In the Matter of the Estate of Sherrill Lagene 'Gene' Thompson, Deceased: Heirs of Sherrill Lagene Thompson v. Cynthia Cabibi Bird

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2024-CA-01414-COA

IN THE MATTER OF THE ESTATE OF APPELLANTS SHERRILL LAGENE ‘GENE’ THOMPSON, DECEASED: HEIRS OF SHERRILL LAGENE THOMPSON

v. CYNTHIA CABIBI BIRD APPELLEE

DATE OF JUDGMENT: 11/21/2024 TRIAL JUDGE: HON. SHEILA HAVARD SMALLWOOD COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CHANCERY COURT

ATTORNEYS FOR APPELLANTS: DANIEL MYERS WAIDE MICHAEL V. RATLIFF

ATTORNEY FOR APPELLEE: SAMUEL STEVEN McHARD NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES DISPOSITION: REVERSED AND REMANDED - 08/18/2026 MOTION FOR REHEARING FILED:

EN BANC.

McDONALD, J., FOR THE COURT:

¶1. The heirs of Sherrill Lagene (“Gene”) Thompson appeal a Pearl River County Chancery Court order dismissing their petition to reopen Gene’s estate as time-barred. The heirs claimed that they had no knowledge of Gene’s will or notice of the probate and that Gene’s widow misled them to believe that a prenuptial agreement entitled “Marriage Contract” that Gene signed in 1970 in which he retained ownership of all his property was still in effect at the time of his death. The heirs were not aware that in 1997 Gene and Mary purportedly renounced the prenuptial agreement.

¶2. After Gene died in 2006, the heirs, who were residents of Louisiana, believed Mary had a life estate in Gene’s property, which in Louisiana is called a “usufruct.” They asserted that they only learned of Gene’s purported will, the renunciation of the prenuptial agreement, and the probate of the will after Mary died in 2024, when they sought assistance to transfer ownership of Gene’s property. Shortly thereafter, Gene’s heirs filed the petition to reopen his estate, serving Cynthia Bird, the executor of Mary’s estate. Bird filed a motion to dismiss the heirs’ petition, arguing that the petition was not timely filed because the statute of limitations for contesting a will was two years, and the heirs had not provided sufficient proof of concealed fraud to extend that time.1 The chancery court granted the motion to dismiss. The heirs appeal, and after considering the written and oral arguments of the parties and relevant precedent, we reverse the chancery court’s order and remand for further proceedings.

Facts

The Parties, the Prenuptial Agreement, and the Property

¶3. Gene Thompson died in 2006 at the age of 81 in Mississippi, though he had lived in Louisiana for most of his life. He was survived by his second wife, Mary Alice Cabibi Thompson, whom he married in 1970, and two children from his first marriage, June LaGene Thompson and Robert Wayne Thompson. Mary had no children.

¶4. Prior to marrying, on July 9, 1970, Gene and Mary signed a “Marriage Contract,” in which they agreed to be “separate in property,” meaning that each maintained title to property

1 See Miss. Code Ann. § 91-7-23 (Rev. 2021).

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separately owned prior to the marriage, thereby renouncing the State of Louisiana’s community property provisions. According to the agreement, even property acquired during the marriage remained separate. Gene told his children about this agreement and assured them that after his death, his business and property would still belong to his family alone.

¶5. Over his lifetime, Gene accumulated considerable wealth. When the “Marriage Contract” was signed, Gene personally owned Thompson Packers Inc., a portioned-meat packing business in New Orleans valued at over $2 million at the time of his death. Gene also purchased 1,000 acres in McNeil, Mississippi, in his name only and held several investment accounts solely in his name at the time of his death. Gene and Mary also held property interests with rights of survivorship, including 1,000 shares in a ranch business, Terra Deos Land & Cattle Co. Inc., that he established on the McNeil property.2 They also jointly purchased 623.957 acres with rights of survivorship. Gene and Mary maintained residences in both Louisiana and Mississippi, while Gene’s two children and their families lived in Louisiana. At the time of Gene’s death, his estate was valued in excess of $18 million.

¶6. According to the heirs, Gene was diagnosed with dementia in 1995, and for the last ten years of his life, until his death in 2006, he lived in Mississippi with Mary.

Renunciation of Prenuptial Agreement

¶7. On May 24, 1997, Mary and Gene signed an “Affidavit Renouncing PreNuptial Agreement,” which was prepared and filed in St. Tammany Parish, Louisiana. In the

2 This business was worth $461,924.86 at the time of Gene’s death.

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document, Gene and Mary stated that they were residents of Louisiana and that they wished “to renounce, abrogate and declare null and void the document entitled ‘Marriage Contract.’” The affidavit was signed by Gene (“Sherill L. Thompson”) and Mary (“Mary Alice Cabibi Thompson”) before a notary public, and was witnessed by Frances M. Cabibi (Mary’s sister) and Elaine Veillon. Gene’s children were unaware of the renunciation and later asserted it was invalid for several reasons, one being that Louisiana Civil Code article 2329 required parties seeking to modify or terminate a prenuptial contract to file a joint petition in court and obtain a court ruling that the modification was in the best interest of the parties.3 Mary and Gene never filed a petition with any Louisiana court to renounce their prenuptial contract. Further, the heirs contended that because of his dementia diagnosis, Gene was incompetent to sign legal documents and would have been subject to the undue influence of those around him at the time the renunciation was signed. The heirs claimed that the renunciation document was drafted by “an affiliate of the wife” and witnessed only by Mary and her family and friends.

3 Louisiana Civil Code Annotated article 2329 (“Exclusion or modification of matrimonial regime”) provides:

Spouses may enter into a matrimonial agreement before or during marriage as to all matters that are not prohibited by public policy.

Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules. They may, however, subject themselves to the legal regime by a matrimonial agreement at any time without court approval.

During the first year after moving into and acquiring a domicile in this state, spouses may enter into a matrimonial agreement without court approval.

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The Trust and the Will

¶8. On November 12, 1998, Gene allegedly established the “Gene Thompson Lifetime Trust No. 1” under Louisiana law. The original trust document does not appear in the record, but an amended document entitled “Act Amending and Restating Revocable Trust and Changing Trustee” was attached to the final accounting of Gene’s estate case. Dated September 9, 1999, the amendment revised the prior trust document to name Mary as trustee instead of H. Davis Smith Jr. Gene was identified as the sole income beneficiary during his lifetime, then Mary during her lifetime, and then Gene’s and Mary’s siblings. After all of them died, the trustee could maintain the trust and distribute the income to the beneficiaries, who included Gene’s children (June and Robert), grandchildren, and great-grandchildren (several were named), or terminate the trust and distribute the principal to the beneficiaries. The trust contained 678.39 shares of common stock of Thompson Packer Inc., which was half of the total number of shares.4 It appears that the trust held no other property.

¶9. On that same day, September 9, 1999, Gene also executed a will in which he left the entirety of his estate to his wife, Mary. In the will, Gene purportedly stated, “I have provided for my children, grandchildren, and great grandchildren elsewhere,” presumably referring to the trust. However, at the time of Gene’s death, the heirs’ share of the stock in the trust was worth $974,002, compared to the rest of his estate (including property and investment accounts) valued at $17,335,209 that Mary received—a notably stark imbalance. It is undisputed that June and Robert were unaware of the trust, even though under Mississippi

4 Gene retained personal ownership of the other 678.39 shares.

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law, Mary was required to notify them of its existence. Nor did they know Gene had signed a will.

