E-Filed Document Jul :49: CA Pages: 27. SUPREME COURT OF MISSISSIPPI No CA BRIEF OF APPELLEE

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1 E-Filed Document Jul :49: CA Pages: 27 SUPREME COURT OF MISSISSIPPI No CA LILLIAN HUNT CHANEY and ALICE ANN CHANEY APPELLANTS-DEFENDANTS vs. JOSEPHINE CHANEY APPELLEE-PLAINTIFF BRIEF OF APPELLEE ORAL ARGUMENT NOT REQUESTED Appeal from the Chancery Court of DeSoto County, Case No. 12-CV-1361 Prepared by: Daniel Owen Lofton # Poplar, Ste. 210 Memphis, TN phone fax 1

2 I. CERTIFICATE OF INTERESTED PARTIES 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 this Court may evaluate the possibility of disqualifications or recusal: 1. Honorable Judge Mitchell M. Lundy, Jr. 2. Appellee, Josephine Chaney 3. Appellants, Lillian Hunt Chaney and Alice Ann Chaney The undersigned counsel further certifies that the following attorneys have an interest in the outcome of this case: For Appellants: 1. Mr. J. Walker Sims 2. Mr. Fred M. Ridolphi, Jr. For Appellee: 1. Mr. Daniel Lofton This, the 20th day of July, 2016 /s/daniel Owen Lofton Daniel Owen Lofton 2

3 TABLE OF CONTENTS I. CERTIFICATE OF INTERESTED PARTIES..2 II. TABLE OF AUTHORITIES...4 III. STATEMENT REGARDING ORAL ARGUMENT. 6 IV. STATEMENT OF ISSUES V. STATEMENT OF THE CASE VI. SUMMARY OF THE ARGUMENT VII. ARGUMENT AND AUTHORITIES.. 10 A. APPELLANT IS NOT ENTITLED TO A DE NOVO REVIEW OF THE CHANCERY COURT OPINION AND ORDER. B. THE CHANCERY COURT OF DESOTO COUNTY CLEARLY HAD SUBJECT MATTER JURISDICTION TO GRANT MOTION TO REMOVE PROPERTY FROM TESTATE ESTATE C. APPELLANT FUNDAMENTALLY MISCHARACTERIZES THE PROCEEDINGS IN DESOTO COUNTY, MISSISSIPPI CHANCERY COURT D. APPELLANT S RELIANCE ON HINDERS v. HINDERS IS MISPLACED E. DESOTO COUNTY, MISSISSIPPI CHANCERY COURT DID NOT ERR IN RULING THE PURPORTED LAST WILL AND TESTMANET WAS REVOKED BY IMPLICATION F. THE WILL WAS LEGALLY REVOKED NO ADDITIONAL EVIDENCE IS NEEDED VIII. CONCLUSION IX. CERTIFICATE OF SERVICE

4 II. TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES Cases Boggs v. Eaton, 379 So.2d 520 (Miss. 1980) Bohanon v. Walcot, 1 How. (2 Miss) 336 (1836) Bower v. Bower, 758 So.2d 405 (Miss. 2000) Burtenshaw v. Gilbert, 1 Crow. Rep Cain v. Cain, 795 So.2d 614 (Miss. Ct. App. 2001) Crowe v. Smith, 603 So.2d 301 (Miss. 1992) Deposit Guar. Nat. Bank v. Cotten, 420 So.2d 242 (Miss. 1982) Hinders v. Hinders, 828 So.2d 1235 (Miss. 2002) ,12,16,17,19,20,25 In re Estate of Kelly, 951 So.2d 543 (Miss. 2007) Kountouris v. Varvaris, 476 So.2d 599 (Miss. 1985) Massie v. Watts, 10 U.S. (6 Craunch) 148, 3 L.Ed. 181 (1810) Matter of Estate of Varvaris, 528 So.2d 800 (Miss. 1988) Matter of Will of Palmer, 359 So.2d 752 (Miss. 1978) McCormack v. Warren, 228 Miss. 617, 89 So.2d 702 (1956) Rasco v. Estate of Rasco, 501 So.2d. 426 (Miss. 1987) ,20,21,25 Statutes Miss. Const. Art. 6 Sec. 159(c) Miss Code Ann. Sec Tenn. Code Ann. Sec

5 Other Authorities 7 Johns. Chan. Rep T. Atkinson, Handbook of the Law of Will Sec. 92 (2d ed. 1953) Black s Law Dictionary (6th Ed.) Black s Law Dictionary (8th Ed.) Powell on Devises, Roper on Wills, 2S

