Last Will and Testament of Richard Baker Prichard: Amy Martin, Lisa Bethea and Jana Prichard Bell, as of The Estate of Jan Prichard v. Morgan Arceneaux, Markka Prichard and Landon Prichard

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-CA-01035-COA

LAST WILL AND TESTAMENT OF RICHARD APPELLANTS
BAKER PRICHARD: AMY MARTIN, LISA
BETHEA AND JANA PRICHARD BELL, AS
EXECUTRIX OF THE ESTATE OF JAN
PRICHARD, DECEASED

v.

MORGAN ARCENEAUX, MARKKA PRICHARD APPELLEES
AND LANDON PRICHARD

DATE OF JUDGMENT: 09/02/2022
TRIAL JUDGE: HON. C. MICHAEL MALSKI
COURT FROM WHICH APPEALED: PRENTISS COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS: MARK NOLAN HALBERT
ANDREW WAYNE COFFMAN
ATTORNEY FOR APPELLEES: JOHN A. FERRELL
NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION: AFFIRMED IN PART; REVERSED AND
RENDERED IN PART - 07/30/2024
MOTION FOR REHEARING FILED:

EN BANC.

WILSON, P.J., FOR THE COURT:

¶1. Richard Baker (R.B.) Prichard died testate in 2019. He was survived by three

children—Jan Prichard, Lisa Bethea, and Amy Martin. His wife (Martha) and one child

(Mark Prichard) predeceased him. This appeal involves (1) a certificate of deposit (CD) that

R.B. and Amy jointly owned with rights of survivorship and (2) an investment account that

designated R.B.’s surviving children as pay-on-death beneficiaries. Mark’s three

children—Morgan Arceneaux, Markka Prichard, and Landon Prichard—brought this action
alleging that they were collectively entitled to one quarter of the proceeds of the CD and

investment account. After a bench trial, the chancellor found that Amy’s ownership of the

CD and R.B.’s designation of beneficiaries of his investment account were the product of

undue influence. The chancellor imposed a constructive trust on the proceeds of the CD and

the investment account and ordered the funds to be distributed according to the residuary

clause of R.B.’s will. Jan’s estate, Lisa, and Amy appealed.1

¶2. We affirm the chancellor’s finding that Amy’s ownership of the CD was the product

of undue influence, as well as the chancellor’s order that those funds should be distributed

according to the residuary clause of R.B.’s will. However, we clarify that the residuary

clause of R.B.’s will provides for a per capita distribution to the children of R.B. who

survived him—and not to Mark’s children. Our interpretation of the residuary clause of

R.B.’s will moots any issue regarding the investment account because both provide for a per

capita distribution to R.B.’s surviving children. Therefore, we do not address the issues that

Amy raises related to the investment account.

FACTS AND PROCEDURAL HISTORY

¶3. R.B. and Martha Prichard were married and had four children, Jan, Lisa, Mark, and

Amy. Martha died in 2003, and for more than a decade thereafter, R.B. lived alone and made

his own financial decisions. During that time, R.B. opened an investment account and two

bank accounts. In 2004, R.B. opened an investment account with Lincoln Financial in which

1
Jan died in 2020, and his estate was substituted as a party. The appellants here are
Jan’s estate, Lisa, and Amy. However, the allegations regarding undue influence involve
Amy alone. Therefore, for ease of reference, we will refer to the appellants’ arguments as
Amy’s arguments.

2
he designated Jan, Lisa, Mark, and Amy as primary beneficiaries “Equally Shared.”2 In

2006, R.B. opened a Renasant Bank account (“Account 1219”) that designated Amy alone

as both the pay-on-death beneficiary and as an authorized signer on the account. In June

2009, R.B. opened a Renasant checking account (“Account 7100”) that designated Amy

alone as a joint owner of the account with rights of survivorship.

¶4. In April 2009, R.B. executed a will that named Amy as the executrix. In that will,

R.B. devised certain real property to Jan and certain real property to Mark. Those specific

devises each stated that if Jan or Mark predeceased R.B., then the respective properties

would “be distributed to his [(i.e., Jan’s/Marks’s)] descendants, in equal shares, per stirpes.”

