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).

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.

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).

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.

Cross References —

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

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

RESEARCH REFERENCES

Am. Jur.

79 Am. Jur. 2d, Wills § 632 et seq.

CJS.

95 C.J.S., Wills §§ 351-353.

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.

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.

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.

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.

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).

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.

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).

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.

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.

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.

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).

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.

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).

RESEARCH REFERENCES

Am. Jur.

25 Am. Jur. Proof of Facts 3d 637, Illegible Signatures and Writing in Litigation.

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).

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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).

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).

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.

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.

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.

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).

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).

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.”

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).

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).

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).

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.

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.

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).

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.

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.

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.

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.

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.

Cross References —

Maintenance of child under guardianship, see §93-13-35 et seq.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

Cross References —

Sale of perishable goods levied on generally, see §13-3-167.

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).

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.

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).

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.

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).

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.

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.

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.

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.

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).

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.

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).

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).

Cross References —

Additional powers of chancellor in vacation, see §9-5-97.

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).

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.

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).

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).

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.

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.

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.

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.

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.

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.

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).

RESEARCH REFERENCES

Am. Jur.

31 Am. Jur. 2d, Executors and Administrators § 1155 et seq.

CJS.

34 C.J.S., Executors and Administrators § 853.

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.

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.

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).

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).

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).

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.

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).

Cross References —

Notice to creditors of estate, see §91-7-145.

Probate of claims against estate, see §§91-7-149 et seq.

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.

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.

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).

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.

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.

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).

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).

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.

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.

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.

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.

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.

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).

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.

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.

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.

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).

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).

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.

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.

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).

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).

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.

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).

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).

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).

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).

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).

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).

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.