IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE NO CP SCT WALTER POOLE, JR APPELLANT /PLAINTIFF VS.

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1 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI ORIGINA.L CASE NO CP SCT WALTER POOLE, JR APPELLANT /PLAINTIFF VS. WILLIAM H. WAL TON APPELLEE/DEFENDANT FILED OCT 14. OFFICE: OF THE: CLERK SUPREME COURT COURT 0, APPEALS APPEAL FROM THE CHANCERY COURT OF THE LOWNDES COUNTY, MISSISSIPPI APPELLANT'S OPENING BRIEF ORAL ARGUMENT IS NOT REQUESTED BY:&~M alter PooieJr Dickerson Road Steens, MS Appellant Pro Se ~~--,~, ~...,.,.,_.,,.!-'~ jj 1il L"" ;~~ ~ OCT r; i,i t::c)

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE NO CP SCT WALTER POOLE, JR APPELLANT /PLAINTIFF VS. WILLIAM H. WALTON APPELLEE/DEFENDANT APPEAL FROM THE CHANCERY COURT OF THE LOWNDES COUNTY, MISSISSIPPI APPELLANT'S OPENING BRIEF I. CERTIFICATE OF INTERESTED PERSONS The undersigned Appellant 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 possible disqualification or recusal. Walter Poole, Jr, Appellant Joyce I. Chiles, Attorney for Appellee Honorable Dorothy M. Colom, Chancery Court Judge DA TED this _ day of September, 2015 Walter Poole, Jr Dickerson Road Steens, MS Appellant Pro Se 0

3 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE NO CP SCT WALTER POOLE, JR APPELLANT/PLAINTIFF vs. WILLIAM H. WAL TON APPELLEE/DEFENDANT APPEAL FROM THE CHANCERY COURT OF THE LOWNDES COUNTY, MISSISSIPPI II. STATEMENT REGARDING ORAL ARGUMENT Appellant hereby do not request oral argument in this case as it is asserted that the issues are not complex and should be decided upon the briefs and arguments. Appellant would assert that oral argument would not be helpful and beneficial to the Court since the record will fully demonstrate the issues. 1

4 CASE NO CP SCT WALTER POOLE, JR APPELLANT/PLAINTIFF VS. WILLIAM H. WALTON APPELLEE/DEFENDANT APPEAL FROM THE CHANCERY COURT OF THE LOWNDES COUNTY, MISSISSIPPI Ill. STATEMENT OF THE ISSUES Comes now the Appellant, Walter Poole, Jr., and would make this his Statement of the Issues to be considered on appeal when the Trial Court declared Walter Poole Jr. as being removed from Administrator of the Estate of Vera P. Walton 1. The Court Erred in Granting the Motion to Remove Walter Poole, Jr. as Administrator of the Estate of Vera P. Walton, Deceased. 2. The Order entered by the Chancery Court is unspecific and fails to adequately make a determination on the factual evidence presented at the hearing. 3. The Court Erred in Refusing to Hear and Consider Available Evidence Which Would Have Proven the Testator's True Intent as to the Disposition of Her Property upon Her Death. 4. The Court Erred in Refusing to Apply the Rules of Construction And/or Interpretation, Hear Extrinsic Evidence in Entering the Order Granting Petition 2

5 to remove Walter Poole, Jr. as Administrator of Estate, Which Was a Defacto Summary Judgment Entered in Favor of the Appellees. IV. STATEMENT OF THE CASE PROCEDURAL HISTORY Vera P. Walton died on July 7, Prior to her death she executed no Last Will and Testament leaving an estate consisting of a residential home located at Sand Road, Columbus, Mississippi 39701, Lowndes County, Mississippi. On April 19, 2011, the Lowndes County Chancery Court entered a Order Opening Estate, Appointing Appellee as Administrator and Granting Letters of Administration in Cause No Letters of Administration were issued on July 22, (C.P. Vol. 1, Page 95) V. STATEMENT OF FACTS The Appellant, Walter Poole, Jr., the brother of the deceased Vera P. Walton retained attorney Nicole Clinkscale of Columbus MS., to represent him in efforts to become administrator of the estate of his deceased sister and said property located-only in Lowndes County, Mississippi. Attorney Clinkscale was retained on and or about February 2011 and struggled in her efforts for approximately 16 months before finally succeeding, which allowed Mr. William Walton, Appellee time to plot the very crime that he is asking the Court to become part of. William Walton, J. Douglas Dalrymple and Jeff Surratt falsified the Deed between (2) two properties for self gain and in an attempt to take the home of the Appellant's deceased brother Oscar Poole, at the address of Sand Road, Lowndes County, Mississippi, which Appellant's sister used as a mailing address mainly for tax purposes for the aforementioned 3

