in the terms of the trust.
  15. “Internal Revenue Code” means the Internal Revenue Code of 1986, as in effect on July 1, 2014, or as later amended.
  16. “Jurisdiction,” with respect to a geographic area, includes a state or country.
  17. “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.
  18. “Power of appointment” means:
  19. “Power of withdrawal” means a presently exercisable general power of appointment other than a power: (A) exercisable by a trustee and limited by an ascertainable standard; or (B) exercisable by another person only upon consent of the trustee or a person holding an adverse interest.
  20. “Property” means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest therein.
  21. “Qualified beneficiary” means a beneficiary who, on the date the beneficiary’s qualification is determined:
  22. “Remainder interest” means an interest under which a trust beneficiary will receive property held by a trust outright at some time during the future.
  23. “Reserved power” means a power held by a settlor.
  24. “Revocable,” as applied to a trust, means revocable by the settlor without the consent of the trustee or a person holding an adverse interest.
  25. “Settlor” means a person, including a testator, who creates, or contributes property to, a trust. If more than one (1) person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person’s contribution except to the extent another person has the power to revoke or withdraw that portion.
  26. “Spendthrift provision” means a term of a trust which restrains both voluntary and involuntary transfer of a beneficiary’s interest.
  27. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band recognized by federal law or formally acknowledged by a state.
  28. “Successors in interest” means the beneficiaries under the settlor’s will, if the settlor has a will, or in the absence of an effective will provision, the settlor’s heirs at law.
  29. “Terms of a trust” means the manifestation of the settlor’s intent regarding a trust’s provisions as expressed in the trust instrument or as may be established by other evidence that would be admissible in a judicial proceeding.
  30. “Trust advisor” means any person described in Section 91-8-1201(a).
  31. “Trust instrument” means an instrument executed by the settlor that contains terms of the trust, including any amendments thereto.
  32. “Trustee” includes an original, additional, and successor trustee, and a cotrustee.
  33. “Trust protector” means any person described in Section 91-8-1201(a).

Has a present or future beneficial interest in a trust, vested or contingent; or

In a capacity other than that of trustee, holds a power of appointment over trust property.

An interest, other than a remainder interest, held by an eligible distributee or permissible distributee under a trust and may be a current distribution interest or a future distribution interest;

A distribution interest is classified as either a mandatory interest, a support interest or a discretionary interest; and although not the exclusive means to create each such respective distribution interest, absent clear and convincing evidence to the contrary, use of the example language accompanying the following definitions of each such respective distribution interest results in the indicated classification of distribution interest:

A mandatory interest means a distribution interest in which the timing of any distribution must occur within one (1) year from the date the right to the distribution arises and the trustee has no discretion in determining whether a distribution shall be made or the amount of such distribution; example distribution language indicating a mandatory interest includes, but is not limited to:

A support interest means a distribution interest that is not a mandatory interest but still contains mandatory language such as “shall make distributions” and is coupled with a standard capable of judicial interpretation; example distribution language indicating a support interest includes, but is not limited to:

A discretionary interest means any interest that is not a mandatory or a support interest and is any distribution interest where a trustee has any discretion to make or withhold a distribution; example distribution language indicating a discretionary interest includes, but is not limited to:

(i) To the extent a trust contains distribution language indicating the existence of any combination of a mandatory, support and discretionary interest, that combined interest of the trust shall be divided and treated separately as follows:

For purposes of this subparagraph (C), a support interest that includes mandatory distribution language such as “shall” but is subsequently qualified by discretionary distribution language, shall be classified as a discretionary interest and not as a support interest.

The trustee, trust advisor, or trust protector is excluded from exercising a power, or is relieved of a duty; and

The power or duty is granted or reserved to another person.

A trustee, conservator, guardian, agent under any agency agreement or other instrument, an executor, personal representative or administrator of a decedent’s estate, or any other party, including a trust advisor or a trust protector, who is acting in a fiduciary capacity for any person, trust, or estate;

For purposes of subparagraph (A), an agency agreement includes, but is not limited to, any agreement under which any delegation is made, either pursuant to Section 91-8-807 or by anyone holding a power or duty pursuant to Article 12;

For purposes of the definition of fiduciary in Section 91-8-103, fiduciary does not mean any person who is an excluded fiduciary as such is defined in Section 91-8-103.

An inter vivos or testamentary power to direct the disposition of trust property, other than a distribution decision made by a trustee or other fiduciary to a beneficiary;

Powers of appointment are held by the person to whom such power has been given, and not by a settlor in that person’s capacity as settlor.

Is a distributee or permissible distributee of trust income or principal;

Would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in subparagraph (A) terminated on that date without causing the trust to terminate; or

Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.

HISTORY: Laws, 2014, ch. 421, § 3, Laws, 2016, ch. 396, § 1, eff from and after July 1, 2014; Laws, 2019, ch. 463, § 8, eff from and after January 1, 2020.

Amendment Notes —

The 2016 amendment, effective July 1, 2014, in (5), inserted “including a trust protector or trust advisor” and “in a writing delivered to the trustee,” substituted “trust advisor with power under” for “trust advisor pursuant to,” and added “or to represent a beneficiary under Section 91-8-303(8)” at the end.

The 2019 amendment, effective January 1, 2020, substituted “as defined in Section 93-20-102” for “pursuant to Section 93-13-251” in (7); and in the first sentence of (13), deleted “pursuant to Section 93-13-13 or a parent” following “appointed by the court” and added “as defined in Section 93-20-102” at the end.

Cross References —

Article 12 of this chapter, see §§91-8-1201 through91-8-1206.

Federal Aspects—

Sections 2041 and 2514 of the Internal Revenue Code of 1986, see 26 U.S.C. §§ 2041 and 2514, respectively.

§ 91-8-104. Knowledge.

Subject to subsection (b), a person has knowledge of a fact if the person:

  1. Has actual knowledge of it;
  2. Has received a notice or notification of it; or
  3. From all the facts and circumstances known to the person at the time in question, has reason to know it.

An organization that conducts activities through employees has notice or knowledge of a fact involving a trust only from the time the information was received by an employee having responsibility to act for the trust, or would have been brought to the employee’s attention if the organization had exercised reasonable diligence. An organization exercises reasonable diligence if it maintains reasonable routines for communicating significant information to the employee having responsibility to act for the trust and there is reasonable compliance with the routines. Reasonable diligence does not require an employee of the organization to communicate information unless the communication is part of the individual’s regular duties or the individual knows a matter involving the trust would be materially affected by the information.

HISTORY: Laws, 2014, ch. 421, § 4, eff from and after July 1, 2014.

§ 91-8-105. Default and mandatory rules.

Except as otherwise provided in the terms of the trust, this chapter governs the duties and powers of a trustee or any other fiduciary under this chapter, relations among trustees and such other fiduciaries, and the rights and interests of a beneficiary. The terms of a trust may expand, restrict, eliminate, or otherwise vary the duties and powers of a trustee, any such other fiduciary, relations among any of them, and the rights and interests of a beneficiary; however, nothing contained in this subsection shall be construed to override or nullify the provisions of subsection (b). The rule of statutory construction that statutes in derogation of the common law are to be strictly construed shall have no application to this section. Except as restricted by subsection (b), pursuant to this section, courts shall give maximum effect to the principal of freedom of disposition and to the enforceability of trust instruments.

The terms of a trust prevail over any provision of this chapter except:

  1. The requirements for creating a trust;
  2. The duty of a trustee to act in good faith in accordance with the terms and purposes of the trust and the interests of the beneficiaries;
  3. The requirement that a trust and its terms be for the benefit of its beneficiaries as the interests of such beneficiaries are defined under the terms of the trust, and that the trust have a purpose that is lawful and possible to achieve;
  4. The power of the court to modify or terminate a trust under Sections 91-8-410 through 91-8-416;
  5. The effect of a spendthrift provision and the rights of certain creditors and assignees to reach a trust as provided in the Family Trust Preservation Act, Section 91-9-501 et seq.;
  6. The power of the court under Section 91-8-702 to require, dispense with, or modify or terminate a bond;
  7. The power of the court under Section 91-8-708(b) to adjust a trustee’s compensation specified in the terms of the trust which is unreasonably low or high;
  8. Subject to subsection (d), the duty under Section 91-8-813(b) to notify beneficiaries of an irrevocable trust (including anyone who holds a power of appointment) who have attained twenty-five (25) years of age that the trust has been established as set forth in that Section 91-8-813(b);
  9. Subject to subsection (d), the duty under Section 91-8-813(a)(1) and (2) to keep the beneficiaries (including anyone who holds a power of appointment) informed and to respond to the request of a beneficiary of an irrevocable trust for trustee’s reports and other information reasonably related to the administration of the trust;
  10. The effect of an exculpatory term under Section 91-8-1008;
  11. The rights under Sections 91-8-1010 through 91-8-1013 of a person other than a trustee or beneficiary;
  12. Periods of limitation for commencing a judicial proceeding;
  13. The power of the court to take such action and exercise such jurisdiction as may be necessary in the interests of justice; and
  14. The subject-matter jurisdiction of the court and venue for commencing a proceeding as provided in Sections 91-8-203 and 91-8-204.

Any purpose enunciated as a material purpose of a trust in that trust’s trust instrument shall be treated as a material purpose of that trust for all purposes of this chapter.

Notwithstanding subsection (b)(8) and (9) of this section, the duties of a trustee to give notice, information and reports under Section 91-8-813(a) and (b) may be waived or modified in the trust instrument or by the settlor of the trust, or a trust protector or trust advisor that holds the power to so direct, directs otherwise in a writing delivered to the trustee in any of the following ways:

By waiving or modifying such duties as to all qualified beneficiaries during the lifetime of the settlor or the settlor’s spouse;

By specifying a different age at which a beneficiary or class of beneficiaries must be notified under Section 91-8-813(b); or

With respect to one or more of the beneficiaries, by designating a beneficiary surrogate to receive such notice, information and reports who will act in good faith to protect the interests of the beneficiary or beneficiaries.

HISTORY: Laws, 2014, ch. 421, § 5, Laws, 2016, ch. 396, § 2, eff from and after July 1, 2014.

Amendment Notes —

The 2016 amendment, effective July 1, 2014, deleted “of” preceding “a power of appointment” in (b)(8); and substituted “or” for “and” at the end of (d)(2).

JUDICIAL DECISIONS

1. Accounting.

In light of Miss. Code Ann. §91-8-105(a), a trustee of an educational trust did not have to agree to an accounting, and the chancery court could not compel it unless there was some evidence of mismanagement or fraud. While the accounting was not as thorough as it could be, it was sufficient to show that the chancellor did not abuse his discretion in ratifying it. Fuller v. Kelly (In re Fuller), 203 So.3d 1147, 2016 Miss. App. LEXIS 733 (Miss. Ct. App. 2016).

§ 91-8-106. Common law of trusts; principles of equity.

The common law of trusts and principles of equity supplement this chapter, except to the extent modified by this chapter or another statute of this state.

HISTORY: Laws, 2014, ch. 421, § 6, eff from and after July 1, 2014.

§ 91-8-107. Governing law.

The validity, construction and administration of a trust are determined by the law of the jurisdiction designated in the terms of the trust instrument.

In the absence of a controlling designation in the terms of the trust, the laws of the jurisdiction where the trust was executed determine the validity of the trust, construction of the trust instrument and the laws of descent, while the laws of the principal place of administration determine the administration of the trust.

HISTORY: Laws, 2014, ch. 421, § 7, eff from and after July 1, 2014.

§ 91-8-108. Principal place of administration.

Without precluding other means for establishing a sufficient connection with the designated jurisdiction, the terms of a trust designating the principal place of administration are valid and controlling if:

  1. A trustee’s principal place of business is located in or a trustee is a resident of the designated jurisdiction;
  2. All or part of the administration occurs in the designated jurisdiction; administration includes, but is not limited to:
  3. Some or all of the trust assets are deposited in the designated jurisdiction or physical evidence of the assets is held in the designated jurisdiction and the trust is being administered by a person defined in subsection (a)(1). For purposes of this subsection (a)(3), “deposited in the designated jurisdiction,” includes assets being held in any checking account, time deposit, certificate of deposit, brokerage account, trust company fiduciary account, or other similar account or deposit that is located in the designated jurisdiction.
  4. The date on which the proposed transfer is anticipated to occur; and
  5. The date, not less than sixty (60) days after the giving of the notice, by which the qualified beneficiary must notify the trustee of an objection to the proposed transfer.

Maintenance of some trust records physically in the designated jurisdiction;

Wholly or partly preparing or arranging for the preparation, either on an exclusive or a nonexclusive basis, in the designated jurisdiction of an income tax return that must be filed for the trust; or

Except as otherwise expressly provided by the terms of a governing instrument specifically addressing the governing law for trust administration or by court order, the laws of this state shall govern the administration of a trust while the trust is administered in this state. Without precluding other means for establishing that a trust is administered in this state, if any of the activities described in subsection (a) occur in this state, the trust is administered in this state.

A trustee shall administer the trust at a place appropriate to its purposes, its administration, and the interests of the beneficiaries; however, a trustee shall not be required, in the absence of a court order, to transfer the trust’s principal place of administration to another state or to a jurisdiction outside the United States even though such other state or jurisdiction outside the United States could also be appropriate to its purposes, its administration, and the interests of the beneficiaries.

Without precluding the right of the court to order, approve, or disapprove a transfer, the trustee may transfer the trust’s principal place of administration to another state or to a jurisdiction outside the United States, if the transfer is to a place appropriate to the trust’s purposes, its administration, and the interests of the beneficiaries.

The trustee shall notify the qualified beneficiaries of a proposed transfer of a trust’s principal place of administration to another state or to a jurisdiction outside the United States not less than sixty (60) days before initiating the transfer. The notice of proposed transfer must include:

The name of the jurisdiction to which the principal place of administration is to be transferred;

The address and telephone number at the new location at which the trustee can be contacted;

An explanation of the reasons for the proposed transfer;

The authority of a trustee under this section to transfer a trust’s principal place of administration terminates if a majority of the qualified beneficiaries described in Section 91-8-103 notify the trustee of an objection to the proposed transfer on or before the date specified in the notice.

In connection with a transfer of the trust’s principal place of administration, the trustee may transfer some or all of the trust property to a successor trustee designated in the terms of the trust or appointed pursuant to Section 91-8-704.

HISTORY: Laws, 2014, ch. 421, § 8, eff from and after July 1, 2014.

§ 91-8-109. Methods and waiver of notice.

Notice to a person under this chapter or the sending of a document to a person under this chapter must be accomplished in a manner reasonably suitable under the circumstances and likely to result in receipt of the notice or document. Permissible methods of notice or for sending a document include first-class mail, personal delivery, delivery to the person’s last-known place of residence or place of business, or a properly directed electronic message.

Notice otherwise required under this chapter or a document otherwise required to be sent under this chapter need not be provided to a person whose identity or location is unknown to and not reasonably ascertainable by the trustee.

Notice under this chapter or the sending of a document under this chapter may be waived by the person to be notified or sent the document.

Notice of a judicial proceeding must be given as provided in the applicable rules of civil procedure.

HISTORY: Laws, 2014, ch. 421, § 9, eff from and after July 1, 2014.

§ 91-8-110. Others treated as qualified beneficiaries.

A charitable organization expressly designated to receive distributions under the terms of a charitable trust has the rights of a qualified beneficiary under this chapter if the charitable organization, on the date the charitable organization’s qualification is being determined:

  1. Is a distributee or permissible distributee of trust income or principal;
  2. Would be a distributee or permissible distributee of trust income or principal if the interests of other distributees or permissible distributees then receiving or eligible to receive distributions terminated on that date without causing the trust to terminate; or
  3. Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.

HISTORY: Laws, 2014, ch. 421, § 10, eff from and after July 1, 2014.

§ 91-8-111. Nonjudicial settlement agreements.

Except as otherwise provided in subsection (b), the trustee and qualified beneficiaries may enter into a binding nonjudicial settlement agreement with respect to any matter involving a trust.

A nonjudicial settlement agreement is valid only to the extent it does not violate a material purpose of the trust and includes terms and conditions that could be properly approved by the court under this chapter or other applicable law.

Matters that may be resolved by a nonjudicial settlement agreement include:

  1. The interpretation or construction of the terms of the trust;
  2. The approval of a trustee’s report or accounting;
  3. Direction to a trustee to refrain from performing a particular act or the grant to a trustee of any necessary or desirable power;
  4. The resignation or appointment of a trustee and the determination of a trustee’s compensation;
  5. Transfer of a trust’s principal place of administration;
  6. Liability of a trustee for an action relating to the trust;
  7. The extent or waiver of bond of a trustee;
  8. The governing law of the trust; and
  9. The criteria for distribution to a beneficiary where the trustee is given discretion.

Any qualified beneficiary or trustee may request the court to approve a nonjudicial settlement agreement, to determine whether the representation as provided in Article 3 was adequate, and to determine whether the agreement contains terms and conditions the court could have properly approved.

HISTORY: Laws, 2014, ch. 421, § 11, eff from and after July 1, 2014.

§ 91-8-112. Rules of construction.

The rules of construction that apply in this state to the interpretation of and disposition of property by will also apply as appropriate to the interpretation of the terms of a trust and the disposition of the trust property.

HISTORY: Laws, 2014, ch. 421, § 12, eff from and after July 1, 2014.

Article 2. Judicial Proceedings.

§ 91-8-201. Role of court in administration of trust.

The court may intervene in the administration of a trust to the extent its jurisdiction is invoked by an interested person or as provided by law.

A trust is not subject to continuing judicial supervision unless ordered by the court.

A judicial proceeding involving a trust may relate to any matter involving the trust’s administration, including, but not limited to, a proceeding to:

  1. Request instructions;
  2. Determine the existence or nonexistence of any immunity, power, privilege, duty or right;
  3. Approve a nonjudicial settlement;
  4. Interpret or construe the terms of the trust;
  5. Determine the validity of a trust or of any of its terms;
  6. Approve a trustee’s report or accounting or compel a trustee to report or account;
  7. Direct a trustee to refrain from performing a particular act or grant to a trustee any necessary or desirable power;
  8. Review the actions or approve the proposed actions of a trustee, including the exercise of a discretionary power;
  9. Accept the resignation of a trustee;
  10. Appoint or remove a trustee;
  11. Determine a trustee’s compensation;
  12. Transfer a trust’s principal place of administration or a trust’s property to another jurisdiction;
  13. Determine the liability of a trustee for an action relating to the trust and compel redress of a breach of trust by any available remedy;
  14. Modify or terminate a trust;
  15. Combine trusts or divide a trust;
  16. Determine liability of a trust for debts of a beneficiary and living settlor;
  17. Determine liability of a trust for debts, expenses of administration, and statutory allowances chargeable against the estate of a deceased settlor;
  18. Determine the liability of a trust for claims, expenses and taxes in connection with the settlement of a trust that was revocable at the settlor’s death; and
  19. Ascertain beneficiaries and determine to whom property will pass upon final or partial termination of a trust.

HISTORY: Laws, 2014, ch. 421, § 13, eff from and after July 1, 2014.

§ 91-8-202. Jurisdiction over trustee and beneficiary.

By accepting the trusteeship of a trust having its principal place of administration in this state or by moving the principal place of administration to this state, the trustee submits personally to the jurisdiction of the courts of this state regarding any matter involving the trust.

With respect to their interests in the trust, the beneficiaries of a trust having its principal place of administration in this state are subject to the jurisdiction of the courts of this state regarding any matter involving the trust. By accepting a distribution from such a trust, the recipient submits personally to the jurisdiction of the courts of this state regarding any matter involving the trust.

This section does not preclude other methods of obtaining jurisdiction over a trustee, beneficiary, or other person receiving property from the trust.

HISTORY: Laws, 2014, ch. 421, § 14, eff from and after July 1, 2014.

§ 91-8-203. Subject-matter jurisdiction.

Except as provided in subsections (b) and (c), the chancery court has exclusive jurisdiction of proceedings in this state brought by a trustee or beneficiary concerning the administration of a trust.

Any other court granted statutory equitable jurisdiction has concurrent jurisdiction with the chancery court in any proceedings in this state brought by a trustee or beneficiary concerning the administration of a trust.

The chancery court has concurrent jurisdiction with other courts of this state in other proceedings involving a trust.

HISTORY: Laws, 2014, ch. 421, § 15, eff from and after July 1, 2014.

§ 91-8-204. Venue.

Except as otherwise provided in subsection (b), venue for a judicial proceeding involving a trust is in the county of this state in which the trust’s principal place of administration is or will be located and, if the trust is created by will and the estate is not yet closed, in the county in which the decedent’s estate is being administered.

If a trust has no trustee, venue for a judicial proceeding for the appointment of a trustee is in a county of this state in which a beneficiary resides, in a county in which any trust property is located, and if the trust is created by will, in the county in which the decedent’s estate was or is being administered.

HISTORY: Laws, 2014, ch. 421, § 16, eff from and after July 1, 2014.

§ 91-8-205. Judicial accountings and settlements.

A trustee may file an accounting of the trustee’s administration of a trust in court at any time and seek a partial or final settlement thereof or, upon petition of an interested party, a court may order a trustee to render an accounting of the trustee’s administration of a trust and require a partial or final settlement thereof. Notice of such judicial proceeding shall be provided to the trustee and each beneficiary, or representative thereof pursuant to Article 3, as provided by the applicable rules of civil procedure.

A trust accounting must be a reasonably understandable report from the date of the last accounting or, if none, from the date upon which the trustee became accountable, or other such date the court may set, which provides reasonable detail of the transactions affecting the administration of the trust, and which adequately discloses the following information:

  1. The accounting must identify the trust, the trustee furnishing the accounting, and the time period covered by the accounting.
  2. The accounting must show all receipts and disbursements occurring during the accounting period. Gains and losses realized during the accounting period must also be shown.
  3. The accounting, to the extent feasible, must identify and value trust assets on hand at the close of the accounting period. For each asset or class of assets reasonably capable of valuation, the accounting shall contain two (2) values, (A) the asset acquisition value or carrying value, and (B) the estimated current value, if feasible. The accounting must identify each known noncontingent liability with an estimated current amount of the liability if known.
  4. To the extent feasible, the accounting must show the significant noncash transactions affecting the assets of the trust, including name changes in investment holdings, adjustments to carrying value, or stock splits.
  5. The accounting must reflect the allocation of receipts and disbursements between income and principal when the allocation affects the interest of any beneficiary of the trust.

Any order or judgment of the court on such accounting and partial or final settlement shall be final and conclusive as to all matters occurring during the accounting period, and appeals therefrom shall and must be taken in the manner provided for from any other final judgment of the court.

HISTORY: Laws, 2014, ch. 421, § 17, eff from and after July 1, 2014.

Cross References —

Article 3 of this chapter, see §§91-8-301 through91-8-305.

Article 3. Representation.

§ 91-8-301. Representation: basic effect.

Notice to a person who may represent and bind another person under this article has the same effect as if notice were given directly to the other person.

The consent of a person who may represent and bind another person under this article is binding on the person represented unless the person represented objects to the representation before the consent would otherwise have become effective.

Except as otherwise provided in Sections 91-8-411 and 91-8-602, a person who under this article may represent a settlor who lacks capacity may receive notice and give a binding consent on the settlor’s behalf.

A settlor may not represent and bind a beneficiary under this article with respect to the termination or modification of a trust under Section 91-8-411(a).

HISTORY: Laws, 2014, ch. 421, § 18, eff from and after July 1, 2014.

§ 91-8-302. Representation by holder of power of appointment.

To the extent there is no material conflict of interest between the holder of a power of appointment and the persons represented with respect to the particular question or dispute, the holder may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power.

HISTORY: Laws, 2014, ch. 421, § 19, eff from and after July 1, 2014.

§ 91-8-303. Representation by fiduciaries and parents.

To the extent there is no material conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute:

  1. A conservator or guardian may represent and bind the estate that the conservator or guardian controls;
  2. A conservator or guardian may represent and bind the ward if a conservator or guardian of the ward’s estate has not been appointed;
  3. An agent having authority to act with respect to the particular question or dispute may represent and bind the principal;
  4. A trustee may represent and bind the beneficiaries of the trust;
  5. A personal representative of a decedent’s estate may represent and bind persons interested in the estate;
  6. A parent may represent and bind the person’s minor or unborn child if a conservator or guardian for the descendant has not been appointed;
  7. A grandparent may represent the grandparent’s grandchild if that grandchild is not already represented by a parent under paragraph (6);
  8. A person designated by the settlor either in the trust instrument or in a writing delivered to the trustee, or designated in a writing delivered to the trustee by a trust protector or trust advisor with power under the terms of the trust instrument to represent the beneficiaries of the trust, may represent and bind the beneficiaries; and
  9. Any person acting in a fiduciary capacity shall exercise all rights and powers granted to a fiduciary under the Revised Uniform Fiduciary Access to Digital Assets Acts created under Chapter 23, Title 91.

HISTORY: Laws, 2014, ch. 421, § 20; Laws, 2016, ch. 396, § 3; Laws, 2017, ch. 419, § 21, eff from and after July 1, 2017.

Amendment Notes —

The 2016 amendment, effective July 1, 2014, in (8), inserted “either” and “or designated in a writing delivered to the trustee by a trust protector or trust advisor with power under the terms of the trust instrument,” and made minor stylistic changes.

The 2017 amendment added (9) and made related stylistic changes.

§ 91-8-304. Representation by person having substantially identical interest.

Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no material conflict of interest between the representative and the person represented.

Unless otherwise represented, whenever survivorship of another person is an express or implied condition of receiving property from a trust, the successor contingent remainder beneficiary may be represented and bound by the presumptive remainder beneficiary upon whose death the rights of the successor contingent remainder beneficiary depend, but only to the extent there is no material conflict of interest between the presumptive remainder beneficiary and the successor contingent remainder beneficiary.

HISTORY: Laws, 2014, ch. 421, § 21, eff from and after July 1, 2014.

§ 91-8-305. Appointment of representative.

If the court determines that an interest is not represented under this article, or that the otherwise available representation might be inadequate, the court may appoint a guardian ad litem or other representative to receive notice, give consent, and otherwise represent, bind, and act on behalf of a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown. A guardian ad litem or other representative may be appointed to represent several persons or interests.

A guardian ad litem or other representative may act on behalf of the individual represented with respect to any matter arising under this chapter, whether or not a judicial proceeding concerning the trust is pending.

In making decisions, a guardian ad litem or other representative may consider general benefit accruing to the living members of the individual’s family.

HISTORY: Laws, 2014, ch. 421, § 22, eff from and after July 1, 2014.

Article 4. Creation, validity, modification, and termination of trust.

§ 91-8-401. Methods of creating trust.

A trust may be created by:

  1. Transfer of property to another person as trustee or a transfer in the name of the trust during the settlor’s lifetime or by will or other disposition taking effect upon the settlor’s death;
  2. Declaration by the owner of property that the owner holds identifiable property as trustee;
  3. Exercise of a power of appointment in favor of a trustee;
  4. A court pursuant to its statutory or equitable powers; or
  5. By an agent or attorney-in-fact under a power of attorney that:

Expressly grants authority to create the trust; or

Grants the agent or attorney-in-fact the authority to act in the management and disposition of the principal’s property that is as broad or comprehensive as the principal could exercise for himself or herself and that does not expressly exclude the authority to create a trust. An agent or attorney-in-fact may file a petition for the court to determine whether a power of attorney described in this section grants the agent or attorney-in-fact authority that is as broad or comprehensive as that which the principal could exercise for himself or herself.

HISTORY: Laws, 2014, ch. 421, § 23; Laws, 2016, ch. 396, § 4, eff from and after July 1, 2014.

Amendment Notes —

The 2016 amendment, effective July 1, 2014, inserted “or a transfer in the name of the trust” in (1); in (5), divided former (5)(A) into the present introductory paragraph of (5) and subparagraph (A), and deleted “By an agent or attorney in fact under a power of attorney that” from the beginning of (B).

§ 91-8-402. Requirements for creation.

A trust is created only if:

  1. The settlor has capacity to create a trust;
  2. The settlor indicates an intention to create the trust;
  3. The trust has a definite beneficiary or is:
  4. The trustee has duties to perform; and
  5. The same person is not the sole trustee and sole beneficiary.

A charitable trust;

A trust for the care of an animal, as provided in Section 91-8-408; or

A trust for a noncharitable purpose, as provided in Section 91-8-409;

A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to any applicable rule against perpetuities.

A power in a trustee to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred.

A settlor is deemed to have the capacity to create a trust if:

The trust is created by an agent of the settlor under a power of attorney as described in Section 91-8-401(5); and

The settlor had capacity to create a trust at the time the power of attorney was executed.

HISTORY: Laws, 2014, ch. 421, § 24, eff from and after July 1, 2014.

§ 91-8-403. Trusts created in other jurisdictions.

A trust not created by will is validly created if its creation complies with the law of the jurisdiction in which the trust instrument was executed, or the law of the jurisdiction in which, at the time of creation:

  1. The settlor was domiciled, had a place of abode, or was a national;
  2. A trustee was domiciled or had a place of business; or
  3. Any trust property was located.

HISTORY: Laws, 2014, ch. 421, § 25, eff from and after July 1, 2014.

§ 91-8-404. Trust purposes.

A trust may be created only to the extent its purposes are lawful and possible to achieve. A trust and its terms must be for the benefit of its beneficiaries as the interests of such beneficiaries are defined under the terms of the trust.

HISTORY: Laws, 2014, ch. 421, § 26, eff from and after July 1, 2014.

§ 91-8-405. Charitable purposes; enforcement.

A charitable trust may be created for the relief of poverty, the advancement of education or religion, the promotion of health, governmental or municipal purposes, or other purposes the achievement of which is beneficial to the community.

If the terms of a charitable trust do not indicate a particular charitable purpose or beneficiary, the court may select one or more charitable purposes or beneficiaries. The selection must be consistent with the settlor’s intention to the extent it can be ascertained.

The settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust.

HISTORY: Laws, 2014, ch. 421, § 27, eff from and after July 1, 2014.

§ 91-8-406. Creation of trust induced by fraud, duress, or undue influence.

A trust is void to the extent its creation was induced by fraud, duress, or undue influence.

HISTORY: Laws, 2014, ch. 421, § 28, eff from and after July 1, 2014.

§ 91-8-407. Evidence of oral trust; trust in land.

Except as provided in subsection (b) and except as required by a statute other than this chapter, a trust need not be evidenced by a trust instrument, but the creation of an oral trust and its terms may be established only by clear and convincing evidence.

(1) No trust of or in any real property can be created except by a written instrument signed by the party who declares or creates such trust (the “settlor”), or by his last will, in writing. Every writing declaring or creating a trust in real property, other than a last will, may be acknowledged and proved as other writing and filed for record with the clerk of the chancery court in which the real property, or part of it, is located, and the filing shall serve as constructive notice of the existence and terms of the trust from and after filing.

In lieu of filing the trust instrument or other writing declaring or creating a trust in real property, there may be filed with the clerk of the chancery court in which the real property, or part of it, is located a memorandum of trust signed by the settlor, trustee, or successor trustee and acknowledged or proved as other writings and the filing of the memorandum of trust shall serve as constructive notice of the existence and terms of the trust from and after filing. The memorandum shall contain substantially all of the following information:

The name of the trust;

The street and mailing address of the office, and the name and street and mailing address and telephone number of the trustee;

The name and street and mailing address and telephone number of the settlor of the trust;

A legally sufficient description of all interests in real property owned by or conveyed to the trust;

The anticipated date of termination of the trust or the event upon which the trust will be terminated; and

The general powers granted to the trustee, which may be by reference to the statutory powers granted to the trustee under the terms of the trust instrument.

The memorandum may also contain the name and street and mailing address and telephone number of any successor trustee. The memorandum of trust may be filed with the clerk of the appropriate chancery court either before or after a deed of conveyance of real property to the trust or trustee, in his capacity as such. The memorandum need not comply with subparagraph (D) if filed before or contemporaneously with a conveyance of any real property to the trust or trustee in his capacity as such, and need not be amended upon a subsequent conveyance of real property to the trust or trustee in his capacity as such, so long as the deed of conveyance is recorded in the appropriate county, and the recording of the deed of conveyance to the trust or trustee, as the case may be, shall constitute compliance with subparagraph (D). In addition, the deed of conveyance may also serve as a memorandum of trust, or an amendment to the memorandum of trust, as the case may be, so long as the deed of conveyance contains the information required for a memorandum of trust as set forth in this subsection (b).

The settlor may amend the memorandum if the trust to which it relates is subject to a power of amendment or revocation by the settlor; otherwise, only the then-serving trustee may amend the memorandum. The memorandum of amendment shall set forth the amendment to the original memorandum with particularity. The amended memorandum of trust may be made effective on a future date, which must be a date certain. The memorandum of amendment may be signed by the creator, trustee or successor trustee, as the case may be, and acknowledged or proved as other writings and filed for record with the clerk of the chancery court where the original memorandum is of record. The filing of the memorandum of amendment shall serve as constructive notice of the existence and terms of the amendment from and after filing.

The provision of Sections 89-5-24 and 89-5-33 shall apply to any trust instrument, memorandum, or amendment that is to be recorded under this subsection (b).

The provisions of this subsection (b) shall have no application to trusts of personal property, or to any trust arising or resulting by implication of law out of a conveyance of land. The failure to file a copy of the trust instrument, memorandum or deed of conveyance shall not affect the validity of the trust or the trust instrument.

A certificate of trust containing the information set forth in Section 91-9-7 that was filed before July 1, 2014, shall be considered constructive notice of the existence and terms of the trust from and after its filing, and the filing of a memorandum of trust under this subsection (b) shall not be necessary.

(1) All property originally brought into the trust or subsequently acquired by purchase or otherwise, on account of the trust, is trust property.

Unless the contrary intention appears, property acquired with trust funds is trust property.

Any estate in real property may be acquired in the trust name. Title so acquired can be conveyed in the trust name or by the trustees, as trustees of the trust.

A conveyance to a trust in the trust name, though without words of inheritance, passes the entire interest in the property of the grantor unless the language of the conveyance reflects an intent to the contrary.

HISTORY: Laws, 2014, ch. 421, § 29; Laws, 2016, ch. 396, § 5, eff from and after July 1, 2014.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in (b)(6). The reference to “ Section 91-8-407(b)” was changed to “this subsection (b).” The Joint Committee ratified the correction at its August 5, 2016, meeting.

Editor’s Notes —

Section 91-9-7, referenced in this section, was included in former Article 1 of Chapter 9 and related to the filing of a certificate of trust agreement in lieu of an entire trust agreement. It was repealed by § 105 of Chapter 421, Laws of 2014, effective from and after July 1, 2014.

Amendment Notes —

The 2016 amendment, effective July 1, 2014, in (b)(2), rewrote the introductory paragraph, which read: “In lieu of filing the trust instrument, there may be filed a memorandum of trust signed by the settlor, trustee, or successor trustee and acknowledged or proved as other writings, which memorandum shall contain the following information,” added “which may be by reference…the trust instrument” at the end of (F), and deleted “and if so, no amendment to the memorandum will be required to be filed if and when the successor trustee so named assumes office” from the end of the first sentence of the second paragraph; added the last sentence of (b)(3); and added (b)(6) and (c).

JUDICIAL DECISIONS

1. Constructive trust.

Trial court properly granted a church’s motion for summary judgment because no express or implied trust existed between it and a Presbyterian denomination; no constructive trust was implied by law be-cause the church purchased the property at issue, and no evidence existed that the denomination invested any funds into the acquisition of any of the parcels of land. Presbytery of St. Andrew v. First Presbyterian Church PCUSA of Starkville, 240 So.3d 399, 2018 Miss. LEXIS 163 (Miss. 2018).

2. Express trust.

Trial court properly granted a church’s motion for summary judgment because no express or implied trust existed between it and a Presbyterian denomination; no traditional express trust nor any legally enforceable and separate traditional trust instrument existed or existed that would operate to vest a beneficial interest in and over the legally titled property of the church to the denomination because no reference existed in any deed to creation of a trust relationship. Presbytery of St. Andrew v. First Presbyterian Church PCUSA of Starkville, 240 So.3d 399, 2018 Miss. LEXIS 163 (Miss. 2018).

3. Resulting trust.

Trial court properly granted a church’s motion for summary judgment because no express or implied trust existed between it and a Presbyterian denomination; there was no evidence of a resulting trust because when the church was incorporation no intention to create a trust or create an express trust relationship existed, and the church opted out of a trust provision placed in the constitution when the denomination was formed. Presbytery of St. Andrew v. First Presbyterian Church PCUSA of Starkville, 240 So.3d 399, 2018 Miss. LEXIS 163 (Miss. 2018).

JUDICIAL DECISIONS

1.Constructive trust. Trial court properly granted a church’s motion for summary judgment because no express or implied trust existed between it and a Presbyterian denomination; no constructive trust was implied by law be-cause the church purchased the property at issue, and no evidence existed that the denomination invested any funds into the acquisition of any of the parcels of land. Presbytery of St. Andrew v. First Presbyterian Church PCUSA of Starkville, 240 So.3d 399, 2018 Miss. LEXIS 163 (Miss. 2018).

2. Express trust.

Trial court properly granted a church’s motion for summary judgment because no express or implied trust existed between it and a Presbyterian denomination; no traditional express trust nor any legally enforceable and separate traditional trust instrument existed or existed that would operate to vest a beneficial interest in and over the legally titled property of the church to the denomination because no reference existed in any deed to creation of a trust relationship. Presbytery of St. Andrew v. First Presbyterian Church PCUSA of Starkville, 240 So.3d 399, 2018 Miss. LEXIS 163 (Miss. 2018).

3. Resulting trust.

Trial court properly granted a church’s motion for summary judgment because no express or implied trust existed between it and a Presbyterian denomination; there was no evidence of a resulting trust because when the church was incorporation no intention to create a trust or create an express trust relationship existed, and the church opted out of a trust provision placed in the constitution when the denomination was formed. Presbytery of St. Andrew v. First Presbyterian Church PCUSA of Starkville, 240 So.3d 399, 2018 Miss. LEXIS 163 (Miss. 2018).

§ 91-8-408. Trust for care of animal.

A trust may be created to provide for the care of an animal alive during the settlor’s lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one (1) animal alive during the settlor’s lifetime, upon the death of the last surviving animal.

A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. In addition, a person having a demonstrated interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.

Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor’s successors in interest.

HISTORY: Laws, 2014, ch. 421, § 30, eff from and after July 1, 2014.

§ 91-8-409. Noncharitable trust without ascertainable beneficiary.

Except as otherwise provided in Section 91-8-408, Section 41-43-51 or by another statute, the following rules apply:

  1. A trust may be created for a noncharitable purpose without a definite or definitely ascertainable beneficiary or for a noncharitable but otherwise valid purpose to be selected by the trustee. The trust may not be enforced for more than twenty-one (21) years;
  2. A trust authorized by this section may be enforced by a person appointed under the terms of the trust, or if no person is so appointed, by a person appointed by the court.
  3. Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor’s successors in interest.

HISTORY: Laws, 2014, ch. 421, § 31; Laws, 2016, ch. 396, § 6, eff from and after July 1, 2014.

Amendment Notes —

The 2016 amendment, effective July 1, 2014, inserted “or” in (2).

§ 91-8-410. Modification or termination of trust; proceedings for approval or disapproval.

In addition to the methods of termination prescribed by Sections 91-8-411 through 91-8-414, a trust terminates to the extent the trust is revoked or expires pursuant to its terms, no purpose of the trust remains to be achieved, or the purposes of the trust have become unlawful or impossible to achieve.

