Thomas Houston Ballard v. Donald R. Bingham, Jr.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-01772-COA
IN THE MATTER OF: ESTATE OF
AUDRELA POPE HANNA, DECEASED:
THOMAS HOUSTON BALLARD, MARTHA
WEST, WAYNE POPE, JON PAUL BALLARD
AND WILLIAM CLAY BALLARD, JR.
APPELLANTS
v.
DONALD R. BINGHAM, JR., EXECUTOR
OF THE ESTATE OF THERESA JANE
BALLARD BINGHAM, DECEASED
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
10/3/2002
HON. JOHN C. ROSS, JR.
MONROE COUNTY CHANCERY COURT
JANELLE MARIE LOWREY
ROY O. PARKER
OLEN M. BAILEY
CIVIL - WILLS, TRUSTS, AND ESTATES
FINDING TESTATRIX POSSESSED
TESTAMENTARY CAPACITY TO ENACT A
CODICIL, THE TRIAL COURT DISMISSED THE
PLAINTIFFS’ CHALLENGE TO THE CODICIL.
REVERSED AND REMANDED - 05/24/2005
BEFORE BRIDGES, P.J., IRVING AND MYERS, JJ.
BRIDGES, P.J., FOR THE COURT:
¶1.
Audrela Pope Hanna died on November 16, 1999. Prior to her death, Ms. Hanna executed a will
and a codicil to that will. The will and codicil were admitted to probate in the Monroe County Chancery
Court. Certain heirs challenged Ms. Hanna’s testamentary capacity at the time she executed her codicil.
Following a hearing on the matter, the chancellor determined that Ms. Hanna fully understood the terms
of her codicil. Additionally, the chancellor determined that Ms. Hanna had the necessary testamentary
capacity to enact the codicil to her will. As a result, the chancellor dismissed the heirs’ challenge of Ms.
Hanna’s codicil. Aggrieved, the heirs appeal. Finding error, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
¶2.
Ms. Hanna executed her last will and testament on October 24, 1989. In her will, Ms. Hanna
named her sister, Frances Pope Ballard, as the executrix of her estate. Over ten years later, Ms. Hanna
executed a codicil to her will. In her codicil, Ms. Hanna left all of the property in her estate to Ms. Ballard.
If Ms. Ballard predeceased Ms. Hanna, Ms. Hanna wanted her property to go to Jane Ballard Bingham,
Frances Ballard’s daughter.
¶3.
Ms. Ballard predeceased Ms. Hanna. Pursuant to Ms. Hanna’s codicil, Jane Bingham stood to
receive the property in Ms. Hanna’s estate. Ms. Hanna’s will and codicil were submitted before the
Monroe County Chancery Court for probate. However, Thomas Houston Ballard, William Clay Ballard,
Jr., Wayne Pope, Martha West and Jon Paul Ballard filed a petition to revoke probate of Ms. Hanna’s
codicil. As mentioned above, the chancellor eventually dismissed that challenge to Ms. Hanna’s codicil.
The petitioners appeal and claim the chancellor erred in: (1) finding Ms. Hanna had testamentary capacity
to execute the codicil, (2) failing to find that Frances Ballard had a confidential relationship with Ms. Hanna,
and (3) finding that the codicil was valid. Additionally, the petitioners claim that the chancellor abused his
discretion by resolving the matter prior to the close of evidence.
¶4.
Jane Ballard Bingham has not filed a response brief. However, Donald R. Bingham, Jr. provided
this Court with correspondence. Mr. Bingham reports that Jane Ballard Bingham passed away. Further,
Mr. Bingham, the executor of Jane Ballard Bingham’s estate, offered to settle the petitioners’ appeal and
will contest by relinquishing any claim Jane’s estate has against Ms. Hanna’s estate. According to Mr.
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Bingham, the only asset in Ms. Hanna’s estate is real property in Monroe County, Mississippi. Despite Mr.
Bingham’s offer of settlement, the petitioners denied to accept Mr. Bingham’s offer.
ANALYSIS
¶5.
Since Mr. Bingham did not file a brief in this case, this Court has two alternatives before it, as
discussed in W.T. Raleigh v. Armstrong, 165 Miss. 380, 380, 140 So. 527, 527-28 (1932).
When the record is complicated or of large volume, and the case has been thoroughly
briefed by appellant with a clear statement of the facts, and with applicable citations of
authorities, so that the brief makes out an apparent case of error, we will not regard
ourselves as obliged to look to the record or to search through it to find something by
which to avoid the force of appellant's presentation, but will accept appellant's brief as
confessed and will reverse. Or when the record is in such condition that we can
conveniently examine it, and when upon such an examination we can readily perceive a
sound and unmistakable basis or ground upon which the judgment may be safely affirmed,
we will take that course and affirm, thereby to that extent disregarding the default of
appellee. But when, taking into view the argument presented by appellant, the basis or
grounds of the judgment, and the facts in support of it are not apparent, or are not such
that the court could with entire confidence and safety proceed to affirmance, the judgment
will be reversed without prejudice.
¶6.
Here, the record is in a condition that allows for convenient examination. However, Mr. Bingham,
as the executor of Jane’s estate, expressed his willingness to relinquish any claim Jane may have had to
what he believes to be the only asset in Ms. Hanna’s estate. As Mr. Bingham declined to contest this
appeal and expressed his intent to part with the only asset in Ms. Hanna’s estate, he seems to waive any
claim to Ms. Hanna’s estate. Accordingly, this Court reverses the chancellor’s decision without prejudice
and renders judgment for the appellants.
¶7.
We note that the appellants only challenged the probate of Ms. Hanna’s codicil - leaving Ms.
Hanna’s will unchallenged. Ms. Hanna’s will stated “I hereby devise and bequeath unto my sister, Frances
Pope Ballard, of Aberdeen, Mississippi, all of my property real, personal and mixed and wheresoever
situated.” No other heir is mentioned in Ms. Hanna’s will. “Lapsed personalty and realty go into the
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residuary clause of the will, if there is one, and if not, to the decedent's heirs at law.” Matter of Estate of
Mason, 616 So.2d 322, 329 (Miss. 1993). Accordingly, we remand to the Monroe County Chancery
Court to distribute Ms. Hanna’s estate pursuant to the Mississippi laws of intestate succession.
¶8.
THE JUDGMENT OF THE MONROE COUNTY CHANCERY COURT IS
REVERSED. THE MATTER IS REMANDED TO THE MONROE COUNTY CHANCERY
COURT PURSUANT TO THE TERMS OF THIS OPINION. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO THE APPELLEE
KING, C.J., LEE, P.J., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES AND
ISHEE, JJ., CONCUR.
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