ON APPEAL FROM THE JUDGMENT OF THE CHANCERY COURT OF YAZOO COUNTY, MISSISSIPPI, THE HONORABLE JANACE HARVEY-GOREE

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1 E-Filed Document Oct :49: CA COA Pages: 13 IN THE SUPREME COURT OF MISSISSIPPI VERA M. MILLER WOOD, et. al. APPELLANTS vs. SUPREME COURT: 2013-CA AUDREY H. KEMP, et. al. APPELLEES ON APPEAL FROM THE JUDGMENT OF THE CHANCERY COURT OF YAZOO COUNTY, MISSISSIPPI, THE HONORABLE JANACE HARVEY-GOREE RESPONSE OF APPELLANTS VERA M. MILLER WOOD, et.al. ORAL ARGUMENTS REQUESTED DANIEL E. MORRIS, (MSB No ) Post Office Box Baton Rouge, LA Tel: (662) Fax: (877)

2 IN THE SUPREME COURT OF MISSISSIPPI VERA M. MILLER, ELOISE M. WORTHINGTON, APPELLANTS NANNIE M. MOTEN, MARY A. MILLER, EARL MILLER, CLEOTHA MILLER, MAGNOLIA MILLER, RUBY MILLER BARNES, ALBERTA MILLER FOUNTAIN, MAGGIE MILLER and ANDERSON MILLER, JR. vs. SUPREME COURT: 2013-CA AUDREY H. KEMP and DONNA MICHELLE SMITH APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal. Vera Mae Miller, Eloise Miller Worthington, Nannie Miller Moten, Mary Ann Miller, Earl Miller, Cleotha Miller, Magnolia Miller, Ruby Miller Barnes, Alberta Miller Fountain, Maggie Miller and Anderson Miller, Jr. Audrey H. Kemp and Donna Michelle Smith Daniel E. Morris Richard J. Rohman James M. Crews, III. Honorable Janace Harvey Goree P.O. Box 39 Lexington, MS Honorable Cynthia Lee Brewer P.O. Box 404 Canton, MS Appellants Appellees Attorney for Appellants Attorney for Appellees Attorney for Emma Miller, Carl Leon Miller and Sylvia Kay Miller Chancery Court Judge Chancery Court Judge ii 2

3 Mary Helen Walden, CSR#1679 P.O. Box 404 Canton, MS Court Reporter This, the 15 th day of October, Respectfully Submitted, DANIEL E. MORRIS LAW FIRM, PLLC. Attorney for Appellants By: IslDaniel E. Morris DANIEL E. MORRIS, (MSB No ) Post Office Box Baton Rouge, LA Tel: (662) Fax: (877) Iii

4 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... iii TABLE OF CONTENTS... iv TABLE OF AUTHORITIES... v STATEMENT REGARDING ORAL ARGUMENTS.6 STATEMENT OF ISSUES... 6 STATEMENT OF THE CASE... 6 SUMMARY OF ARGUMENT LAW AND ARGUMENT The Land in question was not devised to Appellees by Last Will and Testament and/or Probate of the Yazoo County Chancery Court Appellees filing of Petition was untimely as more than ten (10) years had passed prior to them filing Appellants obtained said Land by Adverse Possession CONCLUSION CERTIFICATE OF SERVICE iv 4

5 TABLE OF AUTHORITIES Bell v. Coats, 56 Miss Greenwood v. Young, 80 So.3d 140 (20). Hill, v. Johnson, 27 So. 3d 426, 431 ( 19) (Miss. Ct. App. 2009) Jordan v. Fountain, 986 So. 2d 1018, 1023 ( 17) (Miss. Ct. App. 2008) Matter of Estate of McClerkin, 651 So.2d 1052 (Miss. 1995) 10 Miss. Code Ann ,,13 Norton v. Graham, 187 So. 510, 185 Miss. 164 (Miss. 1939) Pulliam v. Bowen, 54 So. 3d, 331, 334 ( 13) Stancil v. Farris, 60 So. 3d 817, 824 ( 14) (Miss. Ct. App. 2011) Stone v. Lea Brent Family Invs., L.P., 998 So. 2d 448, 455 ( 25) (Miss. Ct. App. 2008) Webb v. Drewrey, 4 So. 3d 1078, 1083 ( 19) (Miss. Ct. App. 2009) Box v. State 437 So. 2d 19, 21 (Miss. 1983) 13 v.

