Before Sullivan, P.j., Banks And Roberts, JJ.
The opinion of the court was delivered by: Banks, Justice
DATE OF JUDGMENT: July 23, 1997
TRIAL JUDGE: HON. DENNIS M. BAKER
COURT FROM WHICH APPEALED: DESOTO COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - UNCONSTITUTIONAL STATUTE
DISPOSITION: REVERSED AND RENDERED - January 28, 1999
MOTION FOR REHEARING FILED:
¶1. Appellants raise three issues for our consideration: (1) whether §270 of the Mississippi Constitution and Miss. Code Ann. §91-5-31 grant in them, the heirs at law of the testator, a vested interest in land subject to compulsory divestiture by sale by a proscribed beneficiary institution; (2) whether this Court can consider the question of constitutionality, and if so, was mortmain in Mississippi, now repealed, unconstitutional; and (3) whether the estate proceeding is res judicata on the present application of mortmain. We conclude that the heirs had a vested right in the land and that res judicata was applicable. It follows that consideration of the constitutional issue is unnecessary. Accordingly, we reverse the judgment of the trial court.
¶2. Myrtle H. Mulkey died on January 29, 1983, having as her only heirs at law three nieces, Marie Hudson Hill, Betty Jane Hudson Campbell, Edna Osborn Walker and one nephew, Clyde N. Hudson. Mrs. Mulkey's Will, dated January 29, 1982, was admitted to probate in the Chancery Court of DeSoto County. The Final Decree Closing Estate and Discharging Executor was issued on November 2, 1984. Under the will, the heirs at law each received monetary gifts in the amount of $5,000. Mrs. Mulkey's will devised to the Mississippi Christian Foundation ("MCF"), in trust, 30 acres of land in DeSoto County, Mississippi. Mulkey and her husband had previously conveyed 20 acres to MCF. There was also a residual cash bequest to Mississippi Christian Foundation in the amount of $463,168.74. MCF was delivered the land via Executor's Deed on November 8, 1984.
¶3. The final decree closing Mulkey's estate determined MCF to be a proscribed institution within the meaning of Miss. Code Ann. § 91-5-31, the mortmain statute.*fn1 The will contained a clause directing that "no part of the fifty acres be sold." The Chancery Court, construing the will in order that no bequest would fail, determined that MCF was, nevertheless, empowered to sell any part or all of the land bequeathed to them in trust. The final decree further adJudged that conveyances by MCF within ten years would render the statute of mortmain inapplicable to said land.
¶4. On November 18, 1988, MCF conveyed 0.01 acres to the Mississippi Highway Commission. There was no other disposal or sale of the property by MCF.
¶5. In 1987, Section 270 in Article 14 of the Mississippi Constitution, the underlying constitutional provision to the mortmain ...