Richard C. Lenior v. William 'Bill' Anderson
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00148-COA
RICHARD C. LENOIR, SANDRA SHAKELFORD
AND MILES RANDALL EZELL
APPELLANTS
v.
WILLIAM “BILL” ANDERSON AND WILLIAM
YAWN, JR.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
07/10/2007
HON. EUGENE LOVE FAIR, JR.
LAMAR COUNTY CHANCERY COURT
ROBIN L. ROBERTS
PAUL BRYANT CASTON
LEE TURNER
MATTHEW W. O’QUAIN
CIVIL - REAL PROPERTY
FOUND THAT 1.8 ACRES OF LAND WAS
BURDENED FOR USE AS A CEMETERY
AFFIRMED - 06/30/2009
BEFORE MYERS, P.J., IRVING AND ROBERTS, JJ.
ROBERTS, J., FOR THE COURT:
¶1.
This appeal arises from a property dispute over the boundaries of the Bounds Family
Cemetery located in Lamar County, Mississippi. Richard Lenoir, Sandra Shakelford, and
Miles Ezell (Miles), (collectively the Plaintiffs) heirs of Ephraim Bounds, brought suit in the
Chancery Court of Lamar County to determine the rights of the parties to approximately 1.8
acres of land. The chancery court found that the entire 1.8 acres were to be burdened for use
as a cemetery and entered a judgment in favor of the Defendants, William Anderson and
William Yawn. The Plaintiffs filed multiple post-trial motions seeking either a new trial or
amendment of the judgment. All post-trial motions were denied, and the Plaintiffs now
appeal. Finding no error in the chancellor’s decision, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
Bounds acquired approximately forty acres of land in Lamar County from his brother,
who had inherited the land from their father in 1882. Sometime after the conveyance, for a
period of ten to fifteen years, Bounds lived in Texas and Louisiana, but he later returned
home to Mississippi. Shakelford, Bounds’s granddaughter, testified that prior to returning
to Mississippi to live, Bounds had buried his mother-in-law, Sarah Mason, behind his
Mississippi home. By the time Bounds returned to Mississippi to remain, there were several
other grave sites as well, so, at that time, he decided to move his home to another location.
Later, a fence was erected around the area where the graves were located. The site where
those early graves were located is the same .51 acre where the Bounds Family Cemetery is
located today. At the time of trial, there were about 80 grave sites within the cemetery.
Around 1914, Bounds designated approximately one acre for a family cemetery and one acre
for a family school; the two acres are not contiguous but are in close proximity to each other.
According to Shakelford’s testimony, Bounds memorialized his benevolent intentions in a
will. The school never fully came to fruition, and it was abandoned after the family began
utilizing public education. The land designated for the school has remained unproductive
ever since. Regrettably, a copy of the will or other document, such as a deed, specifically
stating Bounds’s intentions for future use, should the property cease to be used for its
2
intended purposes, was not presented at trial, nor was it included in the record. However,
other deeds recognizing the family cemetery were presented at trial.1 Since the cemetery,
encompassing .51 acre, has been continually used for the Bounds family, as well as friends
of the Bounds family, the remaining 1.3 acres are at the heart of this dispute.
¶3.
In 1938, Bounds conveyed an undivided half interest of the forty acres to his wife, and
the land ultimately vested in this generation of heirs. After acquiring an interest in the
property, Doris Bounds Ezell, Bounds’s youngest child and the mother of Miles, paid the
taxes on the 1.8 acres.2 However, after her death, her estate and sons, David and Miles,
failed to pay the property taxes on the 1.8 acres, and Miles was contacted by the Lamar
County Tax Collector, Mr. Patterson,3 who informed him that the property was about to be
sold for the unpaid taxes. Patterson told Miles that “[t]he only way [to] . . . ensure that
1
The record includes a warranty deed conveying property to Marguerite Bounds
Lenoir (Marguerite) in 1966, which, after giving the legal description of the property, stated
a limitation that “less than 2 acres [were] for cemetery purposes.” Also, there is the
cemetery warranty deed from David Ezell (David) to Anderson and Yawn. It includes the
same legal description, minus the stated limitation of two acres for cemetery use. The
absence of the stated use on the deed to Anderson and Yawn does not defeat the parties’
intentions of how the property should be used. It was, after all, a “cemetery” warranty deed.