6 property; to assure that her family would pay the taxes on the property in the event that something might happen to her. The property in question is documented in Lowndes County, Mississippi Parcel ID: 49W The Appellee William Walton, his attorney J Douglas Dalrymple and Jeff Surratt conspired and fabricated a Deed with full knowledge and intent to forge such document. The address used in the forged document is 1847 Sand Road, Greenwood, MS However, 1847 Sand Road, Columbus, MS is the address of Appellant's deceased brother Oscar Poole. which an eviction notice was placed on. The forged document Deed of trust shows the parcel ID: 49W as being located in Greenwood. MS 38930, where the I.D. belongs in Lowndes County. Mississippi. William Walton, J. Douglas Dalrymple and Jeff Surratt created (Deed of Trust) from Deed of Trust, which is in Greenwood, Mississippi, Leflore County. That property bears the parcel ID: and the physical address of 1555 County Road 525. Vera P. Walton and William H. Walton became Granters of said property on and about June 20, 2001, with Jeff Surratt being the trustee. The forged document is dated July 30, 2001, and for deceptive reasons pages seven (7) and eight (8) are missing. explains any inconsistencies in my prior statements. Appellant went to Attorney Tom Segrest's office for assistance in this matter Attorny Segrest provided Appellant with the fraudulent Deed of Trust document and advised that J. Douglas Dalrymple gave that document to him, to give to me, as proof that there was a lien on Parcel ID: 49WOOOOO 1801 belonging to Vera Mae Poole Walton. William Walton, Appellee in this case, along with J. Douglas Dalrymple, Attorney, and Jeff Surratt each had knowledge beforehand and caused the Appellant and his family money and hardships of great extents. 4

7 Honorable Dorothy M. Colom, Chancery Court Judge, entered an Order granting the the petition to remove Appellant as the administrator of the estate of Vera P. Walton. Being aggrieved of the Court's Order, the Appellant perfected his appeal to this Court. VI. SUMMARY OF ARGUMENT The Chancery Court of Lowndes County was manifestly wrong and erred in receiving extrinsic evidence which would have proven that the Appellee forged documents and committed fraud and that the Court granted an order removing Appellant as the Administrator on the basis of such false evidence. The Chancery Court of Lowndes County was manifestly wrong and erred in granting the Order terminating Appellant's Administrator Status. Therefore, the most compelling issue before the Court is to determine the clear intent of the Appellee in filing false and forged documents to secure the Order of the Court which removed Appellant as the Administrator of the estate. VII. ARGUMENT A. THE TESTAMENTARY INTENT IS CLEAR. The issue before the Court is to determine the intent of Vera P. Walton where the Last Will and Testament of Vera P. Walton have been withheld or destroyed by the opposing party. The fundamental duty of this Court is one of interpretation and determine the testator's true intent, and this is a matter of interpretation or construction. When a full and complete reading of the entire testamentary document, is unavailable or is incapable of showing the true intent of the decedent, a Chancellor may apply certain rules of construction to determine the intent of the 5

8 testator. The Supreme Court has used the terms "interpretation" and "construction" interchangeably, and the Supreme Court's guidelines in interpretation or construction of a testimonial document is re summarized in Robert A. Weems' Wills and Administration of Estates in Mississippi, Third Edition, 9: 11, which outlines the nineteen rules as follows: 2 1. The intention of the testator is controlling. 2. Courts cannot amend or reform a will, cannot add to or take from a Will, and cannot make a new one for the parties, but courts are concerned solely with the intent of the testator. 3. A Will must be construed according to the law of the state in which it is made, unless it is clear from the will itself that the testator intended that the law of another state should control. 4. Testator's intent must, if possible, be gathered from the entire Will, giving due consideration and weight to every word in it. 5. When the intent of the testator has been correctly ascertained all minor, subordinate, and technical rules of construction must yield to the paramount intent thus ascertained. 6. A Will must be construed in the light of circumstances surrounding the testator at the time the executed. 7. Effect should be given, if possible, to all words, clauses, and provisions of a Will. 8. A Will should be interpreted most favorably toward the beneficiaries appearing to be special objects to the testator's bounty. 9. A Will should be construed as to a doubtful provision in a manner favorable to testator's next of kin. 10. A Will is to be construed so as to avoid intestacy as to any of the testator's property if it can reasonably be done. 6

