Roland Dear v. George Glynn Boggan, Sr.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-01711-COA
IN THE MATTER OF THE ESTATES OF ARMINE B.
GATES AND C. V. GATES, DECEASED: ROLAND
DEAR AND LOTTIE S. CAUSEY
v.
APPELLANTS
GEORGE GLYNN BOGGAN, SR., ET AL. (HEIRS OF
ARMINE B. GATES) AND RUTH B. LEWIS, ET AL.
(HEIRS OF C. V. GATES)
APPELLEES
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
9/3/2002
HON. J. LARRY BUFFINGTON
SIMPSON COUNTY CHANCERY COURT
DAVID RINGER
TERRELL STUBBS; DAVID SESSUMS
CIVIL - WILLS, TRUSTS, AND ESTATES
NO TRUST WAS ESTABLISHED
AFFIRMED - 06/29/2004
BEFORE SOUTHWICK, P.J., IRVING AND GRIFFIS, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1.
The Chancery Court of Simpson County found that two individuals did not establish an effective
trust prior to their deaths. We agree and affirm.
FACTS
¶2.
Armine and C. V. Gates expressed a desire to create a trust for the plaintiffs, Roland Dear and
Lottie Causey. Dear transported Mr. Gates for medical care and took care of other needs. Dear testified
that he often took food to the Gates couple and visited them when they were hospitalized. Dear claims that
in February 1997, Mr. Gates informed him that he would be favored upon their deaths because of his
service in taking care of them. No one else heard that statement.
¶3.
Causey, a first cousin of Mr. Gates, also states that she had a special relationship with him and his
wife. They would visit each other on average at least once every two weeks. It was during one of these
visits that Causey claims Mr. Gates informed her that he "got a trust started" and requested that she serve
as a trustee. It is alleged that Mrs. Gates had no living relatives and that among Mr. Gates's first cousins,
it was only towards Causey that he felt any closeness.
¶4.
Mr. and Mrs. Gates were killed in an automobile accident on October 8, 1997. They died
intestate. A claim was filed in their estate proceedings that a trust had been created by the Gates to benefit
Roland Dear, Lottie Causey, and two community churches. The trust document, which was never
approved nor signed by either Gates, is dated November 18, 1997 -- after their deaths. There was
testimony about the origins of this document. In the spring of 1997, Mr. Gates and Roland Dear attended
a trust seminar sponsored by an attorney, Sylvia Owen. Some time after the seminar, Mr. Gates visited
Owen's office to discuss the terms of the trust. Mr. Gates gave Owen handwritten documents outlining the
provisions of the trust. One of the documents was allegedly written by Mrs. Gates. The third and final visit
that they had was on September 30, 1997. Owen never met Mrs. Gates. Owen drafted the trust
document from the handwritten notes. Even though Owen had prepared a draft trust document in April
1997, neither Gates saw, approved, or signed the document prior to their deaths on October 8, 1997.
¶5.
The chancellor found that no trust existed, whether express or implied.
DISCUSSION
¶6.
There is no question that, prior to their deaths, Armine and C. V. Gates had not executed any
documents creating a trust to benefit the plaintiffs in this case. An inventory of the estate revealed
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substantial real and personal property that would be the subject of the trust. We analyze below the several
allegedly adequate substitutes for an executed trust document.
1. Express trust from handwritten notes or unexecuted draft trust document
¶7.
Dear and Causey claim that the lower court erred in refusing to admit into evidence hand-written
notes allegedly written by Mrs. Gates. They claim that these notes represent declarations by Mrs. Gates
as to what should be included in the written trust agreement. The attorney Owen testified that the notes
were delivered to her by Mr. Gates and that she had never met or talked with Mrs. Gates. She stated that
she believed the notes were written by Mrs. Gates, even though she did not witness the writing or discuss
the notes with Mrs. Gates.
¶8.
A person testifying for purposes of authenticating a writing need not witness the writing. "The
requirement of authentication or identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is what its proponent claims." M.R.E.
901(a). The chancellor found that these notes were not adequately proven to have been written by Mrs.
Gates, nor that they were a true indication of her desires for the trust. We find no abuse of discretion in
that ruling, as Owen's only information was hearsay from Mr. Gates.
¶9.
Even had the notes been admitted, they would not have been sufficient to impose a trust. An
express trust may be oral, but only if real property is not involved. Alavrez v. Coleman, 642 So. 2d 361,
367 (Miss. 1994); Miss. Code Ann. § 91-9-1 (Rev. 1994). If the corpus of the purported trust estate
consists both of real and personal property, an express oral trust is ineffective to impose a trust on either.
Wells v. Brooks, 199 Miss. 327, 24 So. 2d 533, 535 (1946) ("where the agreement includes both realty
and personalty, the transaction is not separable" for purposes of the statute of frauds).
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¶10.
Finally on the issue of the notes, we conclude that they are not evidence of an express oral trust.