R.B. also bequeathed a Chevrolet Astro to Jan and a Buick Roadmaster to Mark. R.B. left

another property (known as “the Pizza Hut lot”) to all four of his children “to share and share

alike.” Finally, the residuary clause of R.B.’s will provided:

I hereby devise and bequeath any property, whether it is real or personal, that
I may own at the time of my death that is not specifically listed herein to my
children, Jan Taylor Prichard, Mark Baker Prichard, Amy Lynn Prichard
Martin, and Lisa Carroll Prichard Bethea to share and share alike.

R.B.’s will did not mention his financial accounts, all of which designated pay-on-death

beneficiaries or another owner with rights of survivorship.

2
R.B. did not designate any contingent beneficiaries, though the form he completed
provided that option. R.B.’s contract with Lincoln Financial provided: “Unless otherwise
provided in the Beneficiary designations, if any Beneficiary dies before the Annuitant, that
Beneficiary’s interest will pass to any other Beneficiaries according to their respective
interests.” After R.B. died, Lincoln Financial advised: “Unless a beneficiary designation
specifically indicates that the beneficiaries are to be paid per stirpes, we will pay the
proceeds for any predeceased beneficiary in equal shares to the remaining primary
beneficiaries. As you can see . . . , [R.B.’s designation] does not indicate that the funds
should be paid per stirpes.”

3
¶5. In 2013, R.B. began to decline physically, and his doctor recommended that he no

longer live alone. R.B. moved into the Landmark, a facility that offered (1) independent-

living apartments, (2) assisted living, and (3) a traditional nursing home. R.B initially moved

into an independent-living apartment, but in early 2014, he moved into the assisted-living

portion of the facility. There seems to be no dispute that R.B. was competent and capable

of making his own financial decisions prior to his transition to assisted living in early 2014,

but his mental acuity began to decline during 2014 and 2015.

¶6. In late 2014 and early 2015, R.B. made two transactions that are the subjects of this

appeal. First, in November 2014, Amy drove R.B., at his request, to Renasant Bank, where

he made Amy a joint owner with rights of survivorship of a CD (“7072”).3 Previously, R.B.

had been the sole owner of the CD. At trial, Amy testified that R.B. told her that she should

split the proceeds of the CD with her sister, Lisa, after he died. Amy was the only witness

who testified about the transaction.4

¶7. Second, in March 2015, R.B. transferred all the funds from Renasant Account 7100

into a new investment account at Ameriprise Financial.5 Amy testified that she put R.B. in

touch with her friend, Mark Stooksbury, a broker for Ameriprise in Tennessee. Amy testified

that she suggested that R.B. talk to Stooksbury because R.B. was not earning a good return

3
When R.B. added Amy as a joint owner, the CD had a balance of approximately
$155,077.13. When R.B. died, the CD had a balance of approximately $158,329.71.
4
Debbie Sartin, a Renasant Bank employee, assisted R.B. with the transaction, but
Sartin did not testify at trial.
5
The opening balance of the Ameriprise account was approximately $444,817.51.
When R.B. died, the account had a balance of approximately $471,675.12.

4
on Renasant Account 7100. R.B. talked to Stooksbury by telephone at least once.

Stooksbury testified by deposition, and his deposition testimony was admitted into evidence.

Stooksbury could not recall the details of his conversation with R.B., but he testified that he

had no reason to believe R.B. was incompetent at the time of the transaction. Amy testified

that she “went over every line [of the Ameriprise documents] with [R.B.] as he was reading

them and explained them to him to make sure he understood everything.”

¶8. When he opened his Ameriprise account, R.B. executed both an account agreement

and a separate beneficiary designation form. On the beneficiary designation form, R.B.

selected option “C,” designating his “living lawful children” at the time of his death as the

beneficiaries. The form explained that this meant that R.B.’s “living lawful children” at the

time of his death would “receive equal shares of the proceeds; provided, however, that if a

child of [R.B.] . . . died before [R.B.], the share which that child would have received . . .

[would] be equally divided among the surviving children.” R.B. selected option “C” instead

of Option “D”—“Lawful Children With Rights of Survivorship per Stirpes.” Option “D”

provided that “if a child of the owner . . . died before the owner, the share which the child

would have received if he or she survived the owner [would] be paid to [the] children of that

deceased child, per stirpes.”