6 III. STATEMENT REGARDING ORAL ARGUMENT Appellee, Josephine Chaney, respectfully states the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument. As such, the Appellant s request for oral argument should be denied. 6

7 IV. STATEMENT OF ISSUES 1. Whether or not the Appellants are entitled to a de novo review of the Opinion and Order of the DeSoto County Chancery Court? 2. Whether or not the Chancery Court of DeSoto County, Mississippi had subject matter jurisdiction over the real property located in Crockett County, Tennessee, to grant Appellee s Motion to Remove Real Property from the Testate Estate Pursuant to M.R.C.P. 57? 3. Whether or not the facts and circumstances of this case warrant implied revocation of the purported last will and testament of James J. Chaney, Jr. under Mississippi law? 4. Whether or not - under Tennessee law - the purported last will and testament of James J. Chaney, Jr. was revoked prior to his moving into the State of Mississippi? 7

8 V. STATEMENT OF THE CASE This case involves two documents. The first, a purported last will and testament of Mr. James Chaney that was executed in This purported last will and testament left all of his property to his then wife, Lillian Hunt Chaney. The second is the divorce decree and property settlement agreement between Mr. James Chaney and Ms. Lillian Hunt Chaney executed at the time of their divorce in This document contains a provision whereby Ms. Lillian Hunt Chaney for good and valuable consideration disavows any interest in a farm located in Crockett County, Tennessee. This case involves a piece of real property located in Crockett County, Tennessee which is the sole asset of the Estate of James Chaney. The Chancery Court of DeSoto County, Mississippi ruled that this piece of real property was not an asset of the Estate of James Chaney due to the property settlement agreement and the facts and circumstances of this case. The Appellants, not in agreement with this ruling, have filed the present appeal. 8

9 VI. SUMMARY OF APPELLEE S ARGUMENT The Appellant is not entitled to a de novo review of this case. This appeal should be limited to deciding whether or not the DeSoto County Chancery Court applied the factors as found in Rasco v. Rasco to the facts and circumstances of this matter. The Opinion of the DeSoto County Chancery Court, on its face, makes it clear that the court acted properly. Further, it is equally clear that the DeSoto County Chancery Court had subject matter jurisdiction when ruling on the Motion to Remove Real Property from the Estate, which is the subject of this appeal. Having correctly applied the facts and circumstance to the Rasco factors, the DeSoto County Chancery Court correctly ruled that the purported last will and testament of James J. Chaney, Jr. was impliedly revoked. Further, it appears as if the purported last will and testament of James J. Chaney, Jr. was already revoked under Tennessee law prior to Mr. Chaney moving his person into the State of Mississippi. As such, all of the arguments contained in the Appellants brief are wholly without merit. This Honorable Court should affirm the ruling of the DeSoto County Chancery Court. 9

10 VII. ARGUMENT A. Appellant Is Not Entitled to a De Novo Review of the Chancery Court Opinion and Order. The Appellants state that the standard of review to be applied in the case at bar should be the erroneous application of law standard which is de novo as set forth in Boggs v. Eaton, 379 So.2d 520 (Miss. 1980). The Appellants are not correct in this position. In Hinders v. Hinders, 828 So.2d 1235, 1244 (2002), the Mississippi Supreme Court points out: However, in those instances where there is a conflict in the evidence, it is the chancellor's duty, sitting as finder of fact, to assess the evidence and determine what weight and worth to give it. Cain v. Cain, 795 So.2d 614, 617 (Miss.Ct.App.2001). So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor's decision, this court may not intercede simply to substitute our collective opinion for that of the chancellor. Bower v. Bower, 758 So.2d 405, 412 (Miss.2000). The DeSoto County Chancery Court had substantial evidence for its decision and it properly deemed said evidence credible. The Opinion that is the subject of this appeal reads as follows: The Supreme Court according to Rasco v. Estate of Rasco, 501 So. 2d 421 (Miss. 1987), states that in order to imply revocation of the will, this Court looks to the facts and circumstances of this case, the terms of the will itself, the divorce decree and the property settlement, and the conduct of the parties. Therefore, this Court initially looks at the facts and circumstances of this case. Lillian Hunt Chaney filed for probate in Chancery Court of DeSoto County, a purported [sic] Will of James J. Chaney, Jr. who died on September 2, It should be noted that she filed it on June 22, 2012, and also that the will was signed by the decedent on June 5, The Will states among other things (1) That I am married and my wife s name is Lillian Hunt Chaney, and also that I give, devise and bequeath unto my wife, Lillian Hunt Chaney, all of my estate, both real and personal and whatsoever situated, which I may own or have the right to dispose of at the time of my decease. That James J. Chaney, Jr. and Lillian Hunt Chaney divorced by an Order Granting Final Decree of Divorce in the Circuit Court of Shelby County, TN on May 5, In the PSA (Property Settlement Agreement), they agreed that Lillian Hunt Chaney would 10

