IN THE SUPREME COURT OF THE STATE OF MISSISSIPJ APPEAL NO CA BRIEF OF APPELLANT

Transcription

1 COpy (:.... IN THE SUPREME COURT OF THE STATE OF MISSISSIPJ APPEAL NO CA FILED NOV orne. 0' t". Cleric Sup... Court COUrt 0' App.. IN THE MATTER OF THE ESTATE OF ARTIS mgh, DECEASED, ARBELLA mgh WATT, APPELLANT, VS. GRACIE COBB, JOE mgh AND DAVID mgh, APPELLEES. BRIEF OF APPELLANT APPEAL FROM THE CHANCERY COURT OF PONTOTOC COUNTY, MISSISSIPPI ~-.\..,,:O' NO ORAL ARGUMENT IS REQUESTED LUCIUS EDWARDS, BAR NO ATTORNEY AT LAW DRAWER 313, HERNANDO, MS (TELEFAX) ATTORNEY FOR APPELLANT

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI APPEAL NO CA IN THE MATTER OF THE ESTATE OF ARTIS IDGH, DECEASED, ARBELLA HIGH WATT, APPELLANT, VS. GRACIE COBB, JOE HIGH AND DAVID HIGH. 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 judges of this Court may evaluate possible disqualifications or recusal: Lucins Edwards, Attorney for AppellantlProponent, Arhella Watt Gene Barton, Previous Attorney for Appellees Herein Sidra P. Winter, Attorney for Appellees David High, Appellee Joe High, Appellee Arhella High Watt, Appellant SO CERTIFIED TIllS THE 12 m DAY OF NOVEMBER, ~#~ LUCIUS EDWARDS, NO DRAWER 313, HERNANDO, MS AND (FAX) ATTORNEY FOR APPELLANT

3 TABLE OF CONTENTS Table of Cases 2a Statement of the Issues 3 Statement of the Case 4 Summary of the Argument 5 Statement of the Facts 6-9 Argument 9-17 Conclusion Certificate of Service 19 -tl-

4 -~~-~- TABLE OF CASES Aetna Cas. & Sur. v. Berry, 669 S02 56 (Miss. 1996) Belt v. Adams, 87 So. 666 (Miss. 1921) Bolton, et al v. Barnett, et ai, 95 So. 721 (Miss. 1923) City of Jackson v. Sutton, 797 S02d 977 (Miss. 2001) Darby v. Arrington, 194 Ms. 91 (1855) East Mississippi State Hospital v. Adams, 947 So2d 887 (Miss. 2007) Estate of Torian, 321 S02d 287 (Miss. 1975) Gilmore v. Gilmore, 110 So. 111 (Miss. 1926) Heard, et al v. Drennen, 46 So. 243 (MIss. 1908) Howard v. City of Biloxi, 943 So2d 751 (Miss. 2006) Mazza v. Mazza, 154 U.S. App. D.C. 274, 475 Fld.385 (1973) McClellan, et al v. Owens, 74 Southwester 2d 570 (MOo 1961) MS Credit Center, Inc. V. Horton, 926 So2d 167 (Miss. 2006) Price v. Purdue Pharma Co., 920 S02d 479 (Miss. 2006) Richmond v. Benchmark Const. Corp., 692 S02d. 60, (Miss. 1997) Varvaris v. Varvaris, 477 S02d 273 (Miss. 1985) Waitzan v. Davis, 507 So2d 24 (Miss. 1987) Wall v. Wall, 30 Ms. 91 (Miss. 1855) Woodville v. Pizzati, 81 So. 127 (Miss. 1919) Yates v. Jeans, 345 Southwestern 2d 675 (Mo Miss. Code Seetion Miss. Code Seetion , , ,13,14 15 Missouri Code Seetion "-- 14,15