2
The record reflects the following passage quoted from the Lamar County Board of
Supervisor’s minutes:
Doris Bounds was deeded a parcel of land . . . which included the subject
parcel, and[,] at the that time[,] and is now known as the Bounds Cemetery.
Subsequently, Doris Bounds married and became Doris Ezell and died in
1987, and the estate of Doris Ezell was probated and the property divided
among the two sons, Miles Ezell and David Ezell . . . . The subject property,
1.8 acres, was excluded from the probate, as it had been a cemetery for
approximately 100 years.
3
The record does not reflect the first name of Mr. Patterson.
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nobody [bought] it from the family [was] to make it a historical cemetery.” Patterson
presented the matter to the Lamar County Board of Supervisors (Board of Supervisors), and
the property was indeed designated as a historical cemetery. The entire 1.8 acres were
designated as a historical cemetery; the property was then excluded from the county’s tax
rolls; and the owners have benefitted from the tax exempt status since 1991. Miles testified
that he did not attend the Board of Supervisors’ meeting, and that he was not told about the
designation and tax exempt status until after the meeting. Still, neither he, nor any other
plaintiff, ever made any objection to the property’s designation as a historical cemetery.
¶4.
Thereafter, David, Miles’s brother, conveyed his interest in the cemetery property to
Anderson and Yawn through a cemetery warranty deed. Anderson testified that some of his
ancestors were buried in the cemetery, and he and his family had helped maintain the
cemetery since 1959. In 1994, Miles, Anderson, and Yawn raised money and constructed
a new chain link fence around the cemetery because the original wooden fence had fallen into
disrepair. Anderson testified that, at the time the new fence was erected, he wanted to extend
the fenced area because it was common knowledge within the community that Bounds had
left the entire 1.8 acres for cemetery use. Miles was hesitant and stated, “let’s just extend it
out . . . on all four sides and let the next generation[] deal with it.” Despite Miles’s hesitancy,
family tensions have caused this generation to deal with the matter.
¶5.
When David conveyed his interest in the property to Anderson and Yawn, the intent
was for them to continue to maintain the cemetery and provide additional burial space for
family members of persons already buried there. Contending that the cemetery was not to
extend past the original fenced area, the Plaintiffs brought suit in the Chancery Court of
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Lamar County to determine the rights of the parties to the entire 1.8 acres. After considering
the actions of the Bounds family, their friends and neighbors, and the families of all of those
buried in the Bounds Family Cemetery, the chancellor determined that a preponderance of
the evidence established that the entire 1.8 acres were burdened with a limitation of use for
cemetery purposes and should remain available for such purposes in the future. Aggrieved
by the chancellor’s decision, the Plaintiffs now appeal.
STANDARD OF REVIEW
¶6.
“[This] Court employs a limited standard of review on appeals from chancery court.”
Reddell v. Reddell, 696 So. 2d 287, 288 (Miss. 1997) (citation omitted). “[T]his Court will
accept the chancellor's finding[s] of fact as long as the evidence in the record reasonably
supports those findings.” In re Estate of Chambers v. Jackson, 711 So. 2d 878, 880 (¶8)
(Miss. 1998) (citation omitted). “That means we will not disturb the findings of a chancellor
unless those findings are clearly erroneous or an erroneous legal standard was applied.” Lee
Hawkins Realty, Inc. v. Moss, 724 So. 2d 1116, 1118 (¶8) (Miss. Ct. App. 1998). However,
“[w]hen presented with a question of law . . . we conduct a de novo review.” In re Will of
Carney v. Carney, 758 So. 2d 1017, 1019 (¶8) (Miss. 2000).
DISCUSSION
¶7.