9 11. In absence of a clear intention to the contrary, a Will should be construed to achieve a just and reasonable disposition of the property in accordance with the laws of descent and distribution. 12. The first of two inconsistent provisions of a Will, being specific, controls over the second, which is general. 13 The latter of two clauses of a Will that are in irreconcilable conflict is the latest expression of intent and should prevail. 14 Charitable trusts are favored and should be enforced where possible. 15. Where there are two possible constructions of a Will, one of which will render a charitable gift valid, and the other of which will cause it to fail, the court will adopt the construction which will sustain the gift, absent manifest countervailing consideration. 16. Where a Will is susceptible to more than one construction, the one which will render it valid will be preferred. 17. The law favors the vesting of the estate at the earliest possible moment. 18. In the absence of a clear intent to the contrary, that construction should be adopted which will result in a just and reasonable disposition of the property. 19. Life tenancies are not favored. Vera P. Walton intended to leave her property, whether real or personal, to Walter Poole, Jr. Walton instructed in her as to the persons she wished to receive her property upon her death, and it was the duty of the Chancery Court to carry out that request. In granting relief against Walter Poole, Jr. in this instance, the Court failed to carry out the initial request and testimonial of Vera P. Walton. 7

10 It is fundamental that a Court must seek to determine and follow the intent of the testator. A Court may, to some extent, look beyond the four corners of the document to determine the testator's intent. In re Loeb's Will, 206 So. 2d 615, 617 (Miss. 1968) explained that effect must be given to the intention of the testatrix, if it can be determined. This is to be ascertained from the testamentary documents themselves, if possible, with the aid of the established rules of construction. In the case at bar, the Court can easily and clearly determine Vera P. Walton's intent by applying the rules of construction cited in the preceding paragraphs. Id. It is a well-settled canon for the construction of Wills that the Court will take into consideration the attending circumstances of the testator, the quantity and character of his estate, the state of his family, and all facts known to him which may reasonably be supposed to have influenced him in the disposition of his property. (citing Schlottman v. Hoffman, 73 Miss. 188, 199; 18 So. 893, 895 (1895)). Despite cases indicating that a Court may not reform an intent, it has been recognized that a Court may supply omitted words. Hemphill v. Mississippi State Highway Comm 'n, 245 Miss. 3 3, 42; 145 So. 2d 455, 459 ( 1962) explained that words omitted from a Will may be supplied, provided it is necessary to effectuate the testatrix's expressed intention. This principle of construction should be used with caution and is to be considered in the light of the converse rule, that a Court will not make or rewrite a Will under the guise of construction. Id. In Hemphill the Court construed the Will as having omitted the word "if", which was added so as to effectuate the testatrix' s intent. The question before this Court is one of first impression which has not been addressed by the Appellant Courts of Mississippi in addressing an omission of a gifting /legatee clause in a Last Will and Testament. However, by the Trial Court failing to hear testimony and receive 8

