In a recent case out of the Court of Appeals for the State of Mississippi, the Court held that a writing titled an “Article of Agreement” (the “Agreement”) was sufficient to convey an interest in real estate to the decedent’s sisters.[1] The primary issue to be decided by the Court was whether the Agreement executed by Mr. Johnson in front of a notary was a valid conveyance of an interest in real property to his sisters. The Chancery Court found that it was not, but the Court overturned the Chancery Court in finding that the writing was sufficient to convey an interest.
Shirley and Richard Flor were married and had four children, Gary (“Mr. Johnson”), Zoa Ann, Geraldine and Valeri. Both Shirley and Richard executed Wills during their life that left all of their property outright to each other, and then equally among the children, subject to Geraldine receiving $10,000 less due to a lifetime gift made to her. The Wills were mirror image. Richard died on August 9, 1996. Shortly thereafter, Shirley signed a warranty deed transferring certain real property (the “Property”) to Gary. While not clear from the record, it appears Shirley died a few weeks after that.
In December of 2002, Gary signed the Agreement which is at issue in the case. No other parties signed the Agreement. The Agreement read as follows:
Article Of Agreement
On August 22, 1986 my mother Shirley R Flor
executed a warranty deed with her son Gary W Johnson
transferring the following property.
Lots No. 11, 12, 13 of Lenzi Farms Subdivision of section 22,
township 2 south 6 west, according to plot of said subdivision
recorded In plot no. 678b of the records of the chancery court of
Marshall County, MS
All three lots are under separate warranty deeds and I, Gary W Johnson
have paid the monthly payments and yearly taxes to date.
Lot no. 11 is solely my personal property and upon sale benefits
myself alone or in the case of my death my estate.
Lots no 12, 13 Although in my name was not and is not for my benefit alone
Upon sale or my death shall be shared in accordance with my father
Richard S Flor and mother Shirley R Flor’s last will and testament
The shared parties are as follows:
Gary W Johnson
Zoa Ann Manners
Valerie J Akins
Geraldine Deboar
The Agreement was signed by Gary and notarized.
In October of 2021, Gary died intestate, leaving a wife and three sons as his heirs at law. Zoa Ann petitioned the Chancery Court to open Gary’s estate, noting in her petition that Gary was contractually obligated to transfer the Property to his three sisters pursuant to the Agreement. Gary’s three sons were all served, but it appears his widow was not. Regardless, Gary’s son Richard was appointed as Administrator.
Once the probate was underway, Zoa Ann filed a claim against the Estate for her share of the real property. Three days later, Richard filed a Complaint for Determination of Heirs alleging that the Property was “vested indefeasibly” in Gary’s four heirs, being his widow and his three sons. He later amended the Complaint to remove the widow, stating only he and his two brothers were the heirs. The Complaint did not mention the widow.
The Chancery Court held a one day trial in which Zoa Ann was the only person to testify. In her testimony, she testified that Gary had been upfront about getting his mother to sign the deed shortly before she died. He was not trying to take the property for himself but was simply trying to protect the property so they did not lose it, thinking it might be taken away because “Lindsey” had interest in the property and the payments had not been fully made. The Court noted that there is no more information on “Lindsey” or who he or she is or was, or what interest he or she may have had in the land. In addition to her testimony regarding Gary’s intentions, Zoa Ann testified that she witnessed Gary signing the Article of Agreement at the bank and in the presence of a notary. Gary then gave her the document for safekeeping. She further testified Gary’s children knew of the Agreement and of Gary’s intentions that his sisters each get their 1/4th share of the property, with Gary’s estate receiving the final 1/4th. She stated Gary’s intentions were “clear” and he wanted to “honor his parents and…his sisters.”
The Chancellor ruled from the bench, denying Zoa Ann’s claim and holding that the Agreement was not “a sufficient foundation for the basis of a claim against the estate.” He went on to say that the Agreement “was at best, some kind of attempt to discuss the three lots, but did not have sufficient clarity, even with the assistance of testimony, to convey a present interest in land as if it were a deed.” In addition, the Chancellor held the document is “as a contract, ambiguous”. The Chancellor followed this up with a one page order referring to his oral ruling.
Zoa Ann appealed, arguing the Agreement was valid conveyance of a vested interest in the Property.
In coming to its decision, the Court relied on the Mississippi Supreme Court case of Ford v. Hedgwood,[2] the primary position of which is summed up in the following two sentences:
“Where an instrument, though in the form of a deed, contains its maker’s provision that it makes no present conveyance of an interest in land or otherwise directs that the interest to be conveyed vests in the grantee only upon the death of the grantor, such an instrument is regarded as testamentary in character and is enforceable only if made in compliance with our statute of wills. Conversely, where the instrument conveys a future interest in land which vests in the grantee effective upon delivery of the deed, though reserving in the grantor a life estate, the effect of which is to postpone only the grantee’s right of possession or occupancy, the instrument is a deed in law subject to our law appertaining thereto and may be effective notwithstanding failure to comply with the statute of wills.”
The Court concluded that the Agreement clearly stated Gary’s intent that each of his sisters receive their 1/4th interest at his death, using mandatory language that the property “shall be shared” at his death, thus further bolstering the Court’s conclusion. Accordingly, the Court held the Agreement was a valid conveyance of a future interest in the Property and thus Zoa Ann was entitled to her 1/4th interest in the Property.
The Court remanded back to the Chancery Court for further proceedings consistent with its holding regarding the Agreement, also noting there were various issues regarding noticing all the proper parties, such as the other two sisters of Gary and his widow.
It appears the Court got this one right and, at least in the author’s opinion, Gary clearly intended to share the Property with his sisters. Of course, if Gary had sought competent legal counsel to address the issue from the onset, the whole mess could have been avoided. Nevertheless, the right result appears to have been reached.
[1] Matter of the Estate of Johnson, No. 2023-CA-00823-COA (Miss. Ct. App. 2024). See the case here: https://law.justia.com/cases/mississippi/court-of-appeals/2024/2023-ca-00823-coa.html.
[2] Ford v. Hedgwood, 485 So. 2d 1044 (Miss. 1986).