The Plaintiffs raise the following issues on appeal: (1) whether the chancery court
erred in its decision to use extrinsic evidence and mere conjecture to construe an
unambiguous deed, (2) whether the chancery court erred in treating the Board of Supervisors’
property tax exemption of cemetery property as a grant of land, and (3) whether the chancery
court’s opinion failed to adequately adjudicate the rights of the parties in regard to the
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location of the cemetery. As they may be consolidated, we will address Issues I and II
together.
I. THE TRIAL COURT’S USE OF EXTRINSIC EVIDENCE
¶8.
Bounds’s will of 1914 was not presented at trial, nor was it included in the record.
Also, the warranty deed to Marguerite simply stated that “less than two acres were for
cemetery purposes.” As a result, there was, and is, no way to discern what Bounds’s
intentions were without considering extrinsic evidence.
The law is clear about the
construction of deeds or contracts. The supreme court has stated the following:
The rules for the construction of deeds or contracts are designed to ascertain
and to follow the actual or probable intention of the parties and are [as
follows]: When the language of the deed or contract is clear, definite, explicit,
harmonious in all its provisions, and free from ambiguity throughout, the court
looks solely to the language used in the instrument itself, and will give effect
to each and all of its parts as written. When, however, the language falls short
of the qualities above mentioned and resort must be had to extrinsic aid, the
court will look to the subject matter embraced therein, to the particular
situation of the parties who made the instrument, and to the general situation
touching the subject matter, that is to say, to all the conditions surrounding the
parties at the time of the execution of the instrument, and to what, as may be
fairly assumed, they had in contemplation in respect to all such said
surrounding conditions, giving weight also to the future developments
thereinabout which were reasonably to be anticipated or expected by them;
and when the parties have for some time proceeded with or under the deed or
contract, a large measure, and sometimes a controlling measure, of regard will
be given to the practical construction which the parties themselves have given
it, this on the common sense proposition that actions generally speak even
louder than words.
Farragut v. Massey, 612 So. 2d 325, 329 (Miss. 1992) (emphasis added) (citation omitted).
With this in mind, we look to case law to determine if the chancellor acted within his
discretion when he determined that the entire 1.8 acres should be used for benevolent, or
eleemosynary, purposes rather than allowing the land to revert to the Plaintiffs.
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¶9.
In Nicholson v. Myres, 170 Miss. 441, 448, 154 So. 282, 283 (1934), a case in which
land was left to the City of Natchez for use as a cemetery, the supreme court stated that “[the]
failure of the city to use the land as a cemetery did not cause it to revert to the grantor or his
heirs; that the title to land sold and conveyed for a designated use will not revert to the
grantor or his heirs upon being put to another or different use, in the absence of express terms
in the deed providing for reversion.” (Emphasis added).4 It is an old and established
principle in property law that a possibility of a reverter to the grantor or his heirs must be
expressly stated in the instrument. The supreme court stated a century ago that “[i]n order
that a condition subsequent may be created, the breach of which will cause the land conveyed
to revert to the grantor, it must clearly appear that such was the grantor’s intention.” Soria
v. Harrison County, 96 Miss. 109, 114, 50 So. 443, 444 (1909) (citation omitted). The Soria
court found that in the absence of technical words such as “provided, so long as, until, [and]
etc.” that a condition subsequent was not created. Id. The court went on to state that “[n]o
right of re-entry was reserved by the grantor on any contingency . . . . [Therefore,] [t]he
authorities show that the recital of the consideration and a statement of the purpose for which
the land is to be used are wholly insufficient to create a conditional estate.” Id. at 115, 50 So.
at 444.
¶10.
In another analogous case, in which land was given for use as a courthouse and prison
but it was no longer being used for those purposes, the United States Supreme Court stated,
“if we disregard the absence of technical terms or provisions importing a condition or
limitation, and examine the deed with a view of eliciting the clear intention of the parties, we
4
See, Thornton v. Natchez, 88 Miss. 1, 17, 41 So. 498, 500 (1906).