5 IN TIIE SUPREME COURT OF TIIE STATE OF MISSISSIPPI APPEAL NO CA IN TIIE MATTER OF TIIE ESTATE OF ARTIS mgh, DECEASED, ARBELLA mgh WATT, APPELLANT, VS. GRACIE COBB, JOE mgh AND DAVID mgr, APPELLEES. STATEMENT OF THE ISSUES 1. TIIAT TIIE TRIAL COURT ERRED IN GRANTING CONTESTANTS' MOTION FOR SUMMARY JUD9MENT AND RULE 12(B) MOTION TO DISMISS. 2. WHETIIER A COPY OF A LOST WILL DISPOSING OF PROPERTY LOCATED IN MISSISSIPPI, BUT MADE AND EXECUTED IN ANOTIIER STATE, CAN BE ADMITTED TO PROBATE IN MISSISSIPPI. 3. TIIAT TIIE COURT ERRED IN FAILING TO AWARD JURY TRIAL ON FACT ISSUES AS REQUESTED BY PROPONENTS. -3-

6 STATEMENT OF THE CASE This is an appeal from the April 11, 2008 Final Order of the Chancery Court of Pontotoc County, Mississippi, the Honorable Jacquelyn Masks, denying proponents' Motion for Reconsideration of its Order of March 31, 2008 granting contestants' Rule 12 (b) Motion for Dismissal of proponents' Petition to Admit Will to Probate.

7 SUMMARY OF THE ARGUMENT The Chancery Court erred in granting contestants' Rule 12 (b) motion to dismiss proponent Arbella Watt's petition to admit the will of the testator herein, Artis High, to probate because the Court erroneously determined that decedent's domicile at death was the controlling issue in this case and erroneously determined that Missouri was the decedent's place of residence at death and that, therefore, Missouri's statute imposing a one year limitation on probate ofwills presented for probate there after death of the testator would bar probate of decedent's will in Mississippi Courts with respect to property located in Mississippi. The Court also erred in determining that Mississippi's Foreign Will statute, , makes a distinction between the originals of foreign wills presented for probate here and copies of lost foreign wills presented for probate, and does not allow for probate of lost copies of originals here. The Court further erred in over-ruling proponent Watt's motion to dismiss contestants' Rule 12(b) motion raising the affirmative defense of the Missouri statute of limitations for failure of contestants' counsel to timely and reasonably pursue the defense, and erred further in granting contestants' motion for summary judgment because of the many contested controlling material issues of fact made clear by proponent's response to contestants' motion for summary judgment, and contestants failure to attach any affidavits, copies of pleadings or material to their naked unsworn motion. Insofar as decedent's residence at death is a controlling issue in this case, the Court committed error in denying proponent's many written demands for jury trial on the controlling fact issues, and over-ruling her motion objecting to bench trial on fact issues. -5-

8 STATEMENT OF THE FACTS The testator herein, Artis High, died on April 4, 2003 in Pontotoc County, Mississippi after his move there from his previous home in St. Louis approximately two years prior to his death (R.E., pp.13, and 141). He left a will, made and executed in st. Louis, dated August 14, 1987, a copy of which proponent Arbella HighWatt submitted for probate in the Pontotoc County, Chancery Court under petition filed on or about July 15, 2005, along with the sworn affidavits of the attesting witnesses, indicating proper execution (RE., pp ). At the testator's death, the estate under the will consisted exclusively of property located in Mississippi-an undivided interest in his father's real estate located in Pontotoc County, certificates of deposits in local banks and an annuity with State Farm Insurance Company through a local bank (R.E. p.13, pp and ). Proponent alleges in her sworn petition that the original copy of the will was lost and not purposely destroyed by the decedent, and requested jury trial for factual issues on the face of her Answer to contestant's pleadings and by separate pleading filed with her Answer to contestants' pleadings on July 21,2006 (RE. pp. 61 and 64). Proponent also alleged in the petition and in her affidavit attached to her Response to Contestants' Summary Judgment and Rule 12(b) Motion to Dismiss that the testator was an adult resident citizen of Pontotoc County, Mississippi at the time of his death (RE., p 13 and pp ). The contestants contested this allegation in one or their responsive pleadings, but did not attach any copies of pleadings or affidavits denying that allegation to their Motion for Snmmary Judgment and Motion for Dismissal Under Rule 12 (b). In fact, no attachments at all were made to the motion (R.E., pp ). Contestants have filed various pleadings to contest the will. A MotionIPetition for Removal of proponent Arbella High Watt was filed by her niece, contestant Gracie Cobb, on July 25, 2005 (RE. p. 30), who also filed an Answer to proponent's petition for probate on December -~-