6 STATEMENT REGARDING ORAL ARGUMENT Appellants, VERA M. MILLER, ELOISE M. WORTHINGTON, NANNIE M. MOTEN, MARY A. MILLER, EARL MILLER, CLEOTHA MILLER, MAGNOLIA MILLER, RUBY MILLER BARNES, ALBERTA MILLER FOUNTAIN, MAGGIE MILLER and ANDERSON MILLER, JR., request oral argument as to the facts and legal arguments. The decisional process would be significantly aided by oral argument. Furthermore, oral argument is necessary because the issues before the Court in this case have not been authoritatively decided. STATEMENT OF ISSUES (1) Whether the chancery court erred in determining that Appellees were entitled to a share of the property as heirs of the estate of Magnolia Miller. (2) Whether the chancery court erred in failing to acknowledge Appellants as possessors of the land in question through adverse possession. STATEMENT OF THE CASE That Anderson Miller, the grandfather of Appellants, VERA M. MILLER, ELOISE M. WORTHINGTON, NANNIE M. MOTEN, MARY A. MILLER, EARL MILLER, CLEOTHA MILLER, MAGNOLIA MILLER, RUBY MILLER BARNES, ALBERTA MILLER FOUNTAIN, MAGGIE MILLER and ANDERSON MILLER, JR. (hereinafter referred to as APPELLANTS ), departed this life on or about March 31, 1929, testate. 1 The Last Will and Testament of Anderson Miller was properly probated in this Court on or about April 24, That Anderson Miller s descendants, Thomas Miller and Thornton Miller, were the sole devisees of the above referenced real property; however, an Executor s Deed was never filed 1 Exhibit A Anderson Miller, Last Will & Testament. 6

7 therefore causing Thomas Miller and Thornton Miller not to be declared owners of subject property. That subject property at this instance was descended pursuant to Mississippi Code , Descent of Land. That Thornton Miller departed this life intestate, on or about November 15, 1982, as an adult resident of Yazoo County, Mississippi, leaving Magnolia Miller as his surviving spouse. That there were no children born to this marriage. That Magnolia Miller departed this life on February 2, 1986 as an adult resident of Yazoo County, Mississippi, testate. That the Last Will and Testament of Magnolia Miller, dated July 18, 1983, named Appellees, AUDREY H. KEMP and DONNA MICHELLE SMITH, as sole devisees of a limited amount of property. 2 Said property was stated to be worth less that $ The original estate of Magnolia Miller closed on or about September 3, That Thomas Miller, the other descendant of Anderson Miller departed this life on or about November 10, 1984 as an adult resident citizen of Yazoo County, Mississippi, leaving as his heirat-law Albert Miller, son. That Laura Holmes Miller departed this life on or about July Albert Miller departed this life on or about January 1, 1998, intestate. That Albert Miller departed this life and left as his heirs-at-law nine (9) children: a. Eloise Easterling b. Nannie Moton c. Mary Miller d. Earl Miller e. Cleotha Miller 2 Exhibit B Magnolia Miller, Last Will & Testament. 3 Exhibit C Order Closing Estate of Magnolia Miller. 7

8 f. Alberta Fountain g. Magnolia Miller h. Vera Miller Wood i. Ruby Miller Barnes The Petition to Confirm Title and Quiet Title to Land, Determine Heirship and to Partition Land was filed by the Appellees on November 4, The Petition was amended on March 23, The Petition was then granted by Order of the Chancery Court without a hearing. 5 A Petition To Obtain Title By Adverse Possession or To Obtain Title By Acquiescence was filed on October 29, 2010 by Appellants. 6 There was an Updated Motion to Pay Waste and then Final Judgment from which the Appellants now appeal. 7 STATEMENT OF FACTS The uncle, Thornton Miller, to Appellants, VERA WOODS, et. al, departed this life intestate, on or about November 15, He left as his surviving spouse, Magnolia Miller, who upon information and belief, suffered a massive stroke at King s Daughter Hospital in Yazoo City, Mississippi and was placed in a nursing home in Humphreys County, Mississippi. Upon information and belief, Magnolia Miller was of limited capacity due to the two (2) strokes suffered prior to the execution of her Last Will and Testament, which named Appellees, AUDREY H. KEMP and DONNA MICHELLE SMITH, as sole heirs to her estate. Further, Magnolia Miller s, alleged Last Will and Testament is not a self-authenticating 4 Exhibit D Petition to Confirm Title and Quiet Title to Land, Determine Heirship and Partition Land filed by Appellees, November 4, Exhibit E Order of Yazoo County Chancery Court on Petition to Determine Heirs, etc. 6 Exhibit F- Petition to Obtain Title by Adverse Possession or To Obtain Title by Acquiescence. 7 Exhibit G Final Judgment of Yazoo County Chancery Court. 8 Id. Footnote 1. Exhibit A. 8

9 document, as it was signed by two (2) witnesses, but not witnessed by a notary. The Will does not specifically name, describe or list any real or personal property that may have been owned by Magnolia Miller. 9 There is no indication or evidence that any testimony of the two witnesses were required to authenticate the Will at a hearing, which is required pursuant to Mississippi law. It was well established throughout the years that the property in question was the family land of the Estate of Anderson Miller. Executrix, to Magnolia Miller s estate, and her niece, Annie D. Smith, was well aware of the property s history upon initiating the probate petition. Annie D. Smith, as executrix of the Estate, did not list the land in question in the Petition for Probate and/or her Petition to Close the Estate. 10 Moreover, Annie Smith, nor the Appellees in the present case instituted an action to be designated heirs and/or to remove the Appellants from the land prior to Appellees closed the Estate, by swearing under oath that Magnolia Miller s Estate was only valued at $5,741.00, before funeral expenses. Appellants in the present case before this Honorable Court have owned, occupied, farmed, leased, operated a store and other businesses, rented mobile homes, paid taxes, etc. on this land from 1892 to the present, with no interruption from Appellees. 11 Appellants have always owned said land and have held themselves out to be the owners of said property, after the death of Thornton Miller 1982 and even after the death of his widow, Magnolia Miller, LAW AND ARGUMENT 1. The Chancery Court erred in determining the proper heirs to the estate. The issue with the probate of the Last Will and Testament of Magnolia Miller is that the only 9 Id. Footnote 3 Exhibit C. 10 Id. Footnote 3 Exhibit C. 11 Exhibit H Earl Miller Testimony; pgs (October 29, 20 Hearing); Exhibit I Vera Wood Testimony; pgs (October 29, 20 Hearing). 9

