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IN RE: ESTATE OF RENA GUNNELL MURRELL, DECEASED E. C. MURRELL v. LINDA DIANNE RUTTER QUIN AND CHARLES N. RUTTER

JANUARY 18, 1984

IN RE: ESTATE OF RENA GUNNELL MURRELL, DECEASED E. C. MURRELL
v.
LINDA DIANNE RUTTER QUIN AND CHARLES N. RUTTER, JOINT EXECUTORS, ET AL.



BEFORE BROOM, DAN LEE AND PRATHER

DAN LEE, JUSTICE, FOR THE COURT:

This cause involves two lawsuits which were filed in the Lincoln County Chancery Court and consolidated for trial. The first suit was filed by Linda Dianne Rutter Quin and Charles N. Rutter as individuals and co-executors of their mother's estate. In that suit they sought recovery of fire insurance proceeds from their step-father, E. C. Murrell, as constructive trustee of those proceeds and the return of their mother's jewelry bequeathed to Linda

Quin or a judgment for the value of the jewelry. The second suit was brought by the decedent's husband, E. C. Murrell, wherein he sought reformation of the description of one acre of land deeded to him by his wife during her lifetime.

 The chancellor held that the misdescription in the deed should be reformed to correctly show the intent of the parties. He also held that there was not sufficient proof to hold Murrell liable for the lost jewelry on a negligence theory. As to the insurance proceeds the chancellor ordered that they should be held in trust with Murrell receiving the benefit of any income therefrom and upon his death the principal was to pass to Dianne Quin and Charles Rutter in equal shares. From this decree the parties both appeal. We affirm the chancellor's decision as to the negligence and reformation of the deed; however, we reverse as to the insurance proceeds being held in trust.

 Rena Murrell died testate on July 8, 1980. In her will she devised to her husband, E. C. Murrell, a life estate in their residence with the remainder to her children Linda Dianne Rutter Quin and Charles N. Rutter. They are the step-children of E. C. Murrell. During their marriage Murrell built a residence for himself and Rena on real estate owned by Rena. During the construction Mr. Murrell took out a builder's risk insurance policy in his name on the home. In 1975 the original builder's risk policy was converted into a homeowners policy with the names of "Mr. or Mrs. E. C. Murrell" as the named insured. Later, in 1978, the "Mr. or Mrs." was dropped and the policy named only "E. C. Murrell" as the named insured. It is not contested that all premiums paid on the policy were paid by Mr. Murrell by checks drawn on his business.

 During their marriage Mrs. Murrell received a number of gifts of jewelry from her husband. She gave him a deed to one acre of land on March 21, 1971, for the purpose of building a workshop near their home.

 Upon Mrs. Murrell's death her will was probated. In that will she devised to her husband interest in a camp, all livestock, a savings account, the lifetime use of the household furniture, and a life estate in the home together with a ten acre plot from the 110 acres on which the home was situated. The fee simple title to the 110 acres was devised to her two children subject to the life estate in her husband. The personal effects of Mrs. Murrell, including the jewelry involved in this lawsuit were bequeathed to her children.

 After Mrs. Murrell's death, Mr. Murrell was given the jewelry by the funeral home director. Mr. Murrell gave one ring, a gift to Mrs. Murrell from a prior husband, to Linda Quin, but put the other jewelry in his home in a dresser drawer. From this location the jewelry was subsequently stolen while Mr. Murrell was in the hospital for treatment for a heart ailment. Only the jewelry was taken during the break in of Mr. Murrell's home. Mr. Murrell never filed a police report or an insurance claim. Neither did he notify his wife's children of the missing jewelry.

 After the death of his wife, Murrell recorded the deed to one acre of land. Through error the deed was mailed to Charles Rutter's mail box after recording. Because Rutter was an engineer he discovered that the legal description contained his mother's residence and was situated about 100 to 130 feet from his back door.

 The surveyor who had measured the one acre of land testified that an error in the description was made by him and that the land as originally designated by Mrs. Murrell was not intended to include the home. Mr. Murrell also acknowledged the error; he claimed title to one acre but never the acre upon which the home rested, he never claimed anything more than a life estate in the home and in fact he filed the action to reform and correct the deed.

 On January 30, 1981, a fire destroyed the home. It is the insurance proceeds as a result of the fire which present the primary issue in this appeal.

 We will first deal with the issue of negligence as it relates to Mr. Murrell's handling of the jewelry.

 Here, the chancellor was the finder of fact and when the testimony is contradictory we cannot reverse absent a finding that he was manifestly wrong. Stone v. Campbell, 261 So. 2d 127 (Miss. 1972). Upon review of the record we must agree that Mr. Murrell's storage of the jewels in his dresser drawer did not constitute negligence. We therefore affirm the chancellor's dismissal of that claim.

 As to the deed. Because both parties have agreed that the deed should be reformed to accurately reflect the property Mrs. Murrell intended to convey to her husband, the decision of the ...


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