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CHRISTINA LOUISE ROBERTSON, EXECUTRIX OF THE ESTATE OF OF MARIAN WINSKI v. LA LINDA

AUGUST 30, 1989

CHRISTINA LOUISE ROBERTSON, EXECUTRIX OF THE ESTATE OF OF MARIAN WINSKI
v.
LA LINDA, INC. AND JOHN Z. WINSKI.



BEFORE ROY NOBLE LEE, ANDERSON and BLASS

ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

South Mississippi Abstract and Title Company filed a petition for interpleader in the Chancery Court, Second Judicial District, Harrison County, Mississippi, seeking an order for interpleading $404,745.52, the amount held in trust by it for the purchase of the La Linda Motel in Biloxi, Mississippi. The respondents/defendants joined and processed in the action were John Z. Winski, La Linda, Inc., and Christina Louise Robertson, Executrix of the Estate of Marian Winski, Deceased. Answers, claims, counterclaims and cross-claims were filed by the defendants.

The lower court ordered that the prayer of the interpleader be granted and that the said sum be paid into an interest-bearing account designated by the court. John Z. Winski and La Linda, Inc. filed a motion for summary judgment, the lower court sustained the motion as to disposition of the money interpled, and ordered that it be paid to La Linda, Inc. The court declined to assume jurisdiction and consider the cross-claim filed by Christina Louise Robertson, Executrix of the Estate of Marian Winski, against La Linda, Inc. and John Z. Winski. Christina Louise Robertson, Executrix, has appealed to this Court assigning two (2) errors in the proceedings below.

 Facts

 John Z. Winski and Marian Winski, husband and wife, were the sole shareholders and directors of La Linda, Inc., each owning fifty percent (50%) of the stock. John Z. Winski was president of the corporation and Marian Winski was secretary. The corporation's major asset was the La Linda Motel, located in Biloxi, Mississippi. The Winskis decided to sell the motel and the transaction was handled for the purchaser through South Mississippi Abstract and Title Company, and the net proceeds to the corporation from the sale amounted to $404,745.52. A check in that amount was forwarded to John Z. Winski, payable to La Linda, Inc., on February 6, 1987.

 Prior to closing the sale the Board of Directors of La Linda, Inc. passed a resolution on January 24, 1987, that the corporation be liquidated. The resolution authorized the officers of the corporation to sell any and all properties to facilitate liquidation and provided that the assets of the corporation be distributed to the shareholders. An election to dissolve the corporation was filed with the Internal Revenue Service on behalf of La Linda, Inc., and, as a result, the title company required deeds from the Winskis as individuals as well as La Linda, Inc., the record titleholder.

 Upon receipt of the check in the sum of $404,745.52, John Z. Winski turned it over to Marian Winski, the secretary, for deposit. Instead of depositing the check, Marian Winski placed it in her personal safety deposit box. A few days after closing, she telephoned John Hoffman of the title company and advised him that he could expect to be contacted by John Z. Winski who would say that the check for the proceeds of the sale had been lost and would request that a new check be issued and delivered to him. She asked that the company not issue a new check because she felt that if John Z. Winski claimed all the net proceeds, she would not get her share of the sale. Further, she told Hoffman that she was keeping the original check in a safety deposit box until she and John Z. Winski could resolve their

 dispute as to the distribution of the proceeds.

 Later, John Z. Winski did telephone Hoffman and advised that the settlement check had been lost and requested that a new check be issued and delivered to him. Hoffman informed John Z. Winski that he had been told by Marian Winski that she had the original check and would hold it until the two of them could resolve their dispute over the proceeds. Hoffman told him that no check would be issued. Subsequently, Marian Winski telephoned Hoffman several times urging him not to issue a new check" because her interest therein would be squandered and forever lost, if John Winski ever gained complete possession and control over [the] proceeds. "Subsequently, Marian Winski committed suicide without the dispute as to the check having been resolved and with the check still in her safety deposit box.

 The title company was of the opinion that the purchase money check was in the possession and control of Christina Louise Robertson, who had qualified as Executrix of the Estate of Marian Winski, and, since John Winski, La Linda, Inc. and Christina Louise Robertson, Executrix, each claimed all or part of the funds represented by the check, which were in the title company's trust account, the title company sought to interplead the funds into the Chancery Court of Harrison County, pursuant to MRCP 22.

 Law

 I. - II

 THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF LA LINDA, INC. WHEN THERE EXISTED DISPUTED ISSUES OF MATERIAL FACT AS TO THE ENTITLEMENT TO THE FUNDS WHICH HAD BEEN INTERPLED INTO COURT.

 THE LOWER COURT ERRED IN REFUSING TO ASSUME JURISDICTION TO CONSIDER THE CROSS-CLAIM FILED BY CHRISTINA LOUISE ROBERTSON, EXECUTRIX OF THE ESTATE OF MARIAN WINSKI, AGAINST JOHN Z. WINSKI AND LA LINDA, INC. REGARDING THE ...


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