Probate of the Will

¶10. Gene died in McNeil, Mississippi, on December 30, 2006. June and Robert maintained that they understood that Mary still had a life estate interest in Gene’s property5 and that upon her death, the property became theirs. Knowing nothing of the renunciation of the prenuptial contract or the will, Gene’s heirs argued that they had no reason to search court records for a probate of Gene’s estate after his death. However, on April 16, 2007, Mary filed a petition to probate Gene’s will in the Pearl River County Chancery Court and to establish herself as Gene’s sole beneficiary of the bulk of his estate under the will. Although the petition specifically recited that Gene had two children, June LaGene Thompson and Robert Wayne Thompson, who both lived in Louisiana, no notice of probate proceedings was ever served on them or any other notice given to them.

¶11. The chancery court granted probate of the will, appointed Mary as executrix, and issued her letters testamentary on April 24, 2007. Mary filed an affidavit of known creditors, but the list of creditors was not attached to the copy in the file. The notice to creditors was

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In Louisiana, this spousal post-mortem interest is referred to as a “usufruct” under Louisiana Civil Code Annotated article 890 (“Usufruct of surviving spouse”), which provides:

If the deceased spouse is survived by descendants, the surviving spouse shall have a usufruct over the decedent’s share of the community property to the extent that the decedent has not disposed of it by testament. This usufruct terminates when the surviving spouse dies or remarries, whichever occurs first.

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published in the Picayune Item for four weeks beginning June 15, 2007. Nothing was published in Louisiana.

¶12. On January 11, 2008, the chancellor signed an order approving the first and final accounting of the assets of Gene’s estate and closing the estate. The order itemized and valued Gene’s personal property that passed inside the estate, including several investment accounts, Gene’s interests in Thompson Packers, in an energy company, and in his cattle ranch business, totaling $5,864,694.68. The value of the land Gene owned was estimated at $12,457,196.68.6 Attached to the accounting was a 2006 Estate Tax Return that reported to the IRS that Mary received $17,335,209 through the estate, and Gene’s heirs were paid a total of $974,002.7 The 1999 trust document was also attached to the accounting.

¶13. Before, during, and after probate, Mary said nothing to the heirs about the trust, the renunciation of the prenuptial contract, the will, or the probate of the will. To the contrary, she continued to tell them that they would be inheriting everything upon her death. According to grandson Daryl Wayne Thompson, Gene and Mary told him that everything that belonged to Gene would pass to Gene’s family. The heirs assumed, then, that when Gene passed away, Mary was managing Gene’s properties and deriving the income from them as Gene wished. They acquiesced to this and did not interfere, even helping her

6 The court also recognized assets that passed outside the estate, including several small insurance policies, Gene’s interest in the 623.957 acres that passed to Mary by rights of survivorship, mineral rights that also passed to Mary by rights of survivorship, and onehalf of the shares in Thompson Packers that Gene had put in the living trust for his children and grandchildren.

7 The name of the individual heirs and the amount paid were listed on the return.

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maintain the ranch.

Mary’s Death and Discovery of Renunciation of Marriage Contract and Will

¶14. Mary died testate on February 4, 2024, and the probate of her will was pending at the time the heirs filed their petition in this case. The heirs filed their petition to reopen Gene’s estate within three months of Mary’s death, after which Bird moved to consolidate Mary’s estate case with Gene’s estate case. But the court did not rule on this motion. Thus, nothing from the proceedings in Mary’s case was included in the record of this case. The dissent mistakenly assumes that “all [of Gene’s] estate assets had long ago been distributed.” But even if his assets had been distributed to Mary in 2008, the record contains no information about what assets Mary may have sold after Gene’s death and what assets remained in her estate at the time of her death that could rightfully belong to Gene’s heirs. Presumably, then, there had been no distribution of Mary’s assets at the time of these proceedings.

¶15. After Mary’s death, Gene’s heirs sought counsel on the procedure for having their father’s property put in their names since they thought that Mary’s life estate had then been extinguished. When they learned about the renunciation of the prenuptial agreement, the existence of Gene’s will, and the probate of that will, on May 14, 2024, the heirs filed a petition to reopen Gene’s probate case and set Gene’s will aside, claiming fraud, undue influence, and forgery. They also challenged the renunciation of the prenuptial agreement. They served the executrix of Mary’s estate, Cynthia Cabibi Bird.

¶16. On June 26, 2024, Bird, on behalf of Mary’s estate, filed a motion to dismiss the heirs’ suit. Bird contended (1) that the suit was barred by the statute of limitations, (2) that the

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fraud had not been pled with particularity and that the heirs had constructive notice of all the documents they now claim are fraudulent but took no action, and (3) the heirs were not entitled to reopen the estate case on the basis of fraud under Rule 60 of the Mississippi Rules of Civil Procedure. Bird attached an affidavit from the plant manager of the meat packing plant, Andrew Schott, who said that in 1995, Gene was very much involved in the plant’s $1.8 million expansion project, negotiated a new line of credit with a local bank, gave a grand opening speech in the summer heat, and organized the Christmas party, among other things. According to Schott, Gene was equally involved in the business through 1998, even walking down the aisle at Schott’s wedding. Gene remained chairman of the board, holding meetings throughout 1999 with stockholders and board members. In Schott’s opinion, Gene was mentally competent until at least 2004, when he became bedridden.

¶17. In response to Bird’s claim of no concealed fraud, the heirs provided several affidavits stating that after Gene’s death, Mary continued to represent to them that his property would go to his children and that she only held the property and income during her life. In their affidavits, the heirs said that they knew of the prenuptial contract, but not its renunciation, nor the will, nor the trust. Mary had not disclosed any of these documents, which were executed after Gene’s dementia diagnosis.8 In his affidavit, Robert explained

8 Other heirs, including Sharon Thompson Galloway, Gene’s granddaughter, also filed affidavits. Sharon stated that she and her husband had moved to the ranch in McNeil at Mary’s request because it had become run down. Sharon said that Mary reiterated how the ranch would be inherited by the Thompson family, so Sharon saw her family’s move as a way to protect their inheritance. Her husband, Mike Galloway, signed an affidavit confirming Sharon’s affidavit testimony. He added that they did not get paid for the work they did because they did it for the family legacy. In another affidavit, Daryl Wayne Thompson, another grandchild, stated that Gene was diagnosed with dementia after Gene

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that after Gene’s divorce from Robert’s mother and his father’s remarriage, Gene assured him that he had a marital agreement and that the business and properties he owned would still be the family’s. Robert also related Gene’s diagnosis of dementia, and that by the time Gene allegedly signed the will in 1999, Gene could not communicate, walk, feed himself, or know what he was doing. The heirs attached several photographs showing Gene’s deteriorating condition from wheelchair to being bedridden, and a text from Mary to Mike Galloway, husband of one of Gene’s grandchildren, thanking them both for their help with the ranch, telling them that “when you look at the whole picture, it will be well worth it. Your grandfather and I along some wonderful people put in many hours to get it here. You two can

quit driving on the road because of mental issues. When Gene had a wreck on the ranch, his doctor noted Gene’s confusion and memory issues and recommended Gene see a neurologist, who diagnosed the dementia. Daryl stated that Gene stopped running the dayto -day operations at the meat-packing plant around that time (1995) as well. Gene needed an assistant to help him with daily tasks, such as getting dressed. “In 1997 and 1998, [Gene] was in and out of being himself. By 1999, [Gene] was a shell of himself.” From Daryl’s observations, Gene would not have had the mental capacity to execute a will. Daryl also stated in his affidavit he understood that the person who notarized the will was Mary’s boyfriend.