9 13,2005, wherein she denied all allegations of the petition, objected to admission of the will to probate and affinnatively raised a Missouri statute which she felt would bar probate of the referenced will in Mississippi courts, since the will, she contends, was a foreign Missouri will required by Missouri law to be presented for probate within one year of the decedent's death (RE. pp ). Another Complaint Contesting Will was filed by Arbella Watt High's nephews, David and Joe High, on March 14, 2006, wherein they allege forgery of the will, lack of testamentary capacity on the part of the decedent, undue influence over decedent and, although not affinnatively plead, the Missouri statute as a bar (R.E. pp ). All separate actions filed herein, including a previous petition filed by proponent's previous attorney of which proponents' present attorney was unaware upon entry into the case, were consolidated by the Chancery Court for disposal. The parties engaged in extensive discovery over the next several months (R.E. pp. 1 -I2),and the consolidated matters were set for jury trial on October 1,2007 by the Court under Order dated July 31, 2007 (R.E., p. 67). However, the contestants then filed a Motion for Dismissal Under Rule 12(b) and for Summary Judgment on August 8, 2007, contending that the Missouri statute should apply to bar probate of the will and that, assuming not, that proponent could not overcome the presumption imposed by Mississippi law that a lost will was destroyed, and could not show proper execution and testamentary capacity, all fact issues (R.E., p. 68). Contestants made no efforts to pursue their affinnative defenses prior to this motion. Proponent filed her Answer and Memorandum Response to the motions on September 5, 2007 and October 31, 2007 (RE., pp ), respectively, and, pursuant to the Court's order of November 28, 2007, a supplemental brief was filed by proponent on December 26, Contestants filed no supplemental brief. After review of the briefs, the Court then issued its order of February 6, 2008 directing hearing on contestants' motion for dismissal under Rule 12 (b), reasoning that a hearing on the decedent's residence at the time of death was necessary for ruling on the motions - 7-

10 (R.E., p. 115). Because the Court's latest order for hearing called for a bench trial on matters for which proponent Watt had filed two prior requests for jury trial, the proponent filed on March 3, 2008 a Renewed Request/Demand for Jury Trial on Factual Matters and Objection to Bench Trial on Factual Matters, which was heard by the Court prior to evidentiary hearing on March 7, 2008 (R.E., p and ). The proponent also moved for dismissal of the contestants' motions on the grounds that contestants' lack of pursuit of the affirmative defenses constituted a waiver, and, in addition, moved to correct an "agreed order," unilaterally presented to the Chancellor by contestants' counsel erroneously indicating that proponent's counsel had agreed to the bench hearing (R.E. pp ). The Court, nevertheless, reserved ruling on proponent's motions and ordered that the evidentiary hearing proceed. After hearing on the limited issue of decedent's residence at the time of his death, the Court issued its memorandum order of March 31, 2008 finding that the decedent was a Missouri resident at the time of his death and, therefore, his will of August 14, 1987 was a "foreign wil!," that the will presented by proponent Watt was an unauthenticated copy of the original and had not been presented for probate in Missouri, and that the Mississippi foreign will statute does not provide for admission to probate oflost copies offoreign wills not authenticated by courts of the foreign state where made (R.E., pp ). In her responses to contestants' motions, proponent, in addition, contended that Missouri law has no application to this case; that Mississippi law applies in the case because the decedent was domiciled in Mississippi at the time of his death and the will disposes of property located in Mississippi, and does not dispose of any property in the state of Missouri (for that reason, the will was never presented for probate in Missouri); that the state of Mississippi has the more "substantial interest" in the case since all parties affected by probate reside in Mississippi and none reside in Missouri; that - s-