¶9. At the time of the two transactions at issue in this appeal, R.B.’s four children were

all living, and none were experiencing any significant health issues. But in November 2015,

Mark suddenly and unexpectedly died. Mark was survived by his three children. In January

2019, R.B. died, survived by Jan, Lisa, and Amy.

5
¶10. In February 2019, R.B.’s will was admitted to probate, and Amy was appointed as the

executrix of R.B.’s estate. In March 2019, Mark’s three children filed a complaint to remove

Amy as the executrix, for an inventory and accounting, and for other relief. In October 2019,

they filed a new complaint, alleging, among other things, that Amy used undue influence to

cause R.B. to (1) add her as a joint owner of Renasant CD 7072 and (2) designate only R.B.’s

surviving children as beneficiaries of the Ameriprise account, which prevented Mark’s

children from receiving any of the proceeds when R.B. died. The complaint named Jan, Lisa,

and Amy as defendants.

¶11. After trial, the chancellor found that a confidential relationship existed between Amy

and R.B. at the time of the subject transactions, and a presumption therefore arose that the

transactions were the product of undue influence. The chancellor also found that Amy failed

to rebut the presumption of undue influence with respect to (1) R.B.’s designation of her as

a joint owner of Renasant CD 7072 and (2) R.B.’s designation of the beneficiaries of his

Ameriprise account. Based on those findings, the chancellor imposed a constructive trust on

the proceeds of the CD and the Ameriprise account and ordered those funds to be distributed

“according to the residuary clause of R.B.’s will”—rather than to Amy as the owner of the

CD or to R.B.’s three surviving children as the designated beneficiaries of the Ameriprise

account. Although the chancellor’s opinion did not analyze the issue, the chancellor appears

to have interpreted the residuary clause of R.B.’s will to provide for a per stirpes distribution

under which Mark’s children would collectively inherit one fourth of the residuary of R.B.’s

6
estate.6 Jan’s estate, Lisa, and Amy appealed.7

¶12. On appeal, Amy argues that the chancellor erred by finding that she failed to rebut the

presumption of influence with respect to Renasant CD 7072. Amy also argues that the

chancellor erred by finding that a presumption of undue influence arose with respect to the

Ameriprise account, by finding that she failed to rebut the presumption, and by imposing a

constructive trust as a remedy.

¶13. Following oral argument, this Court ordered supplemental briefing on the proper

interpretation of the residuary clause of R.B.’s will. Specifically, we noted that the language

of the residuary clause differed markedly from the will’s devises to Jan and Mark, which

expressly provided for a “per stirpes” distribution to Jan’s/Mark’s “descendants” if Jan or

Mark predeceased R.B. See supra ¶4. We asked the parties to address the significance of

this language, and both sides filed supplemental briefs addressing this issue.

ANALYSIS

¶14. We will affirm the chancellor’s factual findings if they are “supported by substantial

evidence, unless the chancellor abused his discretion, clearly or manifestly erred, or applied

the wrong legal standard.” In re Est. of King v. King, 303 So. 3d 423, 425 (¶9) (Miss. Ct.

6
“The term ‘per stirpes’ denotes a method of distribution where a class of distributees
take the share to which their deceased ancestor would have been entitled.” Gartrell v.
Gartrell, 27 So. 3d 388, 390 n.1 (Miss. 2009). Although the chancellor did not specifically
state that the residuary clause provided for a per stirpes distribution, he did state that R.B.’s
designation of beneficiaries for his Ameriprise account—which indisputably did not provide
for a per stirpes distribution—“varied from . . . the residuary clause of [R.B.’s] will.”
7
The chancellor’s opinion and final judgment ruled on claims regarding additional
accounts and property. However, this appeal relates solely to the proceeds of Renasant CD
7072 and the Ameriprise account.

7
App. 2020). We review issues of law, including “the interpretation or construction of a will,”

“de novo.” Miss. Baptist Found. v. Fitch, 359 So. 3d 171, 174 (¶6) (Miss. 2023).

I. The Renasant CD

¶15. Amy argues that the chancellor clearly erred by finding that she failed to rebut the

presumption of undue influence as to the Renasant CD and also misapplied the test for

rebutting the presumption.