Sharon’s son, Klay, also submitted an affidavit. He spent two years (2016–2018) on the ranch, restoring and upgrading facilities there (e.g., cattle chutes, fences, the barn, roads, etc.). He said that Mary told him that the land he was putting so much work into was the “Thompson family legacy” and that “as an heir, I would be inheriting the ranch.” Kyle McWilliams, a great-grandson, also spent time helping at the ranch. He said in his affidavit that he brought his young family there, too, and they all worked to restore it. He stated that Mary repeatedly said that the ranch and the business would be passed down to Gene’s family. They trusted Mary and believed it would have been disrespectful to question her about her intentions. Karen Thompson Anderson said in her affidavit that as the youngest granddaughter, Mary had been the only grandmother she knew in her life. Mary also told her that Gene had everything planned to take care of them. Steven Thompson, another grandson, stated in his affidavit that the family knew about the marital agreement and how, after Mary passed, Gene’s estate would pass to his family. Mary reiterated this to them, saying that Gene had intended the Thompson family to carry on the ranch and meat business.

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move on and make it even better than ever.”

¶18. The heirs also submitted affidavits from three disinterested parties to prove what Mary had told them. Paul Williamson and Mike Dougherty visited at the ranch in McNeil after Gene’s death when Sharon Galloway and her family were working there. Williamson said he spoke to Mary during that time and that she complimented Sharon and her husband for their hard work, and Mary said that the Thompson family “would soon reap the benefits.” Dougherty said that Mary made it clear multiple times that “she was simply a caretaker trying to restore the ranch before passing it to the Thompson family.” Another affidavit came from Stephen Schindler, who had sold Gene insurance coverage on his businesses from 1986 until Schindler retired. Schindler said that at the beginning, Gene was intimately involved with all insurance decisions. But by the mid 1990s, Gene had become ill and was no longer capable of making these kinds of detailed and serious decisions. Others in management made these decisions, and he would occasionally see Gene in a wheelchair being cared for by others because he was incommunicable.

¶19. When they discovered the 2006 estate tax filing after Mary’s death, the heirs were shocked to see that the estate reported that Gene’s children, grandchildren, and great- grandchildren “received benefits from the estate” totaling $974,002. The heirs stated they never received any notice of such a benefit or payments from the estate, not in 2006 or ever. Moreover, they noted that even though Mary had been given property and half of the meat- packing business through the will, she never changed the corporate filing with the Secretary of State, and Gene was still listed as a director or owner long after his death. Thus, the heirs

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could not have learned that Mary owned the property after Gene’s death. Mary had also kept hidden the fact that there had been a trust established, breaching her duty to have disclosed this trust to the heirs.

¶20. In response to Bird’s argument that under Rule 60(b), a party had only six months to set aside a judgment for fraud, the heirs pointed out that the Rule places no time limit for a fraud on the court:

This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.

M.R.C.P. 60(b). The heirs contended that Mary defrauded the court when she presented a will signed by Gene when he was incompetent and that she misrepresented to the court that the heirs had been otherwise provided for by producing an Estate Tax Return indicating payments made to them that, in fact, were never paid.

Chancery Court Ruling

¶21. After hearing arguments on the motion to dismiss, on November 21, 2024, the chancery court ruled in favor of Mary’s estate. The chancery court considered the statute of limitations to contest a will (Miss. Code Ann. § 91-7-23 (Rev. 2021)), the statute of limitations to contest a final accounting (Miss. Code Ann. § 91-7-309 (Rev. 2021)), and the time limit to challenge a judgment for fraud, mistake, or newly discovered evidence contained in under Rule 60 of the Mississippi Rules of Civil Procedure. In its analysis, the chancery court considered the question: “Are claims made by the Heirs time barred under the statute of limitations?” The court held that when a will is probated in common form, “the

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only duty of the proponent of the will is to notify the parties named in the will; there is no duty to notify anyone else.” Further, the court held that “the rule of concealed fraud cannot apply to matters of public record” and that the heirs’ claims were time-barred by the two-year statutory limitations periods in sections 91-7-23 and 91-7-309. The court further held that Rule 60 did not apply because the claims were raised beyond the six-month time restriction, and there were no extraordinary circumstances warranting relief.

¶22. On appeal, Thompson’s heirs raise two issues: (1) whether, by the terms of the trust, the heirs were entitled to notice of the probate of Gene’s will; and (2) whether the statute of limitations period began running when Gene’s will was submitted for probate in the public record. Mary’s estate’s response brief adds as an argument that the heirs were not entitled to reopen Gene’s estate under Rule 60. However, the heirs did not raise the court’s Rule 60 ruling as an issue on appeal. Mary’s estate filed no cross-appeal, and therefore, we need not address the applicability of Rule 60 like the dissent. Watkins Dev. LLC v. Hosemann, 214 So. 3d 1050, 1053 (¶14) (Miss. 2017) (holding our Court erred by addressing the portion of the chancellor’s ruling that was not appealed); Beck Enters. Inc. v. Hester, 512 So. 2d 672, 678-79 (Miss. 1987) (“This Court will not consider issues not raised on direct appeal or on cross-appeal by an appellee.” (citing Maupin v. Est. of Perry, 396 So. 2d 613, 616 (Miss.1981)). Even if Rule 60 did not apply, as the chancery court found, the issue raised by the heirs, i.e., whether their petition was not time-barred under the statute, is wholly separate and dispositive of this appeal.

Standard of Review

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¶23. “When considering issues of law, such as statutes of limitation,” we apply “a de novo [standard of] review.” Baker v. Raymond James & Assocs. Inc., 312 So. 3d 720, 722 (¶9) (Miss. 2021) (quoting F&S Sand Inc. v. Stringfellow, 265 So. 3d 170, 173 (¶5) (Miss. 2019)). When reviewing a ruling on a motion to dismiss, this Court’s standard of review is de novo. Dobbs v. City of Columbus, 285 So. 3d 1219, 1222 (¶7) (Miss. Ct. App. 2019). This applies even in cases which involve concealed fraud. Stephens v. Equitable Life Assur. Soc’y of U.S., 850 So. 2d 78, 82 (¶¶10-13) (Miss. 2003). “Review is limited to the face of the pleading, and allegations must be accepted as true.” Martin v. Smith, 424 So. 3d 1243, 1246

(¶7) (Miss. Ct. App. 2025) (quoting Dollar Gen. Corp. v. Dobbs, 409 So. 3d 569, 572 (¶6) (Miss. 2025)). “The motion should not be granted unless it appears beyond a reasonable. doubt that the plaintiff will be unable to prove any set of facts in support of the claim.” Id. (citing Rose v. Tullos, 994 So. 2d 734, 737 (¶11) (Miss. 2008)).

Discussion

¶24. We agree with the dissent that the Mississippi Supreme Court has held that probating a will in common form only requires notice to beneficiaries of the will. In re Will of Ratcliff, 315 So. 3d 1025, 1029 (¶10) (Miss. 2021). Thus, Mary had no duty to notify the heirs of the probate of Gene’s will. However, persons not given notice are still entitled to challenge a will within two years of probate, or longer in cases of concealed fraud.

¶25. The heirs contend that they only learned of the probate of the will (as well as the renunciation of the prenuptial contract, the existence of the trust, and the existence of the will itself) when Mary died in 2024, sixteen years after the closing of the probate proceedings in

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2008. They pled that Gene’s dementia, which would have rendered him incapable of executing these critical documents, began in 1995. They argue that Mary intentionally concealed these critical documents and further intentionally acted to keep the heirs from contesting them, consequently tolling the statute of limitations to contest the will. However, the chancery court held that because the probate proceedings are matters of public record, there was no fraudulent concealment that warranted tolling the statute of limitations. We disagree.

¶26. The statute of limitations for contesting a will, Miss. Code Ann. § 91-7-23, provides:

Any person interested may, at any time within two years, by petition or bill, contest the validity of the will probated without notice; and an issue shall be made up and tried as other issues to determine whether the writing produced be the will of the testator or not. If some person does not appear within two years to contest the will, the probate shall be final and forever binding, saving to infants and persons of unsound mind the period of two years to contest the will after the removal of their respective disabilities. In case of concealed fraud, the limitation shall commence to run at, and not before, the time when such fraud shall be, or with reasonable diligence might have been, first known or discovered.