11 all assets left under the will are situated in Pontotoc County; and most importantly, that Mississippi's "foreign will" statute, which makes no distinction between original copies of "foreign wills" presented for probate here and copies oflost "foreign wills,"confers jurisdiction in Mississippi courts over the will since it disposes of property located in Mississippi, without regard to the testator's domicile at death and the place of execution. The proponents further contend that, insofar as contestants disagree with the fact allegations made by proponents' sworn pleadings and affidavits, there are issues of material fact to be resolved by the finder offacts and, accordingly, contestants' motions should have been denied. ARGUMENT Contestants' Failure to Pursue Affirmative Matters Constitute Waiyer Contestants have raised Missouri statute as an affirmative defense, which according to the contestants, would bar probate of the will in Mississippi courts since the will was not presented for probate in Mississippi within one year of decedent's death. They erroneously claim that the Missouri statute would apply because, in their view, decedent was a Missouri resident at his death (R.E., pp and pp ). With respect to affirmative defenses, Rule 8 (c) of the Mississippi Rules of Civil Procedure reads in relevant part that... a party shah set forth affirmatively... [the] statute of limitations..." However, this court has also required that the defenses be pursued within a reasonable time. In East Mississippi State Hospital v. Adams, 947 So. 2d 887 (Miss. 2007), the defendants filed a motion to dismiss and, alternatively, for summary judgment, challenging sufficiency of process, which was raised affirmatively in their answer filed two years earlier. The Court found that the defendants had, in the meantime, participated in substantial discovery "in the form of interrogatories, production requests, depositions, scheduling orders and trial date orders," all occurring from the date

12 the complaint was filed. The Court cited Mississippi Credit Center, Inc. v. Horton, 926 So.2d. 167 (Miss. 2006) in overruling the motion. In Horton, this Court has stated that "a defendant's failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver." In both cases, the court deemed two years delay unreasonable and, therefore, a waiver. Here proponent Arbella Watt filed her petition to probate on July 15,2005 (RE., P 13) and responsive pleadings were filed by the contestants on July 25, 2005, December 13, 2005 and March 14, 2006 by the same attorney (RE., pp. 30, 37, and 49). The matter was first set for trial on the merits on July 31, 2007 (R.E., p. 67), but the contestants did not file their Rule 12 (b) motion and Motion for Summary Judgment until August 8, 2007 (R.E., P 68). In the meantime, contestants engaged in extensive discovery and filed numerous other pleadings. Their affirmative defense raising the Missouri statute of limitations was not timely and reasonably pursued and, therefore, the contestants' Rule 12 (b) and summary judgment motions should have been dismissed by the Chancellor insofar as it relates to the statute. Basis for Mississip'pi Jurisdietion and Application of MississiPpi Law Mississippi law provides an option for the probate of "foreign wills" disposing of property in this state. With respect to "foreign wills," Mississippi Code Section reads as follows: Authenticated copies of wills proven according to the laws of any of the states of the union... and affecting and disposing of property within this state, may be admitted to probate in the proper court. Such will may be contested as the original might have been if it had been executed in this state, or the original will may be proven and admitted to reeord here. That portion of the statute allowing for initial probate of foreign wills here makes -/0-

13 no distinction between the original of the foreign will and copies of the original. Furthermore, for over one hundred years since the adoption of the above-referenced statute, the Mississippi Supreme Court has continually and consistently interpreted the statute to require that, in probate of wills disposing of property in this state, Mississippi law apply, regardless of the testator's domicile and the place of execution of the will, either in the first instance or as an ancillary probate. That necessarily includes Mississippi law with respect to admission of copies of lost wills to probate, which is allowed under Mississippi law under certain clearly defined factual circumstances. Therefore, Missouri's statute of limitations, even if properly raised and pursued, would not apply in this case. In the seminal case of Heard, et al v. Drennen, 46 So. 243 (Miss.l908), interpreting this statute, then Section 2006 of Mississippi Code 1906, an important issue was whether, in an ancillary probate proceeding in Mississippi, where an authenticated copy of the will was presented, the Mississippi Court should appoint executors named under the foreign will, when such named executors were barred under the laws of the domicile state during probate there. To this the Court Stated that the will was to be treated as an original will, "and all the rights to be derived through it must be derived from its terms administered according to the law of Mississippi as far as it affects property situated in this state. Following and in accord with Heard were: Woodville v. Pizzati, 81 So. 127 (Miss.1919) (where Mississippi substautive and procedura1law was applied without regard to the character of the property); and Belt v. Adams, 87 So. 666 (Miss. 1921), (Mississippi law would apply in probate of wills affecting property in the state, including Mississippi's statute of limitatioos, and "in this state, there is no statute limiting the time in which a will may be probated)." Also in accord was Bolton et ai v. Barnett, et ai, 95 So. 721 (Miss. 1923), where the issue was whether the Mississippi chancery court during probate of decedent's will in Mississippi regarding property located in the state was obligated to follow the law of the testatrix's domicile, the state of -/1-

