In Re Estate of Baker

760 So. 2d 759, 2000 WL 706091
CourtMississippi Supreme Court
DecidedJune 1, 2000
Docket1998-CA-01164-SCT
StatusPublished
Cited by5 cases

This text of 760 So. 2d 759 (In Re Estate of Baker) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Estate of Baker, 760 So. 2d 759, 2000 WL 706091 (Mich. 2000).

Opinion

760 So.2d 759 (2000)

In The Matter of the ESTATE OF Glen D. BAKER, Sr., Deceased.
Dorothy J. Baker, Executrix
v.
Glen D. Baker, Jr. and Glenda Jean Baker Murphy.

No. 1998-CA-01164-SCT.

Supreme Court of Mississippi.

June 1, 2000.

*760 Ross R. Barnett, Jr., Jackson, Attorney for Appellant.

A.M. Edwards, III, West Point, T. Calvin Wells, Jackson, Attorneys for Appellees.

EN BANC.

ON MOTION FOR REHEARING

MILLS, Justice, for the Court:

¶ 1. The Motion for Rehearing is denied. The original opinions are withdrawn, and these opinions are substituted therefor.

STATEMENT OF THE CASE

¶ 2. This family dispute arises from the Chancery Court of Hinds County, Mississippi. Glen D. Baker, Sr. died testate on September 19, 1995, and was survived by his children, Glen D. Baker, Jr. and Mrs. Glenda Murphy, and his current wife, Mrs. Dorothy J. Baker. Dorothy was co-named on a securities account with Glen, Sr. at the time of his death. His children argue that the securities account should pass through the will in equal parts to Glen, Glenda, and Dorothy. Dorothy, not being satisfied to share equally, claims the entire account should pass to her. She argues that as a joint tenancy, it was created with rights of survivorship. The Chancellor ruled the account to be a tenancy in common and not a joint tenancy. He therefore ruled that half the account should be distributed to Dorothy with the remainder passing through the will. From this decision, Dorothy appeals assigning as error:

I. WHETHER THE JUDGMENT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND LAW.

II. WHETHER THE CHANCELLOR ERRED IN ADMITTING INTO EVIDENCE A TAPE RECORDING ALLEGEDLY MADE BY THE DECEASED.

STATEMENT OF THE FACTS

¶ 3. Glen, Sr. originally established the account with Richard Wilkinson at the McLarty and Company investment organization in 1989. Later, the McLarty organization was absorbed by Legg Mason. However, Richard Wilkinson, the Bakers' investment advisor at McLarty and Co., chose to move to Prudential Investments rather than Legg Mason. Paul Matlock was assigned the account at Legg Mason. Although no original documents remain, both Wilkinson and Matlock testified the account was set up as a joint tenancy with rights of survivorship. Thus, under their testimony the entire account should pass directly to Dorothy.

¶ 4. Glen Baker, Jr., and Glenda Baker Murphy, children of Glen, Sr. from another marriage, suggest their father never intended for the entire securities account to pass to Dorothy. At the trial, they offered hearsay evidence in the form of an audio tape which was admitted. On the tape, Glen, Sr. instructed that there was to be no fighting among his heirs and that the securities should be divided equally among Glen, Jr., Glenda, and Dorothy. Glen, Jr. and Glenda testified that Glen, Sr. repeatedly mentioned this tape, instructing them to follow it. Dorothy, on the other hand, testified that Glen, Sr. instructed her to dispose of the tape and stated that he was drunk when he made it.

¶ 5. Not surprisingly, Mrs. Baker's opinion regarding Glen, Sr.'s wishes in disposing of his property differs from that of the children. Dorothy believes the device fashioned to hold the couple's securities was a joint account with rights of survivorship. Upon Glen, Sr.'s death, she understood that all the accumulated money in the account would automatically pass to her regardless of the terms of his will. She claims Glen, Sr. described this situation to her before his death, and she relies on the testimony of Wilkinson and Matlock.

I. WHETHER THE JUDGMENT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND LAW.

¶ 6. This Court will refuse to disturb findings of fact unless manifestly *761 wrong or clearly erroneous. Scharwath v. Scharwath, 702 So.2d 1210, 1211 (Miss. 1997); Denson v. George, 642 So.2d 909, 913 (Miss.1994). However, questions of law on appeal will be reviewed de novo. Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990); Cole v. National Life Ins. Co., 549 So.2d 1301, 1303 (Miss.1989). While we must review the actions of the Chancellor in admitting or denying certain evidence, the crux of the argument is whether there was a legitimate joint tenancy with rights of survivorship. If not, then the will shall solely govern the distribution of the estate. However, if there is a joint tenancy with an enforceable survivorship provision, then those assets under the joint tenancy will be distributed to the survivor immediately, outside of the dictates of the will. This is true because the will "is wholly incapable of supplanting in law the ... joint tenancy instruments." In re Will and Estate of Strange, 548 So.2d 1323, 1326 (Miss.1989).

¶ 7. First, however, we note the actions of the court below. The Chancellor questioned Wilkinson as to the nature of securities accounts and took issue with him on several key points. The following exchange took place between the Chancellor and Wilkinson:

Q. Let me ask you one question, Mr. Wilkinson, before you step down. Is it uncommon to issue stock in two names, so and so and so and so, without the use of the wording as tenants in common? Is it uncommon just to say in my name and so and so's name?
A. Judge, I wasn't aware of it until today, that it can be in two names just using the word "and" in there without any further clarification.
Q. The reason I'm asking, I guess I'll have to take judicial notice of the fact that I have bought it that way.
A. I think so. I think you can do it that way, but I just never fooled with it.
Q. I know you can, because I've owned it. But I usually lost money on it.
A. What did you do? Just you and your wife's name "and"?
Q. No. A fellow lawyer and I invested together—a male, before anybody gets any wrong ideas. But a friend of mine, who is a lawyer, and I had on more than one occasion invested in stock, and we've had it put in both names, just so and so and so and so.
A. Okay.
Q. And nobody ever said you can't do that.
A. No. I never said you can't do it, but I wouldn't have suggested it. I would have suggested that you—
Q. Well, I didn't want it with right of survivorship where he'd get it.
A. Well, that would have been a good time to use tenants in common so you could split it up.

¶ 8. The appellees contend that this action by the Chancellor was not improper since he did nothing more than take judicial notice. "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned." M.R.E. 201(b). When another lower court took judicial notice that the usual escrow practice is to put funds into an interest-bearing account, we held, "A trial judge must base his findings upon the evidence and testimony, and not upon his personal knowledge of the case." Howard v. Clanton, 481 So.2d 272, 276 (Miss.1985)(citing City of Jackson v. Lee, 234 Miss. 502, 106 So.2d 892 (1958)). Likewise in this case, the Chancellor's personal experience with securities was an improper basis for judicial notice.

¶ 9.

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760 So. 2d 759, 2000 WL 706091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-baker-miss-2000.