The opinion of the court was delivered by: Bridges, C.j.
DATE OF JUDGMENT: 08/18/97
TRIAL JUDGE: HON. JON M. BARNWELL
COURT FROM WHICH APPEALED: QUITMAN COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - WILLS, TRUSTS AND ESTATES
TRIAL COURT DISPOSITION: DIRECTED VERDICT GRANTED IN FAVOR OF ELMER GENE HORN
¶1. Raymond Carl Horn (Carl) and Sandra Annette Horn Anglin (Sandra) have appealed from a judgment of the Chancery Court of Quitman County, adjudicating that several purported joint certificates of deposit and a joint personal checking account created by Ollie Catherine Horn (Collins) Huddleston during her lifetime in favor of Elmer Eugene Horn (Gene) should have been paid into her estate and distributed according to the provisions of her last will and testament.
¶2. Specifically, Carl and Sandra argue on appeal: 1) that the trial court erred in overemphasizing Miss. Code Ann. § 81-5-63 (Rev. 1996), in applying its presumption to banking instruments which were invalid and not intended to substitute the will, 2) that the trial court erred by excluding parole evidence offered by the appellant which would have clarified the deceased's intentions, 3) that the appellant's constitutional due process rights were violated by failing to give proper notice of a hearing, and by erroneously stating in an order that the appellants had entered a joinder and waiver of process, 4) that the appellee violated his fiduciary duty as the administrator by knowingly swearing to a falsehood and disobeying a court order, and 5) that the appellee should be required to pay all costs and expenses, including attorney's fees associated with this appeal. On counter-claim, Gene argues that this was a frivolous appeal, and thus, he is entitled to an award of damages, including attorney's fees, pursuant to M.R.A.P. 38 and Miss. Code Ann. § 11-3-23 (Rev. 1991).
¶3. Initially, this Court must point out that the appellants's appeal is interlocutory. Moreover, the appellants failed to petition for permission to file this interlocutory appeal, and the appellee did not contest that omission. *fn1 In Mississippi Supreme Court Practice, Luther T. Munford summarizes the steps to take in order to bring an interlocutory appeal:
"The first step in bringing an interlocutory appeal to the Supreme Court is to obtain a ruling from the trial court on the question of law. The next step is to request that the trial court certify its ruling for interlocutory appeal. The request must state proper grounds for certification. This request is a condition precedent to pursuing the appeal, although the trial court's refusal to certify the appeal does not bar Supreme Court review."
Luther T. Munford, Mississippi Supreme Court Practice, 4-9 (1993). Nevertheless, because (a) this case has been fully tried, (b) the fundamental issues upon which the case ought to turn have been decided at the trial level, and (c) the parties have fully briefed and argued the merits of the issues to this Court, we have decided to exercise our authority under Mississippi Rule of Appellate Procedure 2(c) to suspend the rules and reach the merits of this technically interlocutory appeal. See Keyes v. State, 708 So. 2d 540 (¶1) (Miss. 1998).
¶4. Accordingly, this Court finds that the jointly held accounts never became a part of the mother's estate, and that the trial court correctly held that the certificates of deposit and checking account were considered will substitutes and not controlled by the will. Moreover, we hold that the appellee is entitled to statutory damages.
¶5. Ollie Catherine Horn (Collins) Huddleston (Catherine) departed this life on February 26, 1995. Prior to her death, Catherine's estate consisted of real and personal property, including certain certificates of deposit and a personal checking account. Catherine executed her last will and testament in 1972, leaving her entire estate, with an exception not relevant here, to all of her children to be shared equally. In addition, her will designated Gene as the executor. *fn2 In the years that followed, Catherine executed several certificates of deposit valued at approximately $38,000, which substantially eviscerated the contents of her will. These certificates of deposit were issued to "Ollie Catherine Horn or Elmer Gene Horn[,] joint tenants, with right of survivorship, and not as tenants in common." Additionally, Catherine registered her personal checking account, valued at approximately $32,000, jointly in her name and in her son Gene's name with rights of survivorship and not as tenants in common. Consequently, when Catherine died, Gene claimed ownership as a joint tenant with rights of survivorship pursuant to Miss. Code Ann. § 81-5- 63 (Rev. 1996). *fn3
¶6. On July 23, 1997, the chancery court conducted a hearing to determine whether or not the certificates of deposit and the personal checking account were part of Catherine's estate passing pursuant to her will or alternatively, whether or not the same passed directly to Gene through registration pursuant to the banking documents. The court granted a directed verdict in favor of Gene holding that the certificates of deposit and the personal checking account did not pass under the decedent's will but passed pursuant to the banking documents. The court further held that because the accounts were established as ...