14 Tennessee, in disallowing her husband to renounce the will. The Court stated that the will may be probated here in the first instance in the county where the property is located, without regard to probate in another state, that probate here is independent of all other administrations and is to be conducted in au respects as if the decedent had been a citizen of this state when she died. The court refused to follow Tennessee law with regard to renunciation, and said that [in Mississippi], "the husband has the right to renounce the will of his wife and take a child's part of the estate...," though the domicile of the testatrix was in a foreign state, under which law the right of renunciation was not given to him. The Court said further that since the will may be probated in Mississippi, "it fouows as a matter of right and justice" that the husband could renounce in accordance with the Mississippi statute on renunciation (emphasis supplied). The Court in Bolton also found it persuasive that the bulk of decedent's estate was located in Prentiss County, Mississippi, with the exception of a home in Memphis, her domicile, and "some little personal property." Another noted old line case following the reasoning set forth in Beard, supra, and its progeny is Gilmore v. Gilmore, 110 So. III (Miss. 1926). Here, also a will was executed in a foreign state, Louisiana, and the testator was domiciled there. The Mississippi court still concluded that Mississippi had jurisdiction to probate a will disposing of property in Mississippi in the first instance, and that Mississippi law applies in au respects, notwithstanding that the will was previously probated in Louisiana where the testator also had property. Two more recent cases following the Beard reasoning is Estate of Torian, 321 So. 2d 287 (Miss. 1975), (where although the testatrix was domiciled in West Memphis, Arkansas and was a resident of that state at the time her will and codicil were executed, the Mississippi chancery court's decision applying Mississippi's laws with respect to what estate proceeds were first subject to payment of claims over the laws of Arkansas insofar as property located in Mississippi was concerned, was upheld by the Supreme

15 Court.), and Waitzman v. Davis, 507 So.2d 24 (Miss. 1987), where the court again cited the Foreign Will Statute, Mississippi Code Section , and the Woodville case, supra, as authority for admittance of a foreign will to probate here disposing of property in the state and application of Mississippi law, in this instance construing our statutes distinguishing personal and real property, which were not in accord with laws of the domicile state. Its important to note too that, In Torian, supra, the Court also resorted to the "interest analysis approach," used in the District of Columbia case, Mazza v. Mazza, 154 U.S. App. D.C. 274, 475 F.2d 385 (1973). in arriving at its decision, finding that the forum state, Mississippi, and not the domiciliary state, Arkansas, had the "greater substantial interest in the controversy." The Court reasoned that the bulk of the estate was in Mississippi and that all the parties affected by the will resided in Mississippi, while the only interest of the state of Arkansas was that it was the state of the testatrix's domicile at the time of her death. Contrary to the Chancellor's ruling in its March 31, 2008 order granting contestants' motion for dismissal, the decedent's residence at death, although improperly determined, is not a controlling issue in this case with respect to admission of the will to probate in Mississippi in light of Mississippi's foreign will statute. The pertinent inquiry under the statute is whether the will disposes of property within the state. If so, Mississippi courts have jurisdiction over disposal of such property, and having properly assumed jurisdiction, is to apply the law of this state with respect to all issues raised, including statutes of limitations. Lost Wills Contestants concede that Mississippi law allows for probate oflost wills under certain circumstances, which are alleged by the proponent Arbella Watt in her complaint (RE., p. 13) and in her affidavit to response to contestants' Motion for Summary Judgment (RE., pp ). It is clear that -/""3>-