A. The chancellor did not clearly err by finding that Amy failed
to rebut the presumption of undue influence.

¶16. In Murray v. Laird, 446 So. 2d 575 (Miss. 1984), our Supreme Court held that “when

the circumstances give rise to a presumption of undue influence,”8 “the burden of . . . proof

shifts to the grantee/beneficiary to prove by clear and convincing evidence” each of the

following: “(1) [g]ood faith on the part of the grantee/beneficiary; (2) [g]rantor’s full

knowledge and deliberation of his actions and their consequences; and (3) [a]dvice of (a) a

competent person, (b) disconnected from the grantee and (c) devoted wholly to the

grantor/testator’s interest.” Id. at 578.9 Three years later, the Court modified Murray’s third

8
Amy does not dispute the chancellor’s finding that she had a confidential
relationship with R.B., which gave rise to a presumption of undue influence. Id. at 578.
9
Amy mistakenly argues that there are “three ways to rebut the presumption of undue
influence.” (Emphasis added). To the contrary, proof of each of the three elements is
required to rebut the presumption. Est. of Johnson v. Johnson, 237 So. 3d 698, 711 (¶36)
(Miss. 2017) (“The defending party must prove each of these by clear and convincing
evidence to rebut the presumption.”). Amy’s appellate brief also fails to address the
chancellor’s finding that she did not satisfy the second essential element of the test. Amy
waived this issue by failing to address it in full. Lang v. Beasley, 159 So. 3d 593, 596 (¶13)
(Miss. Ct. App. 2014) (“Failure to completely brief this argument amounts to a waiver.”).
Notwithstanding Amy’s waiver, we will address the issue.

8
element to eliminate any “uncompromising requirement of independent advice.” Mullins v.

Ratcliff, 515 So. 2d 1183, 1193 (Miss. 1987). The Court held that a grantee or beneficiary

may satisfy the test’s third element by “prov[ing] by clear and convincing evidence that the

grantor/testator exhibited independent consent and action.” Id. Under Mullins,

“[i]ndependent advice is but one way independent consent and action may be shown.” Id.

¶17. In the present case, the chancellor found that Amy failed to meet her burden as to all

three elements and thus did not rebut the presumption of undue influence. In discussing the

good faith element, the chancellor emphasized that Amy took R.B. to the bank alone to make

her a joint owner of the CD and that the Renasant employee who assisted them was not called

to testify at trial. Moreover, regarding the knowledge and deliberation element, the

chancellor found that “the proof was insufficient to establish [R.B.’s] knowledge of his total

assets and their general value” or “whether he grasped the effect of adding Amy as the

survivor to this account.” Substantial evidence supports the chancellor’s findings regarding

both elements. Therefore, the chancellor did not clearly err by finding that Amy failed to

rebut the presumption of undue influence.

¶18. Finally, Amy argues that the chancellor misapplied the third prong of the

Murray/Mullins test. Specifically, Amy argues that the chancellor erred by focusing on the

absence of “independent advice” rather than considering more broadly whether Amy proved

“independent consent and action.” See supra ¶16.

¶19. But the chancellor did not misapply the law. The chancellor noted that the Supreme

Court has stated that independent “advice is still clearly the best way to show . . .

9
‘independent consent and action.’” Madden v. Rhodes, 626 So. 2d 608, 622 (Miss. 1993);

accord In re Est. of Hemphill, 186 So. 3d 920, 939 (¶73) (Miss. Ct. App. 2016). In doing so,

the chancellor correctly stated the Murray/Mullins test, and he specifically discussed the

Supreme Court’s holding that it requires proof of “independent consent and action,” not

“independent advice.” The chancellor clearly and correctly stated the applicable law and its

requirements. Accordingly, this issue is without merit.

¶20. In summary, the chancellor correctly applied the law, and substantial evidence

supports his factual findings. Therefore, we affirm the chancellor’s findings that Amy did

not rebut the presumption of undue influence with respect to Renasant CD 7072. Because

Amy was not a lawful joint owner of the CD, we also affirm the chancellor’s ruling that the

proceeds of the CD should be distributed according to the residuary clause of R.B.’s will.

However, for the reasons explained below, our interpretation of the residuary clause differs

from the chancellor’s interpretation.

B. The residuary clause provides for per capita distribution.

¶21. After oral argument, this Court ordered supplemental briefing on the meaning of the

residuary clause of R.B.’s will because the chancellor’s opinion was ambiguous on this point.