A proceeding to approve or disapprove a proposed modification or termination under Sections 91-8-411 through 91-8-416, or trust combination or division under Section 91-8-417, may be commenced by a trustee or beneficiary. The settlor of a charitable trust may maintain a proceeding to modify the trust under Section 91-8-413.

Nothing in this section or this chapter is intended to create or imply a duty for a trustee to make or seek approval of a modification, termination, combination or division, and a trustee is not liable for not making or seeking approval of a modification, termination, combination or division.

HISTORY: Laws, 2014, ch. 421, § 32, eff from and after July 1, 2014.

§ 91-8-411. Modification or termination of noncharitable irrevocable trust by consent.

During the settlor’s lifetime, a noncharitable irrevocable trust may be modified or terminated by the trustee upon consent of all qualified beneficiaries, even if the modification or termination is inconsistent with a material purpose of the trust if the settlor does not object to the proposed modification or termination. The trustee shall notify the settlor of the proposed modification or termination not less than sixty (60) days before initiating the modification or termination. The notice of modification or termination must include:

  1. An explanation of the reasons for the proposed modification or termination;
  2. The date on which the proposed modification or termination is anticipated to occur; and
  3. The date, not less than sixty (60) days after the giving of notice, by which the settlor must notify the trustee of an objection to the proposed modification or termination.

Following the settlor’s death, a noncharitable irrevocable trust may be terminated upon consent of all of the qualified beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust. A noncharitable irrevocable trust may be modified upon consent of all of the qualified beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust.

Upon termination of a trust under subsection (a) or (b), the trustee shall distribute the trust property as agreed by the qualified beneficiaries.

If not all of the qualified beneficiaries consent to a proposed modification or termination of the trust under subsection (a) or (b), the modification or termination may be approved by the court if the court is satisfied that:

If all of the qualified beneficiaries had consented, the trust could have been modified or terminated under this section; and

The interests of a qualified beneficiary who does not consent will be adequately protected.

Solely for purposes of this section, the term “noncharitable irrevocable trust” refers to a trust that is not revocable by the settlor with respect to which:

No federal or state income, gift, estate or inheritance tax charitable deduction was allowed upon transfers to the trust; and

The value of all interests in the trust owned by charitable organizations does not exceed five percent (5%) of the value of the trust.

Notwithstanding subsection (a), the trustee may seek court approval of a modification or termination.

HISTORY: Laws, 2014, ch. 421, § 33; Laws, 2016, ch. 396, § 7, eff from and after July 1, 2014.

Amendment Notes —

The 2016 amendment, effective July 1, 2014, inserted “qualified” both times it appears in (b) and in (d)(1).

§ 91-8-412. Modification or termination because of unanticipated circumstances or inability to administer trust effectively.

The court may modify the administrative or dispositive terms of a trust or terminate the trust if, because of circumstances not anticipated by the settlor, modification or termination will further the purposes of the trust. To the extent practicable, the modification must be made in accordance with the settlor’s probable intention.

The court may modify the administrative terms of a trust if continuation of the trust on its existing terms would be impracticable or wasteful or impair the trust’s administration.

Upon termination of a trust under this section, the trustee shall distribute the trust property in a manner consistent with the purposes of the trust.

HISTORY: Laws, 2014, ch. 421, § 34, eff from and after July 1, 2014.

§ 91-8-413. Cy pres.

Except as otherwise provided in subsection (b), if a particular charitable purpose becomes unlawful, impracticable, impossible to achieve, obsolete or ineffective:

  1. The trust does not fail, in whole or in part;
  2. The trust property does not revert to the settlor or the settlor’s successors in interest; and
  3. The court may apply cy pres to modify or terminate the trust by directing that the trust property be applied or distributed, in whole or in part, in a manner that fulfills as nearly as possible the settlor’s charitable intent and purposes.

A provision in the terms of a charitable trust that would result in distribution of the trust property to a noncharitable beneficiary prevails over the power of the court under subsection (a) to apply cy pres to modify or terminate the trust only if, when the provision takes effect:

The trust property is to revert to the settlor and the settlor is still living; or

Fewer than twenty-one (21) years have elapsed since the date of the trust’s creation.

HISTORY: Laws, 2014, ch. 421, § 35, eff from and after July 1, 2014.

§ 91-8-414. Modification or termination of uneconomic trust.

After notice to the qualified beneficiaries, the trustee of a trust consisting of trust property having a total value less than One Hundred Fifty Thousand Dollars ($150,000.00) may terminate the trust if the trustee concludes that the value of the trust property is insufficient to justify the cost of administration.

The court may modify or terminate a trust or remove the trustee and appoint a different trustee if it determines that the value of the trust property is insufficient to justify the cost of administration.

Upon termination of a trust under this section, the trustee shall distribute the trust property to or for the benefit of the beneficiaries, in such shares as the trustee, or the court in a court proceeding, determines, after taking into account the interests of income and remainder beneficiaries so as to conform as nearly as possible to the intention of the settlor, but a trust that qualified for the marital deduction for tax purposes shall only be distributed to the spouse of the settlor for whom the trust was created.

This section does not apply to an easement for conservation or preservation.

This section shall not limit the right of a trustee, acting alone, to terminate a trust in accordance with applicable provisions of the governing instrument.

HISTORY: Laws, 2014, ch. 421, § 36, eff from and after July 1, 2014.

§ 91-8-415. Reformation to correct mistakes.

The court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor’s intention if it is proved by clear and convincing evidence what the settlor’s intention was and that the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement.

HISTORY: Laws, 2014, ch. 421, § 37, eff from and after July 1, 2014.

§ 91-8-416. Modification to achieve settlor’s tax objectives.

To achieve the settlor’s tax objectives, the court may modify the terms of a trust in a manner that is not contrary to the settlor’s probable intention. The court may provide that the modification has retroactive effect.

HISTORY: Laws, 2014, ch. 421, § 38, eff from and after July 1, 2014.

§ 91-8-417. Combination and division of trusts.

After notice to the qualified beneficiaries, a trustee may combine two (2) or more trusts into a single trust or divide a trust into two (2) or more separate trusts, if the result does not impair the rights of any beneficiary or adversely affect achievement of the purposes of the trust. In addition to any other combination or division the result of which does not impair the rights of any beneficiary or adversely affect achievement of the purposes of the trust, a combination or division pursuant to subsection (d) of this section shall not be considered as impairing the rights of any beneficiary or adversely affecting the achievement of the purposes of the trust. If the trusts to be combined or divided have different trustees, the trustees may negotiate the terms of the combined or divided trusts, including which trusts will be the surviving trust or trusts, who will be the trustee or trustees of the surviving trust or trusts and any other matter relating to the operation of the surviving trust or trusts.

In addition to combining two (2) or more trusts into a single trust or dividing a trust into two (2) or more separate trusts, a trustee, after notice to the qualified beneficiaries, may segregate by allocation to a separate account or trust a specific amount from, a portion of, or a specific asset included in the trust property of any trust to reflect a disclaimer, to reflect or result in differences in federal tax attributes, to satisfy any federal tax requirement, to make federal tax elections, to reduce potential generation-skipping transfer tax liability, or for any other tax planning purposes or other reasons.

A separate trust created by severance or segregation must be treated as a separate trust for all purposes from the effective date in which the severance or segregation is effective. The effective date of the severance or segregation may be retroactive. In managing, investing, administering, and distributing the trust property of any separate account or trust and in making applicable tax elections, the trustee may consider the differences in federal tax attributes and all other factors the trustee believes pertinent and may make disproportionate distributions from the separate trusts or accounts created.

A trust or account created by consolidation, severance, or segregation under this section shall not be considered as impairing the rights of a beneficiary if the trust is held on terms and conditions that are substantially equivalent to the terms of the trust before consolidation, severance, or segregation so that the aggregate interests of each beneficiary are substantially equivalent to the beneficiary’s interests in the trust or trusts before consolidation, severance, or segregation. In determining whether a beneficiary’s aggregate interests are substantially equivalent, the trustee shall consider the economic value of those interests to the extent they can be valued, considering actuarial factors as appropriate. If a beneficiary’s interest cannot be valued with any reasonable degree of certainty because of the nature of the trust property, the terms of the trust, or other reasons, the trustee shall base the determination upon such other factors as are reasonable and appropriate under the facts and circumstances applicable to that particular trust, including the purposes of the trust. However, the terms of any trust before consolidation, severance or segregation which permit qualification of that trust for an applicable federal tax deduction, exclusion, election, exemption, or other special federal tax status must remain identical in the consolidated trust or in each of the separate trusts or accounts created by severance or segregation.

A trustee who acts in good faith is not liable to any person for taking into consideration differences in federal tax attributes and other pertinent factors in administering trust property of any separate account or trust, in making tax elections, and making distributions pursuant to the terms of the separate trust.

Income earned on a consolidated or severed or segregated amount, portion, or specific asset after the consolidation or severance is effective passes with that amount, portion or specific asset.

This section applies to all trusts whenever created, whether before, on, or after July 1, 2014, and whether the trusts are inter vivos or testamentary, are created by the same or different instruments, by the same or different persons and without regard to where created or administered.

This section does not limit the right of a trustee acting in accordance with the applicable provisions of the governing instrument to divide or consolidate trusts.

Nothing contained in this section shall be construed as granting to any trustee a general power of appointment over any trust not otherwise expressly granted in the trust instrument.

HISTORY: Laws, 2014, ch. 421, § 39, eff from and after July 1, 2014.

Article 5. Creditor’s Claims; Spendthrift and Discretionary Trusts [Reserved].

Article 6. Revocable Trusts.

§ 91-8-601. Capacity of settlor of revocable trust.

The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will. To be effective as a post-death disposition of property transferred during the transferor’s life or by the transferor’s will to a trust of which the transferor is the settlor or deemed to be the settlor, neither a revocable nor an irrevocable trust existing on or executed after July 1, 2014, has to be executed with the formalities of a will.

HISTORY: Laws, 2014, ch. 421, § 40, eff from and after July 1, 2014.

§ 91-8-602. Revocation or amendment of revocable trust.

Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection (a) does not apply to a trust created under an instrument executed before July 1, 2014.

If a revocable trust is created or funded by more than one (1) settlor:

  1. To the extent the trust consists of community property, the trust may be revoked by either spouse acting alone but may be amended only by joint action of both spouses;
  2. To the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard to the portion of the trust property attributable to that settlor’s contribution;
  3. At the death of one (1) settlor, each surviving settlor shall have the right to revoke the trust as to the surviving settlor’s portion of the trust as determined by the type of property in accordance with subsection (b) (1) or (2); and
  4. Upon the revocation or amendment of the trust by fewer than all of the settlors or upon the death of one (1) of the settlors, the trustee shall promptly notify the other settlors of the revocation, amendment or death.

The settlor may revoke or amend a revocable trust:

By substantial compliance with a method provided in the terms of the trust; or

If the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by:

A later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust; or

Any other method manifesting clear and convincing evidence of the settlor’s intent; however, a written revocable trust may only be amended and revoked by a later written instrument delivered to the trustee.

Upon revocation of a revocable trust, the trustee shall deliver the trust property as the settlor directs. However, with respect to community property under subsection (b) (1), the trustee shall deliver the property one-half (1/2) to each spouse unless the trust instrument specifically states otherwise.

A settlor’s powers with respect to revocation, amendment, or distribution of trust property may be exercised by an agent under a power of attorney only to the extent expressly authorized by the terms of the trust or the power.

A conservator or guardian of the settlor may exercise a settlor’s powers with respect to revocation, amendment, or distribution of trust property only with the approval of the court supervising the conservatorship or guardianship.

A trustee who does not know that a trust has been revoked or amended is not liable to the settlor or settlor’s successors in interest for distributions made and other actions taken on the assumption that the trust had not been amended or revoked.

HISTORY: Laws, 2014, ch. 421, § 41, eff from and after July 1, 2014.

§ 91-8-603. Settlor’s powers; powers of withdrawal.

While a trust is revocable rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the settlor.

If a revocable trust has more than one (1) settlor, the duties of the trustee are owed to all of the settlors having capacity to revoke the trust.

During the period the power may be exercised, the holder of a power of withdrawal has the rights of a settlor of a revocable trust under this section to the extent of the property subject to the power.

HISTORY: Laws, 2014, ch. 421, § 42, eff from and after July 1, 2014.

§ 91-8-604. Limitation on action contesting validity of revocable trust; distribution of trust property.

A person may commence a judicial proceeding to contest the validity of all or part of the terms of a trust that was revocable at the settlor’s death within the earlier of:

  1. Two (2) years after the settlor’s death; or
  2. One hundred and twenty (120) days after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust’s existence, of the trustee’s name and address, and of the time allowed for commencing a proceeding.

Upon the death of the settlor of a trust that was revocable at the settlor’s death, the trustee may proceed to distribute the trust property in accordance with the terms of the trust. The trustee is subject to liability for doing so only if:

The trustee knows of a pending judicial proceeding contesting the validity of all or part of the terms of the trust; or

A potential contestant has notified the trustee of a possible judicial proceeding to contest the trust and a judicial proceeding is commenced within sixty (60) days after the contestant sent the notification.

A beneficiary of a trust that is determined by a court proceeding to be invalid, in whole or in part, is liable to return to the court any distribution received for proper distribution to the extent that the invalidity applies to the distribution. If the beneficiary refuses to return the distribution after being ordered by the court, the beneficiary shall be liable for all costs incurred for recovery of the distribution.

HISTORY: Laws, 2014, ch. 421, § 43, eff from and after July 1, 2014.

Article 7. Office of Trustee.

§ 91-8-701. Accepting or declining trusteeship.

Except as otherwise provided in subsection (c), a person designated as trustee accepts the trusteeship:

  1. By substantially complying with a method of acceptance provided in the terms of the trust; or
  2. If the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by accepting delivery of the trust property, exercising powers or performing duties as trustee, or otherwise indicating acceptance of the trusteeship.

A person designated as trustee who has not yet accepted the trusteeship may reject the trusteeship. A designated trustee who does not accept the trusteeship within a reasonable time after knowing of the designation is deemed to have rejected the trusteeship.

A person designated as trustee, without accepting the trusteeship, may:

Act to preserve the trust property if, within a reasonable time after acting, the person sends a rejection of the trusteeship to the settlor or, if the settlor is dead or lacks capacity, to a qualified beneficiary; and

Inspect or investigate trust property to determine potential liability under environmental or other law or for any other purpose.

HISTORY: Laws, 2014, ch. 421, § 44, eff from and after July 1, 2014.

§ 91-8-702. Trustee’s bond.

A trustee shall give bond to secure performance of the trustee’s duties only if the court finds that a bond is needed to protect the interests of the beneficiaries or is required by the terms of the trust and the court has not dispensed with the requirement.

The court may specify the amount of a bond, its liabilities, and whether sureties are necessary. The court may modify or terminate a bond at any time.

A state or national bank, savings institution, or trust company authorized to exercise fiduciary powers and regulated by the Office of the Comptroller of the Currency, Office of Thrift Supervision, the Mississippi Department of Banking and Consumer Finance, or equivalent state banking supervisors need not give bond, even if required by the terms of the trust.

HISTORY: Laws, 2014, ch. 421, § 45, eff from and after July 1, 2014.

§ 91-8-703. Cotrustees.

Cotrustees who are unable to reach a unanimous decision after consultation among all the cotrustees may act by majority decision.

If a vacancy occurs in a cotrusteeship, the remaining cotrustees may act for the trust.

A cotrustee must participate in the performance of a trustee’s function and consult with the other cotrustees unless the cotrustee is unavailable to perform the function because of absence, illness, disqualification under other law, or other temporary incapacity or the cotrustee has properly delegated the performance of the function to another trustee.

If a cotrustee is unavailable to perform duties because of absence, illness, disqualification under other law, or other temporary incapacity, and prompt action is necessary to achieve the purposes of the trust or to avoid injury to the trust property, the remaining cotrustee or a majority of the remaining cotrustees may act for the trust.

A trustee may delegate to a cotrustee the performance of a function other than a function that the terms of the trust instrument expressly require the trustees to perform jointly. Unless a delegation was irrevocable, a trustee may revoke a delegation previously made.

Except as otherwise provided in subsection (g), a trustee who does not join in an action of another trustee is not liable for the action.

Each trustee shall exercise reasonable care to:

  1. Prevent a cotrustee from committing a serious breach of trust; and
  2. Compel a cotrustee to redress a serious breach of trust.

A dissenting trustee who joins in an action at the direction of the majority of the trustees and who notified any cotrustee of the dissent at or before the time of the action is not liable for the action unless the action is a serious breach of trust.

A trustee, trust advisor and trust protector shall keep each cotrustee, trust advisor, trust protector and any other fiduciary reasonably informed about the administration of the trust, to the extent the trustee, trust advisor or trust protector has knowledge that each such cotrustee, trust advisor, trust protector or other fiduciary does not have knowledge of the trustee’s, trust advisor’s or trust protector’s actions, or regarding other material information or the availability of such information, related to the administration of the trust that would be reasonably necessary for each cotrustee, trust advisor, trust protector or other fiduciary to perform his or her duties as a trustee, trust advisor, trust protector or other fiduciary of the trust.

HISTORY: Laws, 2014, ch. 421, § 46; Laws, 2016, ch. 396, § 8, eff from and after July 1, 2014.

Amendment Notes —

The 2016 amendment, effective July 1, 2014, inserted references to “trust advisor” and “trust protector” throughout (i).

§ 91-8-704. Vacancy in trusteeship; appointment of successor.

A vacancy in a trusteeship occurs if:

  1. A person designated as trustee rejects the trusteeship;
  2. A person designated as trustee cannot be identified or does not exist;
  3. A trustee resigns;
  4. A trustee is disqualified or removed;
  5. A trustee dies; or
  6. A conservator or guardian is appointed for an individual serving as trustee.

If one or more cotrustees remain in office, a vacancy in a trusteeship need not be filled. A vacancy in a trusteeship must be filled if the trust has no remaining trustee.

A vacancy in a trusteeship of a noncharitable trust that is required to be filled must be filled in the following order of priority:

By a person designated in the terms of the trust to act as successor trustee;

By a person appointed by unanimous agreement of the qualified beneficiaries; or

By a person appointed by the court.

A vacancy in a trusteeship of a charitable trust that is required to be filled must be filled in the following order of priority:

By a person designated in the terms of the trust to act as successor trustee;

By a person selected by the unanimous agreement of the charitable organizations expressly designated to receive distributions under the terms of the trust if the Attorney General does not affirmatively object within thirty (30) days of receipt of notice of the person selected; or

By a person appointed by the court.

Whether or not a vacancy in a trusteeship exists or is required to be filled, the court may appoint an additional trustee or special fiduciary whenever the court considers the appointment necessary for the administration of the trust.

HISTORY: Laws, 2014, ch. 421, § 47, eff from and after July 1, 2014.

§ 91-8-705. Resignation of trustee.

A trustee may resign:

  1. Upon at least thirty (30) days’ notice to the qualified beneficiaries, the settlor, if living, and all cotrustees; or
  2. With the approval of the court.

In approving a resignation, the court may issue orders and impose conditions reasonably necessary for the protection of the trust property.

Any liability of a resigning trustee or of any sureties on the trustee’s bond for acts or omissions of the trustee is not discharged or affected by the trustee’s resignation.

HISTORY: Laws, 2014, ch. 421, § 48, eff from and after July 1, 2014.

§ 91-8-706. Removal of trustee.

The settlor, a cotrustee, or a beneficiary may request the court to remove a trustee, or a trustee may be removed by the court on its own initiative.

The court may remove a trustee if:

  1. The trustee has committed a serious breach of trust;
  2. Lack of cooperation among cotrustees substantially impairs the administration of the trust;
  3. Because of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; or
  4. There has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available.

Pending a final decision on a request to remove a trustee, or in lieu of or in addition to removing a trustee, the court may order such appropriate relief under Section 91-8-1001(b) as may be necessary to protect the trust property or the interests of the beneficiaries.

HISTORY: Laws, 2014, ch. 421, § 49, eff from and after July 1, 2014.

§ 91-8-707. Delivery of property by former trustee.

Unless a cotrustee remains in office or the court otherwise orders, and until the trust property is delivered to a successor trustee or other person entitled to it, a trustee who has resigned or been removed has the duties of a trustee and the powers necessary to protect the trust property.

A trustee who has resigned or been removed shall, within a reasonable time, deliver the trust property within the trustee’s possession to the cotrustee, successor trustee, or other person entitled to it.

HISTORY: Laws, 2014, ch. 421, § 50, eff from and after July 1, 2014.

§ 91-8-708. Compensation of trustee, trust advisor and trust protector.

If the terms of a trust do not specify the trustee’s, trust advisor’s, or trust protector’s compensation, and if the settlor, if living, or otherwise a majority of the qualified beneficiaries as defined in Section 91-8-103, have not otherwise agreed with the trustee, trust advisor, or trust protector, a trustee, trust advisor, or trust protector is entitled to compensation that is reasonable under the circumstances.

If the terms of a trust specify the trustee’s, trust advisor’s, or trust protector’s compensation, the trustee, trust advisor, or trust protector is entitled to be compensated as specified in the trust, but the court may allow more or less compensation if:

  1. The duties of the trustee, trust advisor, or trust protector are substantially different from those contemplated when the trust was created; or
  2. The compensation specified by the terms of the trust would be unreasonably low or high.

Factors for the court to consider in deciding upon a trustee’s, trust advisor’s, or trust protector’s compensation shall include the size of the trust, the nature and number of the assets, the income produced, the time and responsibility required, the expertise required, any management or sale of real property or closely held business interests, any involvement in litigation to protect trust property, and other relevant factors.

Subject to the court’s authority as provided in subsection (b), regardless of its form of entity, the fees set forth in the published fee schedule of a trustee, trust advisor, or trust protector that is regulated by the Mississippi Department of Banking and Consumer Finance, the equivalent regulatory agency of another state, the Office of the Comptroller of the Currency, or the Office of Thrift Supervision shall be presumed to be reasonable, unless otherwise provided by the terms of the trust.

HISTORY: Laws, 2014, ch. 421, § 51, eff from and after July 1, 2014.

§ 91-8-709. Reimbursement of expenses.

A trustee, trust advisor, or trust protector is entitled to be reimbursed out of the trust property, with interest as appropriate, for:

  1. Expenses that were properly incurred in the administration of the trust, including the defense or prosecution of any action, whether successful or not, unless the trustee is determined to have willfully or wantonly committed a material breach of trust; and
  2. To the extent necessary to prevent unjust enrichment of the trust, expenses that were not properly incurred in the administration of the trust.

An advance by the trustee, trust advisor, or trust protector or by a person named in Section 91-8-701(c)(1) of money for the protection of the trust gives rise to a lien against trust property to secure reimbursement with reasonable interest.

HISTORY: Laws, 2014, ch. 421, § 52, eff from and after July 1, 2014.

§ 91-8-710. Directed trusts.

If the terms of the trust require a trustee, trust advisor, or trust protector to follow the direction of a trust advisor or trust protector, and the trustee, trust advisor, or trust protector acts in accordance with the direction, then the trustee, trust advisor, or trust protector so directed shall be treated as an excluded fiduciary.

HISTORY: Laws, 2014, ch. 421, § 53, eff from and after July 1, 2014.

§ 91-8-711. Directed trusts; accepting or declining fiduciary appointment.

A trust advisor, trust protector, or other fiduciary other than a cotrustee, the cotrustee already being provided for in Section 91-8-701(a), may accept its appointment as the respective fiduciary in a like manner as provided for a trustee under Section 91-8-701(a).

A trust advisor, trust protector, or other fiduciary other than a cotrustee, the cotrustee already being provided for in Section 91-8-701(b), may reject its appointment as the respective fiduciary in a like manner as provided for a trustee under Section 91-8-701(b).

A trust advisor, trust protector, or other fiduciary other than a cotrustee, the cotrustee already being provided for in Section 91-8-701(c), may, without accepting its appointment as the respective fiduciary, carry out the appropriate activities relative to the respective fiduciary as are provided for a trustee under Section 91-8-701(c).

HISTORY: Laws, 2014, ch. 421, § 54, eff from and after July 1, 2014.

§ 91-8-712. Directed trusts; fiduciary’s bond.

Section 91-8-702 applies to trust advisors, trust protectors, or other fiduciaries other than cotrustees, the cotrustees already being provided for in Section 91-8-702.

When exercising its powers under this section, the court shall consider the powers, duties, and liabilities relative to the respective fiduciaries other than a cotrustee and whether any of the respective fiduciaries are excluded fiduciaries.

HISTORY: Laws, 2014, ch. 421, § 55, eff from and after July 1, 2014.

§ 91-8-713. Vacancy; directed trusts.

Except as otherwise provided by the terms of the trust upon obtaining knowledge of a vacancy in the office of trust advisor or trust protector, the trustee shall be vested with any fiduciary power or duty that otherwise would be vested in the trustee but that by the terms of the trust was vested in the trust advisor or trust protector, until such time that the vacancy in the office of trust advisor or trust protector, as applicable, is filled.

The vacancy shall be filled in the same manner as would a vacancy in trusteeship that is required to be filled, either as provided by Section 91-8-704(c) if the trust is a noncharitable trust, or as provided by Section 91-8-704(d) if the trust is a charitable trust. Section 91-8-704(e) shall also apply relative to trust advisors and trust protectors in the same manner as that subsection does to trustees and vacancies in trusteeship.

Notwithstanding subsection (a), a trustee shall not be liable for failing to exercise or assume any power or duty held by a trust advisor or trust protector and conferred upon the trustee by subsection (a) for the one-hundred-twenty-day period immediately following the date the trustee obtains knowledge of the vacancy.

HISTORY: Laws, 2014, ch. 421, § 56, eff from and after July 1, 2014.

§ 91-8-714. Directed trusts; resignation of fiduciary.

A trust advisor, trust protector, or other fiduciary other than a cotrustee, a cotrustee’s resignation already being provided for in Section 91-8-705, may resign its appointment as the respective fiduciary in a like manner as provided for a trustee under Section 91-8-705.

When exercising its powers under this section relative to resignation, the court shall consider the powers, duties, and liabilities relative to the respective fiduciaries other than a cotrustee and whether any of the respective fiduciaries are excluded fiduciaries.

HISTORY: Laws, 2014, ch. 421, § 57, eff from and after July 1, 2014.

§ 91-8-715. Directed trusts; removal of fiduciary.

A trust advisor, trust protector, or other fiduciary other than a cotrustee, a cotrustee’s removal already being provided for in Section 91-8-706, may be removed as the respective fiduciary in a like manner as provided for a trustee under Section 91-8-706.

When exercising its powers under this section relative to removal of the respective fiduciary, the court shall consider the powers, duties, and liabilities relative to the respective fiduciaries other than a cotrustee and whether any of the respective fiduciaries are excluded fiduciaries.

HISTORY: Laws, 2014, ch. 421, § 58, eff from and after July 1, 2014.

Article 8. Duties and Powers of Trustee.

§ 91-8-801. Duty to administer trust.

Upon acceptance of a trusteeship, the trustee shall administer the trust until such time as the trust terminates or a successor trustee is appointed and all assets are delivered in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with this chapter.

HISTORY: Laws, 2014, ch. 421, § 59, eff from and after July 1, 2014.

§ 91-8-802. Duty of loyalty.

A trustee shall administer the trust solely in the interests of the beneficiaries.

Subject to the rights of persons dealing with or assisting the trustee as provided in Section 91-8-1012 or as may otherwise be allowed under Mississippi law, a sale, encumbrance, or other transaction involving the investment or management of trust property entered into by the trustee for the trustee’s own personal account or which is otherwise affected by a conflict between the trustee’s fiduciary and personal interests is voidable by a beneficiary affected by the transaction unless:

  1. The transaction was authorized by the terms of the trust;
  2. The transaction was approved by the court;
  3. The beneficiary did not commence a judicial proceeding within the time allowed by Section 91-8-1005;
  4. The beneficiary consented to the trustee’s conduct, ratified the transaction, or released the trustee in compliance with Section 91-8-1009; or
  5. The transaction involves a contract entered into or claim acquired by the trustee before the person became or contemplated becoming trustee.
  6. “Investment” shall mean any security as defined in Section 2(a)(1) of the Securities Act of 1933, any contract of sale of a commodity for future delivery within the meaning of Section 2(i) of the Commodity Exchange Act, or any other asset permitted for fiduciary accounts pursuant to the terms of the Mississippi Uniform Prudent Investor Act or by the terms of the governing instrument, including by way of illustration and not limitation: shares or interests in a public or private investment fund, including, but not limited to, a public or private investment fund organized as a limited partnership, limited liability company, statutory or common-law business trust, real estate investment trust, joint venture or other general or limited partnership, or an open-end or closed-end management type investment company or investment trust registered under the Investment Company Act of 1940.
  7. The placing of securities transactions by a trustee through a securities broker that is part of the same company as the trustee, is owned by the trustee, or is affiliated with the trustee;
  8. Any loan from the trustee or its affiliate;
  9. An investment in an insurance contract purchased from an insurance agency owned by, or affiliated with the trustee, or any of its affiliates; or
  10. A delegation and any transaction made pursuant to the delegation from a trustee to an agent that is affiliated or associated with the trustee.

A sale, encumbrance, or other transaction involving the investment or management of trust property is presumed to be affected by a conflict between personal and fiduciary interests if it is entered into by the trustee with:

The trustee’s spouse;

The trustee’s descendants, siblings, parents, or their spouses;

An agent or attorney of the trustee; or

A corporation or other person or enterprise in which the trustee, or a person that owns a significant interest in the trustee, has an interest that might affect the trustee’s best judgment.

A transaction not concerning trust property in which the trustee engages in the trustee’s individual capacity involves a conflict between personal and fiduciary interests if the transaction concerns an opportunity properly belonging to the trust.

In addition to all other permissible investments and delegatable duties listed in this title, so long as they are fairly priced and in accordance with the interest of the beneficiaries and the interests of the fiduciary’s appointment and otherwise comply with the Mississippi Uniform Prudent Investor Act or Article 12 of this chapter, a fiduciary may purchase, sell, hold or otherwise deal with an affiliate or an interest in an affiliated investment, as well as delegate to an affiliate or other agent associated with the fiduciary and, upon satisfaction of the conditions stated in subsection (g), the fiduciary may receive fiduciary compensation from the account at the same rate as the fiduciary would otherwise be entitled to be compensated. These activities shall occur without any presumption of a conflict between personal and fiduciary interests of the trustee or other fiduciary.

As used in this section:

“Affiliate” means any corporation or other entity that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with the fiduciary.

“Affiliated investment” means an investment for which the fiduciary or an affiliate of the fiduciary acts as adviser, administrator, distributor, placement agent, underwriter, broker or in any other capacity for which it receives or has received a fee or commission from the investment or an investment acquired or disposed of in a transaction for which the fiduciary or an affiliate of the fiduciary receives or has received a fee or commission. “Affiliated investment” also means an investment in an insurance contract purchased from an insurance agency owned by, or affiliated with, the fiduciary, or any of its affiliates.

“Delegate to an affiliate or associated agent” means a proper delegation of any duty of the fiduciary to any person or entity that is affiliated with, or associated with, the fiduciary. The action of doing any of the above shall be known as a “delegation to an affiliate or associated agent.”

“Fee or commission” means compensation paid to a fiduciary or an affiliate thereof on account of its services to or on behalf of an investment.

For purposes of this section, “fiduciary” means any fiduciary as defined in Section 91-8-103, as well as any other fiduciary.

A fiduciary seeking compensation pursuant to subsection (e) shall, as is applicable relative to the fiduciary’s particular appointment, disclose either: to those persons entitled to be kept informed about the administration of a trust under Section 91-8-813(a), subject to the provisions of Sections 91-8-813(d) and 91-8-105(d); to each principal in an agency relationship; or to all current recipients of statements of any other fiduciary account not described above; all fees or commissions paid or to be paid by the account, or received or to be received by an affiliate arising from such affiliated investment or delegation to an affiliate or associated agent. The disclosure required under this subsection (g) may be given either in a copy of the prospectus or any other disclosure document prepared for the affiliated investment under federal or state securities laws or in a written summary that includes all fees or commissions received or to be received by the fiduciary or any affiliate of the fiduciary and an explanation of the manner in which such fees or commissions are calculated, either as a percentage of the assets invested or by some other method. The disclosure shall be made at least annually unless there has been no increase in the rate at which fees or commissions are calculated since the most recent disclosure. Notwithstanding this subsection (g), no such disclosure is required if the governing instrument or a court order expressly authorizes the fiduciary to invest the fiduciary account in affiliated investments or to perform the delegation to an affiliate or associated agent.

A fiduciary that has complied with subsection (g), whether by making the applicable disclosure or by relying on the terms of a governing instrument or court order, shall have full authority to administer an affiliated investment, including the authority to vote proxies thereon, without regard to the affiliation between the fiduciary and the investment or the fiduciary and delegatee, as the case may be.

In voting shares of stock or in exercising powers of control over similar interests in other forms of enterprise, the trustee shall act in the best interests of the beneficiaries. If the trust is the sole owner of a corporation or other form of enterprise, the trustee shall elect or appoint directors or other managers who will manage the corporation or enterprise in the best interests of the beneficiaries.

The following transactions, if fairly priced and in accordance with the interest of the beneficiaries and the purposes of the trust, are not presumed to be affected by a conflict between the trustee’s personal and fiduciary interest if any investment made pursuant to the transaction otherwise complies with the Mississippi Prudent Investor Act:

An agreement between a trustee and a beneficiary relating to the appointment or compensation of the trustee, or any of its affiliates;

Payment of reasonable compensation to the trustee, or any of its affiliates;

A transaction between a trust and another trust, decedent’s estate, guardianship, or conservatorship of which the trustee is a fiduciary or in which a beneficiary has an interest;

A deposit of trust money in a regulated financial-service institution operated by the trustee or an affiliate;

An advance by the trustee of money for the protection of the trust;

An investment by a trustee in securities of an investment company or investment trust to which the trustee, or its affiliates, provides services in a capacity other than as a trustee provided that any investment made pursuant to the transaction otherwise complies with the Mississippi Prudent Investor Act;

The court may appoint a special fiduciary to make a decision with respect to any proposed transaction that might violate this section if entered into by the trustee.

HISTORY: Laws, 2014, ch. 421, § 60, eff from and after July 1, 2014.

Cross References —

Mississippi Uniform Prudent Investor Act, see §91-8-901 and §91-9-601 et seq.

Article 12 of this chapter, see §§91-8-1201 through91-8-1206.

Federal Aspects—

Section 2(a)(1) of the Securities Act of 1933, see 15 U.S.C. § 77b(a)(1).

Section 2(i) of the Commodity Exchange Act, see 7 U.S.C. § 2(i).

The Investment Company Act of 1940, see 15 U.S.C. § 80a-1 et seq.

JUDICIAL DECISIONS

1. Applicability.

Trustee’s withdrawals from separate irrevocable trusts were done before the enactment of Mississippi Uniform Trust Code, Miss. Code Ann. §§91-8-101 to91-8-1206. Provisions from that Code could not be applied retroactively to any acts made by the trustee prior to that date when the chancery court entered its amended final judgment finding that the trustee breached a fiduciary duty of loyalty to the other beneficiaries of the trusts. Cassibry v. Cassibry, 217 So.3d 698, 2017 Miss. App. LEXIS 40 (Miss. Ct. App. 2017).

§ 91-8-803. Impartiality.

If a trust has two (2) or more beneficiaries, the trustee shall act impartially in investing, managing, and distributing the trust property, giving due regard to the beneficiaries’ respective interests and the purposes of the trust.

HISTORY: Laws, 2014, ch. 421, § 61, eff from and after July 1, 2014.

§ 91-8-804. Prudent administration.

A trustee shall administer the trust as a prudent person would, by considering the purposes, terms, distributional requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.

HISTORY: Laws, 2014, ch. 421, § 62, eff from and after July 1, 2014.

§ 91-8-805. Costs of administration.

In administering a trust, the trustee may incur only costs that are reasonable in relation to the trust property, the purposes of the trust, and the skills of the trustee.

HISTORY: Laws, 2014, ch. 421, § 63, eff from and after July 1, 2014.

§ 91-8-806. Trustee’s skills.

A trustee who has special skills or expertise, or is named trustee in reliance upon the trustee’s representation that the trustee has special skills or expertise, shall use those special skills or expertise.

HISTORY: Laws, 2014, ch. 421, § 64, eff from and after July 1, 2014.

§ 91-8-807. Delegation by trustee.

A trustee may delegate duties and powers that a prudent trustee could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill, and caution in:

  1. Selecting an agent;
  2. Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; and
  3. Periodically reviewing the agent’s actions in order to monitor the agent’s performance and compliance with the terms of the delegation.

In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care, skill, and caution to comply with the terms of the delegation.

A trustee who complies with subsection (a) is not liable to the beneficiaries or to the trust for an action or inaction of the agent to whom the function was delegated.

By accepting a delegation of powers or duties from the trustee of a trust that is subject to the law of this state, an agent submits to the jurisdiction of the courts of this state.

HISTORY: Laws, 2014, ch. 421, § 65, eff from and after July 1, 2014.

§ 91-8-808. Powers to direct.

While a trust is revocable, the trustee may follow a direction of the settlor that is contrary to the terms of the trust or contrary to the normal practice of the trustee in regard to the action requested.

If the terms of a trust confer upon a person other than the settlor of a revocable trust power to direct certain actions of the trustee, the trustee shall act in accordance with an exercise of the power.

The terms of a trust may confer upon a trustee or other person a power to direct the modification or termination of the trust.

If a person holds a power to direct pursuant to Article 12 of this chapter, that person is a trust advisor, trust protector, or both. The power holder is subject to all the provisions of Article 12, including any duties prescribed by Article 12 and any provisions that make the power holder a fiduciary. Any trustee or other person that under Article 12 is relieved of any duty or any liability, or is otherwise protected under Article 12, shall be so relieved and otherwise protected.

HISTORY: Laws, 2014, ch. 421, § 66, eff from and after July 1, 2014.

Cross References —

Article 12 of this chapter, see §§91-8-1201 through91-8-1206.

§ 91-8-809. Control and protection of trust property.

A trustee shall take reasonable steps to take control of and protect the trust property.

HISTORY: Laws, 2014, ch. 421, § 67, eff from and after July 1, 2014.

§ 91-8-810. Recordkeeping and identification of trust property.

A trustee shall keep adequate records of the administration of the trust.

A trustee shall keep trust property separate from the trustee’s own property.

Except as otherwise provided in subsection (d), a trustee shall cause the trust property to be designated so that the interest of the trust, to the extent feasible, appears in records maintained by a party other than a trustee or beneficiary.

If the trustee maintains records clearly indicating the respective interests, a trustee may invest as a whole the property of two (2) or more separate trusts.

HISTORY: Laws, 2014, ch. 421, § 68, eff from and after July 1, 2014.

§ 91-8-811. Enforcement and defense of claims.

A trustee shall take reasonable steps to enforce claims of the trust and to defend claims against the trust.

A trustee may abandon or assign any claim that it believes is unreasonable to enforce to one or more of the beneficiaries of the trust holding the claim.

HISTORY: Laws, 2014, ch. 421, § 69, eff from and after July 1, 2014.

§ 91-8-812. Collecting trust property.

A trustee shall take reasonable steps to compel a former trustee or other person to deliver trust property to the trustee, and to redress a breach of trust known to the trustee to have been committed by a former trustee. No successor trustee appointed after the examination of the accounts of a trustee or the waiver of the examination by the beneficiaries shall be responsible for the acts and omissions of the prior trustee.

HISTORY: Laws, 2014, ch. 421, § 70, eff from and after July 1, 2014.

§ 91-8-813. Duty to inform and report.

(1) A trustee shall keep the beneficiaries of the trust that are current mandatory or permissible distributees of trust income or principal, or both, reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests.