10 property the Executrix disposes of is the cash in Magnolia Miller s estate. After the Executrix pays the funeral expenses, herself, and the solicitor, she gives the remaining balance to herself and her husband for their daughter, Donna Smith, and niece, Audrey Kemp. The Will does not set forth the property to be distributed. It does not specifically mention any real property that is allegedly owned by Magnolia Miller. The Will does not specifically devise the property at issue, in that, the real property was never listed in the inventory of the estate. 2. Appellants own the disputed Land by Adverse Possession. Under Mississippi Law, Mississippi Code of : (1) Ten (10) years' actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to persons under the disability of minority or unsoundness of mind the right to sue within ten (10) years after the removal of such disability, as provided in Section However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than thirty-one (31) years. Based on the laws of the state of Mississippi this action should not have been heard. The laws of this great state do not give persons who have sat on their rights a way around the laws of this state. The petition to quiet title must be dismissed with prejudice and all costs incurred by the Appellants should be paid with interest. The fact remains the trial court cannot make a final ruling in which there is an outstanding Id. Footnote 3. 10

11 motion. The second issue is that the Appellees initial petition to quiet title was out of time. The Appellees ten (10) years ran in The trial court was in error for not considering all of the evidence. Appellees have never denied that the property was openly and notoriously possessed by the Appellants for the statutory time for adverse possession. Instead Appellees merely state that a hearing should have taken place to hear Appellants motion. However, Appellees fail to mention that numerous hearings were held after Appellants motion had been filed and all evidence of adverse possession presented by Appellants was ignored. As previously stated the overwhelming evidence shows, Thornton Miller died in 1982, leaving his widow, Magnolia Miller, who passed in Appellees probated Magnolia Miller s will in 1986 and did not institute an action to quiet title until 2004, well after the ten (10) adverse possession statute of limitations had passed. 13 The fact remains the Appellees filed nothing to interrupt the adverse possession of the land by the Appellants. Appellees had access to attorneys and legal counsel that could have interrupted the adverse possession. Appellees refused to interrupt the 10 year adverse possession time period. The law of the state of Mississippi has held the requirements for persons claiming a right to land must be exercised within a ten year period when there are others claiming the right to said land. Furthermore, all parties must be provided an opportunity to present all evidence in a court of law. Appellants were not provided the opportunity to present all evidence and the fact that the Appellees time to file an action had run was not taken under consideration. As stated in Box v. State and the overwhelming jurisprudence of the courts, the bottom line rule is that: "A rule which is not enforced is no rule." 13 Id. Exhibits A, B, C, D, and E. 11

12 Conclusion The Appellants reiterate, the case before this Honorable Court has not been properly adjudicated as multiple issues, facts and evidence have not been heard. Additionally, the Chancery Court of Yazoo County s Order does not address multiple points of law and issues that are present in this case. Appellants, VERA M. MILLER, ELOISE M. WORTHINGTON, NANNIE M. MOTEN, MARY A. MILLER, EARL MILLER, CLEOTHA MILLER, MAGNOLIA MILLER, RUBY MILLER BARNES, ALBERTA MILLER FOUNTAIN, MAGGIE MILLER and ANDERSON MILLER, JR., respectfully requests that the Order of the Chancery Court of Yazoo County, Mississippi be reversed and all monies ordered to be paid by Appellants be nullified and assessed to Appellees, with court costs and attorneys fees for all of the foregoing reasons. Respectfully Submitted, DANIEL E. MORRIS LAW FIRM, PLLC. Attorney for Appellants By: IslDaniel E. Morris DANIEL E. MORRIS, (MSB No ) Post Office Box Baton Rouge, LA Tel: (662) Fax: (877) danielmorris@demlawfirm.com

13 CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Richard J. Rohman Attorney for Appellees 213 E. Jefferson St./Suite 3 P.O. Box 151 Yazoo City, MS Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Honorable Janace Harvey Goree P.O. Box 39 Lexington, MS Honorable Cynthia Lee Brewer P.O. Box 404 Canton, MS Chancery Court Judge Chancery Court Judge This the 15 th day of October, DANIEL E. MORRIS LAW FIRM, PLLC. Attorney for Appellants By: IslDaniel E. Morris DANIEL E. MORRIS, (MSB No ) Post Office Box Baton Rouge, LA Tel: (662) Fax: (877) danielmorris@demlawfirm.com 13