(Emphasis added). The statute clearly and unambiguously states that the two-year period to contest a will can be tolled, and in cases of concealed fraud, the two-year period only begins running when the fraud, with reasonable diligence, might have been first known or discovered.

¶27. “[T]o prove fraudulent concealment, the plaintiff must show (1) the defendant engaged in an affirmative act or conduct designed to prevent, and which does prevent, discovery of a claim, and (2) due diligence was performed on the plaintiff’s part to discover the defendant’s fraud.” Prystupa v. Rankin Cnty. Bd. of Supervisors, 339 So. 3d 147, 161

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(¶47) (Miss. Ct. App. 2022) (quoting Neyland v. Timberland Mgmt. Servs. Inc., 167 So. 3d 1272, 1278 (¶20) (Miss. Ct. App. 2014)).

¶28. There have been only a few Mississippi probate cases where this concealed-fraud tolling issue has arisen. In Wilson v. Wilson, 166 Miss. 369, 146 So. 855 (1933), Mrs. Wilson probated her husband’s will that devised everything to her, even though she knew her husband was incompetent at the time he signed the will. Id. at 856. Her two sons also knew of the will and its invalidity, but their mother promised them that in due time she would make a division of the property among all the heirs. Id. After the two years to challenge the will had passed, Mrs. Wilson changed her mind and decided to keep the property. Id. Four years later, the two sons sued the mother for partition of their father’s property, arguing that the father had died intestate (i.e., because the will was invalid), and the mother had been guilty of concealed fraud. Id. The chancery court denied their claim, and, on appeal, the Mississippi Supreme Court affirmed the denial. The Court discussed the concealed fraud exception to the two-year statute of limitations to challenge the will, stating, “[T]he statute here in question is more than a mere statute of limitations; moreover, it contains within its own terms those exceptions by which it may be avoided.” Id. The Court defined concealed fraud:

Concealed fraud is a case of a designed fraud by which a party knowing to whom the right belongs, conceals the circumstances giving that right and by means of concealment enables himself to enter and hold. 12 C.J. 375.

Id. The Court held that Mrs. Wilson had not concealed any of the rights the children had to contest their father’s will. Id. The children knew of the will’s existence and of the mother’s

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probate of it. Id. “The appellees (the sons) knew all along within the two years all the facts which, if true as facts, would have avoided the will.” Id. Because the circumstances were known to them, the facts were not concealed. Id.

¶29. Because the case at hand is an appeal from an order granting a motion to dismiss, “[t]he allegations in the complaint must be accepted as true, and the motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Gilmer v. McRae, 355 So. 3d 219, 224 (¶13) (Miss. 2022). Here, Gene’s heirs did not know about the existence of the will, nor did they know of the probate proceedings as did the sons in Wilson. Prior to his second marriage, Gene told his family that he had a prenuptial contract that kept all his property in his name, which they would then inherit. Neither Gene nor Mary ever told the heirs of the renunciation of the prenuptial contract in 1997, which may have been the result of undue influence given Gene’s diagnosis of dementia.9

¶30. In addition, it is undisputed that Mary failed to inform the heirs about the trust, which she had a legal duty to disclose. Mississippi Code Annotated section 91-8-813(b) (Rev. 2021) requires a trustee to notify any beneficiary that a trust has been established and send them a copy of the trust document.10 As trustee, Mary clearly assumed a statutory and

9 If this is established at trial, then Mary’s fraud on the heirs may have begun even before Gene’s death because under Louisiana law, a renunciation needed to be approved by a court to make sure that a renunciation was in the parties’ best interest. See supra note 3 quoting Louisiana Civil Code Annotated article 2329.

10 This statute provides in part:

(b) The trustee of an irrevocable or nongrantor trust within sixty (60) days

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fiduciary duty to tell the heirs about the existence of the trust, and her failure to do so constituted a breach of that duty. The Mississippi Supreme Court has held that where a fiduciary relationship exists, as here, failure to disclose can constitute an affirmative act of concealment. Bennett v. Hill-Boren P.C., 52 So. 3d 364, 372 (¶25) (Miss. 2011) (citing Poe v. Summers, 11 So. 3d 129, 134 (¶18) (Miss. Ct. App. 2009) (“Silence may constitute fraud when a duty exists to disclose the information claimed to have been suppressed.”)). Had Mary disclosed the existence of the trust as required, it is highly likely that the heirs would have inquired further because they knew their father was not competent to sign legal documents at the time.

¶31. The heirs here do not rely only on Mary’s lack of notice of the probate proceedings in their claim of fraud that tolled the limitations period. The heirs also rely on Mary’s continued representations to them and others that there had been no change from the

after the acceptance and funding of a trust, excluding nominal funding for the trust to have corpus or the depositing of insurance policies on the life of a living person, shall notify each current income beneficiary, each vested ultimate beneficiary of a remainder interest and anyone who, in a capacity other than that of a fiduciary, holds a power of appointment, that the trust has been established.

(1) The required notice shall:

(A) Be sent by first-class mail or personal delivery; and

(B) Consist of either a complete copy of the document establishing the trust together with the trustee’s name, address and telephone number or an abstract of the trust, as the trustee, in the trustee's absolute discretion, may choose.

Miss. Code Ann. § 91-8-813(b)(1) (Rev. 2021).

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prenuptial agreement and that Gene’s property would be theirs at her death. She enlisted their aid in maintaining the ranch, telling them that it would be theirs upon her death. She made no changes to the Secretary of State records after the probate proceedings and continued to list Gene as the owner and director of his businesses. The heirs also point to the allegedly false Estate Tax Return, which represented to the IRS and to the chancery court that the estate had paid the heirs substantial sums of money, which they say they never received. Certainly payments made to them in 2006 from the trust’s dissolution after their father’s death would likely have caused the heirs to investigate the source and led them to learn of the existence and probate of the will. In addition, although Mary did not have a duty to notify the heirs of the will’s probate, she did have a duty as a trustee to notify them of the establishment of the trust, which more probably than not would have prompted inquiries. The dissent does not address the significance of the creation of the trust and Mary’s duties as trustee. The heirs clearly pled sufficient facts when alleging their father was not competent at the time critical documents were signed and that Mary clearly intentionally concealed the circumstances that would have given rise to a valid contest of the will, which, under the Wilson’s definition of concealed fraud, tolled the two-year statute of limitations.

¶32. Additionally, on the facts of this case, the statutory period did not begin to run just because the will was filed for probate and became part of the public record. The chancery court held that the heirs could have discovered the fraud if they had just checked the public records after Gene died, citing Peyton v. Longo (In re Est. of Davis), 315 So. 3d 1080 (Miss. Ct. App. 2021). However, Davis is distinguishable from the case at hand because, there, the

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will contestant had knowledge of the will and because the only fraud he claimed was the failure to give him notice of the probate.