The chancellor’s opinion quoted the residuary clause, which states as follows:

I hereby devise and bequeath any property, whether it is real or personal, that
I own at the time of my death that is not specifically listed herein to my
children, Jan Taylor Prichard, Mark Baker Prichard, Amy Lynn Prichard
Martin, and Lisa Carroll Prichard Bethea to share and share alike.

After quoting the residuary clause, the chancellor added the following in a footnote:

The following definition will assist in recognizing some of the issues in this

10
case:

Per capita and per stirpes have definite meaning in law and are
presumed to be used in their technical sense unless a contrary
intention appears in the context of the will. “Per capita” means
“by the head” or “share and share alike” according to the
number of individuals. “Per stirpes” means “by the roots” or
“stock” or by representation. It denotes the method of
distribution where a class or group of individuals or distributees
take the share which their “stock” (deceased ancestor) would
have been able to take in a per capita distribution. “Equal
division” as a general rule means a per capita and not a per
stirpes gift under the will.

Matter of Griffin’s Will, 411 So. 2d 766, 768 (Miss. 1982) (quoting William
E. Morse, Wills and Administration in Mississippi, § 11:6 (1968)). Related to
this subject, our anti-lapse statute preserves devises and bequests to a child
who predeceases the testator. See Miss. Code Ann. § 91-5-7.

¶22. Thus, the residuary clause of R.B.’s will devises and bequeaths the residuary of his

estate to his four children “to share and share alike,” and the chancellor’s footnote regarding

the clause correctly observes that “share and share alike” is synonymous with “per capita.”

This could suggest that the chancellor interpreted R.B.’s residuary clause to provide for a per

capita distribution. However, later in his opinion, the chancellor stated that R.B.’s

designation of beneficiaries in his Ameriprise account—which provided for a per capita

distribution to his children—“varied from” the distribution he provided for under “the

residuary clause of his will.” Moreover, the chancellor granted relief to Mark’s three

children by ordering funds to be distributed according to the residuary clause of R.B.’s will.

Thus, it appears that the chancellor actually understood the residuary clause to provide for

a per stirpes distribution.

¶23. In their supplemental brief, Mark’s children argue that the chancellor correctly

11
interpreted the clause as providing for a per stirpes distribution. Mark’s children argue (1)

that the phrase “to share and share alike” does not address the question of who should inherit

under the residuary clause and (2) that they are entitled to Mark’s share pursuant to

Mississippi’s “anti-lapse statute.” Miss. Code Ann. § 91-5-7 (Rev. 2021). In contrast, Amy

argues (1) that the phrase “to share and share alike” demonstrates that R.B. intended a per

capita distribution to his surviving children and (2) that the language of R.B.’s will—not the

anti-lapse statute—is controlling.

¶24. “It is elemental that when construing the will of a testator, the function of the

chancellor, as well as that of this Court, is to determine and respect the intent of the testator.”

Est. of Blount v. Papps, 611 So. 2d 862, 866 (Miss. 1992). Indeed, “[o]ur polestar

consideration, as always, is the intent of the testator, the right our law has given each

competent adult to direct from the grave the disposition of his worldly goods.” Tinnin v.

First United Bank of Miss., 502 So. 2d 659, 667 (Miss. 1987).

¶25. But “in determining the testator’s intent, in the absence of ambiguity, this Court is

limited to the ‘four corners’ of the will itself.” Est. of Blount, 611 So. 2d at 866. Within

those four corners, we consider “the whole scheme of the testator manifested by the will,

taking into consideration and giving due weight to every word in the will; and, when once the

actual intent of the testator at the time of the making of the will has been in this way

ascertained, all minor, subordinate, and technical rules of construction must yield.”

Slaughter v. Gaines, 220 Miss. 755, 762-63, 71 So. 2d 760, 763 (1954) (emphasis added).

¶26. Although “minor” or “technical rules of construction” will not be invoked to override

12
the clearly expressed intent of a testator, we must also presume a will utilizes technical legal

language in a way that is consistent with its understood legal meaning. Simply put,

“[p]ersons are supposed to know the meaning of the terms they use unless there is something

to show the contrary.” Proctor v. Lacy, 160 N.E. 442, 444 (Mass. 1928). Thus, as our

Supreme Court has stated, “[i]t is Hornbook law . . . that technical terms in a will must be

given their technical meaning and the testator will be presumed, absent differing intent, to

be cognizant of that existing legal meaning.” Posey v. Webb, 528 So. 2d 833, 837 (Miss.