11 not have any interest in and to the farm in Crockett County. James J. Chaney, Jr. and Lillian Hunt Chaney never again resided together as husband and wife. On December 13, 1971, James J. Chaney, Jr. married Josephine Chaney in Shelby County, TN. They lived together as man and wife until his death on September 2, Based upon the factors the Court is instructed to look at pursuant to the Rasco case, including but not limited to the will, which stated I am married to Lillian Hunt Chaney, which at the time of death he wasn t, and also the bequeath to my wife, Lillian Hunt Chaney. Therefore, two statements in the Will were not correct at the time of his death. Further, the PSA specifically states that for valid consideration, at the time of the divorce, Lillian Hunt Chaney gave up any interest in the Crockett farm. Finally the parties never cohabitated and actually James J. Chaney, Jr., married Josephine Chaney two years after his divorce from Lillian Hunt Chaney and lived as husband and wife until his death of September 2, 2011, some 40 years. Therefore, this Court finds that such is implied revocation of the Will and rules as such, and grants the Petition to remove the real property from the estate. * * * (R. 128). In this Opinion the DeSoto Chancery Court clearly does what is required of it. The Court applies the simple facts of this case to the Rasco factors. The Appellants are not entitled to a de novo review. The Appellants have not presented one scintilla of evidence indicating that the DeSoto County Chancery Court misapplied the law under Rasco. All that the Appellants have shown is that they do not agree with the decision of the Desoto County Chancery Court after those factors were properly applied. As such, the appellate review of this matter should be limited to the simple question of did the lower court apply the Rasco factors to the facts of this case. The Opinion, on its very face, shows that it did. The Mississippi Supreme Court s holding in Hinders reads as follows: 11

12 Consistent with our applicable statutes and case law, we decline to adopt a rule of revocation of a will by divorce. We also decline to adopt a rule that a predivorce will is automatically or expressly revoked by a divorce accompanied by a property settlement agreement with provisions inconsistent with the terms of the pre-divorce will. On the other hand, we do once again acknowledge that there may be an implied revocation of a pre-divorce will in cases where there is a divorce accompanied by a property settlement agreement with provisions inconsistent with the terms of the pre-divorce will; however, any document submitted by a contestant as a subsequent declaration pursuant to Miss.Code Ann must reveal by "clear and unequivocal" evidence the testator's intention to revoke the prior will by "[l]ooking to the facts and circumstances of [the particular] case, the terms of the will itself, the divorce decree and the property settlement, and the conduct of the parties." Rasco, 501 So.2d at 424. [Emphasis added.] Hinders at This is precisely what the DeSoto County Chancery Court did in the present case. There is no misapplication of law in this case. The Chancellor simply applied the facts to the standard set out in Hinders. And, ruled against the Appellant. As such, the Appellants are not entitled to a de novo review of this case. The sole question that is the subject of this appeal is whether or not the Chancery Court properly applied the law as set out in Hinders to the present case at bar. B. The DeSoto County Chancery Court Clearly Had Subject Matter Jurisdiction to Grant Motion to Remove Property from Testate Estate In Mississippi, chancery courts are vested with subject matter jurisdiction in all matters testamentary. In re Estate of Kelly, 951 So.2d 543, 548 (Miss. 2007) citing Miss Const. Art. 6 Sec. 159(c). Further, Chief Justice John Marshall articulated the rule, [I]n case of fraud, or trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree.... Massie v. Watts, 10 U.S. (6 Craunch) 148, 160, 3 L. Ed. 181 (1810). In the present case, an estate is clearly a matter of trust. This case also involves an interpretation of a matter of contract (property settlement agreement). As such, it has long been held, since 1810, that chancery courts can exercise subject matter jurisdiction over real property in another state. 12