Unless unreasonable under the circumstances, a trustee shall respond in a reasonable amount of time to a qualified beneficiary’s request for information related to the administration of the trust. Additionally, a qualified beneficiary shall reimburse the trustee for any reasonable expenses incurred in responding to requests for information.

The requirements of subsection (a) shall also apply to the benefit of anyone who, in a capacity other than that of a fiduciary, holds a power of appointment.

The trustee of an irrevocable or nongrantor trust within sixty (60) days after the acceptance and funding of a trust, excluding nominal funding for the trust to have corpus or the depositing of insurance policies on the life of a living person, shall notify each current income beneficiary, each vested ultimate beneficiary of a remainder interest and anyone who, in a capacity other than that of a fiduciary, holds a power of appointment, that the trust has been established.

  1. The required notice shall:
  2. The abstract shall contain:

Be sent by first-class mail or personal delivery; and

Consist of either a complete copy of the document establishing the trust together with the trustee’s name, address and telephone number or an abstract of the trust, as the trustee, in the trustee’s absolute discretion, may choose.

The name, address and telephone number of each trustee; and

If for a current income beneficiary:

The number of other current income beneficiaries;

Whether distributions of income are required or discretionary; and

Whether distributions of principal are permitted and, if so, for what purpose or purposes; and

If for a remainder beneficiary:

The number of other remainder beneficiaries; and

The conditions that must be met before the beneficiary’s share is distributable.

If for anyone who, in a capacity other than that of a fiduciary, holds a power of appointment, all of the information required by subsection (b) necessary or beneficial for that person to effectively determine whether or not to exercise that power of appointment.

Upon the termination of an interest of any one or more of the current income beneficiaries:

The trustee shall similarly notify the income beneficiaries who are takers of the terminated interest of their interest by sending or delivering them the notice required in subsection (b); and

If at that time the period described in subsection (b) has lapsed, the trustee shall similarly notify anyone who, in a capacity other than that of a fiduciary, holds a power of appointment by sending or delivering to the person the notice required in subsection (b).

A beneficiary may waive the right to a trustee’s report or other information otherwise required to be furnished under this section. A beneficiary, with respect to future reports and other information, may withdraw a waiver previously given. Anyone who, in a capacity other than that of a fiduciary, holds a power of appointment has the same power as provided a beneficiary in this subsection to waive reports and other information and to withdraw a waiver previously given.

Subsections (a) and (b) shall not apply to the extent that those provisions are waived or modified in accordance with Section 91-8-105(d).

Subsection (a)(1) and subsection (b) do not apply to a trust created under a trust agreement that became irrevocable before July 1, 2014. Trust law in effect before July 1, 2014, regarding the subject matter of subsection (a)(1) and subsection (b) shall continue to apply to those trusts.

If the trustee of a trust is bound by any written confidentiality restrictions with respect to an asset of a trust, a trustee may require that any beneficiary who is eligible to receive information pursuant to this or any other section of this chapter about the asset shall agree in writing to be bound by the confidentiality restrictions that bind the trustee before receiving the information from the trustee.

A trust advisor, trust protector, or other fiduciary designated by the terms of the trust shall keep each excluded fiduciary designated by the terms of the trust reasonably informed about:

The administration of the trust with respect to any specific duty or function being performed by the trust advisor, trust protector, or other fiduciary to the extent that the duty or function would normally be performed by the excluded fiduciary or to the extent that providing the information to the excluded fiduciary is reasonably necessary for the excluded fiduciary to perform its duties; and

Any other material information that the excluded fiduciary would be required to disclose to the specified beneficiaries under subsection (a) without regard to whether the terms of the trust relieve the excluded fiduciary from providing the information to qualified beneficiaries. Neither the performance nor the failure to perform of a trust advisor, trust protector, or other fiduciary designated by the terms of the trust as provided in this subsection shall affect the limitation on the liability of any excluded fiduciary provided by Article 12 of this chapter.

HISTORY: Laws, 2014, ch. 421, § 71, eff from and after July 1, 2014.

§ 91-8-814. Exercise of powers over discretionary and other interests; tax savings.

Relative to exercise of powers over discretionary and other interests:

  1. “Improper motive” means to demonstrate action such as the following:
  2. Unless otherwise provided in the trust:
  3. A reasonableness standard shall not be applied to the exercise of discretion by the trustee with regard to a discretionary interest;
  4. Other than for the three (3) circumstances listed in subsection (b) (2), a court has no jurisdiction to review the trustee’s discretion or to force a distribution; and
  5. Absent express language in the trust instrument to the contrary, if the distribution language in a discretionary interest permits unequal distributions between beneficiaries or distributions to the exclusion of other beneficiaries, the trustee may distribute all of the accumulated, accrued, or undistributed income and principal to one (1) beneficiary in the trustee’s discretion.

A trustee refusing to make or limiting distributions to beneficiaries other than the trustee due to the trustee’s self-interest when the trustee also holds a beneficial interest subject to a discretionary interest; or

A trustee making a distribution in excess of an ascertainable standard to himself or herself as beneficiary when the trustee is restricted by an ascertainable standard in the trust.

If the settlor’s spouse is named as a beneficiary, the settlor is still living and the trust is classified as a support trust, then the trustee shall consider the resources of the settlor’s spouse, including the settlor’s obligation of support, before making a distribution; and

In all other cases, unless otherwise provided in the trust, the trustee need not consider the beneficiary’s resources in determining whether a distribution should be made.

The following provisions apply only to discretionary interests:

A discretionary interest is neither a property interest nor an enforceable right; it is a mere expectancy;

A court may review a trustee’s distribution discretion only if the trustee acts dishonestly, acts with an improper motive, or fails to act, if under a duty to do so;

The following provisions apply only to mandatory or support interests:

A beneficiary of a mandatory or a support interest has an enforceable right to a distribution pursuant to a court’s review;

A trustee’s distribution decision may be reviewed for unreasonableness, dishonesty, improper motivation, or failure to act, if under a duty to do so; and

In the case of a support interest, nothing in this section shall raise a beneficiary’s support interest to the level of a property interest.

Unless otherwise provided in subsection (f), and unless the terms of the trust expressly indicate that a rule in this subsection does not apply:

A person other than a settlor who is a beneficiary and trustee of a trust that confers on the trustee a power to make discretionary distributions to or for the trustee’s personal benefit may exercise the power only in accordance with an ascertainable standard; and

A trustee may not exercise a power to make discretionary distributions to satisfy a legal obligation of support that the trustee personally owes another person.

A power that is limited or prohibited by subsection (d) may be exercised by a majority of the remaining trustees whose exercise of the power is not so limited or prohibited. If the power of all trustees is so limited or prohibited, the court may appoint a special fiduciary with authority to exercise the power.

Subsection (d) shall not apply to:

A power held by the settlor’s spouse who is the trustee of a trust for which a marital deduction, as defined in Section 2056(b) (5) or 2523(e) of the Internal Revenue Code, was previously allowed;

Any trust during any period that the trust may be revoked or amended by its settlor; or

A trust if contributions to the trust qualify for the annual exclusion under Section 2503(c) of the Internal Revenue Code.

HISTORY: Laws, 2014, ch. 421, § 72; Laws, 2016, ch. 396, § 9, eff from and after July 1, 2014.

Amendment Notes —

The 2016 amendment, effective July 1, 2014, substituted “the settlor is still living” for “the settlor’s spouse is still living” in (a)(2)(A).

§ 91-8-815. General powers of trustee.

A trustee, without authorization by the court, may exercise:

  1. Powers conferred by the terms of the trust; and
  2. Except as limited by the terms of the trust:

All powers over the trust property which an unmarried competent owner has over individually owned property;

Any other powers appropriate to achieve the proper investment, management, and distribution of the trust property; and

Any other powers conferred by this chapter.

The exercise of a power is subject to the fiduciary duties prescribed by this article.

HISTORY: Laws, 2014, ch. 421, § 73, eff from and after July 1, 2014.

§ 91-8-816. Specific powers of trustee.

Any references contained in a will or trust incorporating by reference the powers enumerated in Section 91-9-101 et seq. will incorporate by reference the powers contained in this section.

Unless the terms of the instrument expressly provide otherwise and without limiting the authority conferred by Section 91-8-815, a trustee may:

  1. Collect trust property and accept or reject additions to the trust property from a settlor or any other person;
  2. Acquire or sell property, for cash or on credit, at public or private sale;
  3. Exchange, partition, or otherwise change the character of trust property;
  4. Deposit trust money in an account in a regulated financial-service institution;
  5. Borrow money, with or without security, and mortgage or pledge trust property for a period within or extending beyond the duration of the trust;
  6. With respect to an interest in a proprietorship, partnership, limited liability company, business trust, corporation, or other form of business or enterprise, continue the business or other enterprise and take any action that may be taken by shareholders, members, or property owners, including merging, dissolving, or otherwise changing the form of business organization or contributing additional capital;
  7. With respect to stocks or other securities, exercise the rights of an absolute owner, including the right to:
  8. With respect to an interest in real property, construct or make ordinary or extraordinary repairs to, alterations to, or improvements in, buildings or other structures, demolish improvements, raze existing or erect new party walls or buildings, subdivide or develop land, dedicate land to public use or grant public or private easements, and make or vacate plats and adjust boundaries;
  9. Enter into a lease for any purpose as lessor or lessee, including a lease or other arrangement for exploration and removal of natural resources, with or without the option to purchase or renew, for a period within or extending beyond the duration of the trust;
  10. Grant an option involving a sale, lease, or other disposition of trust property or acquire an option for the acquisition of property, including an option exercisable beyond the duration of the trust, and exercise an option so acquired;
  11. Insure the property of the trust against damage or loss and insure the trustee, the trustee’s agents, and beneficiaries against liability arising from the administration of the trust;
  12. Abandon or decline to administer property of no value or of insufficient value to justify its collection or continued administration;
  13. With respect to possible liability for violation of environmental law:
  14. Pay or contest any claim, settle a claim by or against the trust, and release, in whole or in part, a claim belonging to the trust;
  15. Pay taxes, assessments, compensation of the trustee and of employees and agents of the trust, and other expenses incurred in the administration of the trust;
  16. Exercise elections with respect to federal, state, and local taxes, including allocating capital gains to distributable net income;
  17. Select a mode of payment under any employee benefit or retirement plan, annuity, or life insurance payable to the trustee, exercise rights thereunder, including exercise of the right to indemnification for expenses and against liabilities, and take appropriate action to collect the proceeds;
  18. Make loans out of trust property, including loans to a beneficiary on terms and conditions the trustee considers to be fair and reasonable under the circumstances, where the trustee has a lien on future distributions for repayment of those loans;
  19. Pledge trust property to guarantee loans made by others to the beneficiary;
  20. Appoint a trustee to act in another jurisdiction with respect to trust property located in the other jurisdiction, confer upon the appointed trustee all of the powers and duties of the appointing trustee, require that the appointed trustee furnish security, and remove any trustee so appointed;
  21. Pay an amount distributable to a beneficiary who is under a legal disability or who the trustee reasonably believes is incapacitated, by paying it directly to the beneficiary or applying it for the beneficiary’s benefit, or by:
  22. On distribution of trust property or the division or termination of a trust, make distributions in divided or undivided interests, allocate particular assets in proportionate or disproportionate shares, value the trust property for those purposes, and adjust for resulting differences in valuation and basis for income tax purposes;
  23. Resolve a dispute concerning the interpretation of the trust or its administration by mediation, arbitration, or other procedure for alternative dispute resolution;
  24. Prosecute or defend an action, claim, or judicial proceeding in any jurisdiction to protect trust property and the trustee in the performance of the trustee’s duties;
  25. Sign and deliver contracts and other instruments that are useful to achieve or facilitate the exercise of the trustee’s powers;
  26. On termination of the trust, exercise the powers appropriate to windup the administration of the trust and distribute the trust property to the persons entitled to it;
  27. Employ persons, including attorneys, auditors, investment advisors or agents, even if they are associated with the trustee, to advise or assist the trustee in the performance of his administrative duties; to act without independent investigation upon their recommendations; and instead of acting personally, to employ one or more agents to perform any act of administration, whether or not discretionary; and
    1. A trustee may insure the life of any person in which the trustee of the trust has an insurable interest as set forth in Section 83-5-251.

      With respect to a life insurance policy owned by the trust a trustee may:

      A trustee may retain any life insurance policy contributed to a trust by a settlor, or purchased by the trustee upon the request of the settlor, as an asset of the trust without regard to any lack of diversification caused thereby and without regard to the terms and conditions of the life insurance policy. The trustee shall not be liable for lack of diversification to any beneficiary of a trust for the trustee’s retention of the life insurance policy.

      1. Borrow funds from any party, including an insurance company, for the purpose of paying premiums on any policy of insurance owned by the trust and enter into a “split dollar” or other similar arrangement;
      2. Collaterally assign any policy to a creditor of the trust;
      3. Exercise any and all rights under any life insurance policy, including the power to pay, forego or adjust the amount of any premium payments, adjust the type and amount of death benefit, receive or apply dividends to premiums or purchase additional insurance, and allocate policy values among any subaccounts available under any variable or similar policy; and
      4. With the consent of the insured, to sell any policy to a third party in a life settlement or viatical settlement transaction.

Vote, or give proxies to vote, with or without power of substitution, or enter into or continue a voting trust agreement;

Hold a security in the name of a nominee or in other form without disclosure of the trust so that title may pass by delivery;

Pay calls, assessments, and other sums chargeable or accruing against the securities, and sell or exercise stock subscription or conversion rights; and

Deposit the securities with a depository or other regulated financial-service institution;

Inspect or investigate property the trustee holds or has been asked to hold, or property owned or operated by an organization in which the trustee holds or has been asked to hold an interest, for the purpose of determining the application of environmental law with respect to the property;

Take action to prevent, abate, or otherwise remedy any actual or potential violation of any environmental law affecting property held directly or indirectly by the trustee, whether taken before or after the assertion of a claim or the initiation of governmental enforcement;

Decline to accept property into trust or disclaim any power with respect to property that is or may be burdened with liability for violation of environmental law;

Compromise claims against the trust which may be asserted for an alleged violation of environmental law; and

Pay the expense of any inspection, review, abatement, or remedial action to comply with environmental law;

Paying it to the conservator or guardian of the beneficiary’s estate or, if there is no conservator or guardian of the beneficiary’s estate, to the conservator or guardian of the beneficiary;

Paying it to the beneficiary’s custodian under the Uniform Transfers to Minors Act, and, for that purpose, creating a custodianship or custodial trust;

If the trustee does not know of a conservator, guardian, custodian, or custodial trustee, paying it to an adult relative or other person having legal or physical care or custody of the beneficiary, to be expended on the beneficiary’s behalf; or

Managing it as a separate fund on the beneficiary’s behalf, subject to the beneficiary’s continuing right to withdraw the distribution;

HISTORY: Laws, 2014, ch. 421, § 74, eff from and after July 1, 2014.

Cross References —

Uniform Transfers to Minors Act, see §91-20-1 et seq.

§ 91-8-817. Distribution upon termination.

Upon termination or partial termination of a trust, the trustee may send to the beneficiaries a proposal for distribution. The right of any beneficiary to object to the proposed distribution terminates if the beneficiary does not notify the trustee of an objection within thirty (30) days after the proposal was sent but only if the proposal informed the beneficiary of the right to object and of the time allowed for objection. For the purpose of determining the date a proposed distribution was sent, if exact confirmation is unavailable it can be assumed it was received five (5) days after the date of mailing.

Upon the occurrence of an event terminating or partially terminating a trust, the trustee shall proceed expeditiously to distribute the trust property to the persons entitled to it, subject to the right of the trustee to retain a reasonable reserve for the payment of debts, expenses, and taxes.

A release by a beneficiary of a trustee from liability for breach of trust is invalid to the extent:

  1. It was induced by improper conduct of the trustee; or
  2. The beneficiary, at the time of the release, did not know of the material facts relating to the alleged breach and the trustee had actual knowledge of the facts relating to the alleged breach.

HISTORY: Laws, 2014, ch. 421, § 75, eff from and after July 1, 2014.

Article 9. Uniform Prudent Investor Act.

§ 91-8-901. Prudent Investor Act incorporated by reference.

Title 91, Chapter 9, Article 13, the Mississippi Uniform Prudent Investor Act, is incorporated in this chapter by reference.

HISTORY: Laws, 2014, ch. 421, § 76, eff from and after July 1, 2014.

Article 10. Liability of Trustees and Rights of Persons Dealing with Trustee.

§ 91-8-1001. Remedies for breach of trust.

A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust.

To remedy a breach of trust that has occurred or may occur, the court may:

  1. Compel the trustee to perform the trustee’s duties;
  2. Enjoin the trustee from committing a breach of trust;
  3. Compel the trustee to redress a breach of trust by paying money, restoring property, or other means;
  4. Order a trustee to account;
  5. Appoint a special fiduciary to take possession of the trust property and administer the trust;
  6. Suspend the trustee;
  7. Remove the trustee as provided in Section 91-8-706;
  8. Reduce or deny compensation to the trustee;
  9. Subject to Section 91-8-1012, void an act of the trustee, impose a lien or a constructive trust on trust property, or trace trust property wrongfully disposed of and recover the property or its proceeds; or
  10. Order any other appropriate relief whether provided elsewhere in this chapter, available at common law or under equity principles.

HISTORY: Laws, 2014, ch. 421, § 77, eff from and after July 1, 2014.

§ 91-8-1002. Damages for breach of trust.

A trustee who commits a breach of trust is liable to the beneficiaries affected for:

  1. The greater of:
  2. Any measure of damages otherwise provided by law.

The amount required to restore the value of the trust property and trust distributions to what they would have been had the breach not occurred; or

The profit the trustee made by reason of the breach; and

Except as otherwise provided in this subsection (b), if more than one (1) trustee is liable to the beneficiaries for a breach of trust, a trustee is entitled to contribution from the other trustee or trustees. A trustee is not entitled to contribution if the trustee was substantially more at fault than another trustee or if the trustee committed the breach of trust in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries. A trustee who received a benefit from the breach of trust is not entitled to contribution from another trustee to the extent of the benefit received.

HISTORY: Laws, 2014, ch. 421, § 78, eff from and after July 1, 2014.

§ 91-8-1003. Damages in absence of breach.

Absent a breach of trust, a trustee is not liable to a beneficiary for a loss or depreciation in the value of trust property or for not having made a profit.

HISTORY: Laws, 2014, ch. 421, § 79, eff from and after July 1, 2014.

§ 91-8-1004. Attorney’s fees and costs.

In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney’s fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.

In a nonjudicial proceeding involving the administration of a trust, the trustee may pay fees, other reasonable costs, and expenses from trust assets where all of the parties to the proceeding agree in writing.

In a mediation or arbitration proceeding involving the administration of a trust, the mediator or arbitrator may award fees, other reasonable costs, and expenses against the assets of the trust.

HISTORY: Laws, 2014, ch. 421, § 80, eff from and after July 1, 2014.

§ 91-8-1005. Limitation of action against trustee by a beneficiary, a trustee, trust advisor or trust protector.

A beneficiary may not commence a proceeding against a trustee for breach of trust more than one (1) year after the date the beneficiary or a representative of the beneficiary was sent a report that adequately disclosed the existence of a potential claim for breach of trust.

A report adequately discloses the existence of a potential claim for breach of trust if it provides sufficient information so that the beneficiary or beneficiary’s representative knows of the potential claim or has sufficient information to be presumed to know of it, or to be put on notice to inquire into its existence.

If subsection (a) does not apply, a judicial proceeding by a beneficiary against a trustee for breach of trust must be commenced within three (3) years after the first to occur of:

  1. The removal, resignation, or death of the trustee;
  2. The termination of the beneficiary’s interest in the trust; or
  3. The termination of the trust.

A trustee may not commence a proceeding against a cotrustee or a former trustee for breach of trust more than one (1) year after the date the trustee or a representative of the trustee was sent a report that adequately disclosed facts indicating the existence of a potential claim for breach of trust.

A report adequately discloses facts indicating the existence of a potential claim for breach of trust if it provides sufficient information so that the trustee or the trustee’s representative knows of the potential claim or has sufficient information to be presumed to know of it, or to be put on notice to inquire into its existence.

If subsection (d) does not apply, a judicial proceeding by a trustee against a cotrustee or former trustee for breach of trust must be commenced within three (3) years after the first to occur of:

The removal, resignation, or death of the cotrustee or a former trustee;

The termination of the beneficiary’s interest in the trust; or

The termination of the trust.

A trust advisor or trust protector may not commence a proceeding against a trustee or a former trustee for breach of trust more than one (1) year after the date the trust advisor or trust protector or the respective representative of each was sent a report that adequately disclosed facts indicating the existence of a potential claim for breach of trust.

A report adequately discloses facts indicating the existence of a potential claim for breach of trust if it provides sufficient information so that the trust advisor or trust protector or the respective representative of each knows of the potential claim or has sufficient information to be presumed to know of it, or to be put on notice to inquire into its existence.

If subsection (g) does not apply, a judicial proceeding by a trust advisor or trust protector against a trustee or former trustee for breach of trust must be commenced within three (3) years after the first to occur of:

The removal, resignation, or death of the trustee or a former trustee;

The termination of the beneficiary’s interest in the trust; or

The termination of the trust.

Notwithstanding subsections (d) through (i), no trustee, trust advisor, or trust protector may commence a proceeding against a trustee or a former trustee if, under subsections (a) through (c) of this section, none of the beneficiaries may commence a proceeding against the cotrustee or former trustee for the breach of trust.

HISTORY: Laws, 2014, ch. 421, § 81, eff from and after July 1, 2014.

Editor’s Notes —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected an error in a statutory reference in (j) by substituting “subsections (a) through (c) of this section” for “Section 91-8-1005(a) through (c).” The Joint Committee ratified the correction at its July 24, 2014, meeting.

§ 91-8-1006. Reliance on trust instrument.

A trustee who acts in reasonable reliance on the terms of the trust as expressed in the trust instrument is not liable to a beneficiary for a breach of trust to the extent the breach resulted from the reliance.

HISTORY: Laws, 2014, ch. 421, § 82, eff from and after July 1, 2014.

§ 91-8-1007. Event affecting administration or distribution.

If the happening of an event, including marriage, divorce, performance of educational requirements, or death, affects the administration or distribution of a trust, a trustee who has exercised reasonable care to ascertain the happening of the event is not liable for a loss resulting from the trustee’s lack of knowledge.

HISTORY: Laws, 2014, ch. 421, § 83, eff from and after July 1, 2014.

§ 91-8-1008. Exculpation of trustee.

A provision of a trust relieving a trustee of liability for breach of trust is unenforceable to the extent that it:

  1. Relieves the trustee of liability for breach of trust committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries; or
  2. Was inserted as the result of an abuse by the trustee of a fiduciary or confidential relationship to the settlor.

Except for provisions intended to provide protection for carrying out a stated purpose in the trust instrument, an exculpatory provision drafted or caused to be drafted by the trustee is invalid as an abuse of a fiduciary or confidential relationship unless the trustee proves that the exculpatory provision is fair under the circumstances and that its existence and contents were adequately communicated to the settlor.

HISTORY: Laws, 2014, ch. 421, § 84, eff from and after July 1, 2014.

§ 91-8-1009. Beneficiary’s consent, release, or ratification.

A trustee is not liable to a beneficiary for breach of trust if the beneficiary consented to the conduct constituting the breach, released the trustee from liability for the breach, or ratified the transaction constituting the breach, unless:

  1. The consent, release, or ratification of the beneficiary was induced by improper conduct of the trustee; or
  2. At the time of the consent, release, or ratification, the beneficiary did not know of the material facts relating to the breach and the trustee had actual knowledge of the facts relating to the alleged breach.

HISTORY: Laws, 2014, ch. 421, § 85, eff from and after July 1, 2014.

§ 91-8-1010. Limitation on personal liability of trustee.

Except as otherwise provided in the contract, a trustee is not personally liable on a contract properly entered into in the trustee’s fiduciary capacity in the course of administering the trust if the trustee in the contract disclosed the fiduciary capacity.

Except as otherwise provided in subsection (a) or (c), the debts, obligations and liabilities incurred by a trustee by reason of the ownership, management, or control of trust property in the trustee’s fiduciary capacity, shall be enforceable solely against the trust and its property, without any obligation or liability personally being borne by any trustee of the trust.

Except as otherwise limited by state law, a trustee is personally liable for torts committed in the course of administering a trust only if the trustee is personally at fault.

A claim based on a contract entered into by a trustee in the trustee’s fiduciary capacity, on an obligation arising from ownership or control of trust property, or on a tort committed in the course of administering a trust, may be asserted in a judicial proceeding against the trustee in the trustee’s fiduciary capacity, whether or not the trustee is personally liable for the claim.

HISTORY: Laws, 2014, ch. 421, § 86, eff from and after July 1, 2014.

§ 91-8-1011. Interest as general partner.

Except as otherwise provided in subsection (c) or unless personal liability is imposed in the contract, a trustee who holds an interest as a general partner in a general or limited partnership is not personally liable on a contract entered into by the partnership after the trust’s acquisition of the interest if the fiduciary capacity was disclosed in the contract or in a statement previously filed pursuant to the Uniform Partnership Act, Title 79, Chapter 13, Mississippi Code of 1972, or the Mississippi Limited Partnership Act, Title 79, Chapter 14, Mississippi Code of 1972.

Except as otherwise provided in subsection (c), a trustee who holds an interest as a general partner is not personally liable for torts committed by the partnership or for obligations arising from ownership or control of the interest unless the trustee is personally at fault.

The immunity provided by this section does not apply if an interest in the partnership is held by the trustee in a capacity other than that of trustee.

If the trustee of a revocable trust holds an interest as a general partner, the settlor is personally liable for contracts and other obligations of the partnership as if the settlor were a general partner.

HISTORY: Laws, 2014, ch. 421, § 87, eff from and after July 1, 2014.

Cross References —

Uniform Partnership Act, see §79-13-101 et seq.

Mississippi Limited Partnership Act, see §79-14-101 et seq.

§ 91-8-1012. Protection of person dealing with trustee.

A person other than a beneficiary who in good faith assists a trustee, or who in good faith and for value deals with a trustee, without actual knowledge that the trustee is exceeding or improperly exercising the trustee’s powers is protected from liability as if the trustee properly exercised the power.

A person other than a beneficiary who in good faith assists a trustee or deals with a trustee is not required to inquire into the extent of the trustee’s powers or the propriety of their exercise.

A person who in good faith delivers assets to a trustee need not ensure their proper application.

A person other than a beneficiary who in good faith assists a former trustee, or who in good faith and for value deals with a former trustee, without actual knowledge that the trusteeship has terminated, is protected from liability as if the former trustee were still a trustee.

Comparable protective provisions of other laws relating to commercial transactions or transfer of securities by fiduciaries prevail over the protection provided by this section.

HISTORY: Laws, 2014, ch. 421, § 88; Laws, 2016, ch. 396, § 10, eff from and after July 1, 2014.

Amendment Notes —

The 2016 amendment, effective July 1, 2014, inserted “actual” preceding “knowledge” in (a) and (d), inserted “assists a trustee or” in (b), and made a minor stylistic change.

§ 91-8-1013. Certification of trust.

Instead of furnishing a copy of the trust instrument to any person to evidence the existence and validity of the trust, the trustee may furnish to the person a certification of trust, signed by the trustee or trustees having signature authority as identified in paragraph (6) of this subsection, attested by a notary public, and shall contain the following:

  1. An affirmation of the current existence of the trust and the date on which the trust came into existence;
  2. The identity of the settlor or settlors;
  3. The identity and address of the currently acting trustee or trustees and may contain the identity and address of the named successor trustee or trustees or a statement that no successor is named;
  4. The administrative or managerial powers of the trustee in a pending transaction or relevant to the request;
  5. The revocability or irrevocability of the trust and the identity of any person holding a power to revoke the trust;
  6. When there are multiple trustees or multiple successor trustees, the signature authority of the trustees indicating whether all or less than all of the currently acting trustees are required to sign in order to exercise various powers of the trustee;
  7. Where there are successor trustees designated, a statement detailing the conditions for their succession or a statement that a third party may rely on the authority of one or more successors without proof of their succession;
  8. The trust’s Taxpayer Identification Number, whether a social security number or Employer Identification Number, but only if the trust’s identification number is essential to the transaction for which the request for the trust document is made;
  9. The name in which title to trust property may be taken; and
  10. A statement that, to the best of the trustee’s knowledge, the trust has not been revoked, modified, or amended in any manner that would cause the representations contained in the certification of trust to be incorrect.

The certification of trust shall not be required to contain the dispositive provisions of a trust that set forth the distribution of the trust estate.

The trustee offering the certification of trust may provide copies of all or any part of the trust document and amendments, if any. Nothing in this section is intended to require or imply an obligation to provide dispositive provisions of the trust or a copy of the entire trust documents and amendments.

A person who acts in reliance upon a certification of trust without knowledge that the representations contained therein are incorrect is not liable to any person for so acting. A person who does not have actual knowledge that the facts contained in the certification of trust are incorrect may assume without inquiry the existence of the facts contained in the certification. Actual knowledge shall not be inferred solely from the fact that a copy of all or part of the trust instrument is held by the person relying on the trust certification. Nothing contained in this section shall limit the rights of the beneficiaries of the trust against the trustee. Any person relying on the certification of trust shall be indemnified from the assets of the trust to the extent of the share of the trust attributable to the beneficiary or beneficiaries bringing any action against the person for any costs, damage, attorney fees, or other expenses incurred in defending any action against the person arising for the transaction to which a certification of trust related.

A person’s failure to request a certification of trust does not affect the protections provided that person in this section. No inference that the person has not acted in good faith or that the person was negligent may be drawn from the failure of the person to request a certification of trust. Nothing in this section is intended to create an implication that a person is liable for acting in reliance on a certification of trust under circumstances where the requirements of this section are not satisfied.

Nothing in this section shall be construed to require a third party, when presented with a trust certificate, to enter into a contract with a trustee relating to trust assets or obligations, or to preclude a third party from demanding as a precondition to any contract that the trustee provide additional information in order to clarify any ambiguities or inconsistencies in the trust certificate.

This section does not limit the right of a person to obtain a copy of the trust instrument in a judicial proceeding concerning the trust.

HISTORY: Laws, 2014, ch. 421, § 89; Laws, 2016, ch. 396, § 18, eff from and after July 1, 2014.

Amendment Notes —

The 2016 amendment, effective July 1, 2014, substituted “identified in paragraph (6)” for “identified in paragraph (5)” in (a).

§ 91-8-1014. Enforcement of no-contest, in terrorem or forfeiture provisions.

For the purposes of this section, “no-contest provision” includes a “no-contest provision,” “in terrorem provision” or “forfeiture provision” of a trust instrument. A “no-contest provision” means a provision that, if given effect, would reduce or eliminate the interest of any beneficiary of the trust who, directly or indirectly, initiates or otherwise pursues:

  1. Any action to contest the validity of the trust or the terms of the trust;
  2. Any action to set aside or vary the terms of the trust;
  3. Any action to challenge the acts of the trustee or other fiduciary of the trust in the performance of the trustee’s or other fiduciary’s duties as described in the terms of the trust; or
  4. Any other act or proceedings to frustrate or defeat the settlor’s intent as expressed in the terms of the trust.
  5. Undue influence;
  6. Mistake;
  7. Forgery; or
  8. Irregularity in the execution of the trust instrument.

With regard to whether the beneficiary sought, received or relied upon legal counsel, a no-contest provision shall be enforceable according to the express terms of the no-contest provision without regard to the beneficiary’s good or bad faith in taking the action that would justify the complete or partial forfeiture of the beneficiary’s interest in the trust under the terms of the no-contest provision unless probable cause exists for the beneficiary taking such action on the grounds of:

Fraud;

Duress;

Revocation;

Lack of testamentary capacity;

Subsection (b) shall not apply to:

Any action brought solely to challenge the acts of the trustee or other fiduciary of the trust to the extent that the trustee or other fiduciary has committed a breach of fiduciary duties or breach of trust;

Any action brought by the trustee or any other fiduciary serving under the terms of the trust, unless the trustee or other fiduciary is a beneficiary against whom the no-contest provision is otherwise enforceable;

Any agreement among the beneficiaries and any other interested persons in settlement of a dispute or resolution of any other matter relating to the trust, including, without limitation, any nonjudicial settlement agreement;

Any action to determine whether a proposed or pending motion, petition, or other proceeding constitutes a contest within the meaning of a no-contest provision;

Any action brought by a beneficiary or on behalf of any such beneficiary for a construction or interpretation of the terms of the trust; or

Any action brought by the Attorney General for a construction or interpretation of a charitable trust or a trust containing a charitable interest if a provision exists in a trust purporting to penalize a charity or charitable interest for contesting the trust if probable cause exists for instituting proceedings.

Pursuant to this section, courts shall enforce the settlor’s intent as reflected in a no-contest provision to the greatest extent possible.

HISTORY: Laws, 2014, ch. 421, § 90, eff from and after July 1, 2014.

Article 11. Miscellaneous Provisions.

§ 91-8-1101. Uniformity of application and construction.

In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

HISTORY: Laws, 2014, ch. 421, § 91, eff from and after July 1, 2014.

§ 91-8-1102. Electronic records and signatures.

The provisions of this chapter governing the legal effect, validity, or enforceability of electronic records or electronic signatures, and of contracts formed or performed with the use of such records or signatures, conform to the requirements of Section 102 of the Electronic Signatures in Global and National Commerce Act (15 USC Section 7002) and supersede, modify, and limit the requirements of the Electronic Signatures in Global and National Commerce Act.

HISTORY: Laws, 2014, ch. 421, § 92, eff from and after July 1, 2014.

§ 91-8-1103. Severability clause.

If any provision of this chapter or its application to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.

HISTORY: Laws, 2014, ch. 421, § 93, eff from and after July 1, 2014.

§§ 91-8-1104 and 91-8-1105. [Reserved].

Except as otherwise provided in this chapter:

  1. This chapter applies to all trusts created before, on, or after July 1, 2014;
  2. This chapter applies to all judicial proceedings concerning trusts commenced on or after July 1, 2014;
  3. This chapter applies to judicial proceedings concerning trusts commenced before July 1, 2014, unless the court finds that application of a particular provision of this chapter would substantially interfere with the effective conduct of the judicial proceedings or prejudice the rights of the parties, in which case the particular provision of this chapter does not apply and the superseded law applies;
  4. Any rule of construction or presumption provided in this chapter applies to trust instruments executed before July 1, 2014, unless there is a clear indication of a contrary intent in the terms of the trust; and
  5. An act done before July 1, 2014, is not affected by this chapter.

If a right is acquired, extinguished, or barred upon the expiration of a prescribed period that has commenced to run under any other statute before July 1, 2014, that statute continues to apply to the right even if it has been repealed or superseded.

HISTORY: Laws, 2014, ch. 421, § 94, eff from and after July 1, 2014.

JUDICIAL DECISIONS

1. Applicability.

Trustee’s withdrawals from separate irrevocable trusts were done before the enactment of Mississippi Uniform Trust Code, Miss. Code Ann. §§91-8-101 to91-8-1206. Provisions from that Code could not be applied retroactively to any acts made by the trustee prior to that date when the chancery court entered its amended final judgment finding that the trustee breached a fiduciary duty of loyalty to the other beneficiaries of the trusts. Cassibry v. Cassibry, 217 So.3d 698, 2017 Miss. App. LEXIS 40 (Miss. Ct. App. 2017).

§ 91-8-1107. Alter ego.

Absent clear and convincing evidence, no settlor of an irrevocable trust may be deemed to be the alter ego of a trustee of such trust.

None of the following factors, by themselves or in combination, may be considered sufficient evidence for a court to conclude that the settlor controls a trustee, or is the alter ego of a trustee of such trust:

  1. Any combination of the factors listed in Section 91-8-1108 regarding dominion and control over a trust;
  2. Isolated occurrences where the settlor has signed checks, made disbursements, or executed other documents related to the trust as a trustee, a trust advisor or a trust protector, when in fact the settlor was not a trustee, trust advisor or trust protector;
  3. Making any requests for distributions on behalf of beneficiaries; or
  4. Making any requests to the trustee to hold, purchase, or sell any trust property.

HISTORY: Laws, 2014, ch. 421, § 95, eff from and after July 1, 2014.

§ 91-8-1108. Dominion and control over a trust.

In the event a person challenges a settlor’s or a beneficiary’s influence over a trust, none of the following factors, alone or in combination, shall enter into a determination that dominion and control over a trust exists:

  1. The settlor or a beneficiary is serving as a trustee, a trust advisor, a trust protector, or other fiduciary as described in this Title 91;
  2. The settlor or a beneficiary holds an unrestricted power to remove or replace a trustee, a trust advisor, a trust protector, or other fiduciary;
  3. The settlor or a beneficiary is a trust administrator, a general partner of a partnership, a manager of a limited liability company, an officer of a corporation, or holds any other managerial function relative to any type of entity specified in this section, or relative to any other type of entity not so specified, and part or all of the trust property consists of an interest in such entity;
  4. A person related by blood or adoption to the settlor or a beneficiary is appointed as a trustee, a trust advisor, a trust protector, or other fiduciary;
  5. The settlor’s or a beneficiary’s agent, accountant, attorney, financial advisor, or friend is appointed as a trustee, a trust advisor, a trust protector, or other fiduciary;
  6. A business associate is appointed as a trustee, a trust advisor, a trust protector, or other fiduciary;
  7. A beneficiary holds any power of appointment over any or all of the trust property;
  8. The settlor holds a power to substitute property of equivalent value for property held by the trust, regardless of whether such power is:
  9. A trustee, a trust advisor, a trust protector or other fiduciary has the power to loan trust property to the settlor for less than a full and adequate rate of interest or without adequate security;
  10. Any language relative to the power to make any distribution provides for any discretion relative to such distribution;
  11. The trust has only one (1) beneficiary eligible for current distributions; or
  12. The beneficiary is serving as a cotrustee, or as a trust advisor or trust protector under Article 12, or as any other fiduciary.

Held in a fiduciary or nonfiduciary capacity;

Exercisable with or without the approval of any person in a fiduciary capacity; or

Exercisable with or without the approval of any person having an interest adverse to such settlor;

HISTORY: Laws, 2014, ch. 421, § 96, eff from and after July 1, 2014.

Cross References —

Article 12 of this chapter, see §§91-8-1201 through91-8-1206.

§ 91-8-1109. Protection of special needs trusts and other similar trusts for disabled persons.

Notwithstanding the provisions of this chapter that may otherwise be applicable to a trust, no provision thereof shall apply to any special needs trust, supplemental needs trust, or other similar trust established for a person with a disability as a beneficiary, including, without limitation, any trust established pursuant to the provisions of 42 USC Section 1396(p)(d)(4)A or C, as amended from time to time, or other similar federal or state statute, to the extent that the provision would disqualify the trust beneficiary at any time from eligibility for public needs-based assistance benefits for which the beneficiary would otherwise qualify.

HISTORY: Laws, 2014, ch. 421, § 97, eff from and after July 1, 2014.

§ 91-8-1106. Application to existing relationships.

Article 12. Trust Advisors and Trust Protectors.

§ 91-8-1201. Powers of trust advisors and trust protectors.