¶33. More particularly, in Davis, Lauree Davis died in September 2015, and John Longo, the executor and sole beneficiary of a will Davis executed in 2001, petitioned the court to admit the will to probate in October 2015. Id. at 1081 (¶3). Longo did not publish the notice to creditors until October 29, 2018. Id. at (¶4). On December 4, 2018, Alvin Peyton filed a “Response and Notice of Claim” and later objected to Longo’s petition to approve the accounting, asserting that in 1995, Davis had also executed a will, naming him as executor and his three daughters as the sole beneficiaries. Id. at (¶6). At a hearing on the objection, Alvin’s attorney admitted that Alvin had not attempted to probate the 1995 will, had not filed a caveat against the probate of the 2001 will, and had not filed a monetary claim against the estate. Id. at 1082 (¶9). The trial court denied Alvin any relief, finding that the will had been accepted for probate in November 2015 and that Alvin had not filed his objection until May 2019. Id. at (¶10). The court found that neither he nor his daughters had met any of the exceptions to the two-year statute of limitations. Id. On appeal, Alvin claimed that he should have been joined as a necessary party to the action filed by Longo and that Longo’s failure to give him notice constituted concealed fraud. Id. at (¶12). This Court rejected Alvin’s argument, holding that only parties taking under the will are entitled to notice. Id. at (¶14). Concerning Alvin’s concealed fraud claim, this Court cited Williams v. Estate of Winding, 783 So. 2d 707 (Miss. 2001), where Bobbie Williams challenged a will four years after the will was admitted to probate. Id. at 708 (¶5). She, too, claimed concealed fraud when the

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executor’s failure to give her notice of the probate along with the estate’s attorney’s statement had led her to believe her rights were protected. Id. at 709 (¶7). However, the Mississippi Supreme Court held that “Williams knew from almost the moment the will was offered for probate that neither she nor her father were included under the estate. Even assuming that the executrix and the estate attorney led Williams to believe her rights were being protected . . . , they never hid the probate from her.” Id. at 710 (¶13). Alvin claimed that like Williams in Williams, he was not “aware of the state of affairs.” See In re Est. of Davis, 315 So. 3d at 1084 (¶21). However, we held that Alvin was aware of the existence of the 2001 will because it had been referenced in a prior lawsuit in which Alvin was made a party. Id.

¶34. In Wilson, Williams, and Davis, the challengers had knowledge of the existence of the wills before the wills were probated.11 Here, the heirs had no knowledge of the will prior to Gene’s death. They were not told about the renunciation of the prenuptial “Marriage Contract” or the trust, and they had no reason to think that their father had changed the manner he told them he had established for disposition of his property. Realistically, there was little reason for them to search the public records after Gene died.

¶35. Moreover, if merely filing a will for probate automatically begins the statute of limitations for anyone who may want to challenge it, the statutory concealed-fraud provision

11 Likewise, in Walton v. Walton, 52 So. 3d 468, 469-70 (¶7) (Miss. Ct. App. 2011), the chancery court considered an action by a deceased heir’s son against his uncles to set aside a deed from his grandparents to the uncles to be a challenge to the grandfather’s will. But during the probate of the will, the son of the deceased heir and his mother were served with notice of the probate proceedings. Id. at 471 (¶13). Thus, the son had knowledge of both the will and the will’s probate proceedings.

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would not be necessary. The statute clearly envisioned that challenges may come years later. For example, under the statute, a minor can bring a challenge when he or she reaches the age of majority. Thus, a two-year-old at the time of probate could challenge a will nineteen years later when he turns twenty-one. So, also, when a fraud is perpetrated on heirs who had no knowledge of a will or the probate, and who were misled by the executrix/sole-beneficiary of that will to believe that the property was still theirs until her death, those heirs should be allowed to bring a challenge upon learning of the fraud. In Van Zandt v. Van Zandt, 227 Miss. 528, 540, 86 So. 2d 466, 471 (1956), the Mississippi Supreme Court held that it was reasonable to think that an individual who had lied to cotenants about the price negotiated for the sale of property and timber would not have told them the truth had they asked. Thus, the chancellor did not err in finding no lack of due diligence on their part and allowing the statute of limitations to be tolled. Id. Similarly in this case, Mary allegedly continued to lie to the heirs after their father’s death and the probate of the will concerning their right to future ownership of his property. Accepting these allegations as true, the heirs have pled sufficient facts to survive a motion to dismiss based on the statute of limitations. Their reliance on her representations was arguably reasonable, and a person could find no lack of due diligence on their part.

¶36. Taking the facts pled as true, as we must in reviewing a ruling on a motion to dismiss, we hold that the heirs adequately pled a concealed fraud that tolled the statute of limitations. See Durrant Inc. v. Lee County, 344 So. 3d 291, 294 (¶6) (Miss. Ct. App. 2021) (“On a motion to dismiss, the allegations in the complaint must be taken as true, and the motion

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should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.”). Because the heirs allegedly did not discover the concealed fraud until after Mary’s death in February 2024, and moved to reopen the estate filed in May 2024, the chancery court erred in granting the motion to dismiss. This decision is dispositive of the appeal, and we need not discuss the heirs’ second issue.

Conclusion

¶37. In the case at hand, because the heirs adequately pled sufficient facts that Mary had fraudulently concealed from Gene’s heirs their right to contest Gene’s will, the concealed fraud provision of Mississippi Code Annotated section 91-7-23 extended the statute of limitations. Accordingly, the chancery court’s order on the motion to dismiss is reversed, and the case is remanded for further proceedings.

¶38. REVERSED AND REMANDED.

WESTBROOKS, LAWRENCE, McCARTY, EMFINGER AND LASSITTER ST. PÉ, JJ., CONCUR. WEDDLE, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, C.J., CARLTON AND WILSON, P.JJ.

WEDDLE, J., DISSENTING:

¶39. Over sixteen years after the closing of Gene’s probate proceedings, his heirs at law filed a petition in the Pearl River County Chancery Court to reopen Gene’s estate and contest the validity of the probate proceedings. The heirs asserted claims of fraud, undue influence, forgery, lack of notice, and concealed fraud. After considering the parties’ arguments, the chancellor found that the heirs’ assertions were barred by the two-year statutes of limitations in Mississippi Code Annotated sections 91-7-23 and 91-7-309 (Rev. 2018) and the six-month

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limitations period in Mississippi Rule of Civil Procedure 60. The chancellor therefore entered an order dismissing the heirs’ petition. Because I would affirm the chancellor’s order dismissing the heirs’ petition as untimely, I respectfully dissent from the majority’s opinion.

¶40. The chronology of events in this case is undisputed. Also undisputed is the fact that Gene’s heirs waited the better part of two decades after his death to perform any modicum of due diligence with regard to the status of Gene’s estate and assets. If the heirs had performed any due diligence during the intervening decade and a half, they would have discovered the public records related to the probate of Gene’s will. Instead, over sixteen years after the chancellor’s order to close the estate, the heirs finally filed their petition to contest the probate proceedings. As the chancellor noted, however, by that point all relevant limitations periods had well and truly run. In addition, all the estate assets had long ago been distributed, and the chancellor had long ago entered a final order discharging Mary (now also deceased) as the executor of Gene’s estate.

¶41. As the record reflects, after Gene’s death in 2006, Mary probated his will in 2007 in Pearl River County, where the couple had resided for over a decade. Although the probate petition identified June and Robert as Gene’s children, the petition also correctly identified Mary as the sole beneficiary under Gene’s will. Because June and Robert were not identified as either Gene’s creditors or beneficiaries under the will, they were not served with notice of the probate proceedings. The administration of Gene’s estate went forward without any objection.

¶42. As executor of Gene’s estate, Mary completed the statutory requirements for the

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administration of a will probated in common form in Mississippi, and then the chancellor entered a judgment on January 15, 2008, approving the first and final accounting and discharging Mary as executor. As reflected in the record, Gene’s assets that were outside the scope of the probate proceedings passed either through the trust he had established in 1998 or by rights of survivorship. Following the closing of Gene’s estate in 2008, no will contest was filed within the two-year limitations period set forth in section 91-7-23.

¶43. Until the time of her death on February 4, 2024, Mary remained in possession of the property she had acquired from Gene through his will and non-probate transfers. Following Mary’s death, her will was also probated in the Pearl River County Chancery Court.12 Mary’s will left her estate, including the assets she had acquired from Gene, to various beneficiaries. These named beneficiaries did not include any of Gene’s heirs at law. Gene’s heirs asserted that it was only after the probate of Mary’s will that they learned about the renunciation in 1997 of Gene and Mary’s prenuptial agreement, the creation of the trust in 1998, the execution of Gene’s will in 1999, and the initiation of probate proceedings following Gene’s death in 2006. As the record reflects, it was at this time that Gene’s heirs finally investigated the administration of Gene’s estate, which had occurred almost sixteen years earlier.