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are driven to the conclusion that it was the intention of the grantors to convey their entire
estate in the land.” Stuart v. Easton, 170 U.S. 383, 398 (1898). In other words, the court will
try to determine the intent of the person who made the devise, and if there is no express
language in the instrument for the property to revert back to the grantor or his/ her heirs when
the property is no longer used for the stated/intended purpose, it will be concluded that the
grantor intended to convey his entire interest in the property. See Tinnin v. First United
Bank, 502 So. 2d 659, 663 (Miss. 1987). Furthermore, the court may look to parol or
extrinsic evidence if the grantor’s intentions are not clear from the four corners of the
document. Id. at 670. Since the Plaintiffs did not produce the will or evidence that Bounds’s
intentions were to retain a reversion in the land, the chancellor was well within his discretion
to rely on parol or extrinsic evidence and deny the Plaintiffs’ request that the 1.3 acres, which
was not being used for a school, be divided among the heirs or partitioned and sold.
¶11.
The Plaintiffs rely on the case of Stuart v. Smith, 344 So. 2d 127 (Miss. 1977), for
their contention that the cemetery should be confined to the .51 acre. They argue that Stuart
instructs that “the dimensions . . . [of] the actual burial ground [should] govern.” We
disagree.
The Stuart case addressed a dispute over the use of a quarter of an acre
surrounding a cemetery of antiquity. Id. at 128. In Stuart, the grantor conveyed land by a
warranty deed that contained the following language: “Excepting and reserving therefrom
one quarter of an acre in square form surrounding the present graveyard with necessary rights
to and from said graveyard at any and all times for the use of the heirs of M.C. Stuart,
deceased.” Id.
¶12.
Although the deed in Stuart, as in the instant case, did not contain a legal description
8
of metes and bounds, the court adopted the perimeter of the cemetery depicted on a drawn
map. Id. Also, resistivity tests were done by an archeologist and a civil engineer to ascertain
where the actual grave sites were located. Id. at 129. The court determined that the cemetery
should be confined to what it was at the time of the conveyance, and that the grantor had
intended to maintain an easement for the graveyard. Id. at 130. In other words, the court
maintained the easement around the cemetery. We do not find that Stuart contradicts the
chancery court’s holding in the instant case, as the Stuart court simply tried to discern the
grantor’s intentions and then continued the intended charitable use. Stuart differs from the
instant case in the following ways.
¶13.
First, unlike the parties in Stuart, the parties in the instant case have not presented a
deed from which the court can consider whether any similar excepting and reserving
language exists, or whether any other language supports an argument for or against the
restriction or expansion of the .51 acre. Second, in Stuart, the quarter-acre at issue, which
surrounded the perimeter of the cemetery, was specifically addressed in the deed and related
to that cemetery. Here the issue concerns land that was originally intended for a separate
charitable use. And third, at the point when litigation ensued, the cemetery in Stuart had not
been used for new burials for over sixty years; the Bounds Family Cemetery has been in
continuous use, with new grave sites added within the past couple of years.
¶14.
The holding in Stuart supports the principle that deeds are to be construed according
to their plain language if they are unambiguous, and the chancellor may look to parol or
extrinsic evidence when they are not.
The Stuart court also acknowledged that the
descendants or intended beneficiaries of a cemetery should have reasonable use of and access
9
to an established cemetery, and the court addressed the judicially recognized custom of
“people . . . bury[ing] their relatives together or in the same cemetery as far as reasonably
possible.” Id. at 129 (quoting Morgan v. Collins Sch. House, 160 Miss. 321, 133 So. 675
(1931)). In the instant case, the deed to Marguerite indicates that Bounds family members
have acknowledged that the 1.8 acres were to be used as a cemetery for at least forty-three
years, and both the Plaintiffs and the Defendants testified they have family members buried
in the cemetery. These facts bolster the chancellor’s decision to expand the boundaries to
encompass the unused 1.3 acres.
¶15.