A trust protector or trust advisor is any person, and may be a committee of more than one (1) person, other than a trustee, who under the terms of the trust has a power or duty with respect to a trust, including, but not limited to, one or more of the following powers:

  1. The power to modify or amend the trust instrument to achieve favorable tax status or respond to changes in any applicable federal, state, or other tax law affecting the trust, including, but not limited to, any rulings, regulations, or other guidance implementing or interpreting such laws;
  2. The power to amend or modify the trust instrument to take advantage of changes in the rule against perpetuities, laws governing restraints on alienation, or other state laws restricting the terms of the trust, the distribution of trust property, or the administration of the trust;
  3. The power to appoint a successor trust protector or trust advisor;
  4. The power to review and approve a trustee’s trust reports or accountings;
  5. The power to change the governing law or principal place of administration of the trust;
  6. The power to remove and replace any trust advisor or trust protector for the reasons stated in the trust instrument;
  7. The power to remove a trustee, cotrustee, or successor trustee, for the reasons stated in the trust instrument, and appoint a successor;
  8. The power to consent to a trustee’s or cotrustee’s action or inaction in making distributions to beneficiaries;
  9. The power to increase or decrease any interest of the beneficiaries in the trust, to grant a power of appointment to one or more trust beneficiaries, or to terminate or amend any power of appointment granted in the trust;
  10. The power to perform a specific duty or function that would normally be required of a trustee or cotrustee;
  11. The power to advise the trustee or cotrustee concerning any beneficiary;
  12. The power to consent to a trustee’s or cotrustee’s action or inaction relating to investments of trust assets;
  13. The power to direct the acquisition, disposition, or retention of any trust investment;
  14. The power to terminate all or part of a trust;
  15. The power to veto or direct all or part of any trust distribution;
  16. The power to borrow money with or without security, and mortgage or pledge trust property for a period within or extending beyond the duration of the trust;
  17. The power to make loans out of trust property, including, but not limited to, loans to a beneficiary on terms and conditions, including without interest, considered to be fair and reasonable under the circumstances;
  18. The power to vote proxies and exercise all other rights of ownership relative to securities and business entities held by the trust;
  19. The power to select one or more investment advisors, managers or counselors, including, but not limited to, a trustee, and delegate to them any of its powers;
  20. The power to direct the trustee with respect to any additional powers and discretions over investment and management of trust assets provided in the trust instrument;
  21. The power to receive notices, information, and reports otherwise required to be provided to a beneficiary under Section 91-8-813(a) and (b);
  22. The power to represent and bind a beneficiary under Section 91-8-303(8) to the extent there is not material conflict of interest between the trust protector or trust advisor and the beneficiary; and
  23. The power to designate someone to represent and bind a beneficiary under Section 91-8-303(8) to the extent there is no material conflict of interest between the person designated and the beneficiary.

The exercise of a power by a trust advisor or a trust protector shall be exercised in the sole and absolute discretion of the trust advisor or trust protector and shall be binding on all other persons.

Any power of a trust advisor or trust protector to directly or indirectly modify a trust may be granted notwithstanding the provisions of Sections 91-8-410 through 91-8-412 and 91-8-414.

An excluded fiduciary may continue to follow the direction of a trust protector or trust advisor upon the incapacity or death of the grantor of a trust to the extent provided in the trust instrument.

Notwithstanding anything in this section to the contrary, no modification, amendment, or grant of a power of appointment with respect to a trust, all of whose beneficiaries are charitable organizations, may authorize a trust protector or trust advisor to grant a beneficial interest in the trust to any noncharitable interest or purpose.

HISTORY: Laws, 2014, ch. 421, § 98; Laws, 2016, ch. 396, § 11, eff from and after July 1, 2014.

Amendment Notes —

The 2016 amendment, effective July 1, 2014, added (a)(21) through (23) and made a related stylistic change.

§ 91-8-1202. Trust advisors and trust protectors as fiduciaries.

A trust advisor or trust protector, other than a beneficiary, is a fiduciary with respect to each power granted to the trust advisor or trust protector. In exercising any power or refraining from exercising any power, a trust advisor or trust protector shall act in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.

A trust advisor or trust protector is an excluded fiduciary with respect to each power granted or reserved exclusively to any one or more other trustees, trust advisors, or trust protectors.

HISTORY: Laws, 2014, ch. 421, § 99, eff from and after July 1, 2014.

§ 91-8-1203. Trust advisor and trust protector subject to court jurisdiction.

By accepting appointment to serve as a trust advisor or trust protector, the trust advisor or the trust protector submits personally to the jurisdiction of the courts of this state even if investment advisory agreements or other related agreements provide otherwise, and the trust advisor or trust protector may be made a party to any action or proceeding relating to a decision, action, or inaction of the trust advisor or trust protector.

HISTORY: Laws, 2014, ch. 421, § 100, eff from and after July 1, 2014.

§ 91-8-1204. No duty to review actions of trustee, trust advisor, or trust protector.

Whenever, pursuant to the terms of a trust, an excluded fiduciary is to follow the direction of a trustee, trust advisor, or trust protector with respect to investment decisions, distribution decisions, or other decisions of the nonexcluded fiduciary, then, except to the extent that the terms of the trust provide otherwise, the excluded fiduciary shall have no duty to:

  1. Review, evaluate, perform investment reviews, suitability reviews, inquiries, or investigations, or in any other way monitor the conduct of the trustee, trust advisor, or trust protector;
  2. Make recommendations or evaluations or in any way provide advice to the trustee, trust advisor, or trust protector or consult with the trustee, trust advisor, or trust protector; or
  3. Communicate with or warn or apprise any beneficiary or third party concerning instances in which the excluded fiduciary would or might have exercised the excluded fiduciary’s own discretion in a manner different from the manner directed by the trustee, trust advisor, or trust protector.

Absent provisions in the trust instrument to the contrary, the actions of the excluded fiduciary pertaining to matters within the scope of the trustee, trust advisor, or trust protector’s authority, including, but not limited to, confirming that the trustee, trust advisor, or trust protector’s directions have been carried out and recording and reporting actions taken at the trustee, trust advisor, or trust protector’s direction or other information pursuant to Section 91-8-813, shall be deemed to be administrative actions taken by the excluded fiduciary solely to allow the excluded fiduciary to perform those duties assigned to the excluded fiduciary under the terms of the trust; those administrative actions, as well as any communications made by the excluded fiduciary to the trust advisor, trust protector, or any of their agents or persons they have selected to provide services to the trust, shall not be deemed to constitute an undertaking by the excluded fiduciary to monitor the trustee, trust advisor, or trust protector or otherwise participate in actions within the scope of the trustee’s, trust advisor’s, or trust protector’s authority.

HISTORY: Laws, 2014, ch. 421, § 101, eff from and after July 1, 2014.

§ 91-8-1205. Fiduciary’s liability for action or inaction of trustee, trust advisor, and trust protector.

An excluded fiduciary is not liable, either individually or as a fiduciary, for:

  1. Any loss resulting from compliance with a direction of a trustee, trust advisor, or trust protector, including, but not limited to, any loss from the trustee, trust advisor, or trust protector breaching fiduciary responsibilities or acting beyond the trustee’s, trust advisor’s, or trust protector’s scope of authority;
  2. Any loss resulting from any action or inaction of a trustee, trust advisor, or trust protector; or
  3. Any loss that results from the failure of a trustee, trust advisor, or trust protector to take any action proposed by the excluded fiduciary where the action requires the authorization of the trustee, trust advisor, or trust protector, if an excluded fiduciary who had a duty to propose the action timely sought but failed to obtain the authorization.

HISTORY: Laws, 2014, ch. 421, § 102, eff from and after July 1, 2014.

§ 91-8-1206. Limitation of action against trust advisor or trust protector.

A beneficiary may not commence a proceeding against a trust advisor or trust protector for breach of trust more than one (1) year after the date the beneficiary or a representative of the beneficiary was sent a report that adequately disclosed facts indicating the existence of a potential claim for breach of trust.

A report adequately discloses facts indicating the existence of a potential claim for breach of trust if it provides sufficient information so that the beneficiary or the beneficiary’s representative knows of the potential claim or has sufficient information to be presumed to know of it, or to be put on notice to inquire into its existence.

If subsection (a) does not apply, a judicial proceeding by a beneficiary against a trust advisor or trust protector for breach of trust must be commenced within three (3) years after the first to occur of:

  1. The removal, resignation, or death of the trust advisor or trust protector;
  2. The termination of the beneficiary’s interest in the trust; or
  3. The termination of the trust.

A trustee may not commence a proceeding against a trust advisor or trust protector for breach of trust more than one (1) year after the date the trustee or a representative of the trustee was sent a report that adequately disclosed facts indicating the existence of a potential claim for breach of trust.

A report adequately discloses facts indicating the existence of a potential claim for breach of trust if it provides sufficient information so that the trustee or the trustee’s representative knows of the potential claim or has sufficient information to be presumed to know of it, or to be put on notice to inquire into its existence.

If subsection (d) does not apply, a judicial proceeding by a trustee against a trust advisor or trust protector for breach of trust must be commenced within three (3) years after the first to occur of:

The removal, resignation, or death of the trust advisor or trust protector;

The termination of the beneficiary’s interest in the trust; or

The termination of the trust.

A trust advisor or trust protector may not commence a proceeding against another trust advisor or another trust protector for breach of trust more than one (1) year after the date the trust advisor or trust protector or the respective representative of each was sent a report that adequately disclosed facts indicating the existence of a potential claim for breach of trust.

A report adequately discloses facts indicating the existence of a potential claim for breach of trust if it provides sufficient information so that the trust advisor or trust protector or the respective representative of each knows of the potential claim or has sufficient information to be presumed to know of it, or to be put on notice to inquire into its existence.

If subsection (g) does not apply, a judicial proceeding by a trust advisor or trust protector against another trust advisor or another trust protector for breach of trust must be commenced within three (3) years after the first to occur of:

The removal, resignation, or death of the other trust advisor or other trust protector;

The termination of the beneficiary’s interest in the trust; or

The termination of the trust.

Notwithstanding subsections (d) through (i), no trustee, trust advisor, or trust protector may commence a proceeding against a trust advisor or trust protector or another trust advisor or another trust protector if, under either subsections (a) through (c) or Section 91-8-1005(a) through (c), none of the beneficiaries may commence a proceeding against the trust advisor or trust protector for such breach of trust.

HISTORY: Laws, 2014, ch. 421, § 103, eff from and after July 1, 2014.

Chapter 9. Trusts and Trustees

Article 1. Trusts — General Provisions.

§§ 91-9-1 through 91-9-9. Repealed.

Repealed by Laws, 2014, ch. 421, § 105, effective from and after July 1, 2014.

§91-9-1. [Codes, 1857, ch. 44, art. 5; 1871, § 2896; 1880, § 1296; 1892, § 4230; 1906, § 4780; Hemingway’s 1917, § 3124; 1930, § 3348; 1942, § 269; Laws, 1993, ch. 507, § 2, eff from and after July 1, 1993.]

§91-9-2. [Laws, 2002, ch. 393, § 1; Laws, 2003, ch. 442, § 1, eff from and after July 1, 2003.]

§91-9-3. [Codes, 1857, ch. 44, art. 6; 1871, § 2897; 1880, § 1297; 1892, § 4231; 1906, § 4781; Hemingway’s 1917, § 3125; 1930, § 3349; 1942, § 270; Laws, 1993, ch. 507, § 3, eff from and after July 1, 1993.]

§91-9-5. [Codes, 1942, § 1273-10; Laws, 1960, ch. 217, § 10; Laws, 1996, ch. 400, § 44, eff from and after passage (approved March 19, 1996).]

§91-9-7. [Laws, 1993, ch. 507, § 1; Laws, 2001, ch. 425, § 1, eff from and after July 1, 2001.]

§91-9-9. [Laws, 1994, ch. 589, § 1; reenacted and amended, Laws, 1999, ch. 374, § 3; reenacted and amended, Laws, 2002, ch. 613 , § 1; Laws, 2006, ch. 474, § 18; Laws, 2008, ch. 452, § 3, eff from and after passage (approved Apr. 8, 2008.)]

Editor’s Notes —

Former §91-9-1, which was included in former Article 1 of Chapter 9, related to the creation of trusts and confidences.

Former §91-9-2, which was included in former Article 1 of Chapter 9, authorized trusts to take title to real property.

Former §91-9-3, which was included in former Article 1 of Chapter 9, required all grants, assignments or transfers of trusts to be in writing.

Former §91-9-5, which was included in former Article 1 of Chapter 9, related to the filing or producing vouchers by trustees.

Former §91-9-7, which was included in former Article 1 of Chapter 9, related to the filing of a certificate of trust agreement in lieu of an entire trust agreement.

Former §91-9-9, which was included in former Article 1 of Chapter 9, provided additional powers, remedies and rights to fiduciaries with respect to compliance with environmental laws. For present similar provisions, see §91-8-816.

Article 3. Uniform Trustees’ Powers.

§§ 91-9-101 through 91-9-119. Repealed.

Repealed by Laws, 2014, ch. 421, § 106, effective from and after July 1, 2014.

§91-9-101. [Codes, 1942, § 672-130; Laws, 1966, ch. 372, § 10, eff from and after June 30, 1966.]

§91-9-103. [Codes, 1942, § 672-121; Laws, 1966, ch. 372, § 1; Laws, 2006, ch. 474, § 19, eff from and after July 1, 2006.]

§91-9-105. [Codes, 1942, § 672-122; Laws, 1966, ch. 372, § 2, eff from and after June 30, 1966.]

§91-9-107. [Codes, 1942, § 672-123; Laws, 1966, ch. 372, § 3; Laws, 1990, ch. 547, § 1; Laws, 1994, ch. 589, § 2; Laws, 1999, ch. 374, § 4; Laws, 2001, ch. 471, § 1; Laws, 2002, ch. 616 , § 1; Laws, 2006, ch. 474, § 20; Laws, 2008, ch. 452, § 4, eff from and after passage (approved Apr. 8, 2008.)]

§91-9-109. [Codes, 1942, § 672-124; Laws, 1966, ch. 372, § 4, eff from and after June 30, 1966.]

§91-9-111. [Codes, 1942, § 672-125; Laws, 1966, ch. 372, § 5, eff from and after June 30, 1966.]

§91-9-113. [Codes, 1942, § 672-126; Laws, 1966, ch. 372, § 6, eff from and after June 30, 1966.]

§91-9-115. [Codes, 1942, § 672-127; Laws, 1966, ch. 372, § 7, eff from and after June 30, 1966.]

§91-9-117. [Codes, 1942, § 672-128; Laws, 1966, ch. 372, § 8, eff from and after June 30, 1966.]

§91-9-119. [Codes, 1942, § 672-129; Laws, 1966, ch. 372, § 9, eff from and after June 30, 1966.]

Editor’s Notes —

Former §91-9-101, which was included in former Article 3 of Chapter 9, provided the short title for Article 3.

Former §91-9-103, which was included in former Article 3 of Chapter 9, provided definitions for words used in Article 3. Definitions can now be found in §91-8-103.

Former §91-9-105, which was included in former Article 3 of Chapter 9, provided that trustees have all powers conferred by Article 3 unless limited in the trust instrument.

Former §91-9-107, which was included in former Article 3 of Chapter 9, related to trustee powers conferred by Article 3. For present similar provisions, see §91-8-816.

Former §91-9-109, which was included in former Article 3 of Chapter 9, prohibited a trustee from transferring his/her office or delegate the administration of the trust to another.

Former §91-9-111, which was included in former Article 3 of Chapter 9, related to the power of the court to, under certain circumstances, remove restrictions on trustee’s power that would otherwise be placed on the trustee by the trust of former Article 3 of Chapter 9.

Former §91-9-113, which was included in former Article 3 of Chapter 9, related to powers exercisable by joint trustees. For present similar provisions, see §91-8-703.

Former §91-9-115, which was included in former Article 3 of Chapter 9, provided protections for third persons dealing with or assisting a trustee. For present similar provisions, see §91-8-1012.

Former §91-9-117, which was included in former Article 3 of Chapter 9, related to the applicability of former Article 3.

Former §91-9-119, which was included in former Article 3 of Chapter 9, provided for uniformity of interpretation of former Article 3. For similar provisions relating to uniformity of application and construction of Chapter 8, Title 91, see §91-8-1101.

Cross References —

References contained in a will or trust incorporating by reference the powers enumerated in former §§91-9-101 through91-9-119 (former Article 3) incorporate by reference the powers contained in §91-8-816, see §91-8-816.

Article 5. Resignation and Succession of Trustees.

§§ 91-9-201 through 91-9-213. Repealed.

Repealed by Laws, 2014, ch. 421, § 107, effective from and after July 1, 2014.

§91-9-201. [Codes, 1942, § 672-151; Laws, 1966, ch. 373, § 1, eff from and after passage (approved May 6, 1966).]

§91-9-203. [Codes, 1942, § 672-152; Laws, 1966, ch. 373, § 2, eff from and after passage (approved May 6, 1966).]

§91-9-205. [Codes, 1942, § 672-153; Laws, 1966, ch. 373, § 3, eff from and after passage (approved May 6, 1966).]

§91-9-207. [Codes, 1942, § 672-154; Laws, 1966, ch. 373, § 4, eff from and after passage (approved May 6, 1966).]

§91-9-209. [Codes, 1942, § 672-155; Laws, 1966, ch. 373, § 5, eff from and after passage (approved May 6, 1966).]

§91-9-211. [Codes, 1942, § 672-156; Laws, 1966, ch. 373, § 6, eff from and after passage (approved May 6, 1966).]

§91-9-213. [Codes, 1942, § 672-157; Laws, 1966, ch. 373, § 7, eff from and after passage (approved May 6, 1966).]

Editor’s Notes —

Former §91-9-201, which was included in former Article 5 of Chapter 9, provided for the applicability of Article 5 and defined trustee.

Former §91-9-203, which was included in former Article 5 of Chapter 9, related to the resignation of a trustee and appointment of a successor. For present similar provisions, see §91-8-704 (vacancy in trusteeship and appointment of a successor) and §91-8-705 (resignation of trustee).

Former §91-9-205, which was included in former Article 5 of Chapter 9, provided for a trustee accounting and discharge of the trustee.

Former §91-9-207, which was included in former Article 5 of Chapter 9, related to the title, right and powers of a successor trustee.

Former §91-9-209, which was included in former Article 5 of Chapter 9, related to beneficiary under disability.

Former §91-9-211, which was included in former Article 5 of Chapter 9, provided for determining jurisdiction as it relates to trusts. For present provisions relating to jurisdiction and judicial proceedings, see §§91-8-201 through91-8-205.

Former §91-9-213, which was included in former Article 5 of Chapter 9, provided that the general powers of the courts were not affected by the provisions of former Article 5.

Article 7. Removal of Trustees.

§§ 91-9-301 through 91-9-305. Repealed.

Repealed by Laws, 2014, ch. 421, § 108, effective from and after July 1, 2014.

§91-9-301. [Codes, 1942, § 1273-01; Laws, 1960, ch. 221, § 1, eff from and after passage (approved March 31, 1960).]

§91-9-303. [Codes, 1942, § 1273-02; Laws, 1960, ch. 221, § 2, from and after passage (approved March 31, 1960).]

§91-9-305. [Codes, 1942, § 1273-03; Laws, 1960, ch. 221, § 3, eff from and after passage (approved March 31, 1960).]

Editor’s Notes —

Former §91-9-301, which was included in former Article 7 of Chapter 9, defined certain words and phrases used in the article.

Former §91-9-303, which was included in former Article 7 of Chapter 9, provided proceedings for the removal of trustees and the appointment of successors. For present similar provisions, see §§91-8-704 through91-8-706.

Former §91-9-305, which was included in former Article 7 of Chapter 9, related to the powers of the chancery court in removal proceedings. For present provisions relating to judicial proceedings, see §§91-8-201 through91-8-205.

Article 9. Administration of Private Foundation Trusts, Charitable Trusts, and Split-Interest Trusts.

§ 91-9-401. Prohibited acts.

In the administration of any trust which is a “private foundation,” as defined in Section 509 of the United States Internal Revenue Code, a “charitable trust,” as defined in Section 4947(a)(1) of the United States Internal Revenue Code, or a “split-interest trust,” as defined in Section 4947(a)(2) of the United States Internal Revenue Code, the following acts shall be prohibited:

Engaging in any act of “self-dealing,” as defined in Section 4941(d) of the United States Internal Revenue Code, which would give rise to any liability for the tax imposed by Section 4941(a) of the United States Internal Revenue Code;

Retaining any “excess business holdings,” as defined in Section 4943(c) of the United States Internal Revenue Code, which would give rise to any liability for the tax imposed by Section 4943(a) of the United States Internal Revenue Code;

Making any investments which would jeopardize the carrying out of any of the exempt purposes of the trust, within the meaning of Section 4944 of the United States Internal Revenue Code, so as to give rise to any liability for the tax imposed by Section 4944(a) of the United States Internal Revenue Code; and

Making any “taxable expenditures,” as defined in Section 4945(d) of the United States Internal Revenue Code, which would give rise to any liability for the tax imposed by Section 4945(a) of the United States Internal Revenue Code.

This section shall not apply either to those split-interest trusts or to amounts thereof which are not subject to the prohibitions applicable to private foundations by reason of the provisions of Section 4947 of the United States Internal Revenue Code.

HISTORY: Codes, 1942, § 672-201; Laws, 1972, ch. 423, § 1, eff from and after passage (approved April 28, 1972).

Editor’s Notes —

Laws, 1972, ch. 423 § 6, provides as follows:

“SECTION 6. Because the requirements of the Federal Tax Reform Act of 1969 require charitable nonprofit foundations, whether trusts or corporations, to change their governing instruments to comply with said federal act or the state to adopt legislation which complies in lieu of each trust or corporation changing its instrument and because failure to comply by the deadline set in said federal act will result in the loss of tax exemption by such trusts and corporations, the immediate effectiveness of this act is necessary to relieve nonprofit corporations and trusts of the concern about changing their governing instruments and retaining the tax exempt status for such Mississippi organizations; therefore, this act shall take effect and be in force from and after its passage.”

Cross References —

Similar provisions applicable to private foundations, see §79-11-51.

Federal Aspects—

Sections 509, 4941, 4943, 4944, 4945, and 4947 of the United States Internal Revenue Code, referred to in this section, can be found codified at 26 USCS §§ 509, 4941, 4943 through 4945, and 4947.

RESEARCH REFERENCES

ALR.

Enforceability of contractual right, in which fiduciary has interest, to purchase property of estate or trust. 6 A.L.R.4th 786.

Validity, as for a charitable purpose, of trust for publication or distribution of particular books or writings. 34 A.L.R.4th 419.

Am. Jur.

34 Am. Jur. 2d, Federal Taxation ¶ 8047.

§ 91-9-403. Distribution of amounts to avoid tax liability.

In the administration of any trust which is a “private foundation,” as defined in Section 509 of the United States Internal Revenue Code, or which is a “charitable trust,” as defined in Section 4947(a)(1) of the United States Internal Revenue Code, there shall be distributed, for the purposes specified in the trust instrument, for each taxable year, amounts at least sufficient to avoid liability for the tax imposed by Section 4942(a) of the United States Internal Revenue Code.

HISTORY: Codes, 1942, § 672-202; Laws, 1972, ch. 423, § 2, eff from and after passage (approved April 28, 1972).

Cross References —

Similar provisions applicable to private foundations, see §79-11-53.

Federal Aspects—

Sections 509, 4942(a), and 4947(a)(1) of the United States Internal Revenue Code, referred to in this section, can be found codified at 26 USCS §§ 509, 4942(a), and 4947(a)(1).

§ 91-9-405. Applicability of Sections 91-9-401 and 91-9-403 when contrary to trust instrument.

The provisions of Sections 91-9-401 and 91-9-403 shall not apply to any trust to the extent that a court of competent jurisdiction shall determine that such application would be contrary to the terms of the instrument governing such trust and that the same may not properly be changed to conform to such sections. The trustee shall not be held liable to anyone for any payments made under Section 91-9-403 prior to such determination.

HISTORY: Codes, 1942, § 672-203; Laws, 1972, ch. 423, § 3, eff from and after passage (approved April 28, 1972).

Cross References —

Similar provisions applicable to private foundations, see §79-11-55.

§ 91-9-407. Amendment of trust instrument to exclude application of Sections 91-9-401 and 91-9-403.

The trustees of any trust which is a “private foundation” (as defined in Section 509 of the United States Internal Revenue Code), a “charitable trust” (as defined in Section 4947(a)(1) of the United States Internal Revenue Code) or a “split-interest trust” (as defined in Section 4947(a)(2) of the United States Internal Revenue Code) may, without judicial proceedings, amend the governing instrument of such trust expressly to exclude the application of Sections 91-9-401 and 91-9-403, or any portion thereof, by executing a written amendment to such trust and filing a duplicate original of such amendment with the secretary of state of the State of Mississippi, whereupon such section or sections, or any portion thereof, as the case may be, shall not apply to such trust. Neither the trustees nor the trust shall be liable to anyone for any payments made under Section 91-9-403 prior to such amendment.

HISTORY: Codes, 1942, § 672-203; Laws, 1972, ch. 423, § 3, eff from and after passage (approved April 28, 1972).

Cross References —

Similar provisions applicable to private foundations, see §79-11-57.

Federal Aspects—

Sections 509 and 4947 of the United States Internal Revenue Code, referred to in this section, can be found codified at 26 USCS §§ 509 and 4947.

§ 91-9-409. Rights and powers of courts and attorney general.

Nothing in Sections 91-9-401 through 91-9-411 shall impair the rights and powers of the courts or the attorney general of this state with respect to any trust.

HISTORY: Codes, 1942, § 672-204; Laws, 1972, ch. 423, § 4, eff from and after passage (approved April 28, 1972).

Cross References —

Similar provisions applicable to private foundations, see §79-11-59.

§ 91-9-411. References to United States Internal Revenue Code.

All references to sections of the United States Internal Revenue Code shall be to such law as it exists as of April 28, 1972.

HISTORY: Codes, 1942, § 672-205; Laws, 1972, ch. 423, § 5, eff from and after passage (approved April 28, 1972).

Article 11. Family Trust Preservation Act of 1998.

§ 91-9-501. Definitions.

The following words and phrases shall have the meanings ascribed herein unless the context clearly indicates otherwise:

“Trust” means the following:

An express trust, private or charitable, with additions thereto, wherever and however created; or

A trust created or determined by a judgment or decree under which the trust is to be administered in the manner of an express trust.

“Trust” excludes the following:

Constructive trusts, other than those described in paragraph (a)(ii) of this section, and resulting trusts;

Guardianships and conservatorships;

Executors and administrators of decedent’s estates;

Totten trust accounts;

Custodial arrangements pursuant to the Uniform Gifts to Minors Act or the Uniform Transfers to Minors Act of any state;

Business trusts that are taxed as partnerships or corporations;

Investment trusts subject to regulation under the laws of this state or any other jurisdiction;

Common trust funds;

Voting trusts;

Security arrangements;

Transfers in trust for purpose of suit or enforcement of a claim of right;

Liquidation trusts; or

Any arrangement under which a person is nominee or escrowee for another.

“Trustee” means an original, additional, or successor trustee, whether or not appointed or confirmed by a court.

“Trust instrument” means a written instrument which creates, defines or determines a trust, including, but not limited to, a last will and testament of a decedent.

HISTORY: Laws, 1998, ch. 460, § 1, eff from and after passage (approved March 23, 1998).

§ 91-9-503. Beneficiary’s interests not subject to transfer; restrictions on transfers and enforcements of money judgments.

Except as provided in Section 91-9-509, if the trust instrument provides that a beneficiary’s interest in income or principal or both of a trust is not subject to voluntary or involuntary transfer, the beneficiary’s interest in income or principal or both under the trust may not be transferred and is not subject to the enforcement of a money judgment until paid to the beneficiary.

HISTORY: Laws, 1998, ch. 460, § 2; Laws, 2014, ch. 513, § 13; Laws, 2016, ch. 396, § 12, eff from and after July 1, 2014.

Amendment Notes —

The 2014 amendment deleted “Except as provided in Section 91-9-509” from the beginning of the sentence.

The 2016 amendment, effective July 1, 2014, added the exception at the beginning of the section.

§ 91-9-505. Trust monies designated for education or support of beneficiary; restrictions on transfers and enforcements of money judgments.

Except as provided in Section 91-9-509, if the trust instrument provides that the trustee shall pay income or principal or both of a trust for the education or support of a beneficiary, the beneficiary’s interest in income or principal or both under the trust, to the extent the income or principal or both is necessary for the education or support of the beneficiary, may not be transferred and is not subject to the enforcement of a money judgment until paid to the beneficiary. This section shall not be applied or construed to limit or otherwise diminish a restraint on transfer that is valid under Section 91-9-503.

HISTORY: Laws, 1998, ch. 460, § 3; Laws, 2014, ch. 513, § 14; Laws, 2016, ch. 396, § 18, eff from and after July 1, 2014.

Amendment Notes —

The 2014 amendment deleted “Except as provided in Section 91-9-509” from the beginning of the first sentence.

The 2016 amendment, effective July 1, 2014, added the exception at the beginning of the section.

§ 91-9-507. Trust monies designated for payments in trustee’s discretion; restrictions and liability on payments to transferees or creditors; beneficiary’s right to compel payments by trustee.

  1. Except as provided in Section 91-9-509, if the trust instrument provides that the trustee shall pay to or for the benefit of a beneficiary so much of the income or principal or both of a trust as the trustee in the trustee’s discretion sees fit to pay, a transferee or creditor of the beneficiary may not compel the trustee to pay any amount from the trust that may be paid only in the exercise of the trustee’s discretion. This subsection shall not be applied or construed to limit or otherwise diminish a restraint on transfer that is valid under Section 91-9-503.
  2. If the trustee has knowledge of a transfer of a beneficiary’s interest in a trust or has been served with process in a proceeding for garnishment or attachment or the like by a judgment creditor seeking to reach a beneficiary’s interest in a trust, and the trustee pays to or for the benefit of the beneficiary any part of the income or principal of the trust that may be paid only in the exercise of the trustee’s discretion, the trustee is liable to the transferee or creditor to the extent that the payment to or for the benefit of the beneficiary impairs the right of the transferee or creditor. This subsection does not apply if the beneficiary’s interest in the trust is subject to a restraint on transfer that is valid under Section 91-9-503.
  3. This section applies regardless of whether the trust instrument provides a standard for the exercise of the trustee’s discretion.
  4. Nothing in this section limits any right the beneficiary may have to compel the trustee to pay to or for the benefit of the beneficiary all or part of the income or principal of a trust.

HISTORY: Laws, 1998, ch. 460, § 4; Laws, 2014, ch. 513, § 15; Laws, 2016, ch. 396, § 14, eff from and after July 1, 2014.

Amendment Notes —

The 2014 amendment deleted “Except as provided in Section 91-9-509” from the beginning of the first sentence in (1).

The 2016 amendment, effective July 1, 2014, added the exception at the beginning of (1).

§ 91-9-509. Settlor as beneficiary of own trust; invalid restraint on transfers; payments for education or support at trustee’s discretion; maximum amount accessible by transferees or creditors.

  1. Except as provided in Sections 91-9-701 through 91-9-723, if the settlor is a beneficiary of a trust created by the settlor and the settlor’s interest in the trust is subject to a provision restraining the voluntary or involuntary transfer of the settlor’s interest, the restraint is invalid against transferees or creditors of the settlor. The invalidity of the restraint on transfer does not affect the validity of the trust.
  2. Except as provided in Sections 91-9-701 through 91-9-723, if the settlor is a beneficiary of a trust created by the settlor and the trust instrument provides that the trustee shall pay income or principal, or both, of the trust for the education or support of the beneficiary, or gives the trustee discretion to determine the amount of income or principal, or both, of the trust to be paid to or for the benefit of the settlor, a transferee or creditor of the settlor may reach the maximum amount of the trust that the trustee could pay to or for the benefit of the settlor under the trust instrument, not exceeding the amount of the settlor’s proportionate contribution to the trust.

HISTORY: Laws, 2016, ch. 396, § 15, eff from and after July 1, 2014.

Editor’s Notes —

A former §91-9-509 [Laws, 1998, ch. 460, § 5, effective from and after passage (approved March 23, 1998); Repealed by Laws, 2014, ch. 513, § 16, effective from and after July 1, 2014.] provided for situations when a settlor is beneficiary of a settlor-created trust.

§ 91-9-511. Application of act; date of trust creation.

Sections 91-9-501 through 91-9-511 shall apply to trusts created, defined or determined in trust instruments executed at any time whether before, on or after March 23, 1998.

HISTORY: Laws, 1998, ch. 460, § 6, eff. from and after passage (approved March 23, 1998).

Article 13. Uniform Prudent Investor Act.

§ 91-9-601. Prudent investor rule.

Except as otherwise provided in subsection (b), a trustee who invests and manages trust assets owes a duty to the beneficiaries of the trust to comply with the prudent investor rule set forth in this article.

The prudent investor rule, a default rule, may be expanded, restricted, eliminated, or otherwise altered by the provisions of a trust. A trustee is not liable to a beneficiary to the extent that the trustee acted in reasonable reliance on the provisions of the trust.

HISTORY: Laws, 2006, ch. 474, § 1, eff from and after July 1, 2006.

Cross References —

Investment trusts, see §79-15-1 et seq.

Fiduciary investments, see §91-13-1 et seq.

§ 91-9-603. Standard of care; portfolio strategy; risk and return.

A trustee shall invest and manage trust assets as a prudent investor would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.

A trustee’s investment and management decisions respecting individual assets must be evaluated not in isolation but in the context of the trust portfolio as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the trust.

Among circumstances that a trustee shall consider in investing and managing trust assets are such of the following as are relevant to the trust or its beneficiaries:

  1. General economic conditions;
  2. The possible effect of inflation or deflation;
  3. The expected tax consequences of investment decisions or strategies;
  4. The role that each investment or course of action plays within the overall trust portfolio, which may include financial assets, interests in closely held enterprises, tangible and intangible personal property, and real property;
  5. The expected total return from income and the appreciation of capital;
  6. Other resources of the beneficiaries;
  7. Needs for liquidity, regularity of income, and preservation or appreciation of capital; and
  8. An asset’s special relationship or special value, if any, to the purposes of the trust or to one or more of the beneficiaries.

A trustee shall make a reasonable effort to verify facts relevant to the investment and management of trust assets.

A trustee may invest in any kind of property or type of investment consistent with the standards of this article.

A trustee who has special skills or expertise, or is named trustee in reliance upon the trustee’s representation that the trustee has special skills or expertise, has a duty to use those special skills or expertise.

HISTORY: Laws, 2006, ch. 474, § 2, eff from and after July 1, 2006.

§ 91-9-605. Diversification.

A trustee shall diversify the investments of the trust unless the trustee reasonably determines that, because of special circumstances, the purposes of the trust are better served without diversifying.

HISTORY: Laws, 2006, ch. 474, § 3, eff from and after July 1, 2006.

§ 91-9-607. Duties at inception of trusteeship.

Within a reasonable time after accepting a trusteeship or receiving trust assets, a trustee shall review the trust assets and make and implement decisions concerning the retention and disposition of assets, in order to bring the trust portfolio into compliance with the purposes, terms, distribution requirements, and other circumstances of the trust, and with the requirements of this article.

HISTORY: Laws, 2006, ch. 474, § 4, eff from and after July 1, 2006.

§ 91-9-609. Loyalty.

A trustee shall invest and manage the trust assets solely in the interest of the beneficiaries.

HISTORY: Laws, 2006, ch. 474, § 5, eff from and after July 1, 2006.

JUDICIAL DECISIONS

1. Duty of loyalty.

Trustee’s withdrawals or “loans” from separate irrevocable trusts constituted a breach of his duty of loyalty as a fiduciary because his withdrawals depleted the trusts and proximately caused injury to the other beneficiaries of the trusts. Moreover, it could not be determined that a beneficiary gave the trustee permission to make withdrawals from one of the trusts before the death of the beneficiary. Cassibry v. Cassibry, 217 So.3d 698, 2017 Miss. App. LEXIS 40 (Miss. Ct. App. 2017).

§ 91-9-611. Impartiality.

If a trust has two (2) or more beneficiaries, the trustee shall act impartially in investing and managing the trust assets, taking into account any differing interests of the beneficiaries.

HISTORY: Laws, 2006, ch. 474, § 6, eff from and after July 1, 2006.

§ 91-9-613. Investment costs.

In investing and managing trust assets, a trustee may only incur costs that are appropriate and reasonable in relation to the assets, the purposes of the trust, and the skills of the trustee.

HISTORY: Laws, 2006, ch. 474, § 7, eff from and after July 1, 2006.

§ 91-9-615. Reviewing compliance.

Compliance with the prudent investor rule is determined in light of the facts and circumstances existing at the time of a trustee’s decision or action and not by hindsight.

HISTORY: Laws, 2006, ch. 474, § 8, eff from and after July 1, 2006.

§ 91-9-617. Delegation of investment and management.

A trustee may delegate investment and management functions that a prudent trustee of comparable skills could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill, and caution in:

  1. Selecting an agent;
  2. Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; and
  3. Periodically reviewing the agent’s actions in order to monitor the agent’s performance and compliance with the terms of the delegation.

The investment agent shall comply with the scope and terms of the delegation and shall exercise the delegated function with reasonable care, skill and caution and shall be liable to the trust for failure to do so. An investment agent who represents that he has special investment skills shall exercise those skills.

A trustee who complies with the requirements of subsection (a) is not liable to the beneficiaries or to the trust for the decisions or actions of the agent to whom the function was delegated.

By accepting the delegation of a trust function from the trustee of a trust that is subject to the law of this state, an agent submits to the jurisdiction of the courts of this state.

A cofiduciary may delegate investment and management functions to another cofiduciary if the delegating cofiduciary reasonably believes that the other cofiduciary has greater investment skills than the delegating cofiduciary with respect to those functions. The delegating cofiduciary shall not be responsible for the investment decisions or actions of the other cofiduciary to which the investment functions are delegated if the delegating cofiduciary exercises reasonable care, skill and caution in establishing the scope and specific terms of the delegation and in reviewing periodically the other cofiduciary’s actions in order to monitor the cofiduciary’s performance and compliance with the scope and specific terms of the delegation.

Investment in a mutual fund is not a delegation of investment function, and neither the mutual fund nor its advisor is an investment agent.

HISTORY: Laws, 2006, ch. 474, § 9, eff from and after July 1, 2006.

§ 91-9-619. Language invoking standard of article.

The following terms or comparable language in the provisions of a trust, unless otherwise limited or modified, authorizes any investment or strategy permitted under this article: “Investments permissible by law for investment of trust funds,” “legal investments,” “authorized investments,” “using the judgment and care under the circumstances then prevailing that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital,” “prudent man rule,” “prudent trustee rule,” “prudent person rule,” and “prudent investor rule.”

HISTORY: Laws, 2006, ch. 474, § 10, eff from and after July 1, 2006.

§ 91-9-621. Application to existing trusts.

This article applies to trusts existing on and created after its effective date. As applied to trusts existing on its effective date, this article governs only decisions or actions occurring after that date.

HISTORY: Laws, 2006, ch. 474, § 11, eff from and after July 1, 2006.

§ 91-9-623. Uniformity of application and construction.

This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among the states enacting it.

HISTORY: Laws, 2006, ch. 474, § 12, eff from and after July 1, 2006.

§ 91-9-625. Short title.

Sections 91-9-601 through 91-9-627 may be cited as the “Mississippi Uniform Prudent Investor Act.”

HISTORY: Laws, 2006, ch. 474, § 13, eff from and after July 1, 2006.

§ 91-9-627. Severability.

If any provision of this article or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this article which can be given effect without the invalid provision or application, and to this end the provisions of this article are severable.

HISTORY: Laws, 2006, ch. 474, § 14, eff from and after July 1, 2006.

Article 15. Mississippi Qualified Disposition in Trust Act.

§ 91-9-701. Short title.

