William Kelly v. Sarah D. Cuevas
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2005-CA-00011-COA
IN THE MATTER OF THE ESTATE OF ALVARADO
H. KELLY, DECEASED: WILLIAM KELLY
APPELLANT
v.
SARAH D. CUEVAS
APPELLEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
12/2/2004
HON. MARGARET ALFONSO
HANCOCK COUNTY CHANCERY COURT
FLOYD J. LOGAN
NICHOLAS MCLEOD HAAS
CIVIL - WILLS, TRUSTS, AND ESTATES
TESTATOR’S WILL ADMITTED TO PROBATE
AFFIRMED AND REMANDED-12/06/2005
BEFORE KING, C.J., CHANDLER AND ISHEE, JJ.
ISHEE, J., FOR THE COURT:
¶1.
The chancery court admitted the decedent’s will to probate in solemn form and held that Sarah D.
Cuevas was the sole devisee and legatee of the decedent. William Kelly filed a motion to dismiss for lack
of jurisdiction. The chancery court denied Kelly’s motion, and granted Cuevas’s motion for judgment on
the pleadings in accordance with Rule 12(c) of the Mississippi Rules of Civil Procedure. Aggrieved by the
judgment against him, Kelly appealed and now asserts three assignments of error. We affirm the judgment
of the chancery court, but we also remand for a specific finding of the personal property located in
Mississippi.
STATEMENT OF FACTS
¶2.
Alvarado H. Kelly (decedent) was declared mentally incompetent by a Florida mental hospital on
December 2, 1960, and was committed to a Veteran’s Administration (VA) hospital in Florida. In
September of 1961, the decedent was transferred to a VA hospital in Gulfport, Mississippi. The decedent
was allowed to participate in the VA Residential Care program and in 1975, he moved to the residential
care facility of Sarah D. Cuevas.
¶3.
The decedent lived withCuevas in Hancock County, Mississippi until he died testate on November
1, 2000. The decedent’s will, dated April 23, 1992, instructed that Cuevas be appointed executrix. The
will also stated in part: “I give, devise and bequeath all my property real, personal, and mixed to: Sarah
D. Cuevas . . . [m]ore specifically, my personal property located in the Sun Trust Bank, P.O. Box 1498,
Tampa, Florida 33601.” Cuevas filed a petition to probate the will in common form on November 8,
2000. A decree admitting the will to probate and appointing Cuevas as Executrix of the Estate of Alvarado
H. Kelly was entered the same day.
¶4.
On December 27, 2000, William R. Kelly, Sr., the decedent’s brother, filed a petition for
administration with the clerk of the Circuit Court for Hillsborough County, Florida. Kelly’s complaint
included sworn allegations by Kelly that the decedent was domiciled in Hillsborough County until the date
of his death. The complaint further stated that the decedent was domiciled in Florida in 1962, when he was
declared judicially incapacitated, and that his incapacity continued until the time of his death. Additionally,
the complaint asserted that all of the decedent’s assets were located in Florida, “other than clothing and
personalty of nil value.”
¶5.
On January 24, 2001, Cuevas filed a complaint to admit the decedent’s will to probate in solemn
form in the Hancock County, Mississippi Chancery Court. The complaint recited that the decedent was
a resident citizen of Hancock County, that he had resided there for more than thirty years, and that he died
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a resident citizen of Hancock County. Kelly was personally served with a Mississippi Rules of Civil
Procedure Rule 4 summons on January 31, 2001. Kelly did not file a response to the complaint, and on
March 9, 2001 the chancery court admitted the will to probate in solemn form. The chancery court
judgment also adjudicated Cuevas to be the decedent’s sole devisee and legatee. On the same date, the
clerk granted Cuevas’s application for entry of default.
¶6.
The Hillsborough County Circuit Court entered an order on April 12, 2001, finding that the Florida
courts had jurisdiction for the administration of the decedent’s estate, as he was domiciled in Florida at the
time of his death, and his bank accounts were located in Florida. The circuit court also granted letters of
administration to Kelly. The Florida District Court of Appeals reversed the decision of the circuit court on
March 29, 2004, holding that full faith and credit should be given to the judgment of the Hancock County
Chancery Court.1
¶7.
