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In re Last Will and Testament and Estate of Mrs. Elizabeth R. Smith

October 22, 1998

IN RE: LAST WILL AND TESTAMENT AND ESTATE OF MRS. ELIZABETH R. SMITH, DECEASED: DAVID R. SMITH AND MRS. ANNETTE SMITH, HUSBAND AND WIFE
v.
MRS. JEANETTE AVERILL AND OREN PICKERING



Before Sullivan, P.j., Mills And Waller, JJ.

The opinion of the court was delivered by: Mills, Justice, For The Court

DATE OF JUDGMENT: 08/29/96

TRIAL JUDGE: HON. HYDE RUST JENKINS, II

COURT FROM WHICH APPEALED: ADAMS COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - WILLS, TRUSTS AND ESTATES

STATEMENT OF THE CASE

¶1. On December 16, 1994, the Last Will and Testament of Mrs. Elizabeth R. Smith was admitted to probate in Adams County, Mississippi. Jeanette Averill and Oren Pickering, the sole surviving heirs at law of the testatrix, filed their petition to contest probate of will and for accounting on February 2, 1995. They contend that the testatrix, Mrs. Elizabeth R. Smith, lacked testamentary capacity and was unduly influenced by either David R. Smith, his wife Annette Smith, or both. On August 29, 1996, a jury in Adams County, Mississippi, entered a unanimous verdict in favor of Averill and Pickering. Aggrieved, David R. Smith and his wife, Annette Smith, bring this appeal assigning the following issues as error:

"I. WHETHER THE CHANCERY COURT ERRED IN RESERVING RULING ON THE SMITHS' MOTION IN LIMINE ON THE ISSUE OF WILL SUBSTITUTES AND ALLOWING AMENDMENT BY AVERILL AND PICKERING ON THIS ISSUE."

"II. WHETHER THE VERDICT OF THE JURY WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW."

"III. WHETHER THE CHANCERY COURT ERRED IN OVERRULING THE SMITHS' MOTIONS FOR A DIRECTED VERDICT ON THE ISSUES OF TESTAMENTARY CAPACITY AND UNDUE INFLUENCE."

"IV. WHETHER THE CHANCERY COURT ERRED IN OVERRULING THE SMITHS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE MOTION FOR A NEW TRIAL."

"V. WHETHER THE CHANCERY COURT ERRED IN OVERRULING THE SMITHS' MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF WILL SUBSTITUTES AND RIGHTS OF SURVIVORSHIP."

"VI. WHETHER THE CHANCELLOR ERRED IN OBJECTING FROM THE BENCH TO THE TESTIMONY OF DANIEL J. O'BEIRNE."

Jeanette Averill and Oren Pickering cross-appeal raising the following issue:

"WHETHER THE CHANCERY COURT ERRED IN HOLDING THAT THE JOINT BANK ACCOUNTS PASSED OUTSIDE THE ESTATE AND WERE NOT PART OF THE WILL CONTEST."

STATEMENT OF THE FACTS

¶2. The testatrix, Mrs. Elizabeth R. Smith lived on Springfield Road in a mobile home on the property of her daughter, Jeanette Averill, until late May or early June 1994. She moved her trailer to Morgantown Road around June 1994 and died December 11, 1994, after signing an instrument titled "Last Will and Testament" in September 1994. This instrument purported to convey the entire estate of the testatrix to David R. Smith Sr., the nephew of the testatrix by marriage, and his wife, Annette Smith. This conveyance expressly excluded Jeanette Averill and Oren Pickering, the testatrix's children by a prior marriage and the sole heirs at law of the testatrix. A residuary clause provided that if both David R. Smith Sr., and wife, Annette Smith, predeceased the testatrix the estate should go in trust to four named great nephews. This instrument recited that it revoked all prior wills, specifically providing for revocation of a will dated May 23, 1993. There were at least two prior wills including the one dated May 23, 1993, and one dated June 29, 1994. The will in contest was created by changing certain provisions in the will dated June 29, 1994.

¶3. The testatrix had two bank accounts at Britton and Koontz First National Bank. One account was designated a N.O.W. account and the other a M.M.A. account. The testatrix initially listed Jeanette Averill on both accounts as a joint tenant with rights of survivorship. Prior to June 1994, the testatrix took Jeanette Averill's name off these accounts and instead added David R. Smith Sr., as a joint tenant with rights of survivorship. In June 1994, the testatrix executed a power of attorney in favor of David R. Smith Sr. Averill and Pickering contested the probate of the latest will upon learning the testatrix had excluded them from inheriting and had left her entire estate to the Smiths.

I. WHETHER THE CHANCERY COURT ERRED IN RESERVING RULING ON THE SMITHS' MOTION IN LIMINE ON THE ISSUE OF WILL SUBSTITUTES AND ALLOWING AMENDMENT BY AVERILL AND PICKERING ON THIS ISSUE.

A. Motion in Limine

¶4. A trial Judge enjoys wide discretion with regard to the relevancy and admissibility of evidence. Fisher v. State, 690 So.2d 268, 274 (Miss. 1996). The Court will not reverse the ruling of the trial Judge unless the Judge commits an abuse of discretion which prejudices the party bringing the motion. Fisher, 690 So.2d at 274.

¶5. The Smiths made a motion in limine to exclude any mention of the joint accounts of the testatrix. They claim the accounts, as will substitutes, pass outside of the will and should be no part of this will contest. On Friday, before the will contest began Monday, the chancellor discussed his decision regarding the motion in limine:

"It would seem to me that I have ruled that this case today [there] will be one issue decided, the issue [of] whether this Will is good or bad. It is either good or it is bad by reason of undue influence or lack of capacity. . . . I think that there can be evidence . . . [that] when this bank account was opened that they took her down there and they did this and they did that . . . . I think that is relevant and probative . . . ."

The chancellor bifurcated the will substitutes issue and reserved ruling on that issue until necessary. The chancellor ruled that in the will contest there should be no mention of rights of survivorship on the bank accounts. He limited any mention of the accounts to evidence of a confidential relationship to prove undue influence. The Smiths suffered no prejudice because of the chancellor's ruling and there was no error.

B. Amendment To Pleadings

¶6. While the chancellor granted the Smiths' motion in limine in this portion of the trial, one issue remains. Should the chancellor have ordered bifurcation of the trial and allowed amendment to the pleadings? The Smiths assert that the chancellor should not have allowed an amendment since Averill and Pickering made no motion seeking amendment of the pleadings. In fact, appellees made no argument that they should be allowed to amend even on the Friday the chancellor discussed his ruling.

ΒΆ7. Counsel for the Smiths alleged the issue of the joint bank accounts had not been specifically pled. In response, counsel for the appellees said, "Well, it's not. It says that she was without capacity to make the will and there was undue influence in ...


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