This article shall be known and may be cited as the Mississippi Qualified Disposition in Trust Act.

HISTORY: Laws, 2014, ch. 513, § 1, eff from and after July 1, 2014.

§ 91-9-703. Definitions.

As used in this article, unless the context otherwise requires:

“Claim” means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.

“Creditor” means, with respect to a transferor, a person who has a claim.

“Debt” means liability on a claim.

“Disposition” means a transfer, conveyance or assignment of property, including a change in the legal ownership of property occurring upon the substitution of one (1) trustee for another or the addition of one or more new trustees. “Disposition” also includes the exercise of a power so as to cause a transfer of property to a trustee or trustees, but shall not include the release or relinquishment of an interest in property that, until the release or relinquishment, was the subject of a qualified disposition.

“Investment advisor” means a person given authority by the terms of a qualified disposition trust to direct, consent to or disapprove a trustee’s actual or proposed investment decision.

“Investment decision” means the retention, purchase, sale, exchange, tender, or other transaction affecting the ownership of or rights in investments.

“Person” means an individual, a corporation, an organization, or other legal entity.

“Property” includes real property, personal property, and interests in real or personal property.

“Qualified affidavit” means a sworn affidavit signed by the transferor before making a qualified disposition. In the event of a disposition by a transferor who is a trustee, the affidavit shall be signed by the transferor who made the original disposition to the trustee, or a predecessor trustee, in a form that meets the requirements of subsection (n)(2) and (3) of this section and shall state facts as of the time of the original disposition.

“Qualified disposition” means a disposition by or from a transferor to a qualified trustee or qualified trustees, with or without consideration, by means of a qualified disposition trust, after the transferor executes a qualified affidavit.

“Qualified trustee” means a person who:

  1. In the case of a natural person, is a resident of this state, or, in all other cases, is authorized by the law of this state to act as a trustee and whose activities are subject to supervision by the Mississippi Department of Banking and Consumer Finance, the Federal Deposit Insurance Corporation, the Comptroller of the Currency, or the Office of Thrift Supervision or any successor to them;
  2. Maintains or arranges for custody in this state of some or all of the property that is the subject of the qualified disposition, maintains records for the trust on an exclusive or nonexclusive basis, prepares or arranges for the preparation of required income tax returns for the trust, or otherwise materially participates in the administration of the trust; and
  3. Is not the transferor.

“Spouse” or “former spouse” means only persons to whom the transferor was legally married at, or before, the time the qualified disposition is made.

“Transferor” means a person who, directly or indirectly, makes a disposition or causes a disposition to be made in such person’s capacity:

As an owner of property;

As a holder of a power of appointment that authorizes the holder to appoint in favor of the holder, the holder’s creditors, the holder’s estate or the creditors of the holder’s estate; or

As a trustee.

“Qualified disposition trust” means a trust instrument appointing a qualified trustee or qualified trustees for the property that is the subject of a disposition, which instrument:

Expressly incorporates the law of this state to govern the validity, construction and administration of the trust;

Is irrevocable; and

Provides that the interest of the transferor or other beneficiary in the trust property or the income from the trust property may not be transferred, assigned, pledged or mortgaged, whether voluntarily or involuntarily, before the qualified trustee or qualified trustees actually distribute the property or income from the property to the beneficiary.

HISTORY: Laws, 2014, ch. 513, § 2; Laws, 2016, ch. 396, § 16, eff from and after July 1, 2014.

Amendment Notes —

The 2016 amendment, effective July 1, 2014, rewrote (e), which read: “‘Investment advisor’ means a person given authority by the terms of a qualified disposition trust to direct, consent to or disapprove a transferor’s actual or proposed investment decisions, distribution decisions or other decisions of the transferor.”

§ 91-9-705. Qualified affidavit; contents.

A qualified affidavit shall state that:

The transferor has full right, title, and authority to transfer the assets to the trust;

The transfer of the assets to the trust will not render the transferor insolvent;

The transferor does not intend to defraud a creditor by transferring the assets to the trust;

The transferor does not have any pending or threatened court actions against the transferor, except for those court actions identified by the transferor on an attachment to the affidavit;

The transferor is not involved in any administrative proceedings, except for those administrative proceedings identified on an attachment to the affidavit;

The transferor does not contemplate filing for relief under the provisions of the federal bankruptcy code;

The assets being transferred to the trust were not derived from unlawful activities; and

The transferor is a named insured of a general liability insurance policy and, if applicable, a professional liability insurance policy, with policy limits of at least One Million Dollars ($1,000,000.00) for each respective policy.

HISTORY: Laws, 2014, ch. 513, § 3, eff from and after July 1, 2014.

§ 91-9-707. Claims or actions against property subject to qualified disposition; claims or actions against trustees.

Notwithstanding any law to the contrary, no action of any kind, including, but not limited to, an action to enforce a judgment entered by a court or other body having adjudicative authority, shall be brought at law or in equity for an attachment or other provisional remedy against property that is the subject of a qualified disposition or for the avoidance of a qualified disposition, unless the action is brought pursuant to the provisions of the Uniform Fraudulent Transfer Act, Section 15-3-101 et seq., and unless the qualified disposition was also made with actual intent to defraud the creditor.

(1) Notwithstanding Section 15-3-115, a creditor’s claim under subsection (a) shall be extinguished:

If the person is a creditor when the qualified disposition to a qualified disposition trust is made, unless the action is commenced within the later of two (2) years after the qualified disposition is made or six (6) months after the person discovers or reasonably should have discovered the qualified disposition; or

If the person becomes a creditor after the qualified disposition to a qualified disposition trust is made, unless the action is commenced within two (2) years after the qualified disposition is made;

If subsection (b) (1) applies:

A person shall be deemed to have discovered the existence of a qualified disposition to a qualified disposition trust at the time any public record is made of any transfer of property relative to the qualified disposition, including, but not limited to, the conveyance of real property that is recorded in the office of the chancery clerk of the county in which the property is located or the filing of a financing statement under Chapter 9, Title 75, Mississippi Code of 1972, or the equivalent recording or filing of either with the appropriate person or official under the laws of a jurisdiction other than this state; and

No creditor shall bring an action with respect to property that is the subject of a qualified disposition unless that creditor proves by clear and convincing evidence that the settlor’s transfer of the property was made with the intent to defraud that specific creditor.

For purposes of this article, a qualified disposition that is made by means of a disposition by a transferor who is a trustee shall be deemed to have been made as of the time, whether before, on, or after July 1, 2014, the property that is the subject of the qualified disposition was originally transferred to the transferor acting in the capacity of trustee, or any predecessor trustee, in a form that meets the requirements of Section 91-9-703(n)(2) and (3).

Notwithstanding any law to the contrary, a creditor, including a creditor whose claim arose before or after a qualified disposition, or any other person shall have only the rights with respect to a qualified disposition as are provided in this section and Section 91-9-711, and neither a creditor nor any other person shall have any claim or cause of action against the trustee, an advisor of a trust that is the subject of a qualified disposition, or against any person involved in the counseling, drafting, preparation, execution, or funding of a trust that is the subject of a qualified disposition. For purposes of this section, counseling, drafting, preparation, execution or funding of a trust that is the subject of a qualified disposition includes the counseling, drafting, preparation, execution and funding of a limited partnership or a limited liability company if interests in the limited partnership or limited liability company are subsequently transferred to the trust that is the subject of a qualified disposition.

Notwithstanding any law to the contrary, no action of any kind, including, but not limited to, an action to enforce a judgment entered by a court or other body having adjudicative authority, shall be brought at law or in equity against a trustee or an advisor of a trust that is the subject of a qualified disposition, or against any person involved in the counseling, drafting, preparation, execution or funding of a trust that is the subject of a qualified disposition, if, as of the date the action is brought, an action by a creditor with respect to the qualified disposition would be barred under this section.

In circumstances where more than one (1) qualified disposition is made by means of the same qualified disposition trust, then:

  1. The making of a subsequent qualified disposition shall be disregarded in determining whether a creditor’s claim with respect to a prior qualified disposition is extinguished as provided in subsection (b); and
  2. Any distribution to a beneficiary shall be deemed to have been made from the latest qualified disposition.
  3. No judgment or other holding of any judicial body of any foreign country, including, but not limited to, any court, administrative body or other entity or organization purportedly having the power to make judicial or administrative decisions of any foreign country, shall be recognized or enforced or give rise to any equitable forms of relief, including, but not limited to, estoppel, to the extent the judgment or other holding concerns a qualified disposition trust containing a state jurisdiction provision designating that the law of this state controls the qualified disposition trust or to the extent the judgment or other holding concerns property held by the qualified disposition trust.
  4. Subsection (a) applies in addition to all other provisions of this article.

If, in any action brought against a trustee of a trust that is the result of a qualified disposition, a court takes any action whereby the court declines to apply the law of this state in determining the effect of a spendthrift provision of the trust, the trustee of the trust shall immediately upon the court’s action and without the further order of any court, cease in all respects to be trustee of the trust and a successor trustee shall succeed as trustee in accordance with the terms of the trust or, if the trust does not provide for a successor trustee and the trust would otherwise be without a trustee, a court of this state, upon the application of any beneficiary of the trust, shall appoint a successor trustee upon the terms and conditions it determines to be consistent with the purposes of the trust and this article. Upon the trustee’s ceasing to be trustee, the trustee shall have no power or authority other than to convey the trust property to the successor trustee named in the trust in accordance with this section.

A trust that is the subject of a qualified disposition shall be subject to this section whether or not the transferor retains any or all of the powers and rights described in Section 91-9-709 or serves as an investment advisor pursuant to Section 91-9-717.

(1) Notwithstanding any provision of subsection (a) or (b) to the contrary, the limitations on actions by creditors in law or equity shall not apply and the creditors’ claims shall not be extinguished if the transferor is indebted on account of an agreement, judgment, or order of a court for the payment of one or more of the following:

To any person to whom the transferor is indebted on account of an agreement or order of court for the payment of support or alimony in favor of the transferor’s spouse, former spouse or children, or for a division or distribution of property in favor of the transferor’s spouse or former spouse, but only to the extent of such debt;

To any person who suffers death, personal injury, or property damage on or before the date of a qualified disposition by a transferor, if the death, personal injury, or property damage is at any time determined to have been caused, in whole or in part, by the tortious act or omission of either the transferor or by another person for whom the transferor is or was vicariously liable, but only to the extent of the claim against the transferor or other person for whom the transferor is or was vicariously liable;

To the State of Mississippi or any political subdivision thereof, including, but not limited to, court-ordered restitution in a criminal matter; or

To any creditor in an amount not to exceed One Million Five Hundred Thousand Dollars ($1,500,000.00) if the transferor failed to maintain a One Million Dollar ($1,000,000.00) umbrella policy as required by subsection (l).

(A) A claim provided under this subsection (i) shall be asserted against a trustee only:

Upon a final nonappealable determination of a Mississippi court or a fully domesticated, final nonappealable order of a court of another state that the debt is past due; and

After the court has determined that the claimant has made reasonable attempts to collect the debt from any other sources of the transferor or that any attempt would be futile.

Nothing in this subsection (i)(2) shall be construed to prohibit the court from making the findings required in subsection (i)(2)(A) in the same proceeding and order.

Subsection (i) shall not apply to any claim for forced heirship, legitime or elective share.

In addition to provisions of subsection (j), to the extent subsection (j) applies to the laws of any foreign country:

Neither a qualified disposition trust nor any disposition made subject to the terms of the qualified disposition trust is subject to the laws of any foreign country, nor is any such qualified disposition trust or the disposition void, voidable, liable to be set aside, or defective in any manner for any reason including, but not limited to:

The law of any foreign country prohibits or does not recognize the concept of a qualified disposition trust; or

The qualified disposition trust or disposition avoids or defeats any right, claim, or interest conferred by the law of a foreign country upon any person by reason of a personal relationship to the settlor or by way of heirship rights or contravenes any rule or law of a foreign country or any foreign country’s judicial or administrative order or action intended to recognize, protect, enforce, or give effect to the right, claim, or interest.

Relative to any foreign country or any interest in property arising or originating under the laws of any foreign country:

No form of forced heirship, legitime, forced share or any similar heirship rights or form of transmission or transfer of property from a decedent or from a living person, or any restrictions on transmission or transfer of property from a decedent or a living person is recognized by this state; or

No heirship rights described in subsection (k) (2) (A) conferred under the law of a foreign country shall constitute an obligation or liability, the transfer, conveyance or devise of which, would violate Chapter 3, Title 15, Mississippi Code of 1972; and

Subsection (k) (1) shall apply to all realty or other forms of immovable property physically in this state, as well as to all personal or movable property wherever situated if owned by a qualified disposition trust containing a state jurisdiction provision designating that the law of this state controls the qualified disposition trust;

The transferor shall obtain a general liability policy and, if applicable, a professional liability policy, and each policy must have a policy limit of at least One Million Dollars ($1,000,000.00). Policy premiums must be paid by the transferor.

HISTORY: Laws, 2014, ch. 513, § 4; Laws, 2016, ch. 396, § 17, eff from and after July 1, 2014.

Amendment Notes —

The 2016 amendment, effective July 1, 2014, deleted “in the case of a creditor whose claim arose after a qualified disposition” preceding “unless the qualified disposition” near the end of (a); and made minor stylistic changes in the reference to Chapter 9 of Title 75 in (b)(2)(A) and the reference to Chapter 3 of Title 15 in (k)(2)(B).

§ 91-9-709. Transferor’s powers and rights.

A transferor shall have only the powers and rights conferred by the qualified disposition trust. The powers and rights conferred by the qualified disposition trust upon the transferor are personal powers and rights that may not be exercised by a creditor or any other person, except as expressly permitted by the trust. Except as permitted by Sections 91-9-717 and 91-9-721, the transferor shall have no rights or authority with respect to the corpus of the trust or the income from the trust, and any agreement or understanding purporting to grant or permit the retention of any greater rights or authority shall be void.

HISTORY: Laws, 2014, ch. 513, § 5, eff from and after July 1, 2014.

§ 91-9-711. Avoidance of qualified disposition.

A qualified disposition shall be avoided only to the extent necessary to satisfy the transferor’s debt to the creditor at whose instance the disposition had been avoided, together with costs, including attorneys’ fees, that the court may allow.

In the event any qualified disposition shall be avoided as provided in subsection (a), then:

  1. If the court is satisfied that a qualified trustee has not acted in bad faith in accepting or administering the property that is the subject of the qualified disposition:
  2. If the court is satisfied that a beneficiary of a trust has not acted in bad faith, the avoidance of the qualified disposition shall be subject to the right of the beneficiary to retain any distribution made upon the exercise of a trust power or discretion vested in the qualified trustee or qualified trustees, which power or discretion was properly exercised prior to the creditor’s commencement of an action to avoid the qualified disposition. For purposes of this subsection (b)(2), it shall be presumed that the beneficiary, including a beneficiary who is also a transferor of the trust, did not act in bad faith merely by creating the trust or by accepting a distribution made in accordance with the terms of the trust.

The qualified trustee shall have a first and paramount lien against the property that is the subject of the qualified disposition in an amount equal to the entire cost, including attorneys’ fees, properly incurred by the qualified trustee in the defense of the action or proceedings to avoid the qualified disposition;

The qualified disposition shall be avoided subject to the proper fees, costs, preexisting rights, claims and interests of the qualified trustee and of any predecessor qualified trustee that has not acted in bad faith; and

For purposes of this subsection (b)(1), it shall be presumed that the qualified trustee did not act in bad faith merely by accepting the property; and

A disposition by a trustee that is not a qualified trustee to a trustee that is a qualified trustee shall not be treated as other than a qualified disposition solely because the trust instrument fails to meet the requirements of Section 91-9-703(n)(1).

In the case of a disposition to more than one (1) trustee, a disposition that is otherwise a qualified disposition shall not be treated as other than a qualified disposition solely because not all of the recipient trustees are qualified trustees.

HISTORY: Laws, 2014, ch. 513, § 6, eff from and after July 1, 2014.

§ 91-9-713. Spendthrift restriction.

A spendthrift provision as described in Section 91-9-703(n)(3) shall be deemed to be a restriction on the transfer of the transferor’s beneficial interest in the trust that is enforceable under applicable nonbankruptcy law within the meaning of Section 541(c)(2) of the Bankruptcy Code, codified in 11 USCS, Section 541(c)(2), or any successor provision.

HISTORY: Laws, 2014, ch. 513, § 7, eff from and after July 1, 2014.

§ 91-9-715. Qualified trustees; advisors.

For purposes of this article, neither the transferor nor any other natural person who is a nonresident of this state nor an entity that is not authorized by the law of this state to act as a trustee or whose activities are not subject to supervision as provided in Section 91-9-703(k)(1) shall be considered a qualified trustee; however, nothing in this article shall preclude a transferor from appointing one (1) or more advisors, including, but not limited to:

  1. Advisors who have authority under the terms of the trust instrument to remove and appoint qualified trustees or trust advisors;
  2. Advisors who have authority under the terms of the trust instrument to direct, consent to or disapprove distributions from the trust; and
  3. Investment advisors, whether or not the advisors would meet the requirements imposed by Section 91-9-703(k).

For purposes of subsection (a), “advisor” includes a trust “protector” or any other person who, in addition to a qualified trustee, holds one or more trust powers.

HISTORY: Laws, 2014, ch. 513, § 8, eff from and after July 1, 2014.

§ 91-9-717. Investment advisors; service.

A person may serve as an investment advisor notwithstanding that the person is the transferor of the qualified disposition, but the person may not otherwise serve as advisor to a trust that is a qualified disposition trust except with respect to the retention of the veto right permitted by Section 91-9-721(a).

HISTORY: Laws, 2014, ch. 513, § 9, eff from and after July 1, 2014.

§ 91-9-719. Failure to meet requirements; qualified trustees.

If a qualified trustee of a qualified disposition trust ceases to meet the requirements of Section 91-9-703(k)(1), and there remains no trustee that meets the requirements, the qualified trustee shall be deemed to have resigned as of the time of that cessation, and thereupon the successor qualified trustee provided for in the qualified disposition trust shall become a qualified trustee of the qualified disposition trust, or in the absence of any successor qualified trustee provided for in the qualified disposition trust, then a court of this state shall, upon application of any interested party, appoint a successor qualified trustee.

HISTORY: Laws, 2014, ch. 513, § 10, eff from and after July 1, 2014.

§ 91-9-721. Revocation.

A qualified disposition trust shall not be deemed revocable on account of its inclusion of one or more of the following:

A transferor’s power to veto a distribution from the trust;

A power of appointment, other than a power to appoint to the transferor, the transferor’s creditors, the transferor’s estate or the creditors of the transferor’s estate, exercisable by will or other written instrument of the transferor effective only upon the transferor’s death;

The transferor’s potential or actual receipt of income, including rights to the income retained in the trust;

The transferor’s potential or actual receipt of income or principal from a charitable remainder unitrust or charitable remainder annuity trust as those terms are defined in Section 664 of the Internal Revenue Code of 1986, codified in 26 USCS Section 664, and any successor provision;

The transferor’s receipt each year of an amount specified in the trust instrument, the amount not to exceed five percent (5%) of the initial value of the trust or its value determined, from time to time, pursuant to the trust;

The transferor’s potential or actual receipt or use of principal if the potential or actual receipt or use of principal would be the result of a qualified trustee’s or qualified trustees’ acting:

  1. In the qualified trustee’s or qualified trustees’ discretion. For purposes of this section, a qualified trustee is presumed to have discretion with respect to the distribution of principal unless the discretion is expressly denied to the trustee by the terms of the trust;
  2. Pursuant to a standard that governs the distribution of principal and does not confer upon the transferor a power to consume, invade, or appropriate property for the benefit of the transferor, unless the power of the transferor is limited by an ascertainable standard relating to the health, education, support, or maintenance within the meaning of Section 2041(b)(1)(A) or Section 2514(c)(1) of the Internal Revenue Code of 1986, codified in 26 USCS Section 2041(b)(1)(A) or 26 USCS Section 2514(c)(1), as in effect on July 1, 2014, or as later amended; or
  3. At the direction of an advisor described in Section 91-9-715 who is acting:

In the advisor’s discretion; or

Pursuant to a standard that governs the distribution of principal and does not confer upon the transferor a power to consume, invade, or appropriate property for the benefit of the transferor, unless the power of the transferor is limited by an ascertainable standard relating to the health, education, support, or maintenance within the meaning of Section 2041(b)(1)(A) or Section 2514(c)(1) of the Internal Revenue Code of 1986, 26 USCS Section 2041(b)(1)(A) or 26 USCS Section 2514(c)(1), as in effect on July 1, 2010, or as later amended;

The transferor’s right to remove a trustee or advisor and to appoint a new trustee or advisor; however, the right shall not include the appointment of a person who is a related or subordinate party with respect to the transferor within the meaning of Section 672(c) of the Internal Revenue Code of 1986, 26 USCS Section 672(c), and any successor provision;

The transferor’s potential or actual use of real property held under a qualified personal residence trust within the meaning of the term as described in Section 2702(c) of the Internal Revenue Code of 1986, codified in 26 USCS Section 2702(c), and any successor provision;

The transferor’s potential or actual receipt of income or principal to pay, in whole or in part, income taxes due on income of the trust if the potential or actual receipt of income or principal is pursuant to a provision in the qualified disposition trust that expressly permits a distribution to the transferor as reimbursement for the taxes and if the distribution would be the result of a qualified trustee’s or qualified trustees’ acting:

In the qualified trustee’s or qualified trustees’ discretion or pursuant to a mandatory direction in the qualified disposition trust; or

At the direction of an advisor described in Section 91-9-717, who is acting in the advisor’s discretion;

The ability, whether pursuant to direction in the qualified disposition trust or discretion of a qualified trustee to pay, after the death of the transferor, all or any part of the debts of the transferor outstanding at the time of the transferor’s death, the expenses of administering the transferor’s estate, or any estate or inheritance tax imposed on or with respect to the transferor’s estate; and

A qualified trustee’s or qualified trustees’ authority to make distributions to pay taxes in lieu of or in addition to the power to make a distribution for taxes pursuant to subsection (c), (f), (i), or (j) by direct payment to the taxing authorities.

HISTORY: Laws, 2014, ch. 513, § 11, eff from and after July 1, 2014.

§ 91-9-723. Application of article.

This article shall apply to qualified dispositions and dispositions by transferors who are trustees made on or after July 1, 2014.

HISTORY: Laws, 2014, ch. 513, § 12, eff from and after July 1, 2014.

Chapter 11. Fiduciary Security Transfers

§ 91-11-1. Citation of chapter.

This chapter may be cited as the Uniform Act for Simplification of Fiduciary Security Transfers.

HISTORY: Codes, 1942, § 5359-41; Laws, 1960, ch. 266, § 11, eff from and after passage (approved May 11, 1960).

Editor’s Notes —

Attention is called to the fact that the Mississippi Uniform Commercial Code does not repeal Code 1942, §§ 5359-31 through 5359-43, inclusive [now Code 1972, §§91-11-1 through 91-11-21, inclusive], it being expressly provided that if there is any inconsistency between these sections and the article of the Uniform Commercial Code relating to investment securities, the provisions of these sections control. See §75-10-104(2) of the Uniform Commercial Code.

Cross References —

Regulation of transfer of investment securities under the Uniform Commercial Code, see §75-8-101 et seq.

Applicability of Mississippi Rules of Civil Procedure to proceedings which are subject to the provisions of Title 91, see Miss. R. Civ. P. 81.

Comparable Laws from other States —

Alabama Code, §§8-6-70 through8-6-80.

Georgia Code Annotated, §§53-12-320 through53-12-330.

Louisiana Revised Statutes Annotated, §§ 9:3831 through 9:3840.

RESEARCH REFERENCES

ALR.

Rights, duties, and liability of corporation in connection with transfer of stock of infant or incompetent. 3 A.L.R.2d 881.

Rights, duties, and liability of corporation in connection with transfer of stock of decedent. 7 A.L.R.2d 1240.

Am. Jur.

Am. Jur. 2d Desk Book, Doc. No. 129, Jurisdictions adopting Uniform Law for Simplification of Fiduciary Security Transfers.

Practice References.

Bickel and Flannery, Living Trusts: Forms and Practice (Matthew Bender).

Burke, Friel, and Gagliardi, Modern Estate Planning, Second Edition (Matthew Bender).

Christensen, International Estate Planning, Second Edition (Matthew Bender).

Mobley, Robinson and Hedrick, Pritchard on the Law of Wills and Administration of Estates, Seventh Edition (Michie).

Rapkin, Planning for Large Estates (Matthew Bender).

Schoenblum, Estate Planning Forms and Clauses with CD Rom (Matthew Bender).

Wyatt, Trust Administration and Taxation (Matthew Bender).

LexisNexis® CD – Estate Planning Package (CD-ROM) (LexisNexis).

Murphy’s Will Clauses: Annotations and Forms with Tax Effects (Matthew Bender).

§ 91-11-3. Definitions.

In this chapter, unless the context otherwise requires:

“Assignment” includes any written stock power, bond power, bill of sale, deed, declaration of trust, or other instrument of transfer.

“Claim of beneficial interest” includes a claim of any interest by a decedent’s legatee, distributee, heir, or creditor, a beneficiary under a trust, a ward, a beneficial owner of a security registered in the name of a nominee, a minor owner of a security registered in the name of a custodian, or a claim of any similar interest, whether the claim is asserted by the claimant or by a fiduciary or by any other authorized person on his behalf, and includes a claim that the transfer would be in breach of fiduciary duties.

“Corporation” means a private or public corporation, association, or trust issuing a security.

“Fiduciary” means an executor, administrator, trustee, guardian, committee, conservator, curator, tutor, custodian, or nominee.

“Person” includes an individual, a corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal or commercial entity.

“Security” includes any share of stock, bond, debenture, note, or other security issued by a corporation which is registered as to ownership on the books of the corporation.

“Transfer” means a change on the books of a corporation in the registered ownership of a security.

“Transfer agent” means a person employed or authorized by a corporation to transfer securities issued by the corporation.

HISTORY: Codes, 1942, § 5359-31; Laws, 1960, ch. 266, § 1, eff from and after passage (approved May 11, 1960).

§ 91-11-5. Registration in name of fiduciary.

A corporation or transfer agent registering a security in the name of a person who is a fiduciary or who is described as a fiduciary is not bound to inquire into the existence, extent, or correct description of the fiduciary relationship. Thereafter the corporation and its transfer agent may assume without inquiry that the newly registered owner continues to be the fiduciary until the corporation or transfer agent receives written notice that the fiduciary is no longer acting as such with respect to the particular security.

HISTORY: Codes, 1942, § 5359-32; Laws, 1960, ch. 266, § 2, eff from and after passage (approved May 11, 1960).

§ 91-11-7. Assignment by fiduciary.

Except as otherwise provided in this chapter, a corporation or transfer agent making a transfer of a security pursuant to an assignment by a fiduciary:

may assume without inquiry that the assignment, even though to the fiduciary himself or to his nominee, is within his authority and capacity and is not in breach of his fiduciary duties;

may assume without inquiry that the fiduciary has complied with any controlling instrument and with the law of the jurisdiction governing the fiduciary relationship, including any law requiring the fiduciary to obtain court approval of the transfer; and

is not charged with notice of and is not bound to obtain or examine any court record or any recorded or unrecorded document relating to the fiduciary relationship or the assignment, even though the record or document is in its possession.

HISTORY: Codes, 1942, § 5359-33; Laws, 1960, ch. 266, § 3, eff from and after passage (approved May 11, 1960).

RESEARCH REFERENCES

Am. Jur.

22 Am. Jur. Pl & Pr Forms (Rev), Sales and Use Taxes, Form 23 (Complaint, petition, or declaration – For damages resulting from breach of fiduciary duties – Against securities exchange broker – By client).

§ 91-11-9. Evidence of appointment or incumbency.

A corporation or transfer agent making a transfer pursuant to an assignment by a fiduciary who is not the registered owner shall obtain the following evidence of appointment or incumbency:

In the case of a fiduciary appointed or qualified by a court, a certificate issued by or under the direction or supervision of that court or an officer thereof and dated within sixty (60) days before the transfer; or

In any other case, a copy of a document showing the appointment or a certificate issued by or on behalf of a person reasonably believed by the corporation or transfer agent to be responsible or, in the absence of such document or certificate, other evidence reasonably deemed by the corporation or transfer agent to be appropriate. Corporations and transfer agents may adopt standards with respect to evidence of appointment or incumbency under this subsection (b) provided such standards are not manifestly unreasonable. Neither the corporation nor transfer agent is charged with notice of the contents of any document obtained pursuant to this subsection (b) except to the extent that the contents relate directly to the appointment or incumbency.

HISTORY: Codes, 1942, § 5359-34; Laws, 1960, ch. 266, § 4, eff from and after passage (approved May 11, 1960).

§ 91-11-11. Adverse claims.

  1. A person asserting a claim of beneficial interest adverse to the transfer of a security pursuant to an assignment by a fiduciary may give the corporation or transfer agent written notice of the claim. The corporation or transfer agent is not put on notice unless the written notice identifies the claimant, the registered owner, and the issue of which the security is a part, provides an address for communications directed to the claimant, and is received before the transfer. Nothing in this chapter relieves the corporation or transfer agent of any liability for making or refusing to make the transfer after it is so put on notice, unless it proceeds in the manner authorized in subsection (2).
  2. As soon as practicable after the presentation of a security for transfer pursuant to an assignment by a fiduciary, a corporation or transfer agent which has received notice of a claim of beneficial interest adverse to the transfer may send notice of the presentation by registered or certified mail to the claimant at the address given by him. If the corporation or transfer agent so mails such a notice, it shall withhold the transfer for thirty days after the mailing and shall then make the transfer unless restrained by a court order.

HISTORY: Codes, 1942, § 5359-35; Laws, 1960, ch. 266, § 5, eff from and after passage (approved May 11, 1960).

§ 91-11-13. Non-liability of corporation and transfer agent.

A corporation or transfer agent incurs no liability to any person by making a transfer or otherwise acting in a manner authorized by this chapter.

HISTORY: Codes, 1942, § 5359-36; Laws, 1960, ch. 266, § 6, eff from and after passage (approved May 11, 1960).

§ 91-11-15. Non-liability of third persons.

  1. No person who participates in the acquisition, disposition, assignment, or transfer of a security by or to a fiduciary, including a person who guarantees the signature of the fiduciary, is liable for participation in any breach of fiduciary duty by reason of failure to inquire whether the transaction involves such a breach unless it is shown that he acted with actual knowledge that the proceeds of the transaction were being or were to be used wrongfully for the individual benefit of the fiduciary, or that the transaction was otherwise in breach of duty.
  2. If a corporation or transfer agent makes a transfer pursuant to an assignment by a fiduciary, a person who guaranteed the signature of the fiduciary is not liable on the guarantee to any person to whom the corporation or transfer agent by reason of this chapter incurs no liability.
  3. This section does not impose any liability upon the corporation or its transfer agent.

HISTORY: Codes, 1942, § 5359-37; Laws, 1960, ch. 266, § 7, eff from and after passage (approved May 11, 1960).

§ 91-11-17. Territorial application.

  1. The rights and duties of a corporation and its transfer agents in registering a security in the name of a fiduciary, or in making a transfer of a security pursuant to an assignment by a fiduciary, are governed by the law of the jurisdiction under whose laws the corporation is organized.
  2. This chapter applies to the rights and duties of a person other than the corporation and its transfer agents with regard to acts and omissions in this state in connection with the acquisition, disposition, assignment, or transfer of a security by or to a fiduciary, and of a person who guarantees in this state the signature of a fiduciary in connection with such a transaction.

HISTORY: Codes, 1942, § 5359-38; Laws, 1960, ch. 266, § 8, eff from and after passage (approved May 11, 1960).

§ 91-11-19. Tax obligations.

This chapter does not affect any obligation of a corporation or transfer agent with respect to estate, inheritance, succession, or other taxes imposed by the laws of this state.

HISTORY: Codes, 1942, § 5359-39; Laws, 1960, ch. 266, § 9, eff from and after passage (approved May 11, 1960).

§ 91-11-21. Uniformity of interpretation.

This chapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.

HISTORY: Codes, 1942, § 5359-40; Laws, 1960, ch. 266, § 10, eff from and after passage (approved May 11, 1960).

Chapter 13. Fiduciary Investments

§ 91-13-1. Investment by fiduciaries of funds held in trust.

All trustees, guardians, and other fiduciaries in this state, unless prohibited by the will, deed, or trust instrument of the testator or other person establishing the trust, agency, or fiduciary relationship, or unless by any such instrument another mode of investment is prescribed, may, in addition to methods of investment now authorized by law, invest all funds held in trust or for investment as provided in this chapter.

HISTORY: Codes, 1942, § 421.5; Laws, 1956, ch. 212, §§ 1-7.

Cross References —

Bonds of bank as legal investments; authorized investments by bank, see §31-25-51.

Student loan revenue bonds as legal investments and securities, see §37-145-69.

Investment in bonds; bonds as security for deposits, see §57-10-257.

Purchase of farm credit securities by executors, trustees, administrators and guardians, etc., see §75-69-5.

Powers of trustees of investment trusts, see §79-15-9.

Savings accounts as legal investments and as security for bonds, see Savings Associations Law, §81-12-1 et seq.

Fiduciaries accounts in savings associations, see §81-12-139.

Savings accounts as legal investments and as security for bonds, see Savings Bank Law, §81-14-1 et seq.

Fiduciary not to use funds; investment by fiduciary bank in time certificates of deposit, see §91-7-253.

Other sections derived from same 1942 code section, see §§91-13-3,91-13-5,91-13-7,91-13-9.

Federally insured accounts and certificates of deposit as legal investments, see §91-13-6.

Direct obligations of United States of America to include interests in certain open-end or close-end management type investment company or investment trust, see §91-13-8.

Tennessee Valley Authority bonds and obligations as legal investments, see §91-13-11.

Applicability of Mississippi Rules of Civil Procedure to proceedings which are subject to the provisions of Title 91, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

This section does not mandate that an executor invest estate funds; instead, the executor “may” invest estate funds. McNeil v. Hester, 753 So. 2d 1057, 2000 Miss. LEXIS 23 (Miss. 2000).

RESEARCH REFERENCES

Practice References.

Bickel, Living Trusts: Forms and Practice (Matthew Bender).

Burke, Friel, and Gagliardi, Modern Estate Planning, Second Edition (Matthew Bender).

Christensen, International Estate Planning, Second Edition (Matthew Bender).

Mobley, Robinson and Hedrick, Pritchard on the Law of Wills and Administration of Estates, Seventh Edition (Michie).

Rapkin, Planning for Large Estates (Matthew Bender).

Schoenblum, Estate Planning Forms and Clauses with CD Rom (Matthew Bender).

Wyatt, Trust Administration and Taxation (Matthew Bender).

LexisNexis® CD – Estate Planning Package (CD-ROM) (LexisNexis).

Murphy’s Will Clauses: Annotations and Forms with Tax Effects (Matthew Bender).

§ 91-13-3. Authority to prudently invest in all property.

In acquiring, investing, reinvesting, exchanging, retaining, selling, and managing property held in fiduciary capacity, the fiduciary shall exercise the judgment and care under the circumstances then prevailing which men of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.

Within the limitations of the foregoing standard, a fiduciary is authorized to acquire and retain every kind of property, real, personal, or mixed, and every kind of investment, specifically including, but not by way of limitation, shares or interests in common trust funds, securities of any open-end or closed-end management type investment company or investment trust registered under the Federal Investment Company Act of 1940, as from time to time amended and, in addition, bonds, preferred stocks, or common stocks listed on a national securities exchange registered with the securities and exchange commission, which men of prudence, discretion, and intelligence acquire or retain for their own account. Within the limitations of the foregoing standard, a fiduciary may retain property properly acquired, without limitation as to time and without regard to its suitability for original purchase.

HISTORY: Codes, 1942, § 421.5; Laws, 1956, ch. 212, §§ 1-7.

Cross References —

Bonds issued for the support of the Institute for Technology Development as legal investments, see §31-29-17.

Housing and slum clearance bonds as legal investment, see §43-33-39.

Bonds of home owners’ loan corporation as legal investments, see §43-33-201.

FHA insured mortgages as legal investments, see §43-33-303.

Bonds of flood and damage control districts as legal investments, see §51-35-337.

Bonds of Business Finance Corporation as legal investments, see §57-10-257.

Bonds issued under state ports and harbors law as legal investments, see §59-5-63.

Farm credit securities as legal investments, see §75-69-5.

Other sections derived from same 1942 code section, see §§91-13-1,91-13-5,91-13-7,91-13-9.

Federal Aspects—

The Federal Investment Company Act of 1940, referred to in this section, is codified at 15 USCS § 80a-1 et seq.

JUDICIAL DECISIONS

1. In general.

Even though an estate lost money, there was no breach of fiduciary duty on the part of an administratrix under Miss. Code Ann. §91-13-3 because, other than filing a petition to consolidate certain stocks, she relied on the estate’s professionals in making decisions. Moreover, she was not a guarantor of the estate’s assets. Longmire v. Harveston (In re Estate of McGee), 982 So. 2d 428, 2007 Miss. App. LEXIS 703 (Miss. Ct. App. 2007), cert. denied, 981 So. 2d 298, 2008 Miss. LEXIS 237 (Miss. 2008).

Although there is no per se duty to place estate funds in an interest-bearing account, the failure to so place estate funds can constitute an imprudent management of estate funds. McNeil v. Hester, 753 So. 2d 1057, 2000 Miss. LEXIS 23 (Miss. 2000).

RESEARCH REFERENCES

ALR.

Measure of trustee’s liability for breach of trust in selling investment property, or changing investments, in good faith. 58 A.L.R.2d 674.

Authorization by trust instrument of investment of trust funds in nonlegal investments. 78 A.L.R.2d 7.

Am. Jur.

1 Am. Jur. Proof of Facts 2d, Fiduciary’s Breach of Investment Duties, § 12 et seq. (proof of breach of investment duty).

§ 91-13-5. “Legal investment” construed.

Whenever the express terms or limitations set forth in any will, agreement, court order, or other instrument use the terms “legal investment” or “authorized investment” or words of similar import, such words shall be conclusively presumed to mean any investment authorized or permitted by Section 91-13-3.

HISTORY: Codes, 1942, § 421.5; Laws, 1956, ch. 212, §§ 1-7.

Cross References —

Bonds issued for the support of the Institute for Technology Development as legal investments, see §31-29-17.

Investments in county industrial development authority bonds, see §57-31-27.

Other sections derived from same 1942 code section, see §§91-13-1,91-13-3,91-13-7,91-13-9.

§ 91-13-6. Federally insured accounts and certificates of deposit as legal investments.

All trustees, guardians, administrators, executors and other fiduciaries may, without court order, if not prohibited by the instrument, judgment, decree or order establishing the fiduciary relationship, invest or deposit funds held in a fiduciary capacity in time certificates of deposit, savings accounts or other interest-bearing accounts of (a) any state or national bank (including itself, if such fiduciary be a bank) whose main office is located in the state and the deposits of which are insured by the Federal Deposit Insurance Corporation, or (b) any state or federal savings and loan association (including itself, if such fiduciary be a savings and loan association) whose main office is located in the state and the deposits of which are insured by the Federal Savings and Loan Insurance Corporation.

HISTORY: Laws, 1982, ch. 364, § 1, eff from and after July 1, 1982.

§ 91-13-7. General powers of courts not affected.

Nothing contained in this chapter shall be construed to limit the power of a court of competent jurisdiction to permit a fiduciary to take any action authorized, or to restrain a fiduciary from taking any action prohibited by a decree of such court, notwithstanding the permissions or restrictions contained in any written instrument under which such fiduciary is acting.