11 evidence as to the Testator's intent, such refusal resulted in defeating the testator's true intent as to how he wanted his property distributed upon his death. An examination of case law in other jurisdictions has revealed that Courts have supplied a missing name in some cases. In re Estate ofherceg, 193 Misc. 2d 201, 203; 747 N.Y.S.2d 901, 903 (Sur. Ct. 2002) the Court noted that it faced a conflict between two long-standing policies of the Law of Wills. One is the rule that the Court is not supposed to supply what the testator has not, through extrinsic evidence or otherwise. The other is that the primary objective of the Court is to ascertain the intention of the testator in order to avoid intestacy. According to the Court, in Herceg, by failing to consider extrinsic evidence would result in the residue passing by intestacy to the heirs at law rather than the decedent's designated beneficiary. On the other hand, the second line of precedent would lead to the conclusion that anything possible should be done to avoid intestacy and carry out the testator's intent. The New York Court noted that the law has started to move toward the principle of considering all available evidence, including any available extrinsic evidence, to effectuate the intent of the testator. (emphasis added) Property In Herceg, the Court quoted Tentative Draft No. 1 of the Restatement ofthe Law of (Donative Transfers) 12.1 : A donative document, thought unambiguous, may be reformed to conform the text to the donor's intention if the following are established by clear and convincing evidence: ( 1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and (2) what the donor's intention was. The court also quoted a journal article: There would be no restriction as to the kind of evidence that could be considered for this purpose; the oral statements of the testator and the attorney who drafted the instrument would be admissible. The theory of this approach is that the testator's intention is better 9

12 served and unjust enrichment of unintended legatees prevented, while the fraud-preventing purpose of the Statute of Wills is accomplished by requiring clear and convincing proof of the necessary elements. ( quoting Gibbs & Ordover. "Correcting Mistakes in Wills & Trusts", N.Y.L.J., 8/6/98, p. 3, col. 2.)\ In Herceg, the New York Surrogate Court stated, when addressing the same issue before this Court, that it was a significant step to say that not only can omitted language be added and the name of a beneficiary be corrected, but also that the name left out of the Will can be added to the provisions of the Will. Nevertheless, the Court concluded that it seemed logical to choose the path of considering all available evidence as recommended by the Restatement in order to achieve the dominant purpose of carrying out the testator's intent. Although not discussing the total absence of the name of a beneficiary, In re Estate of Beck, 272 Ill. App. 3d 31, 35; 649 N.E.2d 1011, 1014 (1995) explained that when there is a mistake in the name or description of a legatee or if a latent ambiguity exists as to the identity of a legatee, extrinsic evidence may be considered to determine the identity of the intended recipient. In re Tomlinson's Estate, 65 Ill. 2d 382, 388; 359 N.E.2d 109, 112 (1976) also explained that if there is a mistake in the name or description of the legatee, whether an individual or a corporation, or if a latent ambiguity exists as to the identity of the legatee, extrinsic evidence is admissible for the purpose of determining the identity of the intended recipient. ( citing inter alia Thompson, Construction and Interpretation of Wills 141 ( 1928) ). CONCLUSION The issue before the Court now is to determine Vera P. Walton true intent. At the time of the Testimonial, Vera was of sound mind. Vera Poole Walton did not authorize that any person be the administrator of her property except her siblings, which includes Walter Poole, 10

13 Jr. The Chancery Court was incorrect in deciding this case different and appointing William H. Walton as the Administrator of such property. It is clear that this issue before this Court appears to be one of first impression in Mississippi. No cases have been found in Mississippi where the name of the beneficiary was omitted. The Court must now decide whether or not it will allow a rule of construction to assist the Trial Court in its acknowledged duty to determine the truth and the testator's intent. When a decedent has made provision as to how he desires to dispose of his estate and makes a conscientious effort in recording, for posterity, such intention, then it is the solemn duty of the Court to exercise all diligent efforts in ascertaining such intent so as to honor the decedent's wishes. No doubt exists that Vera made such effort. This Court has the duty and, indeed, the power, through the use of extrinsic evidence, to ascertain Vera's intent and should do so in its search for truth. Appellant Walter Poole, Jr., asserts that this Court should reverse and remand this case to the Lowndes County Chancery Court with specific instructions to determine the clear intent of Vera P. Walton and to hear extrinsic evidence to determine the true intent of Vera P. Walton in the execution of testimonial. Respectfully submitted, this the day of October, Respectfully submitted, lt/81:b k~ alter Poole, Jr Dickerson Road Steens, MS CERTIFICATE OF SERVICE Appellant Pro Se 11

14 This is to certify that I, Walter Poole, Jr., have this date served a true and correct copy of the above and foregoing Brief for Appellant, by United States Postal Service, first class postage prepaid, upon: Hon. Joyce I. Chiles P. 0. Box 884 Itta Bena, MS This, the day of October, Respectfully submitted, alter Poole, Jr Dickerson Road Steens, MS Appellant Pro Se 12