On April 6, 2004, Kelly made a special appearance in the Hancock County Chancery Court and
filed a motion to dismiss the Hancock County probate action for lack of jurisdiction. On December 7,
2004, the chancery court denied Kelly’s motion and granted Cuevas’s motion for judgment on the
pleadings in accordance with Rule 12(c) of the Mississippi Rules of Civil Procedure. The chancery court
determined that it had jurisdiction to probate the wills of nondomiciliaries provided that any of their real or
personal property is located in Mississippi at the time of their death. Moreover, the court instructed that
Mississippi Code Annotated § 91-7-33, which allows for probate in Mississippi when the will affects or
disposes of “property within this state,” sets no requirements as to the value or amount of the property.
The court concluded that the decedent could not have resided in Hancock County for thirty years without
1
On August 25, 2004, the Florida Supreme Court denied Kelly’s petition for review and
refused to entertain a motion for rehearing.
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leaving behind some clothing or other personal items. Thus, the chancery court found that it had jurisdiction
to probate the decedent’s will.
¶8.
Aggrieved by the chancellor’s decision, Kelly appeals asserting the following: (1) whether it was
pled as a basis for subject matter jurisdiction that the testator owned any property located in the State of
Mississippi and whether there was any record evidence before the trial court to support such a finding; (2)
whether the decree is void for failure to follow the mandates of § 91-7-33 of the Mississippi Code of 1972,
and Rule 81 of the Mississippi Rules of Civil Procedure requiring Rule 81 process and an evidentiary
hearing to probate the will in solemn form; and (3) whether Cuevas failed to sustain her burden of proving
the decedent changed his domicile to Mississippi prior to his death and the decree was, therefore, void
because there is no jurisdiction of the subject matter.
STANDARD OF REVIEW
¶1.
This Court employs a limited standard of review when reviewing the decisions of a chancellor.
McNeil v. Hester, 753 So.2d 1057, 1063 (¶21) (Miss. 2000) (citing Reddell v. Reddell, 696 So. 2d 287,
288 (Miss. 1997)). It is well settled that “the findings of a chancellor will not be disturbed on review unless
the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Id.
Moreover, this Court will not overturn the chancellor's decision unless it is shown that he was clearly and
overtly wrong in his logic. Last Will and Testament of Winding v. Estate of Winding, 783 So. 2d 707,
709 (¶6) (Miss. 2001).
ISSUES AND ANALYSIS
I.
Whether it was pled as a basis for subject matter jurisdiction that the testator
owned any property located in the State of Mississippi and whether there was any
record evidence before the trial court to support such a finding.
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¶2.
Kelly argues that the trial court’s finding of jurisdiction should be set aside, as it was based on the
presence of personal property owned by the decedent in Mississippi. The trial court’s judgment stated that
it was appropriate to “infer with confidence that, after residing for thirty years in Hancock County, the
testator had some property here, if only clothing and personal effects.” Kelly insists that the trial court’s
conclusion was totally without basis in the pleadings or in the evidence. He notes that Cuevas failed to state
in her pleadings that the decedent owned any property in Mississippi at the time of his death. Kelly further
argues that even if the testator had some items of clothing and personal effects in Mississippi at the time of
his death, there is no evidence in the record that these items of personal property were still in Mississippi
at the time the probate petition was filed. According to Kelly, the only evidence of personal property
owned by the decedent is the portion of the will referring to a bank account located in Florida.
¶3.
The will of a person who was domiciled outside the state of Mississippi at the time of his death,
known as a foreign will, may be originally probated in Mississippi if the testator owned real or personal
property located in Mississippi. Robert A. Weems, Wills and Administration of Estates in Mississippi,
§ 3:14 (3d ed. 2003) (citing Bolton v. Barnett, 131 Miss. 802, 823, 95 So. 721, 725 (1923); Mississippi
Code Annotated § 91-7-33). The chancery courts of Mississippi have full jurisdiction in “matters of
testamentary and of administration.” Miss. Const. art. 6, § 159(c). The proper venue for probate of a will
is the county where the testator had a fixed place of residence, or if no fixed place of residence, the county
where land devised in the will was situated. Miss. Code Ann. § 91-7-1 (Rev. 2004). If the testator had
no fixed place of residence and devised only personalty in the will, then the proper venue is the county
where the testator died, or where any of the personalty disposed of by the will is located. Id.
¶4.
The will in the instant case states that the decedent bequeaths all of his property “real, personal,
and mixed” to Cuevas. The chancery court determined that “it is impossible that [decedent] resided thirty
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years in Hancock County and died here–uncontested facts in this case–leaving no clothing or other personal
items in Hancock County.” The chancellor’s logic is sound and sufficiently based on the facts. The will
disposes of any personal property that belonged to the decedent. Furthermore, Mississippi Code
Annotated § 91-7-33 places no requirements as to the value or amount of the property at issue. Thus, the
chancellor’s finding of jurisdiction was not manifestly wrong or clearly erroneous. Consequently, we are
affirming the judgment of the chancery court. However, we are also remanding for a specific finding of the
personal property located in Mississippi.
¶5.
Furthermore, it was not necessary for Cuevas to plead that the decedent owned personal property
in Mississippi. Before an order or decree may be entered finding that the writing is the decedent’s last will,
proof must be presented that the will was duly executed and that the decedent had testamentary capacity
at that time. Weems, supra, § 7:7 (citing Moore v. Parks, 122 Miss. 301, 84 So. 230 (1920)). The
testimony of a subscribing witness to an attested will may be used to prove testamentary capacity and due
execution, so long as the will is not being contested. Id. (citing Miss. Code Ann. § 91-7-9). Cuevas
attached the original will to the petition, as well as the affidavits of the two attesting witnesses stating that
the decedent was of sound and disposing mind at the time he executed his will. Therefore, this issue is
without merit.
¶6.
As we find that the chancery court had jurisdiction over the probate of the decedent’s will in
common form on the basis of personal property located in Mississippi, it is unnecessary to address the third
issue Kelly raises, namely, the domicile of the decedent.
II.
Whether the decree is void for failure to follow the mandates of § 91-7-33 of the
Mississippi Code of 1972, and Rule 81 of the Mississippi Rules of Civil Procedure
requiring Rule 81 process and an evidentiary hearing to probate the will in solemn
form
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¶7.
Kelly argues that the trial court’s reliance on the proceeding to probate the will in solemn form is
in error because no hearing was held and Kelly was never properly served with process under Rule 81 of
the Mississippi Rules of Civil Procedure. The probate of a will in solemn form is a Rule 81 matter, requiring
a Rule 81 summons. Kelly was served with a Rule 4 summons. Thus, the solemn form proceeding was
defective.
¶8.
Mississippi Code Annotated § 91-7-23 (Rev. 2004) states that within two years of the probate
of a will without notice, any interested person may contest the validity of the will. The statute further states
that “if some person does not appear within two years to contest the will, the probate shall be final and
forever binding.”2 Id. To avoid the finality of the common form probate proceeding, Kelly asserts that the
two-year period never began to run in this case. Citing Matter of Estate of McClerkin, 651 So. 2d 1052
(Miss. 1995), Kelly argues that it is error to rely on the probate in common form proceeding and the twoyear statute of limitations for the contest of a will admitted to probated in common form.
¶9.
In McClerkin, the executor filed a petition to probate the will in solemn form, after probating the
will in common form. Id. The Mississippi Supreme Court held that the trial proceedings must be held in
abeyance until all necessary parties were joined. Id. at 1053. However, the contestants of the will in
McClerkin filed a caveat against probate in solemn form before the two-year period had run since the
probate in common form. Id. The instant case differs significantly from McClerkin in that Kelly made no
attempt to contest the will in the courts of Mississippi before the expiration of the two-year period. Thus,
even though the solemn form probate decree is invalid due to the Rule 4 summons, the chancery court had
2
There are two exceptions to the two-year limitation period, although neither is relevant in this
case. The first exception gives minor and persons of unsound mind two years after the removal of their
disabilities in which to contest the validity of a will. Miss. Code Ann. § 91-7-23 (Rev. 2004). The
second exception is for concealed fraud. Id.
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jurisdiction over the common form probate proceeding and no caveat objecting to the probate was filed.
Thus, the two-year limitations period for contesting a will admitted to probate in common form has passed,
and the probate in common form is now “final and forever binding.”
¶10. THE JUDGMENT OF THE CHANCERY COURT OF HANCOCK COUNTY IS
AFFIRMED AND REMANDED FOR A SPECIFIC FINDING OF THE PERSONAL
PROPERTY LOCATED IN MISSISSIPPI. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ, BRIDGES, IRVING, CHANDLER AND
GRIFFIS, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN RESULT.
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