HISTORY: Codes, 1942, § 421.5; Laws, 1956, ch. 212, §§ 1-7.

Cross References —

Other sections derived from same 1942 code section, see §§91-13-1,91-13-3,91-13-5,91-13-9.

§ 91-13-8. Direct obligations of United States of America to include interests in certain open-end or closed-end management type investment company or investment trust.

All trustees, guardians, administrators, executors and other fiduciaries, whenever a governing instrument or order directs, requires, authorizes or permits investment in direct obligations of the United States of America, may invest in such obligations either directly or in the form of securities of, or other interests in, any open-end or closed-end management type investment company or investment trust registered under the provisions of 15 U.S.C. Section 80(a)-1 et seq., provided that the portfolio of such investment company or investment trust is limited to direct obligations of the United States of America and to repurchase agreements fully collateralized by direct obligations of the United States of America, and that such investment company or investment trust takes delivery of the collateral for any repurchase agreement, either directly or through an authorized custodian. This section shall not be construed to apply to the investment of any public funds; provided, however, that this section shall be construed to apply to the investment of public funds deposited with a bank trustee acting in a fiduciary capacity in connection with the sale and redemption of bonds, notes and other certificates of indebtedness, notwithstanding Section 31-19-5, Mississippi Code of 1972.

HISTORY: Laws, 1989, ch. 572, § 1, eff from and after July 1, 1989.

Federal Aspects—

Regulation of investment companies, see 15 USCS § 80a-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Section 91-13-8 authorizes the investment of county bond proceeds in a money market mutual fund by a bank trustee, if the money market mutual fund is an open-end or closed-end management type investment company or investment trust registered under the provisions of 15 U.S.C. Section 80(a)-1 et seq. Zeagler, July 26, 2006, A.G. Op. 06-0313.

§ 91-13-9. Application of chapter.

Fiduciaries acting under authority heretofore or hereafter granted shall be subject to the provisions of this chapter.

The powers granted by this chapter to trustees, guardians, and other fiduciaries shall be in addition to the powers existing by virtue of other laws heretofore enacted authorizing investments by fiduciaries.

HISTORY: Codes, 1942, § 421.5; Laws, 1956, ch. 212, §§ 1-7.

Cross References —

Other sections derived from same 1942 code section, see §§91-13-1,91-13-3,91-13-5,91-13-7.

§ 91-13-11. Tennessee Valley Authority bonds and obligations as legal investments.

All bonds and other obligations issued by the Tennessee Valley Authority under the provisions of the Tennessee Valley Authority Act of 1933, as heretofore or hereafter amended, shall be legal investments for trustees and other fiduciaries, for the public employees’ retirement system of Mississippi, and for banks, savings banks, trust companies, building and loan associations, and insurance companies organized under the laws of the State of Mississippi. Such bonds and obligations shall be legal securities which may be deposited with and shall be received by all public officers and bodies of this state and all municipalities and political subdivisions for the purpose of securing the deposit of public funds.

HISTORY: Codes, 1942, § 421.7; Laws, 1962, ch. 179.

Cross References —

Investments by board of trustees of public employees retirement system of Mississippi, see §25-11-121.

State depositories generally, see §27-105-1 et seq.

Investments by insurance companies generally, see §83-19-51.

Chapter 15. Release of Powers of Appointment

§ 91-15-1. Citation of chapter.

This chapter may be cited as the “release of power of appointment law.”

HISTORY: Codes, 1942, § 671-71; Laws, 1946, ch. 405, § 1.

Cross References —

Applicability of Mississippi Rules of Civil Procedure to proceedings which are subject to the provisions of Title 91, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

Code 1942, § 672-71 et seq. do not apply to the transfer of an interest in property which is owned absolutely and unqualifiedly by the person undertaking to release the power. Bishop v. United States, 338 F. Supp. 1336, 1970 U.S. Dist. LEXIS 11277 (N.D. Miss. 1970), aff'd, 468 F.2d 950 (5th Cir. Miss. 1972), aff'd, 1972 U.S. App. LEXIS 10892 (5th Cir. Mar. 7, 1972).

RESEARCH REFERENCES

Am. Jur.

62 Am. Jur. 2d, Powers of Appointment and Alienation § 55.

CJS.

72 C.J.S., Powers § 11.

Practice References.

Bickel and Flannery, Living Trusts: Forms and Practice (Matthew Bender).

Burke, Friel, and Gagliardi, Modern Estate Planning, Second Edition (Matthew Bender).

Christensen, International Estate Planning, Second Edition (Matthew Bender).

Mobley, Robinson and Hedrick, Pritchard on the Law of Wills and Administration of Estates, Seventh Edition (Michie).

Rapkin, Planning for Large Estates (Matthew Bender).

Schoenblum, Estate Planning Forms and Clauses with CD Rom (Matthew Bender).

Wyatt, Trust Administration and Taxation (Matthew Bender).

LexisNexis® CD – Estate Planning Package (CD-ROM) (LexisNexis).

Murphy’s Will Clauses: Annotations and Forms with Tax Effects (Matthew Bender).

§ 91-15-3. Definitions.

When used in this chapter, unless the context otherwise requires:

“Power” includes any power to appoint or designate to whom property shall go, any power to invade property, any power to alter, amend, or revoke any instrument under which an estate or trust is held or created or to terminate any right or interest thereunder, and any power remaining where one or more partial releases have heretofore or hereafter been made with respect to a power, whether heretofore or hereafter created or reserved, whether vested, contingent, or conditional, and whether classified in law or known as a power in gross, a power appendant, a power appurtenant, a collateral power, a general, special, or limited power, exclusive or nonexclusive power, or otherwise, and irrespective of when, in what manner, or in whose favor it may be exercised.

“Donee” means any person, whether resident or nonresident of this state, who, either alone or with another, has the right to exercise a power.

“Objects” when used in connection with a power means the person in whose favor the power may be exercised.

“Property” when used in connection with a power means any and all property, whether real or personal, any and all interest in property, and any and all income from property, which is subject to the power, and includes any part of the property, any part of the interest in property, and any part of the income from property.

“Release” means renunciation, relinquishment, surrender, refusal to accept, extinguishment, and any other form of release.

HISTORY: Codes, 1942, § 672-72; Laws, 1946, ch. 405, § 2.

RESEARCH REFERENCES

Am. Jur.

62 Am. Jur. 2d, Powers of Appointment and Alienation §§ 1, 2, 9, 33.

CJS.

72 C.J.S., Powers § 2 et seq.

§ 91-15-5. Right to release.

Unless the instrument creating the power specifically provides to the contrary, the donee of a power, whether now existing or hereafter created, may:

At any time completely release his power.

At any time or times release his power: (one) as to any property which is subject thereto; (two) as to any one or more of the objects thereof; or (three) so as to limit in any other respect the extent to which it may be exercised.

HISTORY: Codes, 1942, § 672-73; Laws, 1946, ch. 405, § 3.

RESEARCH REFERENCES

Am. Jur.

62 Am. Jur. 2d, Powers of Appointment and Alienation §§ 1-3, 6, 7, 90, 91.

CJS.

72 C.J.S., Powers § 6, 7.

§ 91-15-7. Manner of effecting release.

A release of a power, whether partial or complete, shall be valid and effective with or without a consideration when the donee executes an instrument evidencing an intent to make the release, signed and acknowledged in the manner prescribed for the execution of deeds, and delivers the instrument or causes it to be delivered, either:

To an adult person who may take any of the property which is subject to the power in the event of its non-exercise, or to one in whose favor it may be exercised after such partial release; or

To any trustee or any co-trustee of the property which is subject to the power; or

By filing the same for recordation in the chancery clerk’s office in the county and judicial district thereof in which any of the property is located, or in which either the donee or the trustee in control of the property resides, or in which the trustee has its principal office, or in which the instrument creating the power is probated or recorded.

HISTORY: Codes, 1942, § 672-74; Laws, 1946, ch. 405, § 4.

RESEARCH REFERENCES

Am. Jur.

62 Am. Jur. 2d, Powers of Appointment and Alienation §§ 52, 57, 90, 91.

§ 91-15-9. Release heretofore made.

A release of a power executed prior to April 10, 1946, shall have the same effect as if this chapter had been in effect at the time the release was executed and delivered.

HISTORY: Codes, 1942, § 672-75; Laws, 1946, ch. 405, § 5.

§ 91-15-11. Right of release not exclusive.

The rights and means provided in this chapter for the release of a power are not exclusive, but are in addition to all other rights and means of a donee to release a power in whole or in part.

HISTORY: Codes, 1942, § 672-76; Laws, 1946, ch. 405, § 6.

RESEARCH REFERENCES

Am. Jur.

62 Am. Jur. 2d, Powers of Appointment and Alienation §§ 52, 57.

§ 91-15-13. Delivery of release as notice.

Any fiduciary or other person, association, or corporation having the possession or control of any property subject to a power of appointment shall be deemed to have notice of a release of the power when the original or a copy of the release is delivered to such fiduciary or other person, association, or corporation.

HISTORY: Codes, 1942, § 672-77; Laws, 1946, ch. 405, § 7.

§ 91-15-15. Recordation as notice.

Any purchaser or mortgagee of real property subject to a power of appointment, who is without actual notice, shall be deemed to have notice of a release of the power when the original or duplicate original is filed for record in the chancery clerk’s office in the county and judicial district thereof in which the particular real property so purchased or mortgaged is located, and when the deed, will, or other instrument creating the power, or a duly attested copy thereof, is recorded in the same office, and an appropriate notation is entered on the margin of the will or deed book where the instrument creating the power is recorded, referring to the deed book and page where the release is recorded.

HISTORY: Codes, 1942, § 672-78; Laws, 1946, ch. 405, § 8.

Cross References —

Recording of instruments generally, see §89-5-1 et seq.

Method of recording and indexing instruments, see §§89-5-25,89-5-33.

§ 91-15-17. Manner of recording release.

Clerks of chancery courts are authorized and directed to record releases of powers of appointment in the books provided for the recordation of deeds, to index the same in the current and general indexes, the name of the donee being entered on the grantor index, and to charge therefor at the rate applicable to deeds.

HISTORY: Codes, 1942, § 672-79; Laws, 1946, ch. 405, § 9.

Cross References —

Fees for recording instruments, see §25-7-9.

§ 91-15-19. Release not invalid for failure to comply with certain sections.

No release shall be invalid or ineffective because of failure to comply with either Section 91-15-13 or Section 91-15-15.

HISTORY: Codes, 1942, § 672-80; Laws, 1946, ch. 405, § 10.

§ 91-15-21. Controlling effect of chapter.

In so far as the provisions of this chapter may conflict with other laws or parts thereof, the provisions of this chapter shall control.

HISTORY: Codes, 1942, § 672-81; Laws, 1946, ch. 405, § 11.

Chapter 17. Mississippi Principal and Income Act of 2013

Editor’s Notes —

Former §91-17-1 provided the short title for the chapter.

Former §91-17-3 provided definitions of terms used in the chapter.

Former §91-17-5 related to the duties of trustees as to receipts and expenditures.

Former §91-17-7 defined income and principal.

Former §91-17-9 related to an income beneficiary’s right to income and its apportionment.

Former §91-17-11 related to income earned during administration of decedent’s estate.

Former §91-17-13 related to corporate distributions.

Former §91-17-15 related to bond premium and discount.

Former §n 91-17-17 related to business and farming operations.

Former §91-17-19 related to the disposition of receipts from taking natural resources from land.

Former §n 91-17-21 related to receipts from taking the timber from the land.

Former §91-17-23 related to other property subject to depletion.

Former §91-17-25 related to underproductive property.

Former §91-17-27 related to charges against income and principal.

Former §91-17-29 related to the application of chapter.

Former §91-17-31 related to uniformity of interpretation.

§ 91-17-1 Repealed.

Repealed by Laws, 2012, ch. 351, § 2, effective from and after January 1, 2013.

§91-17-1. [Codes, 1942, § 672-186; Laws, 1966, ch. 371, § 16, eff from and after January 1, 1967.]

Editor's Notes —

Former §91-17-1 provided the short title for the chapter.

§ 91-17-3 Repealed.

Repealed by Laws, 2012, ch. 351, § 2, effective from and after January 1, 2013.

§ 91-17-. [Codes, 1942, § 672-171; Laws, 1966, ch. 371, § 1, eff from and after January 1, 1967.]

Editor's Notes —

Former §91-17-3 provided definitions of terms used in the chapter.

§ 91-17-5 Repealed.

Repealed by Laws, 2012, ch. 351, § 2, effective from and after January 1, 2013.

§91-17-5. [Codes, 1942, § 672-172; Laws, 1966, ch. 371, § 2, eff from and after January 1, 1967.]

Editor's Notes —

Former §91-17-5 related to the duties of trustees as to receipts and expenditures.

§ 91-17-7 Repealed.

Repealed by Laws, 2012, ch. 351, § 2, effective from and after January 1, 2013.

§91-17-7. [Codes, 1942, § 672-173; Laws, 1966, ch. 371, § 3, eff from and after January 1, 1967.]

Editor's Notes —

Former §91-17-7 defined income and principal.

§ 91-17-9 Repealed.

Repealed by Laws, 2012, ch. 351, § 2, effective from and after January 1, 2013.

§91-17-9. [Codes, 1942, § 672-174; Laws, 1966, ch. 371, § 4, eff from and after January 1, 1967.]

Editor's Notes —

Former §91-17-9 related to an income beneficiary's right to income and its apportionment.

§ 91-17-11 Repealed.

Repealed by Laws, 2012, ch. 351, § 2, effective from and after January 1, 2013.

§91-17-11. [Codes, 1942, § 672-175; Laws, 1966, ch. 371, § 5, eff from and after January 1, 1967.]

Editor's Notes —

Former §91-17-11 related to income earned during administration of decedent's estate.

§ 91-17-13 Repealed.

Repealed by Laws, 2012, ch. 351, § 2, effective from and after January 1, 2013.

§91-17-13. [Codes, 1942, § 672-176; Laws, 1966, ch. 371, § 6, eff from and after January 1, 1967.]

Editor's Notes —

Former §91-17-13 related to corporate distributions.

§ 91-17-15 Repealed.

Repealed by Laws, 2012, ch. 351, § 2, effective from and after January 1, 2013.

§91-17-15. [Codes, 1942, § 672-177; Laws, 1966, ch. 371, § 7, eff from and after January 1, 1967.]

Editor's Notes —

Former §91-17-15 related to bond premium and discount.

§ 91-17-17 Repealed.

Repealed by Laws, 2012, ch. 351, § 2, effective from and after January 1, 2013.

§91-17-17. [Codes, 1942, § 672-178; Laws, 1966, ch. 371, § 8, eff from and after January 1, 1967.]

Editor's Notes —

Former §91-17-1 provided the short title for the chapter.

Former §n 91-17-17 related to business and farming operations.

§ 91-17-19 Repealed.

Repealed by Laws, 2012, ch. 351, § 2, effective from and after January 1, 2013.

§91-17-19. [[Codes, 1942, § 672-179; Laws, 1966, ch. 371, § 9, eff from and after January 1, 1967.]

Editor's Notes —

Former §91-17-1 provided the short title for the chapter.

Former §91-17-19 related to the disposition of receipts from taking natural resources from land.

§ 91-17-21 Repealed.

Repealed by Laws, 2012, ch. 351, § 2, effective from and after January 1, 2013.

§91-17-21. [Codes, 1942, § 672-180; Laws, 1966, ch. 371, § 10, eff from and after January 1, 1967.]

Editor's Notes —

Former §91-17-1 provided the short title for the chapter.

Former §n 91-17-21 related to receipts from taking the timber from the land.

§ 91-17-23 Repealed.

Repealed by Laws, 2012, ch. 351, § 2, effective from and after January 1, 2013.

§91-17-23. [Codes, 1942, § 672-181; Laws, 1966, ch. 371, § 11, eff from and after January 1, 1967.]

Editor's Notes —

Former §91-17-1 provided the short title for the chapter.

Former §91-17-23 related to other property subject to depletion.

§ 91-17-25 Repealed.

Repealed by Laws, 2012, ch. 351, § 2, effective from and after January 1, 2013.

§91-17-25. [Codes, 1942, § 672-183; Laws, 1966, ch. 371, § 12, eff from and after January 1, 1967.]

Editor's Notes —

Former §91-17-1 provided the short title for the chapter.

Former §91-17-25 related to underproductive property.

§ 91-17-27 Repealed.

Repealed by Laws, 2012, ch. 351, § 2, effective from and after January 1, 2013.

§91-17-27. [Codes, 1942, § 672-183; Laws, 1966, ch. 371, § 13, eff from and after January 1, 1967.]

Editor's Notes —

Former §91-17-27 related to charges against income and principal.

§ 91-17-29 Repealed.

Repealed by Laws, 2012, ch. 351, § 2, effective from and after January 1, 2013.

§91-17-29. [Codes, 1942, § 672-184; Laws, 1966, ch. 371, § 14, eff from and after January 1, 1967.]

Editor's Notes —

Former §91-17-1 provided the short title for the chapter.

Former §91-17-29 related to the application of chapter.

§ 91-17-31 Repealed.

Repealed by Laws, 2012, ch. 351, § 2, effective from and after January 1, 2013.

§91-17-31. [Codes, 1942, § 672-185; Laws, 1966, ch. 371, § 15, eff from and after January 1, 1967.]

Editor's Notes —

Former §91-17-31 related to uniformity of interpretation.

Article 1. Definitions and Fiduciary Duties.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-101. Short title.

This chapter may be cited as the Mississippi Principal and Income Act of 2013.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-102. Definitions.

In this chapter:

  1. “Accounting period” means a calendar year unless another twelve-month period is selected by a fiduciary. The term includes a portion of a calendar year or other twelve-month period that begins when an income interest begins or ends when an income interest ends.
  2. “Beneficiary” includes, in the case of a decedent’s estate, an heir, legatee, and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.
  3. “Fiduciary” means a personal representative or a trustee. The term includes an executor, administrator, successor personal representative, special administrator, and a person performing substantially the same function.
  4. “Income” means money or property that a fiduciary receives as current return from a principal asset. The term includes a portion of receipts from a sale, exchange, or liquidation of a principal asset, to the extent provided in Article 4.
  5. “Income beneficiary” means a person to whom net income of a trust is or may be payable.
  6. “Income interest” means the right of an income beneficiary to receive all or part of net income, whether the terms of the trust require it to be distributed or authorize it to be distributed in the trustee’s discretion.
  7. “Mandatory income interest” means the right of an income beneficiary to receive net income that the terms of the trust require the fiduciary to distribute.
  8. “Net income” means the total receipts allocated to income during an accounting period minus the disbursements made from income during the period, plus or minus transfers under this chapter to or from income during the period.
  9. “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.
  10. “Principal” means property held in trust for distribution to a remainder beneficiary when the trust terminates.
  11. “Remainder beneficiary” means a person entitled to receive principal when an income interest ends.
  12. “Terms of a trust” means the manifestation of the intent of a settlor or decedent with respect to the trust, expressed in a manner that admits of its proof in a judicial proceeding, whether by written or spoken words or by conduct.
  13. “Trustee” includes an original, additional, or successor trustee, whether or not appointed or confirmed by a court.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

JUDICIAL DECISIONS

I. Under current law.

1.-5. [Reserved for future use.]

II. Under former §91-17-3.

6. In general.

I. Under current law.

1.-5. [Reserved for future use.]

II. Under former § 91-17-3.

6. In general.

Uniform Principal and Income Law controls over common law, when seeking definitions of terms in trust instruments. Hynson v. Jeffries, 697 So. 2d 792, 1997 Miss. App. LEXIS 544 (Miss. Ct. App. 1997).

§ 91-17-103. Fiduciary duties; general principles.

In allocating receipts and disbursements to or between principal and income, and with respect to any matter within the scope of Articles 2 and 3, a fiduciary:

  1. Shall administer a trust or estate in accordance with the terms of the trust or the will, even if there is a different provision in this chapter;
  2. May administer a trust or estate by the exercise of a discretionary power of administration given to the fiduciary by the terms of the trust or the will, even if the exercise of the power produces a result different from a result required or permitted by this chapter;
  3. Shall administer a trust or estate in accordance with this chapter if the terms of the trust or the will do not contain a different provision or do not give the fiduciary a discretionary power of administration; and
  4. Shall add a receipt or charge a disbursement to principal to the extent that the terms of the trust and this chapter do not provide a rule for allocating the receipt or disbursement to or between principal and income.

In exercising the power to adjust under Section 91-17-104(a) or a discretionary power of administration regarding a matter within the scope of this chapter, whether granted by the terms of a trust, a will, or this chapter, a fiduciary shall administer a trust or estate impartially, based on what is fair and reasonable to all of the beneficiaries, except to the extent that the terms of the trust or the will clearly manifest an intention that the fiduciary shall or may favor one or more of the beneficiaries. A determination in accordance with this chapter is presumed to be fair and reasonable to all of the beneficiaries.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

JUDICIAL DECISIONS

I. Under current law.

1.-5. [Reserved for future use.]

II. Under former §91-17-5.

6. In general.

I. Under current law.

1.-5. [Reserved for future use.]

II. Under former § 91-17-5.

6. In general.

Uniform Principal and Income Law applied to marital deduction trust that contained producing oil and gas properties, and royalties from those minerals were to be divided between principal and income in accordance with statute’s provisions. Hynson v. Jeffries, 697 So. 2d 792, 1997 Miss. App. LEXIS 544 (Miss. Ct. App. 1997).

§ 91-17-104. Trustee’s power to adjust.

A trustee may adjust between principal and income to the extent the trustee considers necessary if the trustee invests and manages trust assets as a prudent investor, the terms of the trust describe the amount that may or must be distributed to a beneficiary by referring to the trust’s income, and the trustee determines, after applying the rules in Section 91-17-103(a), that the trustee is unable to comply with Section 91-17-103(b).

In deciding whether and to what extent to exercise the power conferred by subsection (a), a trustee shall consider all factors relevant to the trust and its beneficiaries, including the following factors to the extent they are relevant:

  1. The nature, purpose, and expected duration of the trust;
  2. The intent of the settlor;
  3. The identity and circumstances of the beneficiaries;
  4. The needs for liquidity, regularity of income, and preservation and appreciation of capital;
  5. The assets held in the trust; the extent to which they consist of financial assets, interests in closely held enterprises, tangible and intangible personal property, or real property; the extent to which an asset is used by a beneficiary; and whether an asset was purchased by the trustee or received from the settlor;
  6. The net amount allocated to income under the other sections of this chapter and the increase or decrease in the value of the principal assets, which the trustee may estimate as to assets for which market values are not readily available;
  7. Whether and to what extent the terms of the trust give the trustee the power to invade principal or accumulate income or prohibit the trustee from invading principal or accumulating income, and the extent to which the trustee has exercised a power from time to time to invade principal or accumulate income;
  8. The actual and anticipated effect of economic conditions on principal and income and effects of inflation and deflation; and
  9. The anticipated tax consequences of an adjustment.

A trustee may not make an adjustment:

That diminishes the income interest in a trust that requires all of the income to be paid at least annually to a spouse and for which an estate tax or gift tax marital deduction would be allowed, in whole or in part, if the trustee did not have the power to make the adjustment;

That reduces the actuarial value of the income interest in a trust to which a person transfers property with the intent to qualify for a gift tax exclusion;

That changes the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets;

From any amount that is permanently set aside for charitable purposes under a will or the terms of a trust unless both income and principal are so set aside;

If possessing or exercising the power to make an adjustment causes an individual to be treated as the owner of all or part of the trust for income tax purposes, and the individual would not be treated as the owner if the trustee did not possess the power to make an adjustment;

If possessing or exercising the power to make an adjustment causes all or part of the trust assets to be included for estate tax purposes in the estate of an individual who has the power to remove a trustee or appoint a trustee, or both, and the assets would not be included in the estate of the individual if the trustee did not possess the power to make an adjustment;

If the trustee is a beneficiary of the trust; or

If the trustee is not a beneficiary, but the adjustment would benefit the trustee directly or indirectly.

If subsection (c)(5), (6), (7), or (8) applies to a trustee and there is more than one (1) trustee, a cotrustee to whom the provision does not apply may make the adjustment unless the exercise of the power by the remaining trustee or trustees is not permitted by the terms of the trust.

A trustee may release the entire power conferred by subsection (a) or may release only the power to adjust from income to principal or the power to adjust from principal to income if the trustee is uncertain about whether possessing or exercising the power will cause a result described in subsection (c)(1) through (6) or (c)(8) or if the trustee determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in subsection (c). The release may be permanent or for a specified period, including a period measured by the life of an individual.

Terms of a trust that limit the power of a trustee to make an adjustment between principal and income do not affect the application of this section unless it is clear from the terms of the trust that the terms are intended to deny the trustee the power of adjustment conferred by subsection (a).

(1) For purposes of this section, and subject to subsection (c) of this section, from time to time a trustee may make a safe-harbor adjustment to increase net trust accounting income up to and including an amount equal to six percent (6%) of the trust’s value as defined in subsection (g)(2). If a trustee determines to make this safe-harbor adjustment, the propriety of this adjustment shall be conclusively presumed. Nothing in this subsection (g) prohibits any other type of adjustment authorized under any provision of this section.

A trust’s value under subsection (g)(1) shall be calculated as follows:

For trusts in existence for three (3) years or more, the value shall be the average fair market value of the trust assets over the past three (3) years;

For trusts in existence for at least two (2) years but less than three (3) years, the value shall be the average fair market value of the trust assets over the past two (2) years; and

For trusts in existence less than two (2) years, the value shall be the fair market value of the trust assets on December 31 of the preceding year.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-105. Judicial control of discretionary power.

The court may not order a fiduciary to change a decision to exercise or not to exercise a discretionary power conferred by this chapter unless it determines that the decision was an abuse of the fiduciary’s discretion. A fiduciary’s decision is not an abuse of discretion merely because the court would have exercised the power in a different manner or would not have exercised the power.

The decisions to which subsection (a) applies include:

  1. A decision under Section 91-17-104(a) as to whether and to what extent an amount should be transferred from principal to income or from income to principal.
  2. A decision regarding the factors that are relevant to the trust and its beneficiaries, the extent to which the factors are relevant, and the weight, if any, to be given to those factors, in deciding whether and to what extent to exercise the discretionary power conferred by Section 91-17-104(a).
  3. To the extent that the court is unable, after applying paragraphs (1) and (2), to place the beneficiaries, the trust, or both, in the positions they would have occupied if the discretion had not been abused, the court may order the fiduciary to pay an appropriate amount from its own funds to one or more of the beneficiaries or the trust or both.

If the court determines that a fiduciary has abused the fiduciary’s discretion, the court may place the income and remainder beneficiaries in the positions they would have occupied if the discretion had not been abused, according to the following rules:

To the extent that the abuse of discretion has resulted in no distribution to a beneficiary or in a distribution that is too small, the court shall order the fiduciary to distribute from the trust to the beneficiary an amount that the court determines will restore the beneficiary, in whole or in part, to the beneficiary’s appropriate position.

To the extent that the abuse of discretion has resulted in a distribution to a beneficiary which is too large, the court shall place the beneficiaries, the trust, or both, in whole or in part, in their appropriate positions by ordering the fiduciary to withhold an amount from one or more future distributions to the beneficiary who received the distribution that was too large or ordering that beneficiary to return some or all of the distribution to the trust.

Upon petition by the fiduciary, the court having jurisdiction over a trust or estate shall determine whether a proposed exercise or nonexercise by the fiduciary of a discretionary power conferred by this chapter will result in an abuse of the fiduciary’s discretion. If the petition describes the proposed exercise or nonexercise of the power and contains sufficient information to inform the beneficiaries of the reasons for the proposal, the facts upon which the fiduciary relies, and an explanation of how the income and remainder beneficiaries will be affected by the proposed exercise or nonexercise of the power, a beneficiary who challenges the proposed exercise or nonexercise has the burden of establishing that it will result in an abuse of discretion.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

Article 2. Decedent’s Estate or Terminating Income Interest.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-201. Determination and distribution of net income.

After a decedent dies, in the case of an estate, or after an income interest in a trust ends, the following rules apply:

  1. A fiduciary of an estate or of a terminating income interest shall determine the amount of net income and net principal receipts received from property specifically given to a beneficiary under the rules in Articles 3 through 5 which apply to trustees and the rules in paragraph (5). The fiduciary shall distribute the net income and net principal receipts to the beneficiary who is to receive the specific property.
  2. A fiduciary shall determine the remaining net income of a decedent’s estate or a terminating income interest under the rules in Articles 3 through 5 which apply to trustees and by:
  3. A fiduciary shall distribute to a beneficiary who receives a pecuniary amount outright the interest or any other amount provided by the will, the terms of the trust, or applicable law from net income determined under paragraph (2) or from principal to the extent that net income is insufficient. If a beneficiary is to receive a pecuniary amount outright and no interest or other amount is provided for by the will or by the terms of the trust, and if the pecuniary amount is not distributed to the beneficiary within one (1) year of the date of death of the testator or the date the income interest ends, then the fiduciary shall distribute to the beneficiary interest on any amount that remains undistributed after the one-year anniversary until the pecuniary amount is distributed in full. The interest rate shall be the IRS midterm applicable federal rate in effect on the date the interest begins to accrue.
  4. A fiduciary shall distribute the net income remaining after distributions required by paragraph (3) in the manner described in Section 91-17-202 to all other beneficiaries, including a beneficiary who receives a pecuniary amount in trust, even if the beneficiary holds an unqualified power to withdraw assets from the trust or other presently exercisable general power of appointment over the trust.
  5. A fiduciary may not reduce principal or income receipts from property described in paragraph (1) because of a payment described in Section 91-17-501 or 91-17-502 to the extent that the will, the terms of the trust, or applicable law requires the fiduciary to make the payment from assets other than the property or to the extent that the fiduciary recovers or expects to recover the payment from a third party. The net income and principal receipts from the property are determined by including all of the amounts the fiduciary receives or pays with respect to the property, whether those amounts accrued or became due before, on, or after the date of a decedent’s death or an income interest’s terminating event, and by making a reasonable provision for amounts that the fiduciary believes the estate or terminating income interest may become obligated to pay after the property is distributed.

Including in net income all income from property used to discharge liabilities;

Paying from income or principal, in the fiduciary’s discretion, fees of attorneys, accountants, and fiduciaries; court costs and other expenses of administration; and interest on death taxes, but the fiduciary may pay those expenses from income of property passing to a trust for which the fiduciary claims an estate tax marital or charitable deduction only to the extent that the payment of those expenses from income will not cause the reduction or loss of the deduction; and

Paying from principal all other disbursements made or incurred in connection with the settlement of a decedent’s estate or the winding-up of a terminating income interest, including debts, funeral expenses, disposition of remains, family allowances, and death taxes and related penalties that are apportioned to the estate or terminating income interest by the will, the terms of the trust, or applicable law.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-202. Distribution to residuary and remainder beneficiaries.

Each beneficiary described in Section 91-17-201(4) is entitled to receive a portion of the net income equal to the beneficiary’s fractional interest in undistributed principal assets, using values as of the distribution date. If a fiduciary makes more than one (1) distribution of assets to beneficiaries to whom this section applies, each beneficiary, including one who does not receive part of the distribution, is entitled, as of each distribution date, to the net income the fiduciary has received after the date of death or terminating event or earlier distribution date but has not distributed as of the current distribution date.

In determining a beneficiary’s share of net income, the following rules apply:

  1. The beneficiary is entitled to receive a portion of the net income equal to the beneficiary’s fractional interest in the undistributed principal assets immediately before the distribution date, including assets that later may be sold to meet principal obligations.
  2. The beneficiary’s fractional interest in the undistributed principal assets must be calculated without regard to property specifically given to a beneficiary and property required to pay pecuniary amounts not in trust.
  3. The beneficiary’s fractional interest in the undistributed principal assets must be calculated on the basis of the aggregate value of those assets as of the distribution date without reducing the value by any unpaid principal obligation.
  4. The distribution date for purposes of this section may be the date as of which the fiduciary calculates the value of the assets if that date is reasonably near the date on which assets are actually distributed.

If a fiduciary does not distribute all of the collected but undistributed net income to each person as of a distribution date, the fiduciary shall maintain appropriate records showing the interest of each beneficiary in that net income.

A fiduciary may apply the rules in this section, to the extent that the fiduciary considers it appropriate, to net gain or loss realized after the date of death or terminating event or earlier distribution date from the disposition of a principal asset if this section applies to the income from the asset.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

Article 3. Apportionment at Beginning and End of Income Interest.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-301. When right to income begins and ends.

An income beneficiary is entitled to net income from the date on which the income interest begins. An income interest begins on the date specified in the terms of the trust or, if no date is specified, on the date an asset becomes subject to a trust or successive income interest.

An asset becomes subject to a trust:

  1. On the date it is transferred to the trust in the case of an asset that is transferred to a trust during the transferor’s life;
  2. On the date of a testator’s death in the case of an asset that becomes subject to a trust by reason of a will, even if there is an intervening period of administration of the testator’s estate; or
  3. On the date of an individual’s death in the case of an asset that is transferred to a fiduciary by a third party because of the individual’s death.

An asset becomes subject to a successive income interest on the day after the preceding income interest ends, as determined under subsection (d), even if there is an intervening period of administration to wind up the preceding income interest.

An income interest ends on the day before an income beneficiary dies or another terminating event occurs, or on the last day of a period during which there is no beneficiary to whom a trustee may distribute income.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-302. Apportionment of receipts and disbursements when decedent dies or income interest begins.

A trustee shall allocate an income receipt or disbursement other than one to which Section 91-17-201(1) applies to principal if its due date occurs before a decedent dies in the case of an estate or before an income interest begins in the case of a trust or successive income interest.

A trustee shall allocate an income receipt or disbursement to income if its due date occurs on or after the date on which a decedent dies or an income interest begins and it is a periodic due date. An income receipt or disbursement must be treated as accruing from day to day if its due date is not periodic or it has no due date. The portion of the receipt or disbursement accruing before the date on which a decedent dies or an income interest begins must be allocated to principal and the balance must be allocated to income.

An item of income or an obligation is due on the date the payer is required to make a payment. If a payment date is not stated, there is no due date for the purposes of this chapter. Distributions to shareholders or other owners from an entity to which Section 91-17-401 applies are deemed to be due on the date fixed by the entity for determining who is entitled to receive the distribution or, if no date is fixed, on the declaration date for the distribution. A due date is periodic for receipts or disbursements that must be paid at regular intervals under a lease or an obligation to pay interest or if an entity customarily makes distributions at regular intervals.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-303. Apportionment when income interest ends.

In this section, “undistributed income” means net income received before the date on which an income interest ends. The term does not include an item of income or expense that is due or accrued or net income that has been added or is required to be added to principal under the terms of the trust.

When a mandatory income interest ends, the trustee shall pay to a mandatory income beneficiary who survives that date, or the estate of a deceased mandatory income beneficiary whose death causes the interest to end, the beneficiary’s share of the undistributed income that is not disposed of under the terms of the trust unless the beneficiary has an unqualified power to revoke more than five percent (5%) of the trust immediately before the income interest ends. In the latter case, the undistributed income from the portion of the trust that may be revoked must be added to principal.

When a trustee’s obligation to pay a fixed annuity or a fixed fraction of the value of the trust’s assets ends, the trustee shall prorate the final payment if and to the extent required by applicable law to accomplish a purpose of the trust or its settlor relating to income, gift, estate, or other tax requirements.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

Article 4. Allocation of Receipts During Administration of Trust.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-401. Character of receipt.

In this section, “entity” means a corporation, partnership, limited liability company, regulated investment company, real estate investment trust, common trust fund, or any other organization in which a trustee has an interest other than a trust or estate to which Section 91-17-402 applies, a business or activity to which Section 91-17-403 applies, or an asset-backed security to which Section 91-17-415 applies.

Except as otherwise provided in this section, a trustee shall allocate to income money received from an entity.

A trustee shall allocate the following receipts from an entity to principal:

  1. Property other than money;
  2. Money received in one (1) distribution or a series of related distributions in exchange for part or all of a trust’s interest in the entity;
  3. Money received in total or partial liquidation of the entity; and
  4. Money received from an entity that is a regulated investment company or a real estate investment trust if the money distributed is a capital gain dividend for federal income tax purposes.

Money is received in partial liquidation:

To the extent that the entity, at or near the time of a distribution, indicates that it is a distribution in partial liquidation; or

If the total amount of money and property received in a distribution or series of related distributions is greater than twenty percent (20%) of the entity’s gross assets, as shown by the entity’s year-end financial statements immediately preceding the initial receipt.

Money is not received in partial liquidation, nor may it be taken into account under subsection (d)(2), to the extent that it does not exceed the amount of income tax that a trustee or beneficiary must pay on taxable income of the entity that distributes the money.

A trustee may rely upon a statement made by an entity about the source or character of a distribution if the statement is made at or near the time of distribution by the entity’s board of directors or other person or group of persons authorized to exercise powers to pay money or transfer property comparable to those of a corporation’s board of directors.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-402. Distribution from trust or estate.

A trustee shall allocate to income an amount received as a distribution of income from a trust or an estate in which the trust has an interest other than a purchased interest, and shall allocate to principal an amount received as a distribution of principal from such a trust or estate. If a trustee purchases an interest in a trust that is an investment entity, or a decedent or donor transfers an interest in such a trust to a trustee, Section 91-17-401 or 91-17-415 applies to a receipt from the trust.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-403. Business and other activities conducted by trustee.

If a trustee who conducts a business or other activity determines that it is in the best interest of all the beneficiaries to account separately for the business or activity instead of accounting for it as part of the trust’s general accounting records, the trustee may maintain separate accounting records for its transactions, whether or not its assets are segregated from other trust assets.

A trustee who accounts separately for a business or other activity may determine the extent to which its net cash receipts must be retained for working capital, the acquisition or replacement of fixed assets, and other reasonably foreseeable needs of the business or activity, and the extent to which the remaining net cash receipts are accounted for as principal or income in the trust’s general accounting records. If a trustee sells assets of the business or other activity, other than in the ordinary course of the business or activity, the trustee shall account for the net amount received as principal in the trust’s general accounting records to the extent the trustee determines that the amount received is no longer required in the conduct of the business.

Activities for which a trustee may maintain separate accounting records include:

  1. Retail, manufacturing, service, and other traditional business activities;
  2. Farming;
  3. Raising and selling livestock and other animals;
  4. Management of rental properties;
  5. Extraction of minerals and other natural resources;
  6. Timber operations; and
  7. Activities to which Section 91-17-414 applies.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-404. Principal receipts.

A trustee shall allocate to principal:

  1. To the extent not allocated to income under this chapter, assets received from a transferor during the transferor’s lifetime, a decedent’s estate, a trust with a terminating income interest, or a payer under a contract naming the trust or its trustee as beneficiary;
  2. Money or other property received from the sale, exchange, liquidation, or change in form of a principal asset, including realized profit, subject to this article;
  3. Amounts recovered from third parties to reimburse the trust because of disbursements described in Section 91-17-502(a) (7) or for other reasons to the extent not based on the loss of income;
  4. Proceeds of property taken by eminent domain, but a separate award made for the loss of income with respect to an accounting period during which a current income beneficiary had a mandatory income interest is income;
  5. Net income received in an accounting period during which there is no beneficiary to whom a trustee may or must distribute income; and
  6. Other receipts as provided in Part 3 of this article.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-405. Rental property.

To the extent that a trustee accounts for receipts from rental property pursuant to this section, the trustee shall allocate to income an amount received as rent of real or personal property, including an amount received for cancellation or renewal of a lease. An amount received as a refundable deposit, including a security deposit or a deposit that is to be applied as rent for future periods, must be added to principal and held subject to the terms of the lease and is not available for distribution to a beneficiary until the trustee’s contractual obligations have been satisfied with respect to that amount.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-406. Obligation to pay money.