13 The Mississippi Supreme Court has noted: the courts of this state are open to citizens of this state who wish to litigate their respective rights to real property, notwithstanding that such property may physically lie within a foreign nation and notwithstanding further that the rights of the parties must ultimately be determined by reference to the law of that foreign nation. Crowe v. Smith, 603 So.2d 301, 307 (Miss. 1992) citing Matter of Estate of Varvaris, 528 So.2d 800, 803 (Miss. 1988). Where a Mississippi court has subject matter and personal jurisdiction, it may enter a personal judgment which would be binding in other states under the full faith and credit clause of the United States Constitution. Kountouris v. Varvaris, 476 So.2d 599, 607 (Miss. 1985). The fact that the judgment may not be given full faith and credit in a foreign jurisdiction does not defeat the authority of a court of this state to adjudicate a matter. Kountouris, 476 So.2d at 607. As can be seen this Court clearly has subject matter jurisdiction and the authority to rule on the motion to remove the real property from the estate. It should also be noted that the Executrix Lillian Hunt Chaney inaccurately states what the underlying motion to remove real property from testate estate sought to do. She states that this motion is meant to dispose of the real property. However, the only question that this motion seeks to resolve is whether or not this Estate, under the purported will that has been probated, has any interest in the real property located in Crockett County, Tennessee. The subject motion only deals with the garnering and collection of assets of an estate. The Appellant cannot point to anywhere in the subject motion where there is a request to vest title to this property to anyone or any entity. This motion merely seeks to state that this property is not an asset of the Estate of James Chaney, Jr. The Executrix, Lillian Hunt Chaney, continually states that the Motion to Remove Property from the Estate is seeking to dispose of the property. This is not accurate. The motion 13

14 does not seek the disbursement and disposition of the piece of real property. This motion simply seeks to find out what interest, if any, the testate Estate of James J. Chaney, Jr. has in this real property located in Crockett County, Tennessee. The facts are clear. Lillian Hunt Chaney gave up any and all interest, including future interest, in this property in This was done by contract executed after the execution of the purported will in this matter. In 1969, Lillian Hunt Chaney knew what interest she had in this property under the terms of this purported will. With this knowledge, she relinquished and disclaimed this real property as an inheritance. Now, 45 years later she is seeking to rescind this agreement. The agreement precludes her from taking the property. Since she is the sole beneficiary under this purported will, the testate Estate of James J. Chaney, Jr. has no interest in this property. Lillian Hunt Chaney s claim that the Chancery Court did not have subject matter jurisdiction over the real property located in Crockett County, Tennessee is more than a little disingenuous. Lillian Hunt Chaney, prior to opposing the motion to remove property that is the subject to the appeal, on numerous occasions sought relief from the Chancery Court concerning the subject property. These orders have included accounting for crops and rents and the depositing of the rental payments from the property with the Clerk of the Chancery Court. It is difficult to fathom how the Executrix has no problem with the Chancery Court ruling on matters that appear to be for her benefit. However, when the Chancery Court took action detrimental to her interest, she claims the Chancery Court did not have the subject matter jurisdiction to do such. Lillian Chaney appears to act in bad faith; her conduct has caused the appellee to incur extreme litigation costs. 14

15 C. Appellant Fundamentally Mischaracterizes the Proceedings in DeSoto County, Mississippi Chancery Court In their brief, the Appellants attempt to paint an inaccurate picture of the facts which have brought this matter before this Honorable Court. Appellant Lillian Hunt Chaney attempts to portray this appeal as a means of maintaining an ancestral family farm for the surviving daughter of James Chaney, Jr., Alice Ann Chaney. However, Appellant Lillian Hunt Chaney fails to inform this Court that the document which she asserts is the Last Will and Testament of James Chaney, Jr. does not vest any interest in this farm to the surviving daughter of James Chaney, Jr. This purported last will and testament vests title to this property solely into the hands of Appellant Lillian Hunt Chaney. Appellee Josephine Chaney is the surviving spouse of James Chaney, Jr. Alice Ann Chaney is the surviving child of James Chaney, Jr. Lillian Hunt Chaney is the ex-wife of James Chaney, Jr., who was divorced from him for over 40 years prior to the death of Mr. Chaney. It should also be noted that during this 40 year old period Lillian Hunt Chaney had virtually no contact with James Chaney, Jr. Further, it should be noted that during this 40 year period Appellant, Lillian Hunt Chaney, was the individual who had possession and control of the document that she claims is the valid last will and testament of Mr. James J. Chaney, Jr. Of all the parties to this litigation, Lillian Hunt Chaney is the only one who, at the time of the death of James Chaney, Jr., was not a member of the family of James Chaney, Jr. Nor, is she an heir at law. Yet, Lillian Hunt Chaney has deemed it appropriate to present a 50 year old will and assert that she, and she alone, is the proper party to attain title to this ancestral farm. Contrary to what is asserted before this Court, this proceeding is not an effort to attain an ancestral farm for the surviving daughter. This is an attempt by an ex-spouse to collect that final pound of flesh. This becomes very apparent given the fact that the Appellee, Josephine Chaney, originally 15