16 Mississippi Code Section allows for probate of "foreign wills," and, according to the case law cited above interpreting the statute, the state shall apply its law with respect to probate of the will, regardless of the testator's domicile at death and place of execution, which necessarily also means courts shall apply state law relative to probate of lost wills. Although Missouri law should not apply in this case, it is significant that, insofar as the law there relative to lost wills is concerned, Missouri law is consistent with Mississippi law. See Subsection 2 (1) of Missouri Code Section , which provides in pertinent part that a will may be presented or delivered to the court upon a verified statement to such court "if the will of the decedent is lost, destroyed, suppressed or otherwise not available, setting forth the reasons such will is not available and setting forth the provisions of such will so far as known..." See Yates v. Jeans, 345 Southwest 2d 657 (Mo. 1961). Also see McClellan, et al v, Owens, 74 South Western 2d. 570 (Mo., 1934), (proponents of lost will have the burden of proving its due execution, its contents, and that it was lost and destroyed with no intent of testator to revoke it; where duly executed will remaining in the possession of the testator cannot be found after death, there is a rebuttable presumption that testator destroyed will with intent to revoke; and evidence that deceased's brother opened the safe where will was kept and destroyed will held competent to show that testator did not intentionally destroy it). The Missouri Statute Imposing One Year Limitation Although Mississippi law clearly applies fully with respect to administration of the estate herein as clearly shown, it is important also to note that the Missouri statute relied upon by contestants to bar probate of the will here provides important exceptions to its provision requiring that wills be presented for probate in its courts within one year of the testator's death. The relevant portions of that statute, Subsection 3 (3) of Missouri Code Section , -/~-

17 attached as "Exhibit A" to proponent's supplemental brief, reads as follows: ''No proof shall be taken of any will, nor a certificate of probate thereof issued, unless such will has been presented within the applicable time set forth as follows:.., in cases involving a will admitted to probate in any state..., other than this state, which was the decedent's domicile, at any time during the course of administration of decedent's domiciliary estate in such other state.. " This section clearly indicates that the will of a testator presumably domiciled in another state at death [Mississippi in this instance, as proponent claims], other than Missouri, may, even after the passage of one year or more, be admitted to probate if done so during the administration of the estate in the domiciliary state. Under this provision, assuming that the fact finder establishes that decedent was a Mississippi resident at death, as proponent claims, the one year statute, assuming it applicable here, would not operate as a bar to the administration of testator's will in Mississippi, or in Missouri for that matter. Proponents have maintained in their pleadings and affidavits that testator was a Mississippi domiciliary at death (RE., pp. 13, and 87-90), and the matter, therefore, is a contested material issue of fact for the jury insofar as his residence at death is a pertinent issue in the case. Jury Trial Rule 38 of the M.R.C.P. reads: "The right of trial by jury as declared by the Constitution or any statute of the State of Mississippi shan be preserved to the parties inviolate..." Mississippi Code Section provides that "...[a]t the request of either party to such proceeding [will contest], an issue shall be made up and tried by a jury as to whether or not the writing propounded be the will of the alleged testator." The Mississippi Supreme Court in Varvaris v. Varvaris, 477 So.2d 273 (Miss. 1985), citing Darby v. Arrington, 194 Miss. 123, 11 So.2d 220 (1942) and wan v. Wall, 30 Miss. 91 (1855), indicated that the Court has interpreted this Section to mean that the chancellor is required to empanel a jury upon proper request. -/5-

