         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-CA-00800-COA

IN THE MATTER OF THE ESTATE OF                                              APPELLANTS
BRENDA LOUISE BARGAS FLOWERS:
CLAIRE C. FLOWERS AND BRENDA JANE
FLOWERS PAIXAO

v.

THE ESTATE OF BRENDA LOUISE BARGAS                                            APPELLEES
FLOWERS, THROUGH ITS EXECUTOR, KNOX
LEMEE FLOWERS, CECIL C. LANG AND
LINDA S. LANG

DATE OF JUDGMENT:                           05/06/2016
TRIAL JUDGE:                                HON. MICHAEL H. WARD
COURT FROM WHICH APPEALED:                  LEFLORE COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS:                    DAVID NEIL MCCARTY
ATTORNEYS FOR APPELLEES:                    FLOYD M. MELTON JR.
                                            RICHARD A. OAKES
                                            FLOYD M. MELTON III
NATURE OF THE CASE:                         CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION:                                AFFIRMED IN PART; REVERSED AND
                                            REMANDED IN PART - 02/06/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.

       CARLTON, J., FOR THE COURT:

¶1.    Claire Clements Flowers (Claire) and Brenda Jane Flowers Paixao (Jane) appeal the

judgment of the Leflore County Chancery Court denying their request for an accounting of

the estate and testamentary trust of their mother, Brenda Bargas Flowers, and finding that

they had no current interest in their mother’s estate. Claire and Jane also appeal the chancery

court’s denial of Claire’s motion for leave to amend several of her previously filed petitions.
¶2.    Upon review, we affirm the chancellor’s denial of Claire’s motion to amend her

petitions. However, we find that Claire and Jane have limited rights and related standing as

holders of a shifting executory interest to prevent future waste, and we therefore find that the

sisters have standing to request an accounting of their mother’s estate and testamentary trust

pursuant to their limited rights.1 As a result, we reverse the portion of the chancellor’s

judgment denying their request for an accounting, and we remand this case for further

proceedings consistent with this opinion.

                                            FACTS

¶3.    Richard and Brenda Flowers married and had three children: a son, Knox Lemee’

Flowers, and two daughters, Claire and Jane. In 2004, Claire gave birth to a son, D.A.2

Richard and Brenda adopted D.A. in 2005. On April 15, 2006, Richard passed away. About

three months later, on July 24, 2006, Brenda executed her last will and testament. Almost

a month later, on August 25, 2006, Brenda passed away.

¶4.    Brenda’s will appointed Knox as her estate executor and provided that he “serve

without bond, inventory, appraisal[,] or accounting to any [c]ourt.” The will also established

a trust that named D.A. and his descendants as the income beneficiaries. The will provided



       1
          See Hemphill v. Miss. State Highway Comm’n, 245 Miss. 33, 