16 filed a petition opening an intestate estate in DeSoto County, Mississippi Chancery Court. It should be noted that in this intestate proceeding, Alice Ann Chaney s interest is protected as an heir at law. She has been listed as a beneficiary in this proceeding and is entitled to receipt of 50% of the farm in this intestate proceeding. As such, the Appellant is not seeking to protect the interest of the surviving daughter. The only party before this Honorable Court who has taken any step to protect the interest of Alice Ann Chaney is the Appellee Josephine Chaney. It is clear that the Appellant Lillian Hunt Chaney is using this 50 year old stale document to take this farm for herself. D. Appellant s Reliance on Hinders v. Hinders Is Misplaced In their brief, the Appellants assert that the present matter is almost factually identical to that contained in Hinders v. Hinders, 828 so.2d 1235 (2002). However, this is simply not true. There are a myriad of factual differences in the present case and Hinders. In Hinders the Mississippi Supreme Court wrote at 1243: he kept this will in his possession, readily at hand in his desk drawer, and John never had another will prepared, despite advice from his live-in companion to do so and annual reminders from his accountant to update his will. John left Joy as a joint account holder on both his corporate and personal checking accounts. John kept Joy as the beneficiary on his IRA account and had his accounting firm continue to prepare Joy's personal tax returns at his expense. Also there was evidence that John would quite often personally deliver the alimony checks to Joy, supposedly to check on her well-being, and that he continued to express emotional feelings for Joy. This brief excerpt points to a variety of factual differences. Unlike the Hinders case, Mr. Chaney did not have possession of his will for the fifty years prior to his death. The Appellant, Lillian Hunt Chaney, had possession of the purported last will and testament. Mr. Chaney never had the opportunity to physically destroy this document. Unlike the Hinders case, Mr. Chaney did not keep the Appellant on his accounts. Mr. Chaney did not have his accountant continue to do the taxes of the Appellant. Mr. Chaney did not meet with the Appellant. And, after the divorce there 16

17 is absolutely no evidence that Mr. Chaney even saw the Appellant for an era of forty years prior to his death. This is just the tip of the factual differences between the present case and Hinders. In Hinders, the husband and wife had compatible one page wills leaving everything to each other. Hinders at This is not the case in the present case, Mr. Chaney was the only spouse who had a will. In Hinders, there were no children of the marriage. Hinders at In the present case, there was a child of the marriage. In fact, Appellant, Lillian Hunt Chaney, by and through this action is seeking to take property from the sole child of Mr. Chaney. The purported last will and testament does not name the sole child of Mr. Chaney as a beneficiary. The only person who has advocated for the interest of the child of Mr. Chaney is the Appellee, Mrs. Josephine Chaney. In Hinders, the husband and wife were married for a period of 27 years. Hinders at The length of the marriage in the Hinders case was for a much longer period of time, than the one in the present case. Additionally, in Hinders, the Hinders were divorced on August 25, 1995 and Mr. Hinders died on February 11, Hinders at This is the most notable difference between the present case and the Hinders case. The period of time between the date of the divorce and the date of death in Hinders was less than 4 years. In the present case, the period of time between the Chaney divorce and the death of Mr. Chaney was over 40 years. This represents a period of time that is more than 10 times what is factually found in Hinders. Additionally, the heirs at law who challenged the will in Hinders are factually different from this case. In Hinders, the mother and siblings of the decedent are challenging the ex-wife. In the present case, it is the age old ex-wife opportunistically challenging the second wife. In Hinders, the property settlement agreement provides for spousal support. Hinders at The Chaney case differs, the only support provision in the instant settlement agreement is 17