1988) (quoting Tootle v. Tootle, 490 N.E.2d 878, 881 (Ohio 1986)). In addition, “[i]f the

terms of a will are plain and unambiguous, taking the whole instrument into consideration,

the court will give them their legal significance.” Carlisle v. Carlisle’s Estate, 252 So. 2d

894, 895 (Miss. 1971) (quoting Strickland v. Delta Invest. Co., 163 Miss. 772, 774, 137 So.

734, 736 (1931)).

¶27. Thus, we give effect to the language of an unambiguous will as the best evidence of

the testator’s intent. Est. of Blount, 611 So. 2d at 866. “A will is unambiguous if the terms

of the will are plain, taking the whole instrument into consideration . . . .” Neill v. Earls, 343

So. 3d 1071, 1076 (¶10) (Miss. Ct. App. 2022) (brackets, ellipsis, and quotation marks

omitted). “[A]n ambiguity arises only if the terms are susceptible to two reasonable

interpretations.’” Id. at 1076 n.4 (brackets and quotation marks omitted). “If the language

used in a devise only allows one interpretation as to how the testator’s property is distributed,

the will is unambiguous.” Id. at (¶10) (brackets and quotation marks omitted).

¶28. The interpretive issue raised by R.B.’s residuary clause is whether it provides for a per

13
stirpes or per capita distribution. A leading treatise on the law of wills explains,

[W]ith reference to the determination of the persons who shall take, a
distribution per stirpes means that the principle of representation so applies
that the heirs or representatives of one previously deceased, who would have
taken if alive, will take by right of their ancestor. A distribution per capita
means that no representation applies, that the favored class is to be
determined as it exists at the time prescribed by . . . the will, and that the heirs
or representatives of one previously deceased cannot take, although such
decedent would have taken in his own right, as a member of the favored class,
had he survived.

4 Bowe & Parker, Page on the Law of Wills § 36.6, at 665 (2004) (emphasis added).10 Thus,

whether Mark’s children take under R.B.’s residuary clause depends on whether the residuary

clause provides for a per stirpes or per capita distribution.

¶29. Under Mississippi law, the phrase “share and share alike” means that beneficiaries

take per capita. Griffin’s Will, 411 So. 2d at 768 (“Per capita and per stirpes have definite

meaning in law and are presumed to be used in their technical sense unless a contrary

intention appears in the context of the will. ‘Per capita’ means ‘by the head’ or ‘share and

share alike’ according to the number of individuals.” (emphasis added) (quoting W. Morse,

Wills and Administration in Mississippi § 11:6 (1968))); accord 4 Bowe & Parker, supra,

§ 36.10, at 673 (“A direction to provide property . . . ‘share and share alike’ . . . imports a

division per capita, in the absence of other provisions in the will tending to show a contrary

intention.”). Because these phrases have a “definite and fixed meaning in law,” we must

10
See also Drafting Bequest Along Family Lines, 28 Estate Planning 450, at *1
(WG&L Sept. 2001) (“As most practitioners are aware, ‘per stirpes’ means that a
distribution should be made along family lines, with the descendants of a deceased child or
other deceased beneficiary taking the deceased beneficiary’s share. On the other hand, ‘per
capita’ means equally among the class of individuals named who are then living, without
regard to the descendants of a deceased class member.” (emphasis added)).

14
“presume[]” that R.B. used them in that sense in his will “unless a contrary intention appears

in the context of the will.” Griffin’s Will, 411 So. 2d at 768.

¶30. No contrary intention appears in R.B.’s will. Indeed, the language and structure of

the will as a whole provide further evidence that R.B.’s residuary clause calls for a per capita

distribution. McMurtray v. Deposit Guar. Bank & Tr. Co., 184 So. 2d 395, 398 (Miss. 1966)

(“[T]he intention of the testatrix . . . must be drawn from the will as a whole.”). In articles

V(A) and V(B) of his will, R.B. expressly devised certain real property to Jan and to Mark

“per stirpes.” In those provisions, R.B. stated, “If Jan . . . does not survive me, said real and

personal property located therein shall be distributed to his descendants, in equal share, per

stirpes,” and “[i]n the event Mark . . . does not survive me, said real property and personal

property located therein shall be distributed to his descendants, in equal share, per stirpes.”