¶44. On May 14, 2024, Gene’s heirs filed a petition to reopen Gene’s estate, vacate the order admitting Gene’s will to probate, set aside the final accounting, and invalidate the probate proceedings based upon allegations of fraud, undue influence, forgery, lack of notice,

12 The record before us contains no documents related to the probate of Mary’s will.

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and concealed fraud. Gene’s heirs alleged that in the years after Gene’s death, Mary assured them that Gene had intended for his property to eventually pass to them and that she only possessed a lifetime interest in Gene’s property. The heirs stated they had just recently learned that Gene’s will had conveyed his entire probated estate outright to Mary.

¶45. Bird, in her role as the executor of Mary’s estate, moved to dismiss the heirs’ petition. Bird argued that the claims raised by Gene’s heirs were untimely or had been insufficiently pled. In addition, Bird contended that Mary had been under no legal duty to provide personal notice of common-form probate proceedings to heirs who were not beneficiaries under Gene’s will.

¶46. Following a hearing, the chancellor found that the two-year statutes of limitations in sections 91-7-23 and 91-7-309 barred the heirs’ attempts to contest the validity of Gene’s will and challenge the final accounting, respectively. The chancellor further found that the six-month limitations period in Rule 60 barred the heirs’ fraud claim and that no concealed fraud existed because the probate of Gene’s estate had been a matter of public record for almost seventeen years. As a result, the chancellor entered an order dismissing the heirs’ petition. For the reasons more fully set forth below, I would affirm the chancellor’s order.

¶47. Although Gene’s heirs advance numerous theories on appeal for reopening Gene’s estate, the foremost question before this Court is not whether the heirs’ petition alleged facts that warrant further inquiry into the validity of Gene’s will and the administration of his estate. Rather, the threshold question this Court must address is whether Mississippi law permits the heirs to assert their claims over sixteen years after Gene’s estate was fully

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administered and closed. Unless the governing statutes permit such a challenge, we must find that the merits of the heirs’ underlying allegations are not properly before us.

¶48. In an attempt to address the more than sixteen-year gap between the closing of Gene’s estate and the filing of their petition, the heirs argue that under the trust Gene established for them, they were entitled to notice of the probate of his will. The heirs further argue that section 91-7-23’s concealed-fraud provision delayed the running of the two-year limitations period until they discovered, or reasonably should have discovered, Mary’s alleged fraud.

¶49. In response, Bird contends that the heirs’ claims are unequivocally time-barred. Moreover, Bird asserts that as non-beneficiaries under Gene’s will, the heirs were not entitled to receive notice of the probate of his will. Nevertheless, Bird notes that the public probate filings provided the heirs’ with constructive notice of the probate of Gene’s will but that the heirs ultimately failed to exercise due diligence in discovering the probate proceedings.

I. Mississippi Code Annotated Section 91-7-23

¶50. Mississippi statutory law provides interested persons the opportunity to challenge the validity of a will, the propriety of probate proceedings, and the accuracy of an executor’s final accounting. Miss. Code Ann. §§ 91-7-23 & -309. But our statutory law does not permit an estate to remain indefinitely subject to collateral attack. Id. Section 91-7-23 defines the exclusive period during which an interested person may contest a will admitted to probate in common form. Specifically, section 91-7-23 states the following:

Any person interested may, at any time within two years, by petition or bill, contest the validity of the will probated without notice; and an issue shall be made up and tried as other issues to determine whether the writing produced be the will of the testator or not. If some person does not appear within two

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years to contest the will, the probate shall be final and forever binding, saving to infants and persons of unsound mind the period of two years to contest the will after the removal of their respective disabilities. In case of concealed fraud, the limitation shall commence to run at, and not before, the time when such fraud shall be, or with reasonable diligence might have been, first known or discovered.

¶51. Here, Gene’s heirs emphasize that Mary never provided them with personal notice of the probate proceedings for Gene’s will. The heirs allege that this lack of notice deprived them of the opportunity to contest Gene’s will. Mississippi recognizes two methods for probating a will: common form and solemn form. Peyton v. Longo (In re Est. of Davis), 315 So. 3d 1080, 1083 (¶15) (Miss. Ct. App. 2021). Probate in solemn form contemplates notice to interested parties and results in a judgment binding those who receive notice and an opportunity to be heard. Id. By contrast, when a will is “admitted to probate in common form, the [executor’s] only duties [a]re to notify the parties named in the will (as they take under the will) and give 90 day notice to creditors . . . . Anyone else is not a party to a common[-]form probate, unless they petition for will contest within the statutorily prescribed time limit.” Williams v. Est. of Winding, 783 So. 2d 707, 711 (¶14) (Miss. 2001). Thus, as our caselaw makes clear, the absence of any mandatory notice in common-form probate is offset by allowing all interested parties a two-year period after the probate to contest the will’s validity. Id.

¶52. Despite the heirs’ allegations about Mary’s actions as executor of Gene’s estate, Mississippi precedent has consistently recognized that the executor of a will admitted in common form owes no general duty to provide personal notice to heirs who are not beneficiaries under the will. In re Will of Ratcliff, 315 So. 3d 1025, 1029 (¶10) (Miss. 2021).

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The executor’s statutory responsibilities include giving notice to creditors as prescribed by law and administering the estate in accordance with the will and applicable statutes. Id. at 1028-29 (¶9); see also In re Est. of Davis, 315 So. 3d at 1083 (¶15). The prescribed duties do not include locating and personally notifying every individual who might have inherited had the decedent died intestate or executed a different testamentary instrument. Ratcliff, 315 So. 3d at 1028-29 (¶¶9-10).

¶53. The record here reflects that Gene’s will devised his probated estate to Mary and declared that his descendants had been provided for elsewhere. The heirs were not beneficiaries under the will. Therefore, as discussed, Mary owed them no statutory duty to provide individualized notice of the common-form probate proceedings for Gene’s will. Mississippi appellate courts have consistently held that when a will is probated in common form, there is no duty to provide notice to persons who are not beneficiaries under the will, even if they are heirs at law who would inherit in the absence of a valid will. Id. This principle applies even when those persons later claim they should have received notice of the probate proceedings. Id.

¶54. In Ratcliff, which specifically addressed this issue, the Mississippi Supreme Court explicitly stated that “joinder of parties is not required for probate of a will in common form.” Id. at 1028 (¶7). Because the will in Ratcliff was admitted to probate in common form, the supreme court explained that the will proponent was not required to give notice to anyone unnamed in the will—including the decedent’s heirs at law. Id. at 1029 (¶10). As a result, the supreme court found no error in the chancellor’s determination that the

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decedent’s heirs at law “were not necessary parties to be joined in the probate of the will in common form.” Id. at (¶11).

¶55. Similarly, in Davis, this Court held that a will objector was not a necessary party entitled to notice of the probate proceedings. In re Est. of Davis, 315 So. 3d at 1084-85

(¶22). The executor in Davis had initiated common-form probate proceedings as the sole beneficiary of the will, and the objector did not file a caveat or contest the probated will within section 91-7-23’s two-year limitations period. Id. at 1083 (¶17). As we reiterated in Davis, the only parties required for common-form probate proceedings are the petitioner and anyone who joins in the petition. Id. at (¶15). “No one is given legal notice of the probate.” Id.

