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Kohnke v. Tate

Court of Appeals of Mississippi

October 9, 2018

JEWEL LEAN KOHNKE APPELLANT
v.
BERTHA JEAN TATE APPELLEE

          DATE OF JUDGMENT: 01/18/2017

          MARION COUNTY CHANCERY COURT HON. DEBORAH J. GAMBRELL JUDGE.

          ATTORNEYS FOR APPELLANT: LARRY STAMPS ANITA M. STAMPS

          ATTORNEY FOR APPELLEE: R. ANDREW FOXWORTH

          BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.

          BARNES, J.

         ¶1. Bertha Tate filed a complaint for partition of property in the Marion County Chancery Court against Jewel Kohnke and other defendants who are cotenants of the property but not appellants in this case. The property at issue, approximately thirty-nine acres, was devised to several family members in the will of Annie Boone, who passed away in 2010. The chancery court approved a survey, ordered the partition of three separate parcels, and adjudicated the owners of the parcels. Kohnke appealed, claiming the partition of the property was unfair because it was not in equal value to the rights of the property owners. Finding no error, however, we affirm.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶2. On March 22, 2016, Tate filed her complaint seeking a partition of her portion of real property[1] that had been devised to her and other relatives under the last will and testament of Annie Boone, who passed away in July 2010.[2]

         ¶3. Annie had seven children, three of whom predeceased her but left children of their own. In her will, Annie devised the subject property between her children or their descendants, and her brother, Frank Holt, with the following ownership interests:

Bertha Jean Tate ............................. 0.125 (or 1/8)
Howard Boone ............................... 0.125 (or 1/8)
Christeen Boone Owens ................. 0.125 (or 1/8)
Jewel Lean Kohnke ........................ 0.125 (or 1/8)
Lonnie Mae McLeod ...................... 0.125 (or 1/8)
Annie Nell Boone[3] .......................... 0.125 (or 1/8)
Frank W. Holt ................................. 0.125 (or 1/8)
Jackie Boone Walton ...................... 0.0625 (or 1/16)
Ricky Boone[4] .................................. 0.0625 (or 1/16)

         Lonnie McLeod, one of Annie's daughters, died intestate after her mother; therefore, her 1/8 ownership interest was divided among her five children, the McLeod Family, giving each of those five individuals a 0.025 (1/40) ownership interest in the property. Additionally, Frank Holt, Annie's brother, died intestate after Annie's death. He was not married at the time of his death and had no children or surviving parents; however, he did have seven siblings, all of whom predeceased him. Five of the seven siblings were survived by children, which included Annie's children. Accordingly, Holt's 0.125 (1/8) ownership interest in the property was divided into five equal parts, descending through intestate succession to the descendants of Holt's deceased siblings.[5] Therefore, Annie's children inherited an additional 0.025 (1/40) ownership interest in the property from Holt's 1/8 share, to be divided equally among them.

         ¶4. Christeen Boone Owens and the McLeod Family later joined Tate to have their interest in the subject property partitioned from the larger parcel. The other cotenants, including Kohnke, desired to continue as common owners of the remaining property. After a hearing on August 29, 2016, the chancery court entered an agreed order on September 19, 2016, confirming title and partitioning the property. The order delineated the ownership interests of the cotenants and ordered the property be partitioned in kind to give Tate, the McLeod Family, and Christeen Owens separate parcels of land equal in value to their ownership ...


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