In contrast, R.B. used a different phrase in the very next provision of his will, article V(C),

which devised the Pizza Hut lot to his four children “to share and share alike.” R.B.’s use

of these two different phrases—“per stirpes” and “share and share alike”—in close proximity

indicates that he intended the phrases to mean different things. Strickland, 163 Miss. at 782,

137 So. at 736 (“Another principle of construction is that the use of different words in a will

applying to the same subject-matter indicates that the testator had in view different results.”);

4 Bowe & Parker, supra, § 30.21, at 178 (“If different words are employed with reference

to a given subject matter, it will be assumed that testator intended a different meaning when

he employed such different expressions.”). If R.B. had intended article V(C) to provide for

the same method of distribution as articles V(A) and (B), he would have repeated that same

15
language once more.

¶31. The same is true for R.B.’s residuary clause. If R.B. had intended his residuary to

pass in the same manner as his devises to Jan and Mark—per stirpes—he could have used

the same language in the residuary clause. Instead, R.B. used a different phrase—“share and

share alike”—that has a different legal meaning under Mississippi law. In addition, we note

that R.B. utilized the same per capita language (“share and share alike”) in both instances in

which he named all four of his children as beneficiaries—article V(C) and the residuary

clause. In contrast, he provided for a “per stirpes” distribution only in those instances in

which he devised real property to a specific child.

¶32. Based on the language used and the manner in which it was used within the four

corners of this will, we are convinced that R.B. intended the phrase “share and share alike”

to mean per capita. To hold otherwise would give effect to technical language—per

stirpes—in some devises but deny any effect to the phrase “share and share alike,” treating

it as mere surplusage. Considering the language of the will as a whole, as well as applicable

principles of will construction, we conclude that R.B. intended these different phrases to each

carry their understood legal meanings. Therefore, R.B.’s three surviving children—Jan, Lisa,

and Amy—share equally under R.B.’s residuary clause. In contrast, Mark’s children “cannot

take, although [Mark] would have taken in his own right, . . . had he survived.” 4 Bowe &

Parker, supra, § 36.6, at 665.

¶33. Mark’s children also argue that they should inherit under the residuary clause because

the anti-lapse statute, Miss. Code Ann. § 91-5-7, overrides the language used by R.B. in his

16
will. The anti-lapse statute operates when property is devised or bequeathed to a child or

descendant of the testator. Id. The statute generally provides that if such a beneficiary

predeceases the testator and is survived by one or more children or descendants, then the

devise or bequest to the beneficiary “shall not lapse” but shall pass to the beneficiary’s

children or descendants according to the laws of intestate succession. Id.11

¶34. However, we conclude that the anti-lapse statute should not override the language of

R.B.’s will. The Mississippi Supreme Court has stated that “there is no Constitutional right

more jealously safeguarded than the absolute freedom of a testator to dispose of his own

property as he chooses. This is his business, and his business alone.” In re Est. of Vick, 557

So. 2d 760, 765 (Miss. 1989).12 Therefore, “the most solemn obligation any court can have

[is] to see that the true intent of the testator is carried out.” Vick, 557 So. 2d at 765. “[I]t is

11
The statute provides in full:

Whenever any estate of any kind shall or may be devised or bequeathed by the
last will and testament of any testator or testatrix to any person being a child
or descendant of such testator or testatrix, and such devisee or legatee shall,
during the lifetime of such testator or testatrix, die testate or intestate, leaving
a child or children, or one or more descendants of a child or children, who
shall survive such testator or testatrix, in that case, such devise or legacy to
such person so situated as above mentioned, and dying in the lifetime of the
testator or testatrix, shall not lapse, but the estate so devised or bequeathed
shall vest in such child or children, descendant or descendants, of such devisee
or legatee in the same manner as if a legatee or devisee had survived the
testator or testatrix and had died intestate.

Miss. Code Ann. § 91-5-7.
12
Accord In re Elton G. Beebe Sr. Irrevocable Fam. Mortg. Tr., 380 So. 3d 905, 917
(¶45) (Miss. 2024); Est. of Bakarich v. Bakarich, 337 So. 3d 1078, 1081 (¶12) (Miss. 2022);
In re Est. of Blackburn v. Richards, 299 So. 3d 781, 787 (¶28) (Miss. 2020).