A clear oral declaration that a trust is being created is needed for an express oral trust of personal property.
There is no evidence that either of the would-be creators of the trust ever declared that they were by oral
statement creating an express trust. There may have been assertions of a desire to create a written one.
In fact, the written but unsigned proposed trust agreement in the record is an indication that neither of the
deceased intended orally to create an express trust. The notes similarly indicate that no declaration of oral
trust was intended. There is no evidence that the Gates couple intended to have any of their oral statements
constitute an effective trust. We address below whether a constructive trust arose from some of these
statements, but no express trust did so.
¶11.
Dear and Causey also claim that the draft trust agreement itself, not signed by the Gates couple
before their deaths, created an express trust. As already indicated, an express trust must be in writing if
it involves real property. Chichester v. Chichester, 209 Miss. 628, 630, 48 So. 2d 123, 124 (1950).
The trial court was presented with a document prepared by an attorney which was a writing. An express
trust also must be signed. Triplett v. Bridgforth, 205 Miss. 328, 349, 38 So. 2d 756, 762 (1949). The
trust document was not signed. The trust document was prepared on November 18, 1997, over a month
after the car wreck that took the lives of Mr. and Mrs. Gates.
¶12.
A person's initial handwritten explanation of her desires for a will or a trust, no matter how clearly
and conclusively expressed, do not take on the character of the final executed document should the person
die or become incapacitated prior to completion of the document. There are formalities for the execution
of either document, which bring to the attention of the person the significance of the interests being created.
Though either kind of document often may after execution be amended, until such amendment, the original
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terms remain in effect. On the other hand, until execution, the thoughts and written notes and drafts remain
merely possibilities, subject to alteration or total abandonment by the creator of the interests.
2. Implied Trust
¶13.
In the alternative, we examine whether an implied trust was created. Both constructive and
resulting trusts are concepts of equity. A person claiming that either type of trust exists has the burden of
proving the elements of those trusts by clear and convincing evidence. Allgood v. Allgood, 473 So. 2d
416, 421 (Miss. 1985).
¶14.
A constructive trust arises in order to prevent unjust enrichment by a person gaining property which
rightfully belongs to someone else. McNeil v. Hester, 753 So. 2d 1057, 1064 (Miss. 2000). The attorney
who prepared the trust document testified that she had no knowledge that either Armine or C. V. Gates
had any indebtedness to the plaintiffs. She knew of no fraud practiced by the couple against those seeking
to impose the trust. She was not aware of any unconscionable conduct by them towards the plaintiffs.
¶15.
The plaintiffs, Causey and Dear, had no contrary evidence. They testified that Mr. and Mrs. Gates
did not owe them any money, did not benefit financially at their expense, and were not holding any property
that was rightfully owned by Causey and Dear. Dear testified that he had changed his financial position in
reliance on an oral promise made by Mr. Gates regarding a trust, a promise that no one else heard. An
examination of Dear's tax returns did not support this assertion.
¶16.
There was no clear and convincing evidence of a constructive trust that should be imposed on the
property that was in the estate.
¶17.
In the alternative, a resulting trust arises in a transaction when one person is granted a legal title but
is required to hold this title for the benefit of another.
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A resulting trust arises from the acts of the parties, or may be deducible from the nature of
the transaction, although not expressed by the words of the parties. While a constructive
trust is designed to prevent fraud, overreaching or the like, by which one person has
obtained legal title to property rightfully belonging to another, a resulting trust is "designed
to give effect to the unwritten but actual intention of the parties at the time of the acquisition
of title to the affected property."
Robert E. Williford, Trusts, in 8 ENCYCLOPEDIA OF MISSISSIPPI LAW § 73:2 (Jackson & Miller 2001),
at 422 (footnotes omitted). The trustee and beneficiary of a resulting trust must have mutually agreed to
the manner in which title to property was to be held and subsequently an inequity occurs when the trustee
is unwilling to fulfill the original agreement. Simmons v. Simmons, 724 So. 2d 1054, 1057 (Miss. Ct.
App. 1998). Here, there is no proof whatsoever of that.
3. Default Judgments
¶18.
Dear and Causey argue that the trial court erred in setting aside default judgments against some
defendants who failed to file responsive pleadings in a timely manner. Three of the approximately thirty
Gates heirs did not timely file answers. Whether a default judgment is set aside is left to the discretion of
the trial court. King v. Sigrest, 641 So. 2d 1158, 1162 (Miss. 1994). Dear and Causey suffered no
prejudice from the exercise of the chancellor's discretion to set aside the default. There was no valid trust.
"Prejudice" does not include the loss of rights that were obtainable only by default.
¶19. THE JUDGMENT OF THE CHANCERY COURT OF SIMPSON COUNTY IS
AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANTS.
KING, C.J., BRIDGES, P.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND
GRIFFIS, JJ., CONCUR.
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