¶56. Again, in Williams, the supreme court rejected the argument that an adult granddaughter, who did not inherit under the decedent’s will, should have been notified of the probate proceedings or included in the executor’s affidavit of diligent search. Williams, 783 So. 2d at 711 (¶15). The supreme court once more explained that because “the will was admitted to probate in common form, the only duties were to notify the parties named in the will (as they take under the will) and give 90 day notice to creditors, both of which were done.” Id. at (¶14). According to the supreme court, “[a]nyone else [was] not a party to a common-form probate unless they petition[ed] for will contest within the statutorily prescribed time limit.” Id.

¶57. In In re Estate of Mathis, 800 So. 2d 119, 124 (¶17) (Miss. Ct. App. 2001), this Court similarly found that the decedent’s putative children, born outside his marriage, had no right

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to be informed of the probate of his will or to have the executor inform the court of their existence. Specifically, we held that “[t]he executor in a testate matter is not required by law to give notice to unnamed potential heirs; therefore, inaction of the executor could not be considered fraud.” Id. In reaching our determination, we distinguished cases involving intestate succession, where due process requires notice to be given to known potential heirs, from testate situations, where no such notice requirement exists. Id. at 123-24 (¶¶16-18).

¶58. Based on both the record and clear Mississippi precedent, I would find that because Gene’s heirs were not beneficiaries under his will, they were not entitled to receive notice of the probate proceedings. In addition, as explained below, I would find that section 91-7- 23’s two-year statute of limitations bars the heirs’ claims—unless they can establish that one of the limited statutory exceptions applies.

¶59. In determining whether a statutory exception applies to the heirs’ claims, I start with the well-established principle that probate judgments are entitled to stability absent a clearly applicable statutory basis for reopening them years later. See Miss. Code Ann. § 91-7-23; see also Williams, 783 So. 2d at 711 (¶15) (“Equity aids the vigilant and not those who slumber on their rights.” (quoting In re Est. of Davis, 510 So. 2d 798, 800 (Miss. 1987))). Section 91-7-23 does not merely establish a procedural deadline; it expressly declares that absent a timely contest, a probate becomes “final and forever binding.” Miss. Code Ann. § 91-7-23. Mississippi appellate courts have repeatedly recognized that unless one of the limited exceptions applies, this language creates a substantive declaration of finality after the two-year period and not a mere procedural bar. Ratcliff, 315 So. 3d at 1029 (¶13); Williams,

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783 So. 2d at 710-11 (¶¶10-15); Ellzey v. McCormick, 17 So. 3d 583, 588 (¶¶17-19) (Miss. Ct. App. 2009).

¶60. As previously stated, the chronology of the present case is undisputed. Gene died in 2006, and Mary opened his estate the following year in 2007. Mary then administered the estate according to Mississippi statutory procedure, and the chancellor entered a final judgment closing the estate in 2008. During the period between the opening and closing of the estate, property interests necessarily vested, estate assets were distributed, fiduciary duties concluded, and Mary was discharged as the executor. The heirs failed to file their petition to reopen the estate until May 2024, approximately seventeen years after the probate proceedings commenced and more than sixteen years after the entry of the final accounting and the closing of the estate. Clearly, the heirs failed to comply with the two-year statute of limitations set forth in section 91-7-23 and strictly enforced by Mississippi appellate courts. As a result, unless the concealed-fraud provision applies to toll the statute, as the heirs allege, their challenge to Gene’s will is plainly untimely under the plain language of the statute.

¶61. In asserting their claim of concealed fraud, the heirs argue that section 91-7-23’s two- year limitations period should not begin until after Mary died, when they learned that Gene’s will devised his probated estate to Mary alone. The heirs contend that Mary’s repeated assurances regarding their future inheritance effectively concealed from them the true disposition of Gene’s estate. Even if we accept as true the heirs’ allegations about Mary’s assurances, the heirs cannot avoid the two-year statutory limitations period unless Mary’s statements constituted the type of concealed fraud that Mississippi law recognizes. And

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unlike the majority, I would find that the heirs’ allegations of concealed fraud are insufficient to overcome the statutory limitations period and that we are therefore prevented from conducting any analysis into the merits of the heirs’ underlying claims.

¶62. Section 91-7-23’s concealed-fraud provision is not a broad equitable exception authorizing courts to disregard the statutory limitations period whenever fraud allegations accompany an untimely petition. The statute postpones the commencement of the limitations period only until the fraud either was discovered or reasonably could have been discovered through the exercise of due diligence. Miss. Code Ann. § 91-7-23. As a result, the relevant inquiry does not end with allegations that misleading statements were made. Id. Instead, we also must determine if the alleged fraud prevented the discovery of information that otherwise was available through reasonable investigation. Id.

¶63. Also important to this appeal, “our supreme court has held that the rule of concealed fraud cannot apply to matters of public record.” In re Est. of Davis, 315 So. 3d at 1084 (¶21) (internal quotation mark omitted) (quoting O’Neal Steel Inc. v. Millette, 797 So. 2d 869, 875

(¶22) (Miss. 2001)). “[W]here the alleged fraudulent conveyance is recorded, the circumstances are public[,] and the means of finding out the character of the transaction is available. Consequently, the running of the statute of limitations is not prevented.” Id. (quoting Aultman v. Kelly, 236 Miss. 1, 7-8, 109 So. 2d 344, 347 (1959)). Anyone seeking to avoid a statute of limitations by pleading concealed fraud must establish with sufficient particularity the allegation itself and the specific facts and circumstances that explain an untimely filing. McMahon v. McMahon, 247 Miss. 822, 833, 157 So. 2d 494, 499 (1963);

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see also M.R.C.P. 9(b) (requiring allegations of fraud to be pled with particularity).

¶64. Here, Gene died in Pearl River County after having lived there for over a decade. Reasonable due diligence required that his heirs search the public records in Pearl River County to discover the probate of his will. Because the probate proceedings of Gene’s will were a matter of public record from 2007 onward, the heirs’ allegations fail to bring this case within the limited concealed-fraud exception provided by section 91-7-23. The will admitting Gene’s estate to probate, the petition for probate, the letters testamentary, the published notice to creditors, and the judgment approving the final accounting were all filed in the Pearl River County Chancery Court. Those documents remained public records throughout the intervening years until the closing of the estate. Nothing the heirs alleged in their petition or on appeal suggests that the probate file was hidden, altered, destroyed, or otherwise rendered inaccessible.

¶65. Even accepting as true the heirs’ allegations regarding Mary’s assurances to them, they only establish that they relied upon Mary’s alleged statements about the future disposition of Gene’s property and therefore never, for the better part of two decades, investigated the public probate proceedings. “Even if [the heirs were] misled to believe [their] rights were protected, we do not reward those who fail to protect themselves.” Williams, 783 So. 2d at 711 (¶15). Rather, as previously noted, “[e]quity aids the vigilant and not those who slumber on their rights.” Id. (quoting In re Est. of Davis, 510 So. 2d at 800).

¶66. While any reliance on Mary’s purported assurances may explain why the heirs failed

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to look at the probate for many years, these circumstances do not establish that the probate proceedings themselves were concealed, that the heirs were prevented from discovering the public filings, or that even reasonable diligence would have failed to reveal the information now challenged. Thus, even assuming that Mary’s alleged assurances could have been sufficient to toll the statute of limitations for some period of time, I would still conclude that the heirs’ allegations fail to establish they could not, with reasonable diligence, have discovered these public probate proceedings for over sixteen years. I therefore would find that the heirs’ claims of concealed fraud are insufficient to overcome the limitations period of section 91-7-23.

II. Mississippi Code Annotated Section 91-7-309

¶67. The heirs independently seek to set aside the chancellor’s judgment approving Mary’s first and final accounting. That particular request is governed by section 91-7-309, which provides:

Any person interested may, at any time within two years after final settlement, by bill or petition, open the account of any executor, administrator, or guardian and surcharged and falsify the same, and not after, saving the minors and persons of unsound mind the same time after the removal of their disabilities.