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not the court’s function to decide whether a will was in fact ‘unfair’ or ‘unjust,’ this being

for the sole determination of the testator.” Id. (citation omitted). Because we “jealously

safeguard[]” the testator’s “absolute [testamentary] freedom” and are bound to carry out his

“true intent,” id., we conclude that the anti-lapse statute operates only as a default rule to be

applied in the absence of language in the will demonstrating a contrary intent. See Gibney

v. Hossack, 230 N.E.3d 1009, 1013-14 (Mass. 2024) (holding that Massachusetts’s anti-

lapse statute supplies a default rule—based on a judgment about what a typical testator

probably intended—in the absence of contrary language in the will).

¶35. In this case, as explained above, R.B. used markedly different language in different

provisions of his will. R.B. demonstrated that he knew how to provide for a per stirpes

distribution and devise property to his grandchildren if his own child predeceased him. He

did so in clear terms in articles V(A) and V(B) of his will. Yet in his residuary clause, R.B.

used materially different language that calls for a per capita distribution under which children

of a deceased beneficiary do not take. R.B. had the “absolute freedom” to make such a

choice in his will, and it is our “solemn obligation . . . to see that [R.B.’s] true intent . . . is

carried out.” Vick, 557 So. 2d at 765. Accordingly, under these circumstances, it would be

inappropriate for a court to invoke a statutory default rule to override the meaning of the

actual language of R.B.’s will, which clearly expressed his intent. Rather, the per capita

distribution called for in R.B.’s residuary clause should be carried out.13

13
Our holding in this case turns on the specific language of R.B.’s residuary clause
and the clear contrast between that clause and the “per stirpes” language used elsewhere in
the will. Of course, “[n]o two wills probably were ever written in precisely the same
language throughout; nor any two testators died under the same circumstances in relation

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II. The Ameriprise Account

¶36. Amy next argues that the chancellor erred by applying a presumption of undue

influence to R.B.’s selection of the beneficiaries of his Ameriprise account. But our

interpretation of R.B.’s residuary clause moots any issue regarding the Ameriprise account

and its beneficiary designation, and “[t]his Court will not adjudicate moot questions.”

Barrett v. City of Gulfport, 196 So. 3d 905, 911 (¶17) (Miss. 2016).

¶37. The chancellor ordered the proceeds of the Ameriprise account to pass under the

residuary clause, and Amy argues that the proceeds of the account should instead pass

according to R.B.’s designation of beneficiaries for the account. But both the residuary

clause and the Ameriprise account provide for per capita distribution to R.B.’s children who

survived his death. Therefore, based on our interpretation of R.B.’s residuary clause, the

proceeds of the Ameriprise account will pass to the same individuals and in the same

amounts regardless of any further determination we make regarding the Ameriprise account

or undue influence. Accordingly, we do not address the additional issues Amy raised on

appeal.

CONCLUSION

¶38. The chancellor did not clearly err by finding that Amy’s ownership of Renasant CD

7072 was the product of undue influence. Therefore, the chancellor did not err by imposing

a constructive trust on the proceeds of the CD and ordering the proceeds to be distributed

to their estate, family, and friends. And it would be very unsafe, as well as unjust, to
expound the will of one man by the construction which a court of justice had given to that
of another, merely because similar words were used in particular parts of it.” Lusby v. Cobb,
80 Miss. 715, 729, 32 So. 6, 8 (1902) (quoting Bosley v. Wyatt, 55 U.S. 390, 397 (1852)).

19
according to the residuary clause of R.B.’s will. However, contrary to the chancellor’s

apparent interpretation of the residuary clause, that clause provides for a per capita

distribution to the children of R.B. who survived him—Jan, Lisa, and Amy. Finally, our

interpretation of the residuary clause moots any issue regarding the Ameriprise account

because R.B.’s designation of beneficiaries of that account called for the same distribution

as the residuary clause of his will. Therefore, the proceeds of the Ameriprise account should

also be distributed equally to Jan’s estate, Lisa, and Amy.

¶39. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

BARNES, C.J., CARLTON, P.J., WESTBROOKS, McDONALD, LAWRENCE,
McCARTY, SMITH AND EMFINGER, JJ., CONCUR.

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