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In re Last Will and Testament of McIntosh

Court of Appeals of Mississippi

October 22, 2019

IN THE MATTER OF THE LAST WILL AND TESTAMENT OF DAN A. McINTOSH IV, DECEASED: BEVERLY QUICK, EXECUTRIX APPELLANT
v.
DAN A. McINTOSH III APPELLEE

          DATE OF JUDGMENT: 03/19/2018

          COVINGTON COUNTY CHANCERY COURT HON. WILLIAM R. BARNETT TRIAL JUDGE

          ATTORNEYS FOR APPELLANT: MICHAEL CLAYTON BAREFIELD WILLIAM H. JONES

          ATTORNEY FOR APPELLEE: DAN A. McINTOSH III (PRO SE)

         EN BANC

          WESTBROOKS, J.

         ¶1. This appeal arises from a dispute over a vast collection of guns, ammunition, and shooting accessories (gun collection) transferred from Dan McIntosh IV (Mac) to his father, Dan McIntosh III (Dan), through a bill of sale. After Mac's death, his mother, Beverly Quick, was named executrix of his estate. On May 26, 2016, Beverly filed a motion to compel the return of the gun collection to the estate. Dan refused and argued that the bill of sale had transferred ownership of the gun collection from Mac to him. The chancellor agreed and found the bill of sale was binding and left the gun collection in Dan's possession. Aggrieved, Beverly appealed.[1] The record is devoid of a rebuttal made by a clear preponderance of the evidence that the transaction between Dan and Mac was an invalid or inadequate bill of sale. For the reasons outlined below, we affirm as the chancellor's ruling is not manifestly wrong or in error.

         FACTS

         ¶2. Mac died on December 28, 2015. His mother, Beverly Quick, filed a petition for to probate Mac's will on March 14, 2016. On August 19, 2016, Beverly was named executrix, and the chancellor ordered that all of Mac's personal property be returned to the estate. Beverly claims that the gun collection conveyed to Dan is a part of Mac's estate.

         ¶3. There are no winners in this case. A father, Dan, lost his son, Mac, to suicide, and from the record we deduce that he lost Mac long before he took his own life. Mac hanged himself after he was arrested for trying to kill or at least threaten Dan by (1) throwing two Molotov cocktails in Dan's windows and (2) ramming his Lexus into Dan's front porch. If that were not enough, upon his arrest, law enforcement found a loaded shotgun on the front-passenger seat of Mac's Lexus-a loaded shotgun that he had taken from Beverly's house.[2]While there was no proof that he had actually shot the gun, it can be logically inferred that it was not there as a sign of affection. Years prior to that violent day, Mac entered into an agreement with Dan. At the center of the controversy in this case is the resulting bill of sale that was certainly and unrebuttably signed by Mac.

         ¶4. Below is an image of the of the bill of sale admitted into evidence:

         (Image Omitted)

         The bill of sale is a contract for the transfer of goods described here as the "remaining firearms and ammunition, gun safes, storage building or other shooting accessories not now held by agencies of the United State government." The document begins by stating "for good and valuable considerations"-plural. (Emphasis added; uppercase and boldface omitted). The bill was signed on or about April 2, 2010, prior to dispositions of Mac's criminal cases in state and federal court.[3]

         ¶5. Mac was arrested in 2006 for shooting into an occupied dwelling in Covington County. Dan exclusively represented Mac in state court. Dan also instrumentally assisted Joseph Holloman in Mac's representation in federal court.[4] Mac's federal prosecution commenced on or about January 22, 2009, over a year before the execution of the bill of sale. Mac pled guilty to a favorable resolution of the federal charges on May 5, 2010 (less than one month after the bill of sale was executed), and the judgment was signed on July 21, 2010. According to Dan, he later notified Mac that he got the state criminal charges dismissed on or about September 30, 2010. As with all federal criminal convictions, Mac was unable to have any firearms or other deadly weapons in his possession or under his control. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) seized several of his automatic weapons. It was undisputed that Mac did not want the federal government to have access to the remainder of his gun collection.

         ¶6. At the time Mac signed the bill of the sale, which was dated April 2, 2010, he had been receiving, and continued to receive, the benefit of his father's legal services, which led to Mac receiving an almost unheard-of resolution of his criminal charges.[5] Beverly testified that Mac told her that he never signed the bill of sale. Beverly was not a witness to the bill and had no other personal knowledge of its execution. Jason Graham, Mac's friend, and Laura McIntosh, Dan's wife, witnessed Mac sign the bill of sale. Further, a storage shed was built on Jason's land for the specific purpose of storing the gun collection.

         ¶7. In 2014, four years after the signing of the contract and resolution of his criminal charges, Mac went to Jason's property unannounced and tried to take possession of all or part of the gun collection in order to sell them for money to Winford "Bud" May. May testified that Mac tried to retrieve the gun collection, and in response Jason told Mac that "[he knew] they are [Mac's] guns, but [Dan] said don't take them." He also testified to an altercation between Mac and Jason and then Mac and Dan. Mac left Jason's property without the gun collection. Jason later testified that he thought Dan was the owner of the guns. He also testified that in order for Mac to be released on bail in 2006, "[Jason and Dan] did not want the guns to be in [Mac's] possession or nothing else," and he stated that Mac told him he could not have anything to do with a gun again.

         ¶8. In December 2015, Beverly testified that Mac called her from his home and told her he was "in the middle of [his] suicide" and that he had "one thing [he had] to do before [his] life [ended]." He also told Beverly he had waited until there was nothing she could do to prevent his suicide and told her to open up the safe inside her home. Beverly did not open the safe but admitted that her husband kept guns in their playroom inside her home. Mac, a convicted felon, then went to Beverly's home and took a pistol and a shotgun from her playroom. Beverly grabbed the pistol from his back pocket but could not get the shotgun. Mac then drove to Dan's home, threw two bombs in his window, and attempted to drive his Lexus through Dan's front door. After this attack, Mac was arrested, and he later ended his life in the jail.

         ¶9. On August 2, 2017, a hearing was held to determine the validity of the bill of sale. In his September 9, 2017 opinion, the chancellor made eleven findings of fact:

1. That there is no proof that Dan told Mac that he had to convey the property to him to secure or comply with a plea agreement;
2. There is no proof that, at the time of the Bill of Sale, that Mac was suffering from the effects of mental illness or under the effects of drugs such as to prevent him from exercising his free will;
3. Mac sought, and received, the independent, private advice of his good friend, Jason Graham, and decided thereafter to give the property to Dan;
4. That Mac had his criminal lawyer, Joe Holloman, available for advice;
5. That Mac thereafter entered a free and voluntary plea of guilty to the federal charge;
6. That Mac retained no access to the property;
7. That some of the property was sold by Dan during Mac's lifetime and Dan received ...

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