In Re Estate of Pickett

879 So. 2d 467, 2004 WL 193225
CourtCourt of Appeals of Mississippi
DecidedFebruary 3, 2004
Docket2002-CA-01748-COA
StatusPublished
Cited by4 cases

This text of 879 So. 2d 467 (In Re Estate of Pickett) 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
In Re Estate of Pickett, 879 So. 2d 467, 2004 WL 193225 (Mich. Ct. App. 2004).

Opinion

879 So.2d 467 (2004)

In the Matter of the ESTATE OF Nell Anding PICKETT, Deceased.
Kenneth Van Etten and Betty Pearl Van Etten, Appellants
v.
Harold Anding Johnson and Bruce Kirkland, Appellees.

No. 2002-CA-01748-COA.

Court of Appeals of Mississippi.

February 3, 2004.
Rehearing Denied June 8, 2004.
Certiorari Denied August 5, 2004.

*468 Thomas H. Cassel, Brandon, Joe B. Moss, attorneys for appellant.

Richard Manning Lingle, Don P. Lacy, Jackson, Ronald Henry Pierce, Oxford, attorneys for appellee.

Before McMILLIN, C.J., BRIDGES AND THOMAS, JJ.

McMILLIN, C.J., for the court.

¶ 1. The case before the Court presents the question of the enforceability of a contract for sale of land entered into, but not finally closed, prior to the property owner's death. Depending on the resolution of that issue, there is a possible second issue involving entitlement to the sales proceeds in light of the particular terms of the deceased property owner's will relating to the property.

I.

Facts

¶ 2. Nell Anding Pickett was the owner of a tract of approximately 181 acres of land in Hinds County. On September 21, 1999, Pickett entered into a contract for *469 the sale of that property to Bruce Kirkland. Under the terms of the contract, the actual sale was to close on or before December 15, 1999. It should be noted that the contract was executed, not by Pickett personally, but by her nephew, Harold Anding Johnson, acting under authority of a general power of attorney previously executed by Pickett on February 17, 1999. As the case stands before the Court in this appeal, there is no contention that the instrument granting the power of attorney to Johnson was invalid. Neither is there an assertion that the subsequent contract for the sale of the real estate executed by him for Pickett under authority of the power of attorney was ineffective at the time of execution.

¶ 3. After the contract was executed, but before the scheduled closing date, Pickett died. Her will, showing an execution date of March 26, 1999, was admitted to probate in the Hinds County Chancery Court. It appointed Johnson as executor of the estate. Under the terms of the will, the 181 acre tract was devised to Kenneth and Betty Pearl Van Etten. Aside from a few additional specific bequests, the remaining bulk of the estate passed under a residuary clause to a number of Pickett's nieces and nephew, including Johnson, the named executor.

¶ 4. Kirkland, as the purchaser under the sales contract, petitioned the chancellor to require the executor to carry out the terms of the contract. The Van Ettens opposed the motion on the ground that the contract lapsed when December 15, 1999, passed and the contract had not been closed.

¶ 5. The chancellor held that the contract, not being one for personal services, survived the death of the seller. The chancellor also found that, though Pickett's attorney in fact was no longer able to perform the contract on her behalf since the power of attorney was automatically revoked by operation of law at the time of Pickett's death, the contract nevertheless remained enforceable against Pickett's estate. The chancellor further found as fact that the purchaser, Kirkland, was ready and able to perform his obligations under the contract and had, in fact, attempted to tender performance in advance of the contract deadline but that the sale was not consummated solely because of problems relating to the proper probate of Pickett's will, the result being that there was no representative duly authorized to perform for the estate at the relevant times. In that situation, the chancellor concluded that the contract remained enforceable and directed the executor to carry out the estate's obligations as seller under the contract.

¶ 6. After the chancellor's ruling, the Van Ettens filed a pleading alleging an alternative right under the terms of the will. Their alternate claim was essentially that, if the contract was in fact enforceable against the estate, then they were entitled to the sales proceeds on the theory that, upon probate of the will, they became the owners of the tract of the land even though their title was encumbered by the previously-existing contractual obligation to sell the property under the terms of the contract. Therefore, according to their theory, having been devised the land subject to the burden of the contract to sell, they were, by the same token, entitled to the benefits of that contract, i.e., the proceeds of the sale.

¶ 7. The chancellor rejected this alternate claim by the Van Ettens. The chancellor held that Pickett's act of entering into a contract to sell the land after execution of the will acted as an ademption of the specific devise of the land. The chancellor relied on authority holding that, upon execution of a contract for the sale of *470 the real property, there was an equitable conversion of the property whereby Pickett's rights became personal property consisting essentially of the right to the proceeds of the sales contract. Thus, rather than dying possessed of the land encumbered by a contract of sale, Pickett died owning a contractual right to the receipt of a certain sum of money. These sales proceeds were not the subject of a specific bequest under the terms of her will; therefore, the proceeds would pass under the residuary clause of the will rather than under the specific devise provisions to the Van Ettens contained elsewhere in the will.

¶ 8. The parties to this appeal include the Van Ettens as appellants and Kirkland, the purchaser under the contract of sale, as an appellee. Kirkland's interest is confined to the initial issue raised in the appeal since, if the contract was deemed to have lapsed as the Van Ettens contend, he would be in the position of losing title to the real property. Johnson also appears as an appellee in his capacity as executor of the estate and as a residual beneficiary. Johnson makes common cause with Kirkland in asserting the validity of the land sale pursuant to the contract. His stake in the outcome of the appeal depends additionally on the resolution of the second issue dealing with the proper distribution of the sales proceeds. That interest arises out of the fact that he is one of the residual beneficiaries under the will so that, if the chancellor's decision is affirmed in this appeal, his proportionate share of the residuary estate will be increased by the inclusion of the land sale proceeds in the residual estate.

II.

Issues Presented and Scope of Review

¶ 9. There appear to be no real disputed issues of fact in this case on the core considerations on which the proper outcome of the case must turn. The key issues presented may be summarized as follows: (a) did the contract lapse when it was not fully executed by the specific closing date of December 15, 1999, and (b) if the contract remained enforceable against the estate, did the contract, entered into prior to Pickett's death, work an ademption as to the specific devise of that property to the Van Ettens in her previously-executed will even though the sale was not closed prior to her death or, alternatively, was there no ademption since Pickett still owned the property at her death, though her title was burdened by the provisions of the sales contract? The issues for resolution pose pure questions of law. In that situation, an appellate court is under no mandate to afford deference to the trial court's determinations, but rather undertakes a de novo review of the issues presented. Saliba v. Saliba,

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Cite This Page — Counsel Stack

Bluebook (online)
879 So. 2d 467, 2004 WL 193225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-pickett-missctapp-2004.