Estate of Perry v. Perry

61 So. 3d 193, 2010 Miss. App. LEXIS 586, 2010 WL 4188244
CourtCourt of Appeals of Mississippi
DecidedOctober 26, 2010
DocketNo. 2009-CA-01432-COA
StatusPublished
Cited by3 cases

This text of 61 So. 3d 193 (Estate of Perry v. Perry) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Perry v. Perry, 61 So. 3d 193, 2010 Miss. App. LEXIS 586, 2010 WL 4188244 (Mich. Ct. App. 2010).

Opinion

MAXWELL, J.,

for the Court:

¶ 1. Cheryl Perry appeals the Madison County Chancery Court’s denial of her motion to reopen Lester Perry’s estate. Lester Perry died testate, leaving his entire estate to named beneficiaries in his will. While his estate was open, Cheryl claimed to be an unspecified relative of Lester and his heir at law. But she failed to timely produce evidence she was entitled to a share of his estate. Consequently, the chancellor held Cheryl would not inherit from Lester. And by later order the chancellor closed the estate and directed Lester’s executor to distribute the estate’s assets to Lester’s beneficiaries.

¶ 2. We find, under Mississippi Rule of Civil Procedure 60(b), Cheryl failed to show extraordinary circumstances warranted reopening the estate and waived any argument that failure to serve Lester’s unknown heirs voided the order closing the estate. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Lester died testate. He named four of his children and four grandchildren1 as beneficiaries of his entire estate. On January 15, 2002, Lee Andrew Perry, Lester’s son and named executor, probated Lester’s will. On March 12, 2002, the chancellor opened Lester’s estate and issued Lee Andrew letters testamentary. Two years passed without anyone contesting the will’s validity. See Miss.Code Ann. § 91-7-23 (Rev.2004) (two-year limit to contest will probated in common form).

¶ 4. In August 2005, while Lester’s estate was still open, Cheryl filed a motion to remove Lee Andrew as executor. Cheryl claimed an interest in Lester’s estate “by virtue of [her] being related to the decedent.” But she never specified — in her motion or any where else in the record— how she was related to Lester. She did not (and could not by statute) contest the validity of Lester’s will. And she never claimed to be a beneficiary of Lester’s will.

¶ 5. In March 2006, while Cheryl’s motion to remove was pending, Lee Andrew requested the chancellor approve the final accounting and close Lester’s estate. The final accounting listed the estate’s assets, but Lee Andrew failed to list Lester’s beneficiaries, as required by statute.

¶ 6. The record indicates the chancellor set both Cheryl’s motion to remove and Lee Andrew’s request to close the estate for a simultaneous hearing on May 22, 2007. Less than thirty days prior, on April 26, 2007, Lee Andrew first published a summons “to the unknown heirs at law of Lester Perry, Deceased” directing them [196]*196to appear at the May 22 hearing. Lee Andrew republished the summons on May 3 and May 10, 2007.

¶ 7. On May 22, 2007, the chancellor entered an order, prepared by Cheryl’s attorney, granting the withdrawal of Cheryl’s motion to remove the executor. The order granted Cheryl fourteen days to present a clear, certified copy of her birth certifícate. It also expressly stated, if Cheryl failed to timely provide the certificate, she “shall not inherit from this estate" and “the court will entertain and execute[] an order from counsel of the Executor that will close the estate and distribute the assets to the rightful heirs as set forth in the pleadings of the executor.”

¶ 8. Cheryl failed to provide her birth certificate by the order’s deadline. And on July 20, 2007, the chancellor entered an order approving the final accounting and closing Lester’s estate. All beneficiaries receiving distribution signed the order.

¶ 9. On December 3, 2007, Cheryl, who was not among the beneficiaries, filed a motion to reopen Lester’s estate to “allow the rightful heirs ... to share in the estate.” Cheryl attached to this motion a clear copy of her birth certificate. The birth certificate indicated her parents were Floyd Perry and Jessie Mae Smith, neither of whom Lester named as beneficiaries in his will.

¶ 10. The chancellor set Cheryl’s motion to reopen the estate for hearing on May 14, 2008. The record contains no transcript of this hearing or any other indication of what transpired. On August 3, 2009, the chancellor entered a nunc pro tunc order denying Cheryl’s motion to reopen, from which Cheryl appeals.

STANDARD OF REVIEW

¶ 11. Before applying the proper standard of review, we must first clarify the procedural nature of Cheryl’s motion to reopen the estate.

¶ 12. When an interested party brings a specific challenge to the executor’s accounting prior to closing the estate, he does not have a right, under Mississippi Code Annotated section 91-7-309 (Rev. 2004) (allowing the reopening of accounts for two years), to open the account to relitigate the same issue. Bright v. Bright, 156 Miss. 766, 771-72, 126 So. 901, 903 (1930) (construing prior version of current Miss.Code Ann. § 91-7-309). Because Cheryl presented her heir-at-law claim and had the opportunity to provide her birth certificate prior to the order approving the accounting, she cannot reopen the account under section 91-7-309 to relitigate this claim. See Miss.Code Ann. § 91-7-309.

¶ 13. Instead, we consider Cheryl’s motion to reopen under Rule 60(b), which provides “[t]he procedure for obtaining relief from a judgment shall be by motion as prescribed in these rules or by an independent action and not otherwise.” M.R.C.P. 60(b)(6). Although Cheryl did not mention Rule 60(b), “[o]ne of the procedural maxims of equity is that it looks to the intent, and will regard substance rather than form.” Int’l Paper Co. v. Basila, 460 So.2d 1202, 1203 n. 1 (Miss.1984) (quoting Kemp v. Atlas Fertilizer & Chem. Co., 199 So.2d 52, 57 (Miss.1967)). In Basila, the Mississippi Supreme Court applied a Rule 60(b) analysis to “the equivalent of a motion to set aside the judgment under the old rules.” Id. Similarly, we treat Cheryl’s motion as a Rule 60(b) motion for relief.

¶ 14. “Under Mississippi law, the grant or denial of a 60(b) motion is generally within the lower court’s discretion, unless the judgment in question is deemed [197]*197to be void.” Evans v. Oberon Holding Corp., 729 So.2d 825, 827 (¶ 5) (Miss.Ct.App.1998) (citing Sartain v. White, 588 So.2d 204, 211 (Miss.1991)); see also Cuffee v. Wal-Mart Stores, Inc., 977 So.2d 1187, 1191 (¶ 14) (Miss.Ct.App.2007) (applying abuse-of-discretion standard to question of reopening case for equitable reasons); Indymac Bank, F.S.B. v. Young, 966 So.2d 1286, 1288 (¶5) (Miss.Ct.App.2007) (applying de novo standard of review to question of judgment’s validity).

¶ 15. We review for abuse of discretion the chancellor’s denial of Cheryl’s motion to reopen the estate for equitable reasons. We review de novo whether the order closing the estate is void for lack of jurisdiction based on improper summons by publication.

DISCUSSION

A. Equitable Argument for Setting Aside Order

¶ 16. Cheryl essentially raised the “catchall” provision in Rule 60(b)(6) by arguing the estate should be reopened for equitable reasons. M.R.C.P. 60(b)(6) (allowing setting aside order for “other reasons justifying relief’). See Cuffee, 977 So.2d at 1191 n.

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61 So. 3d 193, 2010 Miss. App. LEXIS 586, 2010 WL 4188244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-perry-v-perry-missctapp-2010.