Such bills or petitions may be filed without leave of the court or chancellor, and evidence shall be admissible in such cases to show the falsity of the account. Such bills and petitions shall not be governed by the rules applicable to bills of review in chancery, but in such cases it will be the duty of the court to correct any errors of law or fact occurring in the final settlement of the executor, administrator, or guardian.

Thus, similarly to section 91-7-23, section 91-7-309 also establishes a two-year limitations period within which an interested person may challenge a final accounting or seek to surcharge and falsify the accounts of a personal representative.

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¶68. In Walton v. Walton, 52 So. 3d 468, 470 (¶¶6-7) (Miss. Ct. App. 2011), the decedent’s grandson filed a lawsuit against his two uncles that stemmed from the probate proceedings of his grandfather’s estate almost seventeen years earlier. The grandson, who was a minor at the time of the probate proceedings, “argued that: he was entitled to inherit one-third of the property; his grandparents intended to give him his share; and after the estate proceedings, his uncles made representations to him that he would receive a share of the property.” Id. at (¶6). In dismissing the lawsuit, the chancellor found that the grandson’s complaint was untimely filed and was barred by section 91-7-309’s two-year limitations period. Id. at (¶7).

¶69. On appeal, the grandson argued the chancellor erred by finding that section 91-7-309 barred his complaint. Id. at 471 (¶14). The grandson “contend[ed] that the statute of limitations was tolled based on the doctrine of fraudulent concealment . . . .” Id. This Court found, however, that the statute of limitations began to run on the grandson’s twenty-first birthday in 1999. Id. at 472 (¶17). Because the grandson waited until 2009 to file his complaint, we concluded that the action was clearly time-barred. Id. In addition, we reiterated the principle that “an alleged fraudulent concealment does not toll the statute of limitations for matters of public record.” Id. at (¶18). Finally, we noted that the grandson’s own admissions revealed he knew certain facts and information that should have alerted him “that he had a cause of action.” Id. at (¶19). We therefore found that no fraudulent concealment tolled the statute of limitations, and we affirmed the chancellor’s judgment dismissing the complaint. Id. at 473-74 (¶¶20, 26).

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¶70. Like the grandson in Walton, Gene’s heirs did not file their petition seeking to reopen the estate until over sixteen years after the entry of the final settlement. Thus, the petition fell well outside section 91-7-309’s express limitations period. Also as in Walton, Gene’s heirs cannot avoid section 91-7-309 and its two-year limitations period merely by characterizing their claims as allegations of fraud. Neither can they avoid the applicable limitations period by combining their challenge to the accounting of Gene’s estate with the challenge to the validity of Gene’s will.

¶71. Regardless of the label attached to the heirs’ pleading, their sought-after relief includes vacating the judgment approving the final accounting. Such a request falls squarely within the scope of section 91-7-309 and is independently barred by the plain language of the statute. Reading sections 91-7-23 and 91-7-309 together foreclose precisely the type of comprehensive collateral attack attempted here many years after probate concluded.

III. Mississippi Rule of Civil Procedure 60

¶72. Alternatively, the heirs rely on Rule 60 to vacate the chancellor’s judgment admitting Gene’s will to probate and approving the final accounting of the estate. Upon review, however, I find that any reliance upon Rule 60 also is misplaced.

¶73. Under certain enumerated circumstances, Rule 60(b) provides a party with limited relief from final judgments. M.R.C.P. 60(b). In these designated situations, equity and substantial justice may require reopening an otherwise final judgment. Stratton v. McKey, 384 So. 3d 499, 503-04 (¶¶11-14) (Miss. 2024). Claims based upon “fraud, misrepresentation, or other misconduct of an adverse party;” “accident or mistake;” or

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“newly discovered evidence” fall within Rule 60(b)(1)-(3) and must be asserted within “six months after the judgment.” M.R.C.P. 60(b). The six-month limitation is absolute and may not be enlarged through creative pleading or by recasting the claim under another subsection of the rule. See Stratton, 384 So. 3d at 504 (¶15).

¶74. Here, every allegation advanced by Gene’s heirs rests upon assertions that the will was procured through fraud or undue influence, that documents were forged, or that Mary misrepresented the ultimate disposition of Gene’s property. Each allegation falls within the categories expressly governed by Rule 60(b)(1)-(3). The chancellor entered the final judgment approving the closure of the estate on January 15, 2008. Over sixteen years later, in May 2024, the heirs filed their petition. Clearly, the petition fell far outside Rule 60(b)’s mandatory filing period.

¶75. Despite the delay, the heirs rely upon Rule 60(b)(6), which authorizes relief for “any other reason justifying relief from the judgment.” Mississippi caselaw explains, however, that Rule 60(b)(6) is reserved for “exceptional and compelling circumstances” not “based on one of the first five enumerated reasons.” Collins v. Collins, 188 So. 3d 581, 585 (¶9) (Miss. Ct. App. 2015) (quoting Trim v. Trim, 33 So. 3d 471, 475 (¶7) (Miss. 2010)). Rule 60(b)(6) may not be employed simply because the time for asserting claims under Rule 60(b)(1)-(3) has expired. Stratton, 384 So. 3d at 504 (¶15). Were the rule to apply otherwise, the carefully drawn six-month limitation would become meaningless, as every untimely fraud claim could be “cloaked” or recharacterized as an extraordinary circumstance under Rule 60(b)(6). Id.

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¶76. Furthermore, Rule 60(b) does not serve as a way to circumvent the substantive statutory limitations of sections 91-7-23 and 91-7-309. See Staten v. Pedersen (In re Est. of Staten, 391 So. 3d 236, 240 (¶12) (Miss. Ct. App. 2024). In Staten, the chancellor set aside a prior order in which she granted a petition to reopen an estate. Id. at 239 (¶9). The chancellor found that the two-year limitations period in section 91-7-309 barred the petition. Id. Following the order to set aside the prior order, the petitioner filed no Rule 60(b) motion. Id. at 240 (¶12). The chancellor’s order setting aside her prior order therefore became final and constituted res judicata on any claims against the decedent’s estate. Id. In addition, the chancellor found that even if the petitioner had filed a Rule 60(b) motion, the claims remained barred by section 91-7-309 because several additional years had passed since the estate’s closing. Id.

¶77. Here, the only recognized avenue for tolling the applicable statutes of limitations to the heirs’ claims and potentially supporting their Rule 60(b) argument is an allegation of concealed fraud. As previously discussed, section 91-7-23 expressly provides that “[i]n case[s] of concealed fraud, the limitation shall commence to run at, and not before, the time when such fraud shall be, or with reasonable diligence might have been, first known or discovered.” But, as also discussed, allegations of concealed fraud must be pled with sufficient particularity. Where, as here, the movant fails to plead fraud with the particularity required, Rule 60(b) cannot be used to reopen an estate case that is barred by sections 91-7-23 and 91-7-309. See Staten, 391 So. 3d at 240-41 (¶¶12, 19). I therefore conclude that Rule 60 provides no independent basis upon which the heirs may seek to reopen Gene’s

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estate or avoid the running of the applicable statutes of limitations.

Conclusion

¶78. Upon review, I conclude that sections 91-7-23 and 91-7-309 bar the heirs’ challenges to the validity of Gene’s will and the subsequent probate proceedings. The heirs failed to pursue their claims within the two-year period established by the relevant statutes of limitations. Moreover, Mary owed no duty to provide non-beneficiary heirs with personal notice of common-form probate proceedings, and the heirs’ allegations of concealed fraud were legally insufficient. In addition, I find that Rule 60 affords no independent basis of relief for the heirs’ claims. As a result, I would affirm the chancellor’s order granting the motion to dismiss the heirs’ petition.

BARNES, C.J., CARLTON AND WILSON, P.JJ., JOIN THIS OPINION.