18 for the support of the daughter of Mr. Chaney. The Appellant, Lillian Hunt Chaney, attempts to assert that she is taking this action to protect the interest of said daughter, Ann. However, the will does not give a single asset to the daughter of Mr. Chaney. The will that Appellant, Lillian Hunt Chaney, is advocating gives all assets to Lillian Hunt Chaney. It is of the utmost importance for the Court to understand that the daughter of Mr. Chaney, Ann Chaney, is no longer a minor and has not been one for a period of thirty years. The Appellant attempts to argue that Mr. Chaney did not fulfill his obligations under this property settlement agreement because he cannot show that he maintained health insurance on the daughter and due to the fact that there was a single contempt proceeding brought against Mr. Chaney. This position is quite absurd. First, it is undisputed that Mr. Chaney cured any contempt, or this proceeding would have been ongoing against him. If there had been a continued and ongoing failure of Mr. Chaney to meet his child support obligation, then Appellant, Lillian Hunt Chaney, would surely have brought additionally contempt proceedings. She did not. If the daughter of Mr. Chaney had not received all of her support payments, she could have legally maintained an action against Mr. Chaney up until the time of his death as a child support obligation never goes away. She did not. The only evidence that the agreement was not fulfilled is the unsubstantiated allegation of Appellant, Lillian Hunt Chaney, that health insurance was not maintained on the daughter. In support of this position, they point to the testimony of Appellee, Josephine Chaney, which stated she did not know if health insurance was maintained. This is not evidence of failure to maintain health insurance. This is only evidence of what Josephine Chaney knows. Further, it should be noted that Appellant, Lillian Hunt Chaney, never brought any additional contempt proceedings on this issue. It is clear that Mr. Chaney fulfilled the terms of this settlement agreement. 18

19 Finally, there is a huge factual distinction between the instant proceeding and the Hinders case. In Hinders the property in question was not specifically addressed in the property settlement agreement. In Hinders, the Mississippi Supreme Court wrote: We certainly take note of the existence of the aforementioned paragraphs 16, 17, and 20 in the property agreement of John and Joy, which paragraphs are utilized by the heirs-at-law to opine that John intended through the property agreement to revoke any will or other writing which might contain provisions inconsistent with the property agreement. However, we must remember that in Rasco, there was similar language in the Rascos' property agreement. Again, in Rasco, we looked not only at the will and property agreement but we looked also beyond these documents to consider the facts and circumstances of the case and the conduct of the parties. We find further language in Rasco compelling here: This Court notes that any document presented as a subsequent declaration must reveal by clear and unequivocal evidence, an intention to revoke the will. Matter of Will of Palmer, 359 So.2d 752 (Miss. 1978); McCormack v. Warren, 228 Miss. 617, 89 So.2d 702 (1956). Proof of intent or reference to the prior testamentary instrument is simply not present in the divorce decree or property settlement agreement. Furthermore, this Court notes that properties devised under the will fail to correspond to those listed in the property settlement agreement. 501 So.2d at 424. As in Rasco, in the case before us today there is absent proof of intent on John's part to revoke his pre-divorce will, and there are no references to John's will or Joy's will in the divorce decree or the property agreement. Likewise, as in Rasco, the properties devised or bequeathed under the wills of John and Joy "fail to correspond to those in the property settlement agreement." John's heirs-at-law were required to show, by clear and unequivocal evidence that John intended to revoke his 1993 will. The chancery court found, after consideration of the terms of the will, the property settlement, and the conduct of the parties, that the heirs-atlaw had failed in this burden. Hinders at Unlike Hinders and Rasco, the settlement agreement that is the subject of this appeal specifically addresses the property that is the sole asset of the Estate of Mr. James Chaney. Additionally, the Appellant, Lillian Hunt Chaney, in this settlement agreement disavows any and all rights or interest to the property that is in this estate. As such, the facts clearly show that Mr. James Chaney had no intention of Lillian Hunt Chaney gaining any interest in the subject farm. The opposite is true. Further, Lillian Hunt 19

20 Chaney agreed and consented to this arrangement, for which she received specific good and valuable consideration. The sole purpose of this appeal is for Lillian Hunt Chaney, some forty years later, to renege on the agreed upon bargain that she had with the departed Mr. Chaney. E. The DeSoto County Chancery Court Did Not Err in Ruling the Purported Last Will and Testament was Revoked by Implication In her brief the Appellant, Lillian Hunt Chaney, asserts that the purported last will and testament cannot be revoked by implication because there is no evidence that James Chaney, Jr. meant to intentionally revoke the will. Black s Law Dictionary, Sixth Ed. defines implication as: Intendment or inference, as distinguished from the actual expression of a thing in words. In a will, an estate may pass by mere implication, without any express words to direct its course. (p. 754). Further, Black s Law Dictionary, Sixth Ed., defines intentionally as: To do something purposely, and not accidentally. State v. Marshall, 15 Ohio App.2d 187, 239 N.E.2d 755, 758. Person acts intentionally if he desires to cause consequences of his act or he believes consequences are substantially certain to result. State v. Bright, 78 App. 239, 337 S.E.2d 87, 89. The Appellant s argument is inherently flawed given its underlying inconsistency. Lillian Hunt Chaney is trying to create a Catch-22-like situation wherein it would be impossible to ever revoke a will by implication in the State of Mississippi. In essence, she is begging this Honorable Court to change the standard to revocation by intentional act only. Much to the Appellant s chagrin, this honorable Court has clearly recognized revocation of a will by implication. Mississippi Courts have recognized that there have been situations following a divorce where a will can be revoked by implication. Hinders at 1239 (Miss. 2002) citing Rasco at 423 (Miss. 1987). When addressing the issue of implied revocation, the Court s decision in Rasco presents three requirements for a finding of implied revocation: (1) a divorce; (2) a property 20

