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CALHOUN CLAY COLLINS, BY MARTHA SMITH, CONSERVATOR; CARLTON TORREY COLLINS AND JOHN TERREY COLLINS, INDIVIDUALLY AND BY MARTHA SMITH, TRUSTEE; AND BY MARTHA SMITH, INDIVIDUALLY v. JERRY L. McMURRY

FEBRUARY 01, 1989

CALHOUN CLAY COLLINS, BY MARTHA SMITH, CONSERVATOR; CARLTON TORREY COLLINS AND JOHN TERREY COLLINS, INDIVIDUALLY AND BY MARTHA SMITH, TRUSTEE; AND BY MARTHA SMITH, INDIVIDUALLY
v.
JERRY L. McMURRY, ET AL



BEFORE DAN LEE, P.J., PRATHER AND PITTMAN, JJ.

PRATHER, JUSTICE, FOR THE COURT:

The central issue of this, appeal addresses the effect of dictum contained in a former opinion of this Court upon the result reached in the instant appeal.

Plaintiffs below brought this action in the Chancery Court of the Second Judicial District of Jones County to quiet and confirm what they considered to be their remainder interest in a 400 acre tract of land and to cancel as clouds on their title the various claims of fee simple ownership asserted by the defendants below. From a decision by the chancellor favoring the defendants, the plaintiffs now perfect this appeal and assign as error the following:

 (1) The trial court erred in disregarding:

 (a) the oral and written evidence submitted for and on behalf of the appellants regarding the facts and circumstances surrounding the testator and his relation to the parties in interest at the time of making his will, the facts and circumstances under which the will was made, the intent and purpose of the testator in making devises of his property, and the fact that the scrivener of the will was a

 layman and not a lawyer, and

 (b) the testimony of the two attorney-adverse witnesses and the appellants' expert witness with respect to construing the testator's will.

 (2) The trial court erred in disregarding the opinion of the Supreme Court of Mississippi in construing the testator's will in the case of Gardner v. Pan American Petroleum Corp., 243 So. 2d 399 (Miss. 1971), and relying instead on the testimony of the appellees' expert witnesses, legal treatises and case law to reconstrue the will.

 (3) The trial court erred in refusing to allow into evidence the answers and responses of the appellees to the appellants' second and third requests for admission marked for identification as exhibits 7 and 8.

 I.

 The source of dispute in this case is the interpretation which is to be given to a certain clause in the last will and testament of William Torrey Smith, namely the devise going to his daughter Rosalind Smith Collins. The appellants in this case are Rosalind Smith Collins' three children, Carlton Torrey Collins, John Terrey Collins and Calhoun Clay Collins. *fn1

 The will in question was admitted to probate following the testator's death in 1951, and devised to Rosalind Smith the following described land to-wit:

 The North Half (N 1/2) of Section thirty-one (31) Township Ten (10) N, Range Eleven (11) W. (320 acres).

 and the North Half (N 1/2) of North Half (N 1/2) of South Half (S 1/2) of Section thirty-one (31), Township Ten (10) N, Range Eleven (11) W, (80 acres).

 Rosalind Smith later married Carlos Collins and gave birth to three children, the appellants in this case. Rosalind and Carlos mortgaged the real property in dispute here to the Hattiesburg Production Credit Association (HPCA), but later defaulted on their loan, resulting in an equitable foreclosure in the Jones County Chancery Court. The appellants claim that the HPCA, the purchaser at the foreclosure sale, acquired only a life estate interest in the land. Some four years later the land was sold by the HPCA

 to appellees, J. C. and Helen Grace Sharp, the brother-in-law and sister of HPCA employee John L. Bullock, also one of the appellees.

 The Sharps then sold 160 acres in the land to John L. Bullock and his wife Alice Ruth Bullock. The Bullocks then sold the land they purchased to the appellees Jerry L. McMurry, Paul H. McMurry, Bobby Dickins and John H. Rayborn, first selling 80 acres, and later the remaining 80 acres to which they claimed ownership. It was then that an attempt was made by some of the appellees to develop the land they had purchased into a residential subdivision.

 The appellants then filed suit in chancery court to protect their alleged remainder interests against the appellees' assertion of fee simple ownership of the property. Named as defendants in the chancery suit were the following:

 Jerry L. McMurry; Paul H. McMurry; Bobby Dickens; John H. Rayborn; John L. Bullock and wife, Alice Ruth Bullock; Harry F. Beacham, Trustee for The Federal Land Bank of New Orleans; P. E. Stevens, Trustee for John L. Bullock and Alice Ruth Bullock; Thomas T. Buchanan, Trustee for Southeastern Savings And Loan Association of Laurel; Scotch Plywood Company, d/b/a Old Line Land & Timber Co.; Jerry McMurry, Attorney in Fact for Paul H. McMurry, Bobby Dickens, and John H. Rayborn; Southeastern Savings And Loan Association of Laurel; Tommy L. Cotten and wife, Donna B. Cotten; James E. Bush and wife, Sharon K. Bush; Richard L. Yoder, Trustee for The Commercial National Bank And Tust Company of Laurel; William R. Shedd and wife, Carolyn L. Shedd; M. B. Weems, Trustee for Merchants And Manufacturers Bank; J. C. Sharp and wife, Helen Grace Sharp.

 The appellees filed a motion at the chancellor's suggestion, requesting a bifurcated trial on the issue of the will's construction. This motion was granted. The lower court held on the issue in question concerning the will's construction that the testator had devised a fee simple defeasible title to ...


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