LARRY L. KIMBROUGH a/k/a LARRY KIMBROUGH, PATRICIA KIMBROUGH HAWTHORNE a/k/a PATRICIA HAWTHORNE, EFFIE KIMBROUGH GRAY AND KINNEY LEE MALONE a/k/a KENNY KIMBROUGH
ESTATE OF DAVID " JUNIOR" KIMBROUGH, DECEASED, AND MILDRED WASHINGTON
COURT FROM WHICH APPEALED: MARSHALL COUNTY CHANCERY COURT. DATE OF JUDGMENT: 11/07/2012. TRIAL JUDGE: HON. GLENN ALDERSON.
ATTORNEYS FOR APPELLANT: WILLIAM JAMES DUKES, JAMES LAWTON ROBERTSON.
ATTORNEYS FOR APPELLEE: CARTER C. HITT, GWENDOLYN BAPTIST-HEWLETT.
BEFORE RANDOLPH, P.J., PIERCE AND KING, JJ. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, KING AND COLEMAN, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.
NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES
¶1. David " Junior" Kimbrough passed away on January 17, 1998, leaving his entire estate to his long-time girlfriend, Mildred Washington. Matthew Johnson was named executor of the estate in Kimbrough's Last Will and Testament. Johnson petitioned the court to probate Kimbrough's will on May 21, 1998. The following day, the chancery clerk admitted the will for probate, appointed Johnson executor, and issued letters testamentary. Contestants filed to contest the will on August 18, 1998, and no other entries were filed during the next ten years. In September 2008, an entry of appearance was entered on behalf of four remaining contestants, which was followed by an entry of appearance on behalf of Johnson.
¶2. In May 2009, the chancery court denied Executor's Rule 41(b) motion to dismiss, granted Contestants' motion to compel discovery, granted Contestants' motion to remove executor, and appointed the chancery clerk of Marshall County as executor. Washington was issued a summons notifying her of the will contest. Johnson then filed his motion to dismiss alleging a violation of Mississippi Rule of Civil Procedure 4(h), because Washington was served process almost eleven years after the commencement of the action. Washington subsequently filed her motion for ratification and for support of the motion to dismiss. The trial court denied the motion to dismiss, but it granted a stay of the proceedings pending petition for interlocutory appeal to this Court, which we subsequently denied.
¶3. A trial on the matter was held in October 2012. After Contestants rested their case, Proponents (Estate of David " Junior" Kimbrough, deceased, and Mildred Washington) moved the trial court for dismissal, and the chancellor ultimately granted their motion and dismissed the case. Contestants now appeal to this Court on the following issues:
I. Whether Proponents made a prima facie case of a valid will;
II. Whether Contestants made a prima facie case that, before and on July 2, 1997, David " Junior" Kimbrough had a confidential, dependent and reliant relationship with Matthew A. Johnson;
III. Whether Contestants made a prima facie case of suspicious circumstances surrounding the purported
Last Will of David " Junior" Kimbrough, deceased;
IV. Whether Contestants made a prima facie (and all but irrefutable) case of Matthew Johnson's conflicting interests and/or bad faith in procuring the purported Last Will of David " Junior" Kimbrough, in which Johnson was named executor, though Proponents bore the burden of proof on that issue by clear and convincing evidence;
V. Whether a will produced by the undue influence of another who acts in bad faith should be upheld, just because the wrongdoer is not a conventional beneficiary under the will, even though the wrongdoer does receive valuable benefits he could never have enjoyed without the will;
VI. Whether the trial judge erred when he granted Proponents' Mississippi Rule of Civil Procedure 41(b) motion to dismiss at the end of Contestants' case;
VII. Whether the trial judge erred when he relied on the testimony of Jennifer Kirk Sanders in granting Proponents' Rule 41(b) motion to dismiss, when she said nothing with Mississippi Rule of Evidence 401 Relevance to the ...