An amount received as interest, whether determined at a fixed, variable, or floating rate, on an obligation to pay money to the trustee, including an amount received as consideration for prepaying principal, must be allocated to income without any provision for amortization of premium.

A trustee shall allocate to principal an amount received from the sale, redemption, or other disposition of an obligation to pay money to the trustee more than one (1) year after it is purchased or acquired by the trustee, including an obligation whose purchase price or value when it is acquired is less than its value at maturity. If the obligation matures within one (1) year after it is purchased or acquired by the trustee, an amount received in excess of its purchase price or its value when acquired by the trust must be allocated to income.

This section does not apply to an obligation to which Section 91-17-409, 91-17-410, 91-17-411, 91-17-412, 91-17-414, or 91-17-415 applies.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-407. Insurance policies and similar contracts.

Except as otherwise provided in subsection (b), a trustee shall allocate to principal the proceeds of a life insurance policy or other contract in which the trust or its trustee is named as beneficiary, including a contract that insures the trust or its trustee against loss for damage to, destruction of, or loss of title to a trust asset. The trustee shall allocate dividends on an insurance policy to income if the premiums on the policy are paid from income, and to principal if the premiums are paid from principal.

A trustee shall allocate to income proceeds of a contract that insures the trustee against loss of occupancy or other use by an income beneficiary, loss of income, or, subject to Section 91-17-403, loss of profits from a business.

This section does not apply to a contract to which Section 91-17-409 applies.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-408. Insubstantial allocations not required.

If a trustee determines that an allocation between principal and income required by Section 91-17-409, 91-17-410, 91-17-411, 91-17-412, or 91-17-415 is insubstantial, the trustee may allocate the entire amount to principal unless one (1) of the circumstances described in Section 91-17-104(c) applies to the allocation. This power may be exercised by a cotrustee in the circumstances described in Section 91-17-104(d) and may be released for the reasons and in the manner described in Section 91-17-104(e). An allocation is presumed to be insubstantial if:

  1. The amount of the allocation would increase or decrease net income in an accounting period, as determined before the allocation, by less than ten percent (10%); or
  2. The value of the asset producing the receipt for which the allocation would be made is less than ten percent (10%) of the total value of the trust’s assets at the beginning of the accounting period.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-409. Deferred compensation, annuities, and similar payments.

In this section:

  1. “Payment” means a payment that a trustee may receive over a fixed number of years or during the life of one or more individuals because of services rendered or property transferred to the payer in exchange for future payments. The term includes a payment made in money or property from the payer’s general assets or from a separate fund created by the payer. For purposes of subsections (d), (e), (f), and (g), the term also includes any payment from any separate fund, regardless of the reason for the payment.
  2. “Separate fund” includes a private or commercial annuity, an individual retirement account, and a pension, profit-sharing, stock-bonus, or stock-ownership plan.

To the extent that a payment is characterized as interest, or a dividend, or a payment made in lieu of interest or a dividend, a trustee shall allocate the payment to income. The trustee shall allocate to principal the balance of the payment and any other payment received in the same accounting period that is not characterized as interest, a dividend, or an equivalent payment.

If no part of a payment is characterized as interest, a dividend, or an equivalent payment, and all or part of the payment is required to be made, a trustee shall allocate to income ten percent (10%) of the part that is required to be made during the accounting period and the balance to principal. If no part of a payment is required to be made or the payment received is the entire amount to which the trustee is entitled, the trustee shall allocate the entire payment to principal. For purposes of this subsection, a payment is not “required to be made” to the extent that it is made because the trustee exercises a right of withdrawal.

Except as otherwise provided in subsection (e), subsections (f) and (g) apply, and subsections (b) and (c) do not apply, in determining the allocation of a payment made from a separate fund to:

A trust to which an election to qualify for a marital deduction under Section 2056(b)(7) of the Internal Revenue Code of 1986, as amended, has been made; or

A trust that qualifies for the marital deduction under Section 2056(b)(5) of the Internal Revenue Code of 1986, as amended.

Subsections (d), (f), and (g) do not apply if and to the extent that the series of payments would, without the application of subsection (d), qualify for the marital deduction under Section 2056(b)(7)(C) of the Internal Revenue Code of 1986, as amended.

A trustee shall determine the internal income of each separate fund for the accounting period as if the separate fund were a trust subject to this chapter. Upon request of the surviving spouse, the trustee shall demand that the person administering the separate fund distribute the internal income to the trust. The trustee shall allocate a payment from the separate fund to income to the extent of the internal income of the separate fund and distribute that amount to the surviving spouse. The trustee shall allocate the balance of the payment to principal. Upon request of the surviving spouse, the trustee shall allocate principal to income to the extent the internal income of the separate fund exceeds payments made from the separate fund to the trust during the accounting period.

If a trustee cannot determine the internal income of a separate fund but can determine the value of the separate fund, the internal income of the separate fund is deemed to equal four percent (4%) of the fund’s value, according to the most recent statement of value preceding the beginning of the accounting period. If the trustee can determine neither the internal income of the separate fund nor the fund’s value, the internal income of the fund is deemed to equal the product of the interest rate and the present value of the expected future payments, as determined under Section 7520 of the Internal Revenue Code of 1986, as amended, for the month preceding the accounting period for which the computation is made.

This section does not apply to a payment to which Section 91-17-410 applies.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-410. Liquidating asset.

In this section, “liquidating asset” means an asset whose value will diminish or terminate because the asset is expected to produce receipts for a period of limited duration. The term includes a leasehold, patent, copyright, royalty right, and right to receive payments during a period of more than one (1) year under an arrangement that does not provide for the payment of interest on the unpaid balance. The term does not include a payment subject to Section 91-17-409, resources subject to Section 91-17-411, timber subject to Section 91-17-412, an activity subject to Section 91-17-414, an asset subject to Section 91-17-415, or any asset for which the trustee establishes a reserve for depreciation under Section 91-17-503.

A trustee shall allocate to income ten percent (10%) of the receipts from a liquidating asset and the balance to principal.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-411. Minerals, water, and other natural resources.

To the extent that a trustee accounts for receipts from an interest in minerals or other natural resources pursuant to this section, the trustee shall allocate them as follows:

  1. If received as nominal delay rental or nominal annual rent on a lease, a receipt must be allocated to income.
  2. If received from a production payment, a receipt must be allocated to income if and to the extent that the agreement creating the production payment provides a factor for interest or its equivalent. The balance must be allocated to principal.
  3. If an amount received as a royalty, shut-in-well payment, take-or-pay payment, bonus, or delay rental is more than nominal, ninety percent (90%) must be allocated to principal and the balance to income.
  4. If an amount is received from a working interest or any other interest not provided for in paragraph (1), (2), or (3), ninety percent (90%) of the net amount received must be allocated to principal and the balance to income.

An amount received on account of an interest in water that is renewable must be allocated to income. If the water is not renewable, ninety percent (90%) of the amount must be allocated to principal and the balance to income.

This chapter applies whether or not a decedent or donor was extracting minerals, water, or other natural resources before the interest became subject to the trust.

If a trust owns an interest in minerals, water, or other natural resources on January 1, 2013, the trustee may allocate receipts from the interest as provided in this chapter or in the manner used by the trustee before January 1, 2013. If the trust acquires an interest in minerals, water, or other natural resources after January 1, 2013, the trustee shall allocate receipts from the interest as provided in this chapter.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

JUDICIAL DECISIONS

I. Under current law.

1.-5. [Reserved for future use.]

II. Under former §91-17-9.

6. In general.

I. Under current law.

1.-5. [Reserved for future use.]

II. Under former § 91-17-9.

6. In general.

Annuitants vested with a remainder interest in testator’s estate upon the death of the life tenant are not restricted only to that interest in royalties derived from oil leases to which the life tenant was entitled, but their interests in such royalties are governed by those terms of the testator’s will dealing with the annuitants themselves. D'Evereaux Hall Orphan Asylum v. Green, 226 So. 2d 725, 1969 Miss. LEXIS 1311 (Miss. 1969).

A life tenant who executes oil leases subsequent to the death of the grantor of the life estate is entitled only to the interest derived from any investment of the royalty gained from such lease. D'Evereaux Hall Orphan Asylum v. Green, 226 So. 2d 725, 1969 Miss. LEXIS 1311 (Miss. 1969).

§ 91-17-412. Timber.

To the extent that a trustee accounts for receipts from the sale of timber and related products pursuant to this section, the trustee shall allocate the net receipts:

  1. To income to the extent that the amount of timber removed from the land does not exceed the rate of growth of the timber during the accounting periods in which a beneficiary has a mandatory income interest;
  2. To principal to the extent that the amount of timber removed from the land exceeds the rate of growth of the timber or the net receipts are from the sale of standing timber;
  3. To or between income and principal if the net receipts are from the lease of timberland or from a contract to cut timber from land owned by a trust, by determining the amount of timber removed from the land under the lease or contract and applying the rules in paragraphs (1) and (2); or
  4. To principal to the extent that advance payments, bonuses, and other payments are not allocated pursuant to paragraph (1), (2), or (3).

In determining net receipts to be allocated pursuant to subsection (a), a trustee shall deduct and transfer to principal a reasonable amount for depletion.

This chapter applies whether or not a decedent or transferor was harvesting timber from the property before it became subject to the trust.

If a trust owns an interest in timberland on January 1, 2013, the trustee may allocate net receipts from the sale of timber and related products as provided in this chapter or in the manner used by the trustee before January 1, 2013. If the trust acquires an interest in timberland after January 1, 2013, the trustee shall allocate net receipts from the sale of timber and related products as provided in this chapter.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-413. Property not productive of income.

If a marital deduction is allowed for all or part of a trust whose assets consist substantially of property that does not provide the spouse with sufficient income from or use of the trust assets, and if the amounts that the trustee transfers from principal to income under Section 91-17-104 and distributes to the spouse from principal pursuant to the terms of the trust are insufficient to provide the spouse with the beneficial enjoyment required to obtain the marital deduction, the spouse may require the trustee to make property productive of income, convert property within a reasonable time, or exercise the power conferred by Section 91-17-104(a). The trustee may decide which action or combination of actions to take.

In cases not governed by subsection (a), proceeds from the sale or other disposition of an asset are principal without regard to the amount of income the asset produces during any accounting period.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-414. Derivative and options.

In this section, “derivative” means a contract or financial instrument or a combination of contracts and financial instruments which gives a trust the right or obligation to participate in some or all changes in the price of a tangible or intangible asset or group of assets, or changes in a rate, an index of prices or rates, or other market indicator for an asset or a group of assets.

To the extent that a trustee does not account under Section 91-17-403 for transactions in derivatives, the trustee shall allocate to principal receipts from and disbursements made in connection with those transactions.

If a trustee grants an option to buy property from the trust, whether or not the trust owns the property when the option is granted, grants an option that permits another person to sell property to the trust, or acquires an option to buy property for the trust or an option to sell an asset owned by the trust, and the trustee or other owner of the asset is required to deliver the asset if the option is exercised, an amount received for granting the option must be allocated to principal. An amount paid to acquire the option must be paid from principal. A gain or loss realized upon the exercise of an option, including an option granted to a settlor of the trust for services rendered, must be allocated to principal.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-415. Asset-backed securities.

In this section, “asset-backed security” means an asset whose value is based upon the right it gives the owner to receive distributions from the proceeds of financial assets that provide collateral for the security. The term includes an asset that gives the owner the right to receive from the collateral financial assets only the interest or other current return or only the proceeds other than interest or current return. The term does not include an asset to which Section 91-17-401 or 91-17-409 applies.

If a trust receives a payment from interest or other current return and from other proceeds of the collateral financial assets, the trustee shall allocate to income the portion of the payment which the payer identifies as being from interest or other current return and shall allocate the balance of the payment to principal.

If a trust receives one or more payments in exchange for the trust’s entire interest in an asset-backed security in one (1) accounting period, the trustee shall allocate the payments to principal. If a payment is one of a series of payments that will result in the liquidation of the trust’s interest in the security over more than one (1) accounting period, the trustee shall allocate ten percent (10%) of the payment to income and the balance to principal.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

Article 5. Allocation of Disbursements During Administration of Trust.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-501. Disbursements from income.

A trustee shall make the following disbursements from income to the extent that they are not disbursements to which Section 91-17-201(2)(B) or (C) applies:

  1. One-half (1/2) of the regular compensation of the trustee and of any person providing investment advisory or custodial services to the trustee;
  2. One-half (1/2) of all expenses for accountings, judicial proceedings, or other matters that involve both the income and remainder interests;
  3. All of the other ordinary expenses incurred in connection with the administration, management, or preservation of trust property and the distribution of income, including interest, ordinary repairs, regularly recurring taxes assessed against principal, and expenses of a proceeding or other matter that concerns primarily the income interest; and
  4. Recurring premiums on insurance covering the loss of a principal asset or the loss of income from or use of the asset.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-502. Disbursements from principal.

A trustee shall make the following disbursements from principal:

  1. The remaining one-half (1/2) of the disbursements described in Section 91-17-501(1) and (2);
  2. All of the trustee’s compensation calculated on principal as a fee for acceptance, distribution, or termination, and disbursements made to prepare property for sale;
  3. Payments on the principal of a trust debt;
  4. Expenses of a proceeding that concerns primarily principal, including a proceeding to construe the trust or to protect the trust or its property;
  5. Premiums paid on a policy of insurance not described in Section 91-17-501(4) of which the trust is the owner and beneficiary;
  6. Estate, inheritance, and other transfer taxes, including penalties, apportioned to the trust; and
  7. Disbursements related to environmental matters, including reclamation, assessing environmental conditions, remedying and removing environmental contamination, monitoring remedial activities and the release of substances, preventing future releases of substances, collecting amounts from persons liable or potentially liable for the costs of those activities, penalties imposed under environmental laws or regulations and other payments made to comply with those laws or regulations, statutory or common-law claims by third parties, and defending claims based on environmental matters.

If a principal asset is encumbered with an obligation that requires income from that asset to be paid directly to the creditor, the trustee shall transfer from principal to income an amount equal to the income paid to the creditor in reduction of the principal balance of the obligation.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-503. Transfers from income to principal for depreciation.

In this section, “depreciation” means a reduction in value due to wear, tear, decay, corrosion, or gradual obsolescence of a fixed asset having a useful life of more than one (1) year.

A trustee may transfer to principal a reasonable amount of the net cash receipts from a principal asset that is subject to depreciation, but may not transfer any amount for depreciation:

  1. Of that portion of real property used or available for use by a beneficiary as a residence or of tangible personal property held or made available for the personal use or enjoyment of a beneficiary;
  2. During the administration of a decedent’s estate; or
  3. Under this section if the trustee is accounting under Section 91-17-403 for the business or activity in which the asset is used.

An amount transferred to principal need not be held as a separate fund.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-504. Transfers from income to reimburse principal.

If a trustee makes or expects to make a principal disbursement described in this section, the trustee may transfer an appropriate amount from income to principal in one or more accounting periods to reimburse principal or to provide a reserve for future principal disbursements.

Principal disbursements to which subsection (a) applies include the following, but only to the extent that the trustee has not been and does not expect to be reimbursed by a third party:

  1. An amount chargeable to income but paid from principal because it is unusually large, including extraordinary repairs;
  2. A capital improvement to a principal asset, whether in the form of changes to an existing asset or the construction of a new asset, including special assessments;
  3. Disbursements made to prepare property for rental, including tenant allowances, leasehold improvements, and broker’s commissions;
  4. Periodic payments on an obligation secured by a principal asset to the extent that the amount transferred from income to principal for depreciation is less than the periodic payments; and
  5. Disbursements described in Section 91-17-502(a)(7).

If the asset whose ownership gives rise to the disbursements becomes subject to a successive income interest after an income interest ends, a trustee may continue to transfer amounts from income to principal as provided in subsection (a).

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-505. Income taxes.

A tax required to be paid by a trustee based on receipts allocated to income must be paid from income.

A tax required to be paid by a trustee based on receipts allocated to principal must be paid from principal, even if the tax is called an income tax by the taxing authority.

A tax required to be paid by a trustee on the trust’s share of an entity’s taxable income must be paid:

  1. From income to the extent that receipts from the entity are allocated only to income;
  2. From principal to the extent that receipts from the entity are allocated only to principal;
  3. Proportionately from principal and income to the extent that receipts from the entity are allocated to both income and principal; and
  4. From principal to the extent that the tax exceeds the total receipts from the entity.

After applying subsections (a) through (c), the trustee shall adjust income or principal receipts to the extent that the trust’s taxes are reduced because the trust receives a deduction for payments made to a beneficiary.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-506. Adjustments between principal and income because of taxes.

A fiduciary may make adjustments between principal and income to offset the shifting of economic interests or tax benefits between income beneficiaries and remainder beneficiaries which arise from:

  1. Elections and decisions, that the fiduciary makes from time to time regarding tax matters;
  2. An income tax or any other tax that is imposed upon the fiduciary or a beneficiary as a result of a transaction involving or a distribution from the estate or trust; or
  3. The ownership by an estate or trust of an interest in an entity whose taxable income, whether or not distributed, is includable in the taxable income of the estate, trust, or a beneficiary.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

Article 6. Miscellaneous Provisions.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-601. Uniformity of application and construction.

In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-602. Severability clause.

If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-603. Application of chapter to existing trusts and estates.

This chapter applies to every trust or decedent’s estate existing on January 1, 2013, except as otherwise expressly provided in the will or terms of the trust or in this chapter.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

§ 91-17-604. Transitional matter.

Section 91-17-409 applies to a trust described in Section 91-17-409(d) on and after the following dates:

  1. If the trust is not funded as of January 1, 2013, the date of the decedent’s death.
  2. If the trust is initially funded in the calendar year beginning January 1, 2013, the date of the decedent’s death.
  3. If the trust is not described in paragraph (1) or (2), January 1, 2013.

HISTORY: Laws, 2012, ch. 351, § 1, eff from and after Jan. 1, 2013.

Editor’s Notes —

This chapter was enacted by Laws of 2012, ch. 351, § 1, effective from and after January 1, 2013, to replace §§91-17-1 through 91-17-31, which were repealed by § 2 of the same act, effective from and after January 1, 2013.

Chapter 19. Gifts to Minors [Repealed]

§§ 91-19-1 through 91-19-19. Repealed.

Repealed by Laws, 1994, ch. 416, § 26, eff from and after January 1, 1995.

§91-19-1. [Codes, 1942, § 672-110; Laws, 1958, ch. 248, § 10]

§91-19-3. [Codes, 1942, § 672-109; Laws, 1958, ch. 248, § 9]

§91-19-5. [Codes, 1942, § 672-101; Laws, 1958, ch. 248, § 1; Laws, 1971, ch. 505, § 1]

§91-19-7. [Codes, 1942, § 672-102; Laws, 1958, ch. 248, § 2; Laws, 1971, ch. 505, § 2]

§91-19-9. [Codes, 1942, § 672-103; Laws, 1958, ch. 248, § 3; Laws, 1971, ch. 505, § 3]

§91-19-11. [Codes, 1942, § 672-104; Laws, 1958, ch. 248, § 4; Laws, 1971, ch. 505, § 4]

§91-19-13. [Codes, 1942, § 672-105; Laws, 1958, ch. 248, § 5]

§91-19-15. [Codes, 1942, § 672-106; Laws, 1958, ch. 248, § 6; Laws, 1971, ch. 505, § 5]

§91-19-17. [Codes, 1942, § 672-107; Laws, 1958, ch. 248, § 7; Laws, 1971, ch. 505, § 6]

§91-19-19. [Codes, 1942, § 672-108; Laws, 1958, ch. 248, § 8; Laws, 1960, ch. 217 § 9]

Editor’s Notes —

Former §91-19-1 was entitled: Short title.

Former §91-19-3 was entitled: Construction of chapter.

Former §91-19-5 was entitled: Definitions.

Former §91-19-7 was entitled: Manner of making gift.

Former §91-19-9 was entitled: Effect of gift.

Former §91-19-11 was entitled: Duties and powers of custodian.

Former §91-19-13 was entitled: Custodian’s expenses, compensation, bond and liabilities.

Former §91-19-15 was entitled: Exemption of third persons from liability.

Former §91-19-17 was entitled: Resignation, death or removal of custodian; bond; appointment of successor custodian.

Former §91-19-19 was entitled: Accounting by custodian.

Chapter 20. Transfers to Minors

§ 91-20-1. Short title.

This chapter may be cited as the “Mississippi Uniform Transfers to Minors Act.”

HISTORY: Laws, 1994, ch. 416, § 1, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ‘Mississippi Uniform Gifts to Minors Law,’ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

Comparable Laws from other States —

Alabama: Code of Ala. §§35-5A-1 through35-5A-24.

Alaska: Alaska Stat. §§ 13.46.010 through 13.46.999.

Arizona: A.R.S. §§ 14-7651 through 14-7671.

Arkansas: A.C.A. §§9-26-201 through9-26-227.

California: California Prob. Code §§ 3900 through 3925.

Colorado: C.R.S. §§11-50-101 through11-50-126.

Connecticut: Conn. Gen. Stat. § 45a-557 et seq.

Delaware: 12 Del. C. §§ 4501 through 4523.

District of Columbia: D.C. Code §§ 21-301 through 21-324.

Florida: Fla. Stat. §§ 710.101 through 710.126.

Georgia: O.C.G.A. §§4-5-110 through44-5-134.

Hawaii H.R.S. §§ 553A-1 through 553A-24.

Illinois: 760 I.L.C.S. 20/1 through 20/24.

Idaho: Idaho Code §§ 68-801 through 68.825.

Indiana: Burns Ind. Code §§30-2-8.5-1.

Iowa: Iowa Code §§ 565B.1 through 565B.25.

Kansas: K.S.A. §§ 38-1701 through 38-1726.

Kentucky: K.R.S. §§ 385.012 through 385.242.

Louisiana: La. R.S. §§ 9:751 through 9:773.

Maine: 33 M.R.S. §§ 1651 through 1674.

Maryland: Md. Estates and Trusts Code Ann. §§ 13-301 through 13-324.

Massachusetts: ALM GL ch. 201A, §§ 1 through 24.

Michigan: M.C.L.S. §§ 554.521 through 554.552.

Minnesota: Minn. Stat. §§ 527.21 through 527.44.

Montana: Mont. Code Anno. §§72-26-501 through72-26-803.

Nebraska: R.R.S. Neb. §§ 43-2701 through 43-2724.

Nevada: Nev. Rev. Stat. Ann. §§ 167.010 through 167.110.

New Hampshire: R.S.A. §§ 463-A:1 through 463-A:26.

New Jersey: N.J. Stat. §§ 46:38A-1 through 46:38A-57.

New Mexico: N.M. Stat. Ann. §46-7-11 et seq.

New York: NY CLS EPTL §§ 7-6.1 through 7-6.26.

North Carolina: N.C. Gen. Stat. §§ 33A-1 through 33A-24.

North Dakota: N.D. Cent. Code §§ 47-24.1-01 through 47-24.1-22.

Ohio: O.R.C. Ann. §§ 5814.01 through 5814.09.

Oklahoma: 58 Okl. St. §§ 1201 through 1225.

Oregon: O.R.S. §§ 126.805 through 126.886.

Pennsylvania: 20 Pa.C.S. §§ 5301 through 5321.

Rhode Island: R.I. Gen. Laws §§18-7-1 through18-7-26.

South Dakota S.D. Codified Laws §§55-10A-1 through55-10A-26.

Tennessee: Tenn. Code Ann. §§35-7-201 through35-7-226.

Texas Property Code, §§ 141.001 through 141.025.

Utah: Utah Code Ann. §§75-5A-101 through75-5A-123.

Vermont: 14 V.S.A. § 3211 et seq.

Virgin Islands: 15 V.I.C. §§ 1251a through 1251x.

Virginia: Va. Code Ann. §§ 64.2-1900 through 64.2-1922.

Washington: Rev. Code Wash. §§ 11.114.010 through 11.114.904.

West Virginia: W. Va. Code 36-7-1 through 36-7-24.

Wisconsin: Wis. Stat. §§ 54.854 through 54.898.

Wyoming: Wyo. Stat. §§34-13-114 through34-13-137.

RESEARCH REFERENCES

Practice References.

Bicke and Flanneryl, Living Trusts: Forms and Practice (Matthew Bender).

Burke, Friel, and Gagliardi, Modern Estate Planning, Second Edition (Matthew Bender).

Christensen, International Estate Planning, Second Edition (Matthew Bender).

Mobley, Robinson and Hedrick, Pritchard on the Law of Wills and Administration of Estates, Seventh Edition (Michie).

Rapkin, Planning for Large Estates (Matthew Bender).

Schoenblum, Estate Planning Forms and Clauses with CD Rom (Matthew Bender).

Wyatt, Trust Administration and Taxation (Matthew Bender).

LexisNexis® CD – Estate Planning Package (CD-ROM) (LexisNexis).

Murphy’s Will Clauses: Annotations and Forms with Tax Effects (Matthew Bender).

§ 91-20-3. Definitions.

In this chapter:

“Adult” means an individual who has attained the age of twenty-one (21) years.

“Benefit plan” means an employer’s plan for the benefit of an employee or partner.

“Broker” means a person lawfully engaged in the business of effecting transactions in securities or commodities for the person’s own account or for the account of others.

“Conservator” means a person appointed or qualified by a court to act as general, limited or temporary guardian of a minor’s property or a person legally authorized to perform substantially the same functions.

“Court” means the chancery court of the county in which the parties reside.

“Custodial property” means (i) any interest in property transferred to a custodian under this chapter and (ii) the income from and proceeds of that interest in property.

“Custodian” means a person so designated under §91-20-19 or a successor or substitute custodian designated under §91-20-37.

“Financial institution” means a bank, trust company, savings institution or credit union, chartered and supervised under state or federal law.

“Legal representative” means an individual’s personal representative or conservator.

“Member of the minor’s family” means the minor’s parent, stepparent, spouse, grandparent, brother, sister, uncle or aunt, whether of the whole or half blood or by adoption.

“Minor” means an individual who has not attained the age of twenty-one (21) years.

“Person” means an individual, corporation, organization or other legal entity.

“Personal representative” means an executor, administrator, successor personal representative or special administrator of a decedent’s estate or a person legally authorized to perform substantially the same functions.

“State” includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico and any territory or possession subject to the legislative authority of the United States.

“Transfer” means a transaction that creates custodial property under Section 91-20-19.

“Transferor” means a person who makes a transfer under this chapter.

“Trust company” means a financial institution, corporation or other legal entity authorized to exercise general trust powers.

HISTORY: Laws, 1994, ch. 416, § 2, eff from and after January 1, 1995.

Editor’s Notes —

Laws of 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

Cross References —

Another definition of “minor,” see §1-3-27.

Savings banks as qualified institutions within meaning of that term as used in Uniform Gifts to Minors Law, see §81-14-385.

RESEARCH REFERENCES

ALR.

Wills: what constitutes “bank,” “checking,” or “savings” account, within meaning of bequest. 31 A.L.R.4th 688.

Am. Jur.

38 Am. Jur. 2d, Gifts §§ 1 et seq., 6, 7.

§ 91-20-5. Applicability of chapter; jurisdiction.

  1. This chapter applies to a transfer that refers to this chapter in the designation under Section 91-20-19(1) by which the transfer is made if at the time of the transfer, the transferor, the minor or the custodian is a resident of this state or the custodial property is located in this state. The custodianship so created remains subject to this chapter despite a subsequent change in residence of a transferor, the minor or the custodian or the removal of custodial property from this state.
  2. A person designated as custodian under this chapter is subject to personal jurisdiction in this state with respect to any matter relating to the custodianship.
  3. A transfer that purports to be made and which is valid under the Uniform Transfers to Minors Act, the Uniform Gifts to Minors Act or a substantially similar act of another state is governed by the law of the designated state and may be executed and is enforceable in this state if at the time of the transfer, the transferor, the minor or the custodian is a resident of the designated state or the custodial property is located in the designated state.

HISTORY: Laws, 1994, ch. 416, § 3, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward § 189.

§ 91-20-7. Nomination of custodian.

  1. A person having the right to designate the recipient of property transferable upon the occurrence of a future event may revocably nominate a custodian to receive the property for a minor beneficiary upon the occurrence of the event by naming the custodian followed in substance by the words: “As custodian for_______________(name of minor) under the Mississippi Uniform Transfers to Minors Act.” The nomination may name one or more persons as substitute custodians to whom the property must be transferred, in the order named, if the first nominated custodian dies before the transfer or is unable, declines or is ineligible to serve. The nomination may be made in a will, a trust, a deed, an instrument exercising a power of appointment or in a writing designating a beneficiary of contractual rights which is registered with or delivered to the payor, issuer or other obligor of the contractual rights.
  2. A custodian nominated under this section must be a person to whom a transfer of property of that kind may be made under Section 91-20-19(1).
  3. The nomination of a custodian under this section does not create custodial property until the nominating instrument becomes irrevocable or a transfer to the nominated custodian is completed under Section 91-20-19. Unless the nomination of a custodian has been revoked, upon the occurrence of the future event the custodianship becomes effective and the custodian shall enforce a transfer of the custodial property pursuant to Section 91-20-19.

HISTORY: Laws, 1994, ch. 416, § 4, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward § 190.

§ 91-20-9. Transfer by irrevocable gift or exercise of appointment power in favor of custodian.

A person may make a transfer by irrevocable gift to, or the irrevocable exercise of a power of appointment in favor of, a custodian for the benefit of a minor pursuant to Section 91-20-19.

HISTORY: Laws, 1994, ch. 416, § 5, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward § 190.

§ 91-20-11. Transfer to custodian by personal representative or trustee as authorized by will or trust; designation of custodian by personal representative or trustee.

  1. A personal representative or trustee may make an irrevocable transfer pursuant to Section 91-20-19 to a custodian for the benefit of a minor as authorized in the governing will or trust.
  2. If the testator or settlor has nominated a custodian under Section 91-20-7 to receive the custodial property, the transfer must be made to that person.
  3. If the testator or settlor has not nominated a custodian under Section 91-20-7, or all persons so nominated as custodian die before the transfer or are unable, decline or are ineligible to serve, the personal representative or the trustee, as the case may be, shall designate the custodian from among those eligible to serve as custodian for property of that kind under Section 91-20-19(1).

HISTORY: Laws, 1994, ch. 416, § 6, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward § 190.

§ 91-20-13. Transfer by personal representative, trustee, or conservator to another adult or trust company as custodian without authorization by will or trust; prerequisites.

  1. Subject to subsection (3), a personal representative or trustee may make an irrevocable transfer to another adult or trust company as custodian for the benefit of a minor pursuant to Section 91-20-19, in the absence of a will or under a will or trust that does not contain an authorization to do so.
  2. Subject to subsection (3), a conservator may make an irrevocable transfer to another adult or trust company as custodian for the benefit of the minor pursuant to Section 91-20-19.
  3. A transfer under subsection (1) or (2) may be made only if (a) the personal representative, trustee or conservator considers the transfer to be in the best interest of the minor, (b) the transfer is not prohibited by or inconsistent with provisions of the applicable will, trust agreement or other governing instrument, and (c) the transfer is authorized by the court if it exceeds Ten Thousand Dollars ($10,000.00) in value.

HISTORY: Laws, 1994, ch. 416, § 7, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward § 190.

§ 91-20-15. Transfer to custodian by one holding property of or owing debt to minor; designation of custodian.

  1. Subject to subsections (2) and (3), a person not subject to Section 91-20-11 or 91-20-13 who holds property of or owes a liquidated debt to a minor not having a conservator may make an irrevocable transfer to a custodian for the benefit of the minor pursuant to Section 91-20-19.
  2. If a person having the right to do so under Section 91-20-7 has nominated a custodian under that section to receive the custodial property, the transfer must be made to that person.
  3. If no custodian has been nominated under Section 91-20-7, or all persons so nominated as custodian die before the transfer or are unable, decline or are ineligible to serve, a transfer under this section may be made to an adult member of the minor’s family or to a trust company unless the property exceeds Ten Thousand Dollars ($10,000.00) in value.

HISTORY: Laws, 1994, ch. 416, § 8, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward § 190.

9 Am. Jur. Legal Forms 2d (Rev), Gifts § 130:84 et seq. (gifts to minors).

§ 91-20-17. Written receipt from custodian; effect.

A written acknowledgment of delivery by a custodian constitutes a sufficient receipt and discharge for custodial property transferred to the custodian pursuant to this chapter.

HISTORY: Laws, 1994, ch. 416, § 9, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward § 190.

§ 91-20-19. Creation and transfer of custodial property.

  1. Custodial property is created and a transfer is made whenever:
    1. An uncertificated security or a certificated security in registered form is either:
      1. Registered in the name of the transferor, an adult other than the transferor or a trust company, followed in substance by the words: “as custodian for_______________(name of minor) under the Mississippi Uniform Transfers to Minors Act”; or
      2. Delivered if in certificated form, or any document necessary for the transfer of an uncertificated security is delivered, together with any necessary endorsement to an adult other than the transferor or to a trust company as custodian, accompanied by an instrument in substantially the form set forth in subsection (2);
    2. Money ispaid or delivered to a broker or financial institution for creditto an account in the name of the transferor, an adult other than thetransferor or a trust company, followed in substance by the words:“as custodian for_______________(nameof minor) under the Mississippi Uniform Transfers to Minors Act”;
    3. The ownership of a life or endowment insurance policy or annuity contract is either:
      1. Registered with the issuer in the nameof the transferor, an adult other than the transferor or a trust company,followed in substance by the words: “as custodian for_______________(name of minor) under the MississippiUniform Transfers to Minors Act”; or
      2. Assigned in a writingdelivered to an adult other than the transferor or to a trust companywhose name in the assignment is followed in substance by the words:“as custodian for_______________(nameof minor) under the Mississippi Uniform Transfers to Minors Act”;
    4. An irrevocable exercise of a power of appointment or an irrevocablepresent right to future payment under a contract is the subject ofa written notification delivered to the payor, issuer or other obligorthat the right is transferred to the transferor, an adult other thanthe transferor or a trust company, whose name in the notificationis followed in substance by the words: “as custodian for_______________(name of minor) under the MississippiUniform Transfers to Minors Act”;
    5. An interest in realproperty is recorded in the name of the transferor, an adult otherthan the transferor or a trust company, followed in substance by thewords: “as custodian for_______________(name of minor) under the Mississippi Uniform Transfers to MinorsAct”;
    6. A certificate of title issued by a department or agencyof a state or of the United States which evidences title to tangiblepersonal property is either:
      1. Issued in the name of the transferor,an adult other than the transferor or a trust company, followed insubstance by the words: “as custodian for_______________(name of minor) under the MississippiUniform Transfers to Minors Act”; or
      2. Delivered to anadult other than the transferor or to a trust company, endorsed tothat person followed in substance by the words: “as custodianfor_______________(name of minor) under theMississippi Uniform Transfers to Minors Act”; or
    7. An interest in any property not described in paragraphs (1) through(6) is transferred to an adult other than the transferor or to a trustcompany by a written instrument in substantially the form set forthin subsection (b).
  2. An instrumentin the following form satisfiesthe requirements of paragraph (a)(ii)and (g) of subsection (1):

    Click to view

  3. A transferor shall place the custodian in control of the custodial property as soon as practicable.

“TRANSFER UNDER THE MISSISSIPPI UNIFORMTRANSFERS TO MINORS ACT I, (name of transferor or name and representative capacity if a fiduciary) hereby transfer to (name of custodian), as custodian for (name of minor) under the Mississippi Uniform Transfers to Minors Act, the following: (insert a description of the custodial property sufficient to identify it). Dated: (Signature) (name of custodian) acknowledges receipt of the property described above as custodian for the minor named above under the Mississippi Uniform Transfers to Minors Act. Dated: (Signature of Custodian)”

HISTORY: Laws, 1994, ch. 416, § 10, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

Cross References —

Delivery of ward’s property to guardian, see §93-13-31 et seq.

JUDICIAL DECISIONS

1. Effects of transfer.

Cross-defendant refinancing bank was not entitled to equitable subrogation to step into the original lender’s shoes for priority over four cross-defendant judgment creditors because the property was in the debtor/borrower’s infant daughter’s name until the day of closing and if the bank had inquired of liens under the debtor’s name, the judgment creditors’ liens would have been found; the fact that the property was titled in the minor daughter’s name under the Mississippi Uniform Transfers to Minors Act would have been a “red flag” because a transfer of real property made under Miss. Code Ann. §91-20-19 was irrevocable, and under Miss. Code Ann. §91-20-23(2), such custodial property was indefeasibly vested in the minor with the custodian being required to act as a prudent person in dealing with the property under Miss. Code Ann. §91-20-25, such that the custodial property could not be returned by the custodian indiscriminately. Shavers v. JPMorgan Chase Bank, N.A. (In re Shavers), 418 B.R. 589, 2009 Bankr. LEXIS 3411 (Bankr. S.D. Miss. 2009).

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gifts § 63 et seq.

39 Am. Jur. 2d, Guardian and Ward § 190.

CJS.

38A C.J.S., Gifts § 47.

§ 91-20-21. One custodian for one minor.

A transfer may be made only for one (1) minor, and only one (1) person may be the custodian. All custodial property held under this chapter by the same custodian for the benefit of the same minor constitutes a single custodianship.

HISTORY: Laws, 1994, ch. 416, § 11, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward § 190.

§ 91-20-23. Factors not affecting validity of transfer; powers and duties of custodian unalterable.

  1. The validity of a transfer made in a manner prescribed in this chapter is not affected by:
    1. Failure of the transferor to comply with Section 91-20-19(3) concerning possession and control;
    2. Designation of an ineligible custodian, except designation of the transferor in the case of property for which the transferor is ineligible to serve as custodian under Section 91-20-19(1); or
    3. Death or incapacity of a person nominated under Section 91-20-7 or designated under Section 91-20-19 as custodian or the disclaimer of the office by that person.
  2. A transfer made pursuant to Section 91-20-19 is irrevocable, and the custodial property is indefeasibly vested in the minor, but the custodian has all the rights, powers, duties and authority provided in this chapter, and neither the minor nor the minor’s legal representative has any right, power, duty or authority with respect to the custodial property except as provided in this chapter.
  3. By making a transfer, the transferor incorporates in the disposition all the provisions of this chapter and grants to the custodian, and to any third person dealing with a person designated as custodian, the respective powers, rights and immunities provided in this chapter.

HISTORY: Laws, 1994, ch. 416, § 12, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

JUDICIAL DECISIONS

1. Duties of custodian.

Cross-defendant refinancing bank was not entitled to equitable subrogation to step into the original lender’s shoes for priority over four cross-defendant judgment creditors because the property was in the debtor/borrower’s infant daughter’s name until the day of closing and if the bank had inquired of liens under the debtor’s name, the judgment creditors’ liens would have been found; the fact that the property was titled in the minor daughter’s name under the Mississippi Uniform Transfers to Minors Act would have been a “red flag” because a transfer of real property made under Miss. Code Ann. §91-20-19 was irrevocable, and under Miss. Code Ann. §91-20-23(2), such custodial property was indefeasibly vested in the minor with the custodian being required to act as a prudent person in dealing with the property under Miss. Code Ann. §91-20-25, such that the custodial property could not be returned by the custodian indiscriminately. Shavers v. JPMorgan Chase Bank, N.A. (In re Shavers), 418 B.R. 589, 2009 Bankr. LEXIS 3411 (Bankr. S.D. Miss. 2009).

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward § 190.

§ 91-20-25. Powers and duties of custodian; standard of care; records.