21 settlement agreement; and (3) a fulfillment of the terms of the property settlement agreement. Rasco, 501 So.2d at The Rasco Court went on to say that implied revocation is clear especially where the parties sever all ties. Id. The Executrix, Lillian Hunt Chaney, states that the property settlement agreement did not revoke her interest in the property under the purported will. However, the terms of the property settlement agreement explicitly state that she is relinquishing her dower interest. According to Black's Law Dictionary, 8 th ed., dower is defined as: At common law, a wife's right, upon her husband's death, to a life estate in one-third of the land that he owned in fee. Since this release contains this dower language, it is clear that the parties to the property settlement agreement agreed that Lillian Hunt Chaney would not have any survivorship interest in the real property located in Crockett County, Tennessee. By the terms of this agreement, Lillian Hunt Chancy relinquished any interest in this property that she might have had both during and after the life of James J. Chaney, Jr. Lillian Hunt Chaney is seeking to undo, some 45 years later, the terms of a bargained for agreement that she entered into She does not have any interest in this property. She has relinquished her right to take any interest in this property from James Chaney. Since she is the sole beneficiary under the purported will, she cannot take this property. As such, the property must go to the intestate Estate of James J. Chaney, Jr. As detailed above, the Chancery Court of DeSoto County clearly applied the Rasco factors and appropriately determined that the purported last will and testament was impliedly revoked under Mississippi law. Further, the Chancery Court of DeSoto County specifically held that the subject will was impliedly revoked by the specific facts of this case. The property settlement agreement in question clearly refers to the real property that is the subject of this 21

22 proceeding. And, the individual seeking now to take this property explicitly disavowed any and all interest in this property some forty years prior to the death of Mr. James Chaney. F. THE WILL WAS LEGALLY REVOKED, NO ADDITIONAL EVIDENCE IS NEEDED The Appellant asserts that since there is no document that intentionally revokes the purported last will and testament of James J. Chaney, Jr. the will is still valid. As such, she, and she alone, is entitled to the farm in Crockett County, Tennessee. The Appellee s position is that this argument misses the point of the standard and attempt to change the standard. It is difficult to understand how intent has to be shown for an act that is done by implication. However, notwithstanding the logical inconsistencies, it is clear under the facts of this case that James J. Chaney, Jr. did intend to revoke this will and that this will was indeed revoked by James J. Chaney, Jr. Lillian Hunt Chaney and James J. Chaney, Jr. were divorced in the State of Tennessee in Lillian Hunt Chaney resided in the State of Tennessee since the divorce, and continues to reside in the State of Tennessee. James J. Chaney, Jr. resided in the State of Tennessee from the date of his divorce until Tenn Code Annotated reads as follows: Sec Revocation by divorce or annulment (a) If after executing a will a testator is divorce or the testator s marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise. (b) Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent by Sec shall not apply. Other provisions conferring power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. (c) If provisions are revoked solely by this section, they are revived by the testator s 22

23 remarriage to the former spouse. (d) For purposes of this section, divorce or annulment means any divorce or annulment that would exclude the spouse as a surviving spouse within the meaning of Sec (b). A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section. (e) No change of circumstances other than as described in this and Sec revokes a will. Under this Tennessee statute it is clear that this 1962 will was revoked upon the divorce of James and Lillian Chaney in This 1962 will leaves everything to Lillian Chaney and under Tennessee law, as an ex-spouse, she cannot take under the will. The above-referenced Tennessee statute clearly shows an intent and actual revocation of this purported will of James J. Chaney, Jr. Under Tennessee law, this purported will was revoked between the years 1969 and 2006, the time in which James J. Chaney, Jr. resided in the State of Tennessee. As a citizen of Tennessee, Mr. Chaney did not have to take any affirmative step to revoke this purported will. The State of Tennessee had already revoked it for him. The mere fact that almost 40 years later Mr. Chaney crosses the state line and moves into Mississippi does not revive a revoked will. Simply put, if Mr. Chaney had been residing in Tennessee at the time of his death, Lillian Hunt Chaney would have no standing to proceed on this purported will. In fact, the law of the State of Mississippi states that this will has been revoked. In 1982, the Mississippi Supreme Court wrote: See generally T. Atkinson, Handbook of the Law of Wills 92 (2d ed. 1953) (revival by revocation of a latter will operates to revive former will in some jurisdictions). In Bohanon v. Walcot, 1 How. (2 Miss) 336 (1836) the Court stated: A will is ambulatory, and has no effect, until the death of the testator. If he lets it stand until his death, it is his will, but if revoked, it cannot be. But when revoked, it cannot be considered as having either a present or a potential existence, and must require some express and direct act of the testator, which, in fact, does not revive the defunct will, but adopts it as the present will of the testator, and it is to be regarded as a new testamentary act of the party. To this effect is the text in Roper on Wills, 23