18 Proponent Watt filed three separate written requests for jury trial in this case: on the face of his Answer to Complaint Contesting Will filed on July 21,2006, by separate Notice also filed on July 21, 2006, and by Renewed Request/Demand for Jury Trial and Objection to Bench Trial filed on March 3, 2008, immediately after the Chancellor issued an order to set up a bench trial, which was argued before the Court at the beginning of the evidentiary hearing. Nevertheless, the Court disregarded the proponent's request and proceeded with the hearing over the proponent's objections (T., pp. 2-6). Summary Judgment Contestants filed a Motion for Summary Judgment with their Motion for Dismissal Under Rule 12 (b). No attachments were made to this motion; only unsworn allegations signed by contestants' attorney (R.E., pp ). However, proponent Watt in her response set forth an affidavit on personal knowledge swearing to the facts stated therein and the exhibit's attached thereto, all controverting facts asserted by proponents in their motion (RE., pp ). With respect to motions for summary judgment, Rule 56 provides in pertinent part that such motions should be granted only if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact..., and the evidence must be viewed in the light most favorable to the party against whom the motion has been made, the moving party has the burden of demonstrating that no genuine issue of material fact exists, and the non-moving party must be given the benefit of the doubt concerting the existence of a material fact. See Price v. Purdue Pharma Co. 920 So.2d 479, 483 (Miss. 2006), citing Aetna Cas. & Sur. Co. v. Berry, 669 So. 2d. 56, 70 (Miss. 1996). See also Howard v. City of BUoxi, 943 so. 2d 751, 754 (Miss. 2006), citing City of Jackson -1"-

19 v. Sutton, 797 So. 2d 977, 979 (Miss. 2001). "If the moving party's attachments to his motion set forth facts indicating the non-existence of material facts, the non-moving party must then set forth specific facts that demonstrate a genuine issue of material fact that merits trial..." Richmond v. Benchmark Construction Corp., 692 So.2d 60, 61 (Miss. 1997). Here the non-moving party proponent set for several facts indicating controverted material facts. The moving party in the meantime set forth no affidavits, pleadings, writing or discovery responses in support of its unsworn motion indicating that there were no contested facts in the case. Therefore, proponents Motion for Summary Judgment should also have been denied by the Chancellor. CONCLUSION The contestants' Rule 12(b) motion and motion for summary judgment should have been denied by the Court. The Court erroneously agreed with contestants that a Missouri statute imposing a one year limitation for probate of wills there after death of the testator applied in this case; improperly made a finding that the decedent was a Missouri resident at the time of his death by denying proponent's numerous written requests for jury trial on fact issues; erroneously concluded that, because of this finding, Missouri law applied; and committed further error by determining that Mississippi's foreign will statute, Mississippi Code Section , does not allow for probate of copies of lost original foreign wills under any circumstances, not withstanding that the will disposes of property located in Mississippi and that proponents can overcome Mississippi's presumptions with respect to lost wills. The Court committed further error by denying appellant Watt's motion to dismiss contestants' Rule 12(b) motion for failing to reasonably and timely pursue the Missouri statute of limitations -/7-

20 affirmative defense raised in one of their responsive pleadings, even though their motion was filed more than two years after it was plead and contestants participated in extensive discovery and numerous settings in the meantime. The appellant Watt bas shown by her affidavit and attachment in her Response to Motion for Summary Judgment and Rule 12 Motion that there are indeed genuine issues of material fact for resolution by the fact finder, including the fact of testator's residence to the extent that it matters, and bas shown that testator's estate consisted exclusively of property located in Mississippi. Mississippi Code Section , and the interpreting Mississippi cases, provides the controlling law with respect to admission of the testator's will to probate here, and under this statute, the will should have been admitted, subject to appellant Watt overcoming the presumptions with respect to loss wills imposed by Mississippi law. Therefore, the judgment of the Chancery Court should be reversed and judgment rendered by this Court for the appellant. -15-

21 CERTIFICATE OF SERVICE The undersigned attorney does hereby certify that a true and correct copy of the foregoing Brief of Appellant were forwarded by postage prepaid u.s. Mail to the following: The Hon. Jacqueline Estes Mask, Chancery Court Judge, P.O. Box 7395, Tupelo, MS 38802; Ms. Sidra P. Winter, attorney for appellee, 50 Liberty Street, P.O. Box 505, Pontotoc, Mississippi 38863; and Ms. Bettie Sephton, Supreme Court Clerk, P.O. Box 249, Jackson, MS This the 12th day of November, LUCIUS EDWARDS, NO. 5482