  1. A custodian shall:
    1. Take control of custodial property;
    2. Register or record title to custodial property if appropriate; and
    3. Collect, hold, manage, invest and reinvest custodial property.
  2. In dealing with custodial property, a custodian shall observe the standard of care that would be observed by a prudent person dealing with property of another and is not limited by any other statute restricting investments by fiduciaries. If a custodian has a special skill or expertise or is named custodian on the basis of representations of a special skill or expertise, the custodian shall use that skill or expertise. However, a custodian, in the custodian’s discretion and without liability to the minor or the minor’s estate, may retain any custodial property received from a transferor.
  3. A custodian may invest in or pay premiums on life insurance or endowment policies on (a) the life of the minor only if the minor or the minor’s estate is the sole beneficiary, or (b) the life of another person in whom the minor has an insurable interest only to the extent that the minor, the minor’s estate, or the custodian in the capacity of custodian, is the irrevocable beneficiary.
  4. A custodian at all times shall keep custodial property separate and distinct from all other property in a manner sufficient to identify it clearly as custodial property of the minor. Custodial property consisting of an undivided interest is so identified if the minor’s interest is held as a tenant in common and is fixed. Custodial property subject to recordation is so identified if it is recorded, and custodial property subject to registration is so identified if it is either registered, or held in an account designated, in the name of the custodian, followed in substance by the words: “as a custodian for_______________(name of minor) under the Mississippi Uniform Transfers to Minors Act.”
  5. A custodian shall keep records of all transactions with respect to custodial property, including information necessary for the preparation of the minor’s tax returns, and shall make them available for inspection at reasonable intervals by a parent or legal representative of the minor or by the minor if the minor has attained the age of fourteen (14) years.

HISTORY: Laws, 1994, ch. 416, § 13, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

JUDICIAL DECISIONS

1. Duties of eustodian.

Cross-defendant refinancing bank was not entitled to equitable subrogation to step into the original lender’s shoes for priority over four cross-defendant judgment creditors because the property was in the debtor/borrower’s infant daughter’s name until the day of closing and if the bank had inquired of liens under the debtor’s name, the judgment creditors’ liens would have been found; the fact that the property was titled in the minor daughter’s name under the Mississippi Uniform Transfers to Minors Act would have been a “red flag” because a transfer of real property made under Miss. Code Ann. §91-20-19 was irrevocable, and under Miss. Code Ann. §91-20-23(2), such custodial property was indefeasibly vested in the minor with the custodian being required to act as a prudent person in dealing with the property under Miss. Code Ann. §91-20-25, such that the custodial property could not be returned by the custodian indiscriminately. Shavers v. JPMorgan Chase Bank, N.A. (In re Shavers), 418 B.R. 589, 2009 Bankr. LEXIS 3411 (Bankr. S.D. Miss. 2009).

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward § 191.

§ 91-20-27. Custodian’s exercise of powers and authority over custodial property.

  1. A custodian, acting in a custodial capacity, has all the rights, powers and authority over custodial property that unmarried adult owners have over their own property, but a custodian may exercise those rights, powers and authority in that capacity only.
  2. This section does not relieve a custodian from liability for breach of Section 91-20-25.

HISTORY: Laws, 1994, ch. 416, § 14, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward § 191.

§ 91-20-29. Delivery of property or money to minor; expenditure for benefit of minor; conditions; court order.

  1. A custodian may deliver or pay to the minor or expend for the minor’s benefit so much of the custodial property as the custodian considers advisable for the use and benefit of the minor, without court order and without regard to (a) the duty or ability of the custodian personally or of any other person to support the minor, or (b) any other income or property of the minor which may be applicable or available for that purpose.
  2. On petition of an interested person or the minor if the minor has attained the age of fourteen (14) years, the court may order the custodian to deliver or pay to the minor or expend for the minor’s benefit so much of the custodial property as the court considers advisable for the use and benefit of the minor.
  3. A delivery, payment or expenditure under this section is in addition to, not in substitution for, and does not affect any obligation of a person to support the minor.

HISTORY: Laws, 1994, ch. 416, § 15, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

JUDICIAL DECISIONS

1. College expenses.

A minor may reach the assets of an account in her name through the custodian of the account; and either the minor or the custodian may withdraw funds for college expenses. Saliba v. Saliba, 753 So. 2d 1095, 2000 Miss. LEXIS 35 (Miss. 2000).

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward § 191.

§ 91-20-31. Reimbursement of custodian for expenses; compensation of custodian; bond unnecessary.

  1. A custodian is entitled to reimbursement from custodial property for reasonable expenses incurred in the performance of the custodian’s duties.
  2. Except for one who is a transferor under Section 91-20-9, a custodian has a noncumulative election during each calendar year to charge reasonable compensation for services performed during that year.
  3. Except as provided in Section 91-20-37(6), a custodian need not give a bond.

HISTORY: Laws, 1994, ch. 416, § 16, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward § 191.

§ 91-20-33. Good faith reliance on capacity of purported custodian.

A third person in good faith and without court order may act on the instructions of or otherwise deal with any person purporting to make a transfer or purporting to act in the capacity of a custodian and, in the absence of knowledge, is not responsible for determining:

The validity of the purported custodian’s designation;

The propriety of, or the authority under this chapter for, any act of the purported custodian;

The validity or propriety under this chapter of any instrument or instructions executed or given either by the person purporting to make a transfer or by the purported custodian; or

The propriety of the application of any property of the minor delivered to the purported custodian.

HISTORY: Laws, 1994, ch. 416, § 17, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward § 191.

§ 91-20-35. Assertion of claim against custodial property; personal liability of custodian or minor.

  1. A claim based on (a) a contract entered into by a custodian acting in a custodial capacity, (b) an obligation arising from the ownership or control of custodial property, or (c) a tort committed during the custodianship, may be asserted against the custodial property by proceeding against the custodian in the custodial capacity, whether or not the custodian or the minor is personally liable therefor.
  2. A custodian is not personally liable:
    1. On a contract properly entered into in the custodial capacity unless the custodian fails to reveal that capacity and to identify the custodianship in the contract; or
    2. For an obligation arising from control of custodial property or for a tort committed during the custodianship unless the custodian is personally at fault.
  3. A minor is not personally liable for an obligation arising from ownership of custodial property or for a tort committed during the custodianship unless the minor is personally at fault.

HISTORY: Laws, 1994, ch. 416, § 18, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward § 191.

§ 91-20-37. Declination to serve or resignation as custodian; nomination of substitute custodian; designation of successor custodian; transfer of property.

  1. A person nominated under Section 91-20-7 or designated under Section 91-20-19 as custodian may decline to serve by delivering a valid disclaimer to the person who made the nomination or to the transferor or the transferor’s legal representative. If the event giving rise to a transfer has not occurred and no substitute custodian able, willing and eligible to serve was nominated under Section 91-20-7, the person who made the nomination may nominate a substitute custodian under Section 91-20-7; otherwise the transferor or the transferor’s legal representative shall designate a substitute custodian at the time of the transfer, in either case from among the persons eligible to serve as custodian for that kind of property under Section 91-20-19(1). The custodian so designated has the rights of a successor custodian.
  2. A custodian at any time may designate a trust company or an adult other than a transferor under Section 91-20-9 as successor custodian by executing and dating an instrument of designation before a subscribing witness other than the successor. If the instrument of designation does not contain or is not accompanied by the resignation of the custodian, the designation of the successor does not take effect until the custodian resigns, dies, becomes incapacitated or is removed.
  3. A custodian may resign at any time by delivering written notice to the minor if the minor has attained the age of fourteen (14) years and to the successor custodian and by delivering the custodial property to the successor custodian.
  4. If a custodian is ineligible, dies or becomes incapacitated without having effectively designated a successor and the minor has attained the age of fourteen (14) years, the minor may designate as successor custodian, in the manner prescribed in subsection (2), an adult member of the minor’s family, a conservator of the minor or a trust company. If the minor has not attained the age of fourteen (14) years or fails to act within sixty (60) days after the ineligibility, death or incapacity, the conservator of the minor becomes successor custodian. If the minor has no conservator or the conservator declines to act, the transferor, the legal representative of the transferor or of the custodian, an adult member of the minor’s family, or any other interested person may petition the court to designate a successor custodian.
  5. A custodian who declines to serve under subsection (1) or resigns under subsection (3) or the legal representative of a deceased or incapacitated custodian, as soon as practicable, shall put the custodial property and records in the possession and control of the successor custodian. The successor custodian by action may enforce the obligation to deliver custodial property and records and becomes responsible for each item as received.
  6. A transferor, the legal representative of a transferor, an adult member of the minor’s family, a guardian of the person of the minor, the conservator of the minor, or the minor if the minor has attained the age of fourteen (14) years may petition the court to remove the custodian for cause and to designate a successor custodian other than a transferor under § 91-20-9 or to require the custodian to give appropriate bond.

HISTORY: Laws, 1994, ch. 416, § 19, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward § 191.

§ 91-20-39. Petition for accounting or determination of responsibility for claims; accounting upon removal of custodian.

  1. A minor who has attained the age of fourteen (14) years, the minor’s guardian of the person or legal representative, an adult member of the minor’s family, a transferor or a transferor’s legal representative may petition the court (a) for an accounting by the custodian or the custodian’s legal representative, or (b) for a determination of responsibility, as between the custodial property and the custodian personally, for claims against the custodial property unless the responsibility has been adjudicated in an action under Section 91-20-35 to which the minor or the minor’s legal representative was a party.
  2. A successor custodian may petition the court for an accounting by the predecessor custodian.
  3. The court, in a proceeding under this chapter or in any other proceeding, may require or permit the custodian or the custodian’s legal representative to account.
  4. If a custodian is removed under Section 91-20-37(6), the court shall require an accounting and order delivery of the custodial property and records to the successor custodian and the execution of all instruments required for transfer of the custodial property.

HISTORY: Laws, 1994, ch. 416, § 20, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

Cross References —

Jurisdiction of chancery court in general, see §9-5-81.

Duties of chancery clerk in regard to guardianship, see §9-5-137.

Production of vouchers in guardianship proceedings, see §93-13-73.

§ 91-20-41. Time for transfer of custodial property to minor or minor’s estate.

The custodian shall transfer in an appropriate manner the custodial property to the minor or to the minor’s estate upon the earlier of:

The minor’s attainment of twenty-one (21) years of age with respect to custodial property transferred under Section 91-20-9 or 91-20-11;

The minor’s attainment of eighteen (18) years of age with respect to custodial property transferred under Section 91-20-13 or 91-20-15; or

The minor’s death.

HISTORY: Laws, 1994, ch. 416, § 21, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

§ 91-20-43. Applicability of chapter to certain transfers.

This chapter applies to a transfer within the scope of Section 91-20-5 made after its effective date if:

The transfer purports to have been made under the Mississippi Uniform Gifts to Minors Law, Sections 91-19-1 through 91-19-19; or

The instrument by which the transfer purports to have been made uses in substance the designation “as custodian under the Uniform Gifts to Minors Act” or “as custodian under the Uniform Transfers to Minors Act” of any other state, and the application of this chapter is necessary to validate the transfer.

HISTORY: Laws, 1994, ch. 416, § 22, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

§ 91-20-45. Validation of transfers predating chapter; application of chapter to prior transfers.

  1. Any transfer of custodial property as now defined in this chapter made before January 1, 1995, is validated notwithstanding that there was no specific authority in the Mississippi Uniform Gifts to Minors Act for the coverage of custodial property of that kind or for a transfer from that source at the time the transfer was made.
  2. This chapter applies to all transfers made before January 1, 1995, in a manner and form prescribed in the Mississippi Uniform Gifts to Minors Law except insofar as the application impairs constitutionally vested rights or extends the duration of custodianships in existence on January 1, 1995.

HISTORY: Laws, 1994, ch. 416, § 23, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

§ 91-20-47. Construction of chapter.

This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.

HISTORY: Laws, 1994, ch. 416, § 24, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

§ 91-20-49. Severability of provisions of chapter.

If any provisions of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end provisions of this chapter are severable.

HISTORY: Laws, 1994, ch. 416, § 25, eff from and after January 1, 1995.

Editor’s Notes —

Laws, 1994, ch. 416, § 26, provides as follows:

“SECTION 26. Sections 91-19-1, 91-19-3, 91-19-5, 91-19-7, 91-19-9, 91-19-11, 91-19-13, 91-19-15, 91-19-17 and 91-19-19, Mississippi Code of 1972, entitled the ”Mississippi Uniform Gifts to Minors Law,“ which regulate the manner of making certain gifts to minors, are repealed. To the extent that this act, by virtue of Section 23(2), does not apply to transfers made in a manner prescribed in the Mississippi Uniform Gifts to Minors Law or to the powers, duties and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of Sections 91-19-1 through 91-19-19 does not affect those transfers or those powers, duties and immunities.”

Chapter 21. Uniform Transfer-on-Death Security Registration Act

§ 91-21-1. Short title.

This chapter shall be known and may be cited as the “Mississippi Uniform Transfer-on-Death Security Registration Act.”

HISTORY: Laws, 1997, ch. 413, § 1, eff from and after passage (approved March 24, 1997).

Cross References —

Whether indorsement, instruction, or entitlement order with respect to security transfers is effective, see §75-8-107.

The transfer of securities, see §75-8-301 et seq.

The registration of securities, see §75-8-401 et seq.

Comparable Laws from other States —

Alabama Code, §§5-24-1 through5-24-34,8-6-140 through8-6-151.

Arkansas Code Annotated, §§28-14-101 through28-14-112.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gifts § 3.

Practice References.

Bickel and Flannery, Living Trusts: Forms and Practice (Matthew Bender).

Burke, Friel, and Gagliardi, Modern Estate Planning, Second Edition (Matthew Bender).

Christensen, International Estate Planning, Second Edition (Matthew Bender).

Mobley, Robinson and Hedrick, Pritchard on the Law of Wills and Administration of Estates, Seventh Edition (Michie).

Rapkin, Planning for Large Estates (Matthew Bender).

Schoenblum, Estate Planning Forms and Clauses with CD Rom (Matthew Bender).

Wyatt, Trust Administration and Taxation (Matthew Bender).

LexisNexis® CD – Estate Planning Package (CD-ROM) (LexisNexis).

Murphy’s Will Clauses: Annotations and Forms with Tax Effects (Matthew Bender).

§ 91-21-3. Definitions.

In this chapter, unless the context otherwise requires:

“Beneficiary form” means a registration of a security which indicates the present owner of the security and the intention of the owner regarding the person who will become the owner of the security upon the death of the owner.

“Devisee” means any person designated in a will to receive a disposition of real or personal property.

“Heirs” mean those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.

“Person” means an individual, a corporation, an organization or other legal entity.

“Personal representative” includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status.

“Property” includes both real and personal property or any interest therein and means anything that may be the subject of ownership.

“Register,” including its derivatives, means to issue a certificate showing the ownership of a certificated security or, in the case of an uncertificated security, to initiate or transfer an account showing ownership of securities.

“Registering entity” means a person who originates or transfers a security title by registration, and includes a broker maintaining security accounts for customers and a transfer agent or other person acting for or as an issuer of securities.

“Security” means a share, participation, or other interest in property, in a business or in an obligation of an enterprise or other issuer and includes a certificated security, an uncertificated security, and a security account.

“Security account” means:

A reinvestment account associated with a security, a securities account with a broker, a cash balance in a brokerage account, cash, cash equivalents, interest, earnings, or dividends earned or declared on a security in an account, a reinvestment account or a brokerage account, whether or not credited to the account before the owner’s death;

An investment or custody account with a trust company or trust division of a bank with trust powers, including the securities in the account, a cash balance in the account and cash, cash equivalents, interest, earnings or dividends earned or declared on a security in the account, whether or not credited to the account before the owner’s death; or

A cash balance or other property held for or due to the owner of a security as a replacement for or product of an account security, whether or not credited to the account before the owner’s death.

“State” includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.

HISTORY: Laws, 1997, ch. 413, § 2; Laws, 2012, ch. 335, § 1, eff from and after July 1, 2012.

Amendment Notes —

The 2012 amendment added “cash equivalents” preceding “interest, earnings, or dividends” in (j)(i); added (j)(ii); and made minor stylistic changes.

Cross References —

Whether indorsement, instruction, or entitlement order with respect to security transfers is effective, see §75-8-107.

The transfer of securities, see §75-8-301 et seq.

The registration of securities, see §75-8-401 et seq.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gifts § 3.

§ 91-21-5. Registration in beneficiary form; sole or joint tenancy ownership.

Only individuals whose registration of a security shows sole ownership by one (1) individual or multiple ownership by two (2) or more with right of survivorship, rather than as tenants in common, may obtain registration in beneficiary form. Multiple owners of a security registered in beneficiary form, hold as joint tenants with right of survivorship, as tenants by the entireties, or as owners of community property held in survivorship form, and not as tenants in common.

HISTORY: Laws, 1997, ch. 413, § 3, eff from and after passage (approved March 24, 1997).

Cross References —

Whether indorsement, instruction, or entitlement order with respect to security transfers is effective, see §75-8-107.

The transfer of securities, see §75-8-301 et seq.

The registration of securities, see §75-8-401 et seq.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gifts § 3.

§ 91-21-7. Registration in beneficiary form; applicable law.

A security may be registered in beneficiary form if the form is authorized by this or a similar statute of the state of organization of the issuer or registering entity, the location of the registering entity’s principal office, the office of its transfer agent or its office making the registration, or by this or a similar statute of the law of the state listed as the owner’s address at the time of registration. A registration governed by the law of a jurisdiction in which this or similar legislation is not in force or was not in force when a registration in beneficiary form was made is nevertheless presumed to be valid and authorized as a matter of contract law.

HISTORY: Laws, 1997, ch. 413, § 4, eff from and after passage (approved March 24, 1997).

Cross References —

Whether indorsement, instruction, or entitlement order with respect to security transfers is effective, see §75-8-107.

The transfer of securities, see §75-8-301 et seq.

The registration of securities, see §75-8-401 et seq.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gifts § 3.

§ 91-21-9. Origination of registration in beneficiary form.

A security, whether evidenced by certificate or account, is registered in beneficiary form when the registration includes a designation of a beneficiary to take the ownership at the death of the owner or the deaths of all multiple owners.

HISTORY: Laws, 1997, ch. 413, § 5, eff from and after passage (approved March 24, 1997).

Cross References —

Whether indorsement, instruction, or entitlement order with respect to security transfers is effective, see §75-8-107.

The transfer of securities, see §75-8-301 et seq.

The registration of securities, see §75-8-401 et seq.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gifts § 3.

§ 91-21-11. Form of registration in beneficiary form.

Registration in beneficiary form may be shown by the words “transfer on death” or the abbreviation “TOD,” or by the words “pay on death” or the abbreviation “POD,” after the name of the registered owner and before the name of a beneficiary.

HISTORY: Laws, 1997, ch. 413, § 6, eff from and after passage (approved March 24, 1997).

Cross References —

Whether indorsement, instruction, or entitlement order with respect to security transfers is effective, see §75-8-107.

The transfer of securities, see §75-8-301 et seq.

The registration of securities, see §75-8-401 et seq.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gifts § 3.

§ 91-21-13. Effect of registration in beneficiary form.

The designation of a TOD beneficiary on a registration in beneficiary form has no effect on ownership until the owner’s death. A registration of a security in beneficiary form may be cancelled or changed at any time by the sole owner or all the surviving owners without the consent of the beneficiary.

HISTORY: Laws, 1997, ch. 413, § 7, eff from and after passage (approved March 24, 1997).

Cross References —

Whether indorsement, instruction, or entitlement order with respect to security transfers is effective, see §75-8-107.

The transfer of securities, see §75-8-301 et seq.

The registration of securities, see §75-8-401 et seq.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gifts § 3.

§ 91-21-15. Ownership on death of owner.

On death of a sole owner or the last to die of all multiple owners, ownership of securities registered in beneficiary form passes to the beneficiary or beneficiaries who survive all owners. On proof of death of all owners and compliance with any applicable requirements of the registering entity, a security registered in beneficiary form may be reregistered in the name of the beneficiary or beneficiaries who survived the death of all owners. Until division of the security after the death of all owners, multiple beneficiaries surviving the death of all owners hold their interests as tenants in common. If no beneficiary survives the death of all owners, the security belongs to the estate of the deceased sole owner or the estate of the last to die of all multiple owners.

HISTORY: Laws, 1997, ch. 413, § 8, eff from and after passage (approved March 24, 1997).

Cross References —

Whether indorsement, instruction, or entitlement order with respect to security transfers is effective, see §75-8-107.

The transfer of securities, see §75-8-301 et seq.

The registration of securities, see §75-8-401 et seq.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gifts § 3.

§ 91-21-17. Protection of registering entity.

  1. A registering entity is not required to offer or to accept a request for security registration in beneficiary form. If a registration in beneficiary form is offered by a registering entity, the owner requesting registration in beneficiary form assents to the protections given to the registering entity by this chapter.
  2. By accepting a request for registration of a security in beneficiary form, the registering entity agrees that the registration will be implemented on death of the deceased owner as provided in this chapter.
  3. A registering entity is discharged from all claims to a security by the estate, creditors, heirs or devisee of a deceased owner if it registers a transfer of the security in accordance with Section 91-21-15 and does so in good faith reliance (a) on the registration, (b) on this chapter, and (c) on information provided to it by affidavit of the personal representative of the deceased owner, or by the surviving beneficiary or by the surviving beneficiary’s representatives, or other information available to the registering entity. The protections of this chapter do not extend to a reregistration or payment made after a registering entity has received written notice from any claimant to any interest in the security objecting to implementation of a registration in beneficiary form. No other notice or other information available to the registering entity affects its right to protection under this chapter.
  4. The protection provided by this chapter to the registering entity of a security does not affect the rights of beneficiaries in disputes between themselves and other claimants to ownership of the security transferred or its value or proceeds.

HISTORY: Laws, 1997, ch. 413, § 9, eff from and after passage (approved March 24, 1997).

Cross References —

Whether indorsement, instruction, or entitlement order with respect to security transfers is effective, see §75-8-107.

The transfer of securities, see §75-8-301 et seq.

The registration of securities, see §75-8-401 et seq.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gifts § 3.

§ 91-21-19. Nontestamentary transfer on death.

  1. A transfer on death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner and the registering entity and this chapter and is not testamentary.
  2. This chapter does not limit the rights of creditors of security owners against beneficiaries and other transferees under other laws of this state.

HISTORY: Laws, 1997, ch. 413, § 10, eff from and after passage (approved March 24, 1997).

Cross References —

Whether indorsement, instruction, or entitlement order with respect to security transfers is effective, see §75-8-107.

The transfer of securities, see §75-8-301 et seq.

The registration of securities, see §75-8-401 et seq.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gifts § 3.

§ 91-21-21. Terms, conditions, and forms for registration.

  1. A registering entity offering to accept registrations in beneficiary form may establish the terms and conditions under which it will receive requests (a) for registrations in beneficiary form, and (b) for implementation of registrations in beneficiary form, including requests for cancellation of previously registered TOD beneficiary designations and requests for reregistration to effect a change of beneficiary. The terms and conditions so established may provide for proving death, avoiding or resolving any problems concerning fractional shares, designating primary and contingent beneficiaries, and substituting a named beneficiary’s descendants to take in the place of the named beneficiary in the event of the beneficiary’s death. Substitution may be indicated by appending to the name of the primary beneficiary the letters LDPS, standing for “lineal descendants per stirpes.” This designation substitutes a deceased beneficiary’s descendants who survive the owner for a beneficiary who fails to so survive, the descendants to be identified and to share in accordance with the law of the beneficiary’s domicile at the owner’s death governing inheritance by descendants of an intestate. Other forms of identifying beneficiaries who are to take on one or more contingencies, and rules for providing proofs and assurances needed to satisfy reasonable concerns by registering entities regarding conditions and identities relevant to accurate implementation of registration beneficiary form, may be contained in a registering entity’s terms and conditions.
  2. The following are illustrations of registrations in beneficiary form which a registering entity may authorize:
    1. Sole owner-sole beneficiary: John S Brown TOD (or POD) John S Brown Jr.
    2. Multiple owners-sole beneficiary: John S Brown Mary B Brown JT TEN TOD John S Brown Jr.
    3. Multiple owners-primary and secondary (substituted) beneficiaries: (i) John S Brown Mary B Brown JT TEN TOD John S Brown Jr SUB BENE Peter Q Brown; or (ii) John S Brown Mary B Brown JT TEN TOD John S Brown Jr LDPS.

HISTORY: Laws, 1997, ch. 413, § 11, eff from and after passage (approved March 24, 1997).

Cross References —

Whether indorsement, instruction, or entitlement order with respect to security transfers is effective, see §75-8-107.

The transfer of securities, see §75-8-301 et seq.

The registration of securities, see §75-8-401 et seq.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gifts § 3.

§ 91-21-23. Rules of construction.

  1. This chapter shall be liberally construed and applied to promote its underlying purposes and policy and to make uniform the laws with respect to the subject of these sections among states enacting them.
  2. Unless displaced by the particular provisions of this chapter, the principles of law and equity supplement its provisions.

HISTORY: Laws, 1997, ch. 413, § 12, eff from and after passage (approved March 24, 1997).

Cross References —

Whether indorsement, instruction, or entitlement order with respect to security transfers is effective, see §75-8-107.

The transfer of securities, see §75-8-301 et seq.

The registration of securities, see §75-8-401 et seq.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gifts § 3.

§ 91-21-25. Application of chapter.

This chapter applies to registrations of securities in beneficiary form made before or after July 1, 1997, by decedents dying on or after July 1, 1997.

HISTORY: Laws, 1997, ch. 413, § 13, eff from and after passage (approved March 24, 1997).

Cross References —

Whether indorsement, instruction, or entitlement order with respect to security transfers is effective, see §75-8-107.

The transfer of securities, see §75-8-301 et seq.

The registration of securities, see §75-8-401 et seq.

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gifts § 3.

Chapter 23. Revised Uniform Fiduciary Access to Digital Assets Act

§ 91-23-1. Short title.

This chapter may be cited as the Revised Uniform Fiduciary Access to Digital Assets Act.

HISTORY: Laws, 2017, ch. 419, § 1, eff from and after July 1, 2017.

Comparable Laws from other States —

Arizona: A.R.S. § 14-13101 et seq.

California: Cal Prob Code § 870 et seq.

Colorado: C.R.S. §15-1-1501 et seq.

Idaho: Idaho Code §15-14-101 et seq.

Illinois: 755 ILCS 70/1 et seq.

Indiana: Burns Ind. Code Ann. §32-39-1-1 et seq.

Minnesota: Minn. Stat. § 521A.01 et seq.

North Carolina: N.C. Gen. Stat. § 36F-1 et seq.

Tennessee: Tenn. Code Ann. §35-8-101 et seq.

§ 91-23-3. Definitions.

In this chapter the following terms shall have the meanings ascribed in this section, unless the context clearly requires otherwise:

“Account” means an arrangement under a terms of service agreement in which a custodian carries, maintains, processes, receives or stores a digital asset of the user or provides goods or services to the user.

“Agent” means an attorney-in-fact granted authority under a durable or nondurable power of attorney.

“Carries” means engages in the transmission of an electronic communication.

“Catalogue of electronic communications” means information that identifies each person with which a user has had an electronic communication, the time and date of the communication and the electronic address of the person.

“Conservator” means a person appointed by a court to manage the estate of a living individual and includes a guardian appointed by a court to manage the estate of a living individual, and “conservatorship” includes guardianship of the estate of a living individual.

“Content of an electronic communication” means information concerning the substance or meaning of the communication which:

Has been sent or received by a user;

Is in electronic storage by a custodian providing an electronic-communication service to the public or is carried or maintained by a custodian providing a remote computing service to the public; and

Is not readily accessible to the public.

“Court” means the chancery court.

“Custodian” means a person that carries, maintains, processes, receives or stores a digital asset of a user.

“Designated recipient” means a person chosen by a user using an online tool to administer digital assets of the user.

“Digital asset” means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.

“Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.

“Electronic communication” has the meaning set forth in 18 USC Section 2510(12).

“Electronic-communication service” means a custodian that provides to a user the ability to send or receive an electronic communication.

“Fiduciary” means an original, additional, or successor personal representative, conservator, agent or trustee.

“Information” means data, text, images, videos, sounds, codes, computer programs, software, databases or the like.

“Online tool” means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.

“Person” means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency or instrumentality, or other legal entity.

“Personal representative” means an executor, administrator, special administrator or person that performs substantially the same function under law of this state other than this chapter.

“Power of attorney” means a record that grants an agent authority to act in the place of a principal.

“Principal” means an individual who grants authority to an agent in a power of attorney.

“Protected person” means a ward or other individual for whom a conservator has been appointed and includes an individual for whom an application for the appointment of a conservator is pending.

“Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

“Remote-computing service” means a custodian that provides to a user computer processing services or the storage of digital assets by means of an electronic communications system, as defined in 18 USC Section 2510(14).

“Terms-of-service agreement” means an agreement that controls the relationship between a user and a custodian.

“Trustee” means a fiduciary with legal title to property under an agreement or declaration that creates a beneficial interest in another. The term also includes a successor trustee.

“User” means a person that has an account with a custodian.

“Will” includes a codicil, testamentary instrument that only appoints an executor and an instrument that revokes or revises a testamentary instrument.

HISTORY: Laws, 2017, ch. 419, § 2, eff from and after July 1, 2017.

§ 91-23-5. Applicability.

  1. This chapter applies to:
    1. A fiduciary acting under a will or power of attorney executed before, on, or after July 1, 2017;
    2. A personal representative acting for a decedent who died before, on, or after July 1, 2017;
    3. A conservatorship proceeding commenced before, on, or after July 1, 2017; and
    4. A trustee acting under a trust created before, on, or after July 1, 2017.
  2. This chapter applies to a custodian if the user resides in this state or resided in this state at the time of the user’s death.
  3. This chapter does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer’s business.

HISTORY: Laws, 2017, ch. 419, § 3, eff from and after July 1, 2017.

§ 91-23-7. User direction for disclosure of digital assets.

  1. A user may use an online tool to direct the custodian to disclose to a designated recipient or not to disclose some or all of the user’s digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney or other record.
  2. If a user has not used an online tool to give direction under subsection (1) or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user’s digital assets, including the content of electronic communications sent or received by the user.
  3. A user’s direction under subsection (1) or (2) overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user’s assent to the terms of service.

HISTORY: Laws, 2017, ch. 419, § 4, eff from and after July 1, 2017.

§ 91-23-9. Terms-of-service agreement.

  1. This chapter does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user.
  2. This chapter does not give a fiduciary or designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents.
  3. A fiduciary’s or designated recipient’s access to digital assets may be modified or eliminated by a user, by federal law, or by a terms-of-service agreement if the user has not provided direction under Section 91-23-7.

HISTORY: Laws, 2017, ch. 419, § 5, eff from and after July 1, 2017.

§ 91-23-11. Procedure for disclosing digital assets.

  1. When disclosing digital assets of a user under this chapter, the custodian may at its sole discretion:
    1. Grant a fiduciary or designated recipient full access to the user’s account;
    2. Grant a fiduciary or designated recipient partial access to the user’s account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
    3. Provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
  2. A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this chapter.
  3. A custodian need not disclose under this chapter a digital asset deleted by a user.
  4. If a user directs or a fiduciary requests a custodian to disclose under this chapter some, but not all, of the user’s digital assets, the custodian need not disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the court to disclose:
    1. A subset limited by date of the user’s digital assets;
    2. All of the user’s digital assets to the fiduciary or designated recipient;
    3. None of the user’s digital assets; or
    4. All of the user’s digital assets to the court for review in camera.

HISTORY: Laws, 2017, ch. 419, § 6, eff from and after July 1, 2017.

§ 91-23-13. Disclosure of content of electronic communications of deceased user.

If a deceased user consented or a court directs disclosure of the contents of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the representative gives the custodian:

A written request for disclosure in physical or electronic form;

A certified copy of the death certificate of the user;

A certified copy of letters of administration or letters testamentary of the representative;

Unless the user provided direction using an online tool, a copy of the user’s will, trust, power of attorney or other record evidencing the user’s consent to disclosure of the content of electronic communications; and

If requested by the custodian:

A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;

Evidence linking the account to the user; or

A finding by the court that:

1. The user had a specific account with the custodian, identifiable by the information specified in subparagraph (i);

2. Disclosure of the content of electronic communications of the user would not violate 18 USC Section 2701 et seq., 47 USC Section 222, or other applicable law;

3. Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or

4. Disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.

HISTORY: Laws, 2017, ch. 419, § 7, eff from and after July 1, 2017.

§ 91-23-15. Disclosure of other digital assets of deceased user.

Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalogue of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the representative gives the custodian:

A written request for disclosure in physical or electronic form;

A certified copy of the death certificate of the user;

A certified copy of letters of administration or letters testamentary of the representative; and

If requested by the custodian:

A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;

Evidence linking the account to the user;

An affidavit stating that disclosure of the user’s digital assets is reasonably necessary for administration of the estate; or

A finding by the court that:

1. The user had a specific account with the custodian, identifiable by the information specified in subparagraph (i); or

2. Disclosure of the user’s digital assets is reasonably necessary for administration of the estate.

HISTORY: Laws, 2017, ch. 419, § 8, eff from and after July 1, 2017.

§ 91-23-17. Disclosure of content of electronic communications of principal.

To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent the content if the agent gives the custodian:

A written request for disclosure in physical or electronic form;

An original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;

A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and

If requested by the custodian:

A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or

Evidence linking the account to the principal.

HISTORY: Laws, 2017, ch. 419, § 9, eff from and after July 1, 2017.

§ 91-23-19. Disclosure of other digital assets of principal.

Unless otherwise ordered by the court, directed by the principal or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or general authority to act on behalf of a principal a catalogue of electronic communications sent or received by the principal and digital assets, other than the content of electronic communications, of the principal if the agent gives the custodian:

A written request for disclosure in physical or electronic form;

An original or a copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal;

A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and

If requested by the custodian:

A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or

Evidence linking the account to the principal.

HISTORY: Laws, 2017, ch. 419, § 10, eff from and after July 1, 2017.

§ 91-23-21. Disclosure of digital assets held in trust when trustee is original user.

Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including a catalogue of electronic communications of the trustee and the content of electronic communications.

HISTORY: Laws, 2017, ch. 419, § 11, eff from and after July 1, 2017.

§ 91-23-23. Disclosure of contents of electronic communications held in trust when trustee not original user.

Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the account of the trust if the trustee gives the custodian:

A written request for disclosure in physical or electronic form;

A certified copy of the trust instrument or a certification of the trust under Section 91-8-1013 that includes consent to disclosure of the content of electronic-communications to the trustee;

A certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and

If requested by the custodian:

A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or

Evidence linking the account to the trust.

HISTORY: Laws, 2017, ch. 419, § 12, eff from and after July 1, 2017.

§ 91-23-25. Disclosure of other digital assets held in trust when trustee not original user.

Disclosure of other digital assets held in trust when trustee not original user. Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose, to a trustee that is not an original user of an account, a catalogue of electronic communications sent or received by an original or successor user and stored, carried or maintained by the custodian in an account of the trust and any digital assets, other than the content of electronic communications, in which the trust has a right or interest if the trustee gives the custodian:

A written request for disclosure in physical or electronic form;

A certified copy of the trust instrument or a certification of the trust under Section 91-8-1013;

A certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and

If requested by the custodian:

A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or

Evidence linking the account to the trust.

HISTORY: Laws, 2017, ch. 419, § 13, eff from and after July 1, 2017.

§ 91-23-27. Disclosure of digital assets to conservator of protected person.

  1. After an opportunity for a hearing under Chapter 13, Title 93, Mississippi Code of 1972, the court may grant a conservator access to the digital assets of a protected person.
  2. Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a conservator the catalogue of electronic communications sent or received by a protected person and any digital assets, other than the content of electronic communications, in which the protected person has a right or interest if the conservator gives the custodian:
    1. A written request for disclosure in physical or electronic form;
    2. A certified copy of the court order that gives the conservator authority over the digital assets of the protected person; and
    3. If requested by the custodian:
      1. A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the account of the protected person; or
      2. Evidence linking the account to the protected person.
  3. A conservator with general authority to manage the assets of a protected person may request a custodian of the digital assets of the protected person to suspend or terminate an account of the protected person for good cause. A request made under this section must be accompanied by a certified copy of the court order giving the conservator authority over the protected person’s property.

HISTORY: Laws, 2017, ch. 419, § 14, eff from and after July 1, 2017.

§ 91-23-29. Fiduciary duty and authority.

  1. The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:
    1. The duty of care;
    2. The duty of loyalty; and
    3. The duty of confidentiality.
  2. A fiduciary’s or designated recipient’s authority with respect to a digital asset of a user:
    1. Except as otherwise provided in Section 91-23-7, is subject to the applicable terms of service;
    2. Is subject to other applicable law, including copyright law;
    3. In the case of a fiduciary, is limited by the scope of the fiduciary’s duties; and
    4. May not be used to impersonate the user.
  3. A fiduciary with authority over the property of a decedent, protected person, principal or settlor has the right to access any digital asset in which the decedent, protected person, principal or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.
  4. A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of the property of the decedent, protected person, principal or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including Section 97-45-3.
  5. A fiduciary with authority over the tangible, personal property of a decedent, protected person, principal or settlor:
    1. Has the right to access the property and any digital asset stored in it; and
    2. Is an authorized user for the purpose of computer fraud and unauthorized computer access laws, including Section 97-45-3.
  6. A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.
  7. A fiduciary of a user may request a custodian to terminate the user’s account. A request for termination must be in writing, in either physical or electronic form, and accompanied by:
    1. If the user is deceased, a certified copy of the death certificate of the user;
    2. A certified copy of the letters of administration or letters testamentary of the representative, court order, power of attorney, or trust giving the fiduciary authority over the account; and
    3. If requested by the custodian:
      1. A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
      2. Evidence linking the account to the user; or
      3. A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subparagraph (i) of this paragraph (c).

HISTORY: Laws, 2017, ch. 419, § 15, eff from and after July 1, 2017.

§ 91-23-31. Custodian compliance and immunity.

  1. Not later than sixty (60) days after receipt of the information required under Sections 91-23-13 through 91-23-29, a custodian shall comply with a request under this chapter from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance.
  2. An order under subsection (1) directing compliance must contain a finding that compliance is not in violation of 18 USC Section 2702.
  3. A custodian may notify the user that a request for disclosure or to terminate an account was made under this chapter.
  4. A custodian may deny a request under this chapter from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any lawful access to the account following the receipt of the fiduciary’s request.
  5. This chapter does not limit a custodian’s ability to obtain or require a fiduciary or designated recipient requesting disclosure or termination under this chapter to obtain a court order which:
    1. Specifies that an account belongs to the protected person or principal;
    2. Specifies that there is sufficient consent from the protected person or principal to support the requested disclosure; and
    3. Contains a finding required by law other than this chapter.
  6. A custodian and its officers, employees and agents are immune from liability for an act or omission done in good faith in compliance with this chapter.

HISTORY: Laws, 2017, ch. 419, § 16, eff from and after July 1, 2017.

§ 91-23-33. Uniformity of application and construction.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

HISTORY: Laws, 2017, ch. 419, § 17, eff from and after July 1, 2017.

§ 91-23-35. Relation to Electronic Signatures in Global and National Commerce Act.

This chapter modifies, limits or supersedes the Electronic Signatures in Global and National Commerce Act, 15 USC Section 7001 et seq., but does not modify, limit or supersede Section 101(c) of that act, 15 USC Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 USC Section 7003(b).

HISTORY: Laws, 2017, ch. 419, § 18, eff from and after July 1, 2017.