24 2S, and the decision in Burtenshaw v. Gilbert, 1 Cowp. Rep. 49; Powell on Devises, 551. It is expressly said in 7 Johns.Chan. Rep. 270, that where a will has been revoked, either expressly or impliedly, it is gone forever. [Emphasis added.] Deposit Guar. Nat. Bank v. Cotten, 420 So.2d 242, , (Miss. 1982). For over 150 years the State of Mississippi has held that once a will is revoked it is revoked, and gone, forever. In this case, this purported will was clearly revoked while Mr. James Chaney lived in Tennessee. As such, it was revoked forever. As much as the Appellants wish for it to be revived by Mr. Chaney moving into the State of Mississippi, this is not the law in Mississippi. Under the law, this revoked will did not have any present or potential existence. Mississippi law requires some express and direct act of the testator to revive this will. There is simply no evidence that this happened in this case. Simply put, the purported last will and testament of Mr. James Chaney is not revoked by implication. It is a revoked will. 24

25 VIII. CONCLUSION The only argument the Appellant puts forward in its Appeal is that the will is not revoked because the Appellee cannot point to a document that clearly and unequivocally revokes the purported last will and testament that is the subject of this Appeal. However, this sole argument is not the holding in Hinders, which states: It must be revealed by "clear and unequivocal" evidence the testator's intention to revoke the prior will by "[l]ooking to the facts and circumstances of [the particular] case, the terms of the will itself, the divorce decree and the property settlement, and the conduct of the parties." Rasco, 501 So.2d at 424. [Emphasis added.] Hinders at Contrary to what the Appellants argue there is not the requirement of a document. The holding clearly states that the intent to revoke can be derived out of the facts and circumstances of [the particular] case. This matter needs to come to an end. As such, this Court should look at this matter for exactly what it is. This is not a case of a will that was not revoked. This is a matter of a spurned individual opportunistically using an ancient document. This same individual now seeks to use this ancient document for the purpose of reneging on her past agreements and to her personal advantage. She is seeking to take this property not only from the widow of Mr. James Chaney, but also from her own daughter, the two lawful heirs of the decedent. As such, it would be unconscionable for this Court to send this matter back to be subject to a will contest, as the Appellants argue in the alternative. Further, it should be noted that they not only seek a will contest, but they are seeking such will contest to be decided by a jury. With this in mind, the Appellee implores this Court to enter an Order which would bring this matter to an end in the name of judicial economy. 25

26 The facts of this case are quite simple. This matter involves a purported will that has been expressly revoked in Tennessee and impliedly revoked in Mississippi. Mr. Chaney has been dead for almost five years. This matter has been litigated for a period of over four years. This matter should come to an end. With all of the aforementioned arguments in mind, this appeal is not well-taken. This Court should affirm the ruling of the DeSoto County Chancery Court on this matter. Given the bad faith of the Appellant s position, the Appellee asks that this Court allow her to file a motion for fees and costs incurred in the filing of this brief. Respectfully submitted, /s/daniel Owen Lofton Daniel Owen Lofton MS Bar# Attorney for Appellee, Josephine Chaney The Law Office of Craig & Lofton, P.C Poplar Ave., Suite 210 Memphis, TN OFFICE: (901) FAX: (901)

27 CERTIFICATE OF SERVICE I, Daniel Lofton, do hereby certify that on this day I electronically filed the foregoing document with the Clerk of the Court using the MEC system which sent said filing to Appellant s counsel via registered address, and a true and correct copy of the Appellee s brief was mailed to Honorable Mitchell Lundy at PO Drawer 471, Grenada, MS on this the 20 th day of July, /s/daniel Lofton Daniel Lofton 27