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In re Estate of Wylie

Court of Appeals of Mississippi

August 15, 2017


          DATE OF JUDGMENT: 11/02/2015




         EN BANC.

          FAIR, J.

         ¶1. This appeal concerns a series of disputes between sisters Sheila Russell and Donnie Byrd over real property left to them by their mother, Vernon Marie Horn Wylie. It turns on Byrd's "motion to construe" Wylie's will, essentially decided by default after Russell failed to appear at the hearing on the motion.

         ¶2. Mississippi Rule of Civil Procedure 81(d) provides that will construction must be raised by petition or complaint, and that Russell must be served with a Rule 81 summons for a hearing. Since she was not, and since she did not waive service of process by appearing and defending the issue on the merits, the chancery court's decision construing the will is void for want of jurisdiction, and the partition of the property must be vacated. We find no error on the remaining issue, a boundary dispute between Russell and the estate, as the chancellor's decision was supported by substantial evidence.


         ¶3. A chancellor's factual findings will not be reversed unless they are manifestly wrong or clearly erroneous. Paw Paw Island Land Co. v. Issaquena & Warren Ctys. Land Co., 51 So.3d 916, 923 (¶26) (Miss. 2010). However, a chancellor's legal conclusions are reviewed de novo. Id.


         1. Will Construction

         ¶4. Wylie died on March 25, 2006. She left a will, executed in 1972, and a codicil from 1979. The codicil devised to Russell "the South part of the bottom . . . and this is the portion where she has her house situated." To Byrd, it gave "the North part of the bottom." The remainder was devised to Byrd and Russell, in equal shares, to share and share alike. The codicil named Byrd and Russell coexecutors, and they filed a petition for probate in March 2008.

         ¶5. In May 2008, Byrd filed a "motion to construe will, " which contended that the specific devises of real property (i.e., the north and south "parts" of the "bottom") were "confusing and inapplicable due to subsequent transfers." Attached to the motion was a certificate of service stating that the motion had been mailed to Russell's attorney. On December 5, 2008, the chancery court entered an order setting the matter of "Estate" for hearing on February 23, "2008."

         ¶6. On December 29, 2008, Russell's attorney filed a motion to withdraw based on a "complete breakdown of the attorney/client relationship." The chancellor entered an order on February 23, 2009, allowing the attorney to withdraw. The same day, the chancery court held a hearing on the motion to construe the will. Russell did not appear. On March 12, 2009, the court entered an order construing the will, finding that the devises in question were ambiguous and that insufficient evidence had been offered at the hearing to determine their meaning. The chancellor found the devises to be void for uncertainty and that the share-and-share-alike residual clause controlled the inheritance of the real property.

         ¶7. On March 24, Russell's newly hired attorney filed a motion seeking additional time to file a motion for rehearing. In response to the motion, the chancery court held a hearing on what the chancellor called Russell's Rule 60 motion. See M.R.C.P. 60. Russell admitted she had been aware of a hearing scheduled for February 23, but she denied knowing a motion to construe the will had been filed or that it would be the hearing's subject. For reasons that are unclear, Russell believed the February 23 hearing had been canceled after her attorney withdrew. She testified that she had difficulty communicating with her former attorney, who would not return her calls. Apparently, Russell believed her attorney had scheduled the February 23 hearing and had then canceled or postponed it, or that it would be canceled or postponed because the attorney withdrew. Russell "knew that [her attorney] had got a court date, " "[b]ut when [the attorney] dropped the case, [Russell] thought that was all of it."

         ¶8. After Russell presented her evidence at the hearing, Byrd's attorney asked the court for the opportunity to submit briefing. The chancellor agreed and gave both parties ten days to submit briefs by letter. The chancellor's subsequent order denying Russell relief noted that briefs had been submitted, but the briefs are not found in the record. The chancellor's order denying relief stated only that Russell had not shown she was entitled to relief under Rule 60(b).

         ¶9. On appeal, Russell argues she received insufficient notice of the February 23 hearing and that the chancellor's decision construing the will is void because she did not receive process. She points to Mississippi Rule of Civil Procedure 81(d), which states in relevant part (emphasis added):

(d) Procedure in Certain Actions and Matters. The special rules of procedure set forth in this paragraph shall apply to the actions and matters enumerated in subparagraphs (1) and (2) hereof and shall control to the extent they may be in conflict with any other provision of these rules.
(1) The following actions and matters shall be triable 30 days after completion of service of process in any manner other than by publication or 30 days after the first publication where process is by publication, to-wit: adoption; correction of birth certificate; alteration of name; termination of parental rights; paternity; legitimation; uniform reciprocal enforcement of support; determination of heirship; partition; probate of will in solemn form; caveat against probate of will; will contest; will construction; child custody actions; child support actions; and establishment of grandparents' visitation.

         ¶10. Byrd does not seriously contest the argument that Russell should have received a Rule 81 summons. Instead, Byrd contends that the issue has been waived. Her first argument is easily disposed of - Byrd claims that Russell failed to cite authority for the proposition that Rule 81 applies to will construction actions. But Russell cited the rule itself, which states unambiguously that a Rule 81 summons is required for "will construction" actions and matters. See M.R.C.P. 81(d)(1). The rule is clear that the issue should have been raised by "petition or complaint" rather than by motion and that Russell, rather than her attorney, should have been served with notice of the petition and the date of the hearing. M.R.C.P. 81(d)(5). "[I]n Rule 81 matters, a Rule 81 summons must be issued; otherwise, service is defective." Clark v. Clark, 43 So.3d 496, 499 (¶12) (Miss. Ct. App. 2010). The fact that Russell knew a hearing had been scheduled is irrelevant; "[a]ctual notice does not cure defective process." Id.

         ¶11. Byrd's argument that Russell waived the issue by failing to raise it in the trial court is more difficult. Appeals courts generally will not consider issues raised for the first time on appeal. See, e.g., Taylor v. Taylor, 201 So.3d 420, 421-22 (¶6) (Miss. 2016). But on the specific issue of a Rule 81 summons, the authorities are less clear. The Mississippi Supreme Court has repeatedly stated that "complete absence of service of process offends due process and cannot be waived." Stratton v. McKey, 204 So.3d 1245, 1248 (¶10) (Miss. 2016) (quoting Reasor v. Jordan, 110 So.3d 307, 317 (¶41) (Miss. 2013) (Pierce, J., dissenting in part from a plurality opinion, with an equally divided court[1])). Nonetheless, our courts have repeatedly found the issue to have been waived when the defendant appears on the day of the hearing and defends the ...

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