The instant case does not deal with a gift to an established charity or trust. However,
given that Shakelford testified that Bounds’s intentions were for the entire two acres to be
used for charitable purposes, we find the doctrine of equitable approximation and/or the cy
pres doctrine provides cogent support for the chancellor’s ruling.5 The supreme court has
addressed the problem that arises when the intended purpose for a gift is no longer feasible
and stated, “the duty of the court is to carry out the grantor’s intentions . . . . [And if the
original charitable gift or use fails] the property will not revert back to the settlor or his heirs
. . . .” Miss. Children’s Home Soc’y v. Jackson, 230 Miss. 546, 555, 93 So. 2d 483, 487
(1957).
The court went on to say that the “[c]y pres [doctrine or the doctrine of
5
When dealing with charitable gifts that are no longer feasible, the court may apply
the cy pres doctrine. “This is an equitable doctrine under which a court reforms a written
instrument with a gift to a charity as closely to the donor’s intention as possible, so that the
gift does not fail.” Black’s Law Dictionary 173 (3rd pocket ed. 2006). Likewise, when
dealing with a trust, the court will apply the doctrine of approximation, which “authorizes
a court to vary the details of a trust’s administration to preserve the trust and to carry out the
donor’s intentions.” Black’s Law Dictionary 221 (3rd pocket ed. 2006).
10
approximation] will not be applied where the settlor has made an express provision for an
alternative disposition of his property, if the charity as he planned it proves impossible,
inexpedient, or impractical.” Id. at 556, 93 So. 2d at 487. However, in the absence of an
express provision, the doctrine of approximation is a basic part of equity jurisdiction. It is
a rule of judicial construction designed to carry out the intention of the donor, and it is
applicable to devises. See Carter v. Berry, 243 Miss. 321, 375, 140 So. 2d 843, 854 (1962)
(citation omitted).
¶16.
When addressing the abandoned school property, the chancellor stated, “it also might
be surmised that [Bounds] wanted, or would have wanted, that land intended for one of his
eleemosynary purposes could remain available for the other.” Looking at established case
law and the evidence presented in the record, we find that the chancellor did not abuse his
discretion, nor was he manifestly wrong when he arrived at the conclusion that the 1.3 acres
should continue to be used for charitable purposes. Furthermore, we find that the chancellor
was well within his discretion when he considered the Plaintiffs’ acquiescence to the Board
of Supervisors’ designation of the property as a tax exempt historical cemetery. Although
not completely applicable to the instant case, the chancellor was not too far afield when he
touched upon the equitable doctrine of estoppel.
¶17.
The supreme court has stated, “[t]he principle on which the doctrine of estoppel by
conduct rests is that it would be a fraud in a party to assert what his previous conduct had
denied, when on the faith of that denial others have acted. When silence becomes a fraud,
it will operate as an estoppel.” Staton v. Bryant, 55 Miss. 261, 272 (1877). We do not state
that the Plaintiffs’ actions were fraudulent. However, it does not escape us that, although
11
they now maintain that the 1.3 acres for the school were never to be used for a cemetery and
should be divided among them, they allowed the Board of Supervisors to designate the entire
1.8 acres as a historical cemetery to protect them from possibly losing the property in a tax
sale. They also allowed the Board of Supervisors to shield them from taxes on the property
for approximately sixteen years. The Board of Supervisors’ minutes were public record, and
as stated, at least one of the Plaintiffs knew that the entire 1.8 acres were designated as a
cemetery. As the supreme court has observed, “acquiesce[nce] by . . . silence . . . amount[s]
to a tacit agreement . . . .” York v. Haire, 236 Miss. 711, 715, 112 So. 2d 245, 246 (1959).
The Plaintiffs’ silence resonates with the sound of agreement.
¶18.
This view was furthered by the United States Supreme Court in New Jersey v. New
York, 523 U.S. 767, 786 (1998). The Supreme Court acknowledged that “[t]he doctrine of
prescription and acquiescence ‘is founded upon the supposition, confirmed by constant
experience, that every person will naturally seek to enjoy that which belongs to him; and the
inference fairly to be drawn from his silence and neglect, . . . [is] his intention to relinquish
it.” Id. (citation omitted). The Plaintiffs were content to remain silent and relinquish the
responsibilities of ownership for sixteen years in order to maintain the status quo. Therefore,
we support the chancellor’s finding that the Plaintiffs’ silence indicates agreement with the
designation of the entire 1.8 acres as a historical cemetery.
¶19.
The Plaintiffs complain that no petition was made by them to the Board of Supervisors
to designate the entire 1.8 acres as a cemetery, and they argue that the Board of Supervisors
“expropriate[d] private property to establish a private cemetery.” We find that argument is
without merit. Mississippi Code Annotated section 41-43-1(2) (Rev. 2005) states the
12
following: “The Board of Supervisors of any county is authorized and empowered, upon
petition and request to do so, to establish or designate the location of any private family
cemetery to be located in the county.” The Defendants correctly argue that the statute at
issue does require a petition and request, but it is silent on how the petition must be made.
¶20.
The record reveals that the Plaintiffs are, at least, in part responsible for the property’s
designation as a historical family cemetery. In an effort to keep the property from being sold
in a tax sale because of unpaid property taxes, Patterson approached the Board of Supervisors
on the Plaintiffs’ behalf and procured forgiveness of the tax debt owed, as well as relief from
future taxes. By his own testimony, Miles admitted that he was told before the meeting that
the only way Patterson could ensure that the family property was not sold was to have it
designated as a family cemetery. Although he may not have personally gone before the
Board of Supervisors, Miles knew what Patterson’s intentions were. Accordingly, the
Plaintiffs’ argument that a petition was not adequately made to the Board of Supervisors
fails. The Board of Supervisors did not act independently of the Bounds family; it acted
upon their petition and request via Patterson. This issue is without merit.
II. ADJUDICATION OF THE RIGHTS OF THE PARTIES IN REGARD TO
THE LOCATION OF THE CEMETERY
¶21.
On appeal, the Plaintiffs argue that the chancellor should have declared the rights of
the parties and who could use the cemetery. In other words they asked, “who has the right
to be buried where?” At the same time the Plaintiffs filed their complaint, they filed a motion
for a temporary restraining order requesting that the Defendants be prohibited from “burying,
causing to be buried, or giving others permission to be buried on the land conveyed in that
13
Cemetery Warranty Deed . . . .” Their complaint also requested that the “court determin[e]
the ownership interest and boundaries of the property known as the Bounds Family Cemetery
. . . [as well as the] ownership interest of the remaining property . . . .” But, in their pleading,
the Plaintiffs did not ask the court to determine who “has the right to be buried where?”
¶22.
“One of the most fundamental and long-established rules of law in Mississippi is that
the [appellate court] will not review matters on appeal that were not raised at the trial court
level." Shaw v. Shaw, 603 So. 2d 287, 292 (Miss. 1992) (citation omitted). At the beginning
of the trial, the parties stipulated that ownership of the property was as follows: Miles, onesixth interest; Shakelford, one-third interest; Lenoir, one-third interest; Anderson, one-twelfth
interest; and Yawn, one-twelfth interest. The court acknowledged the Plaintiffs’ contention
that the deed to Anderson and Yawn was not valid. However, the court refused to address
it finding that only the parties to the document could litigate the matter, and the grantor,
David, was not present. Since the ownership of the property had been addressed, the only
remaining issues for the court to determine were the boundaries of the cemetery and whether
the 1.3 acres outside of the recognized Bounds Family Cemetery could be used as a
cemetery; not who had the right to be buried where. Therefore, the issue of whom can be
buried in the cemetery and where they may be buried is not properly before this Court.
¶23.
In the absence of a deed or will from Bounds, the chancellor was correct in looking
to extrinsic evidence to determine Bounds’s intentions concerning the future use of the
property. Also, in the absence of proof that Bounds intended to maintain a reversion, the
chancellor correctly surmised that the 1.3 acres originally intended for a school should
continue to be used for eleemosynary purposes. We find that the chancellor’s findings of fact
14
and decree were based upon substantial evidence and sound legal principles. This issue is
without merit.
¶24. THE JUDGMENT OF THE CHANCERY COURT OF LAMAR COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON
AND MAXWELL, JJ., CONCUR. LEE, P.J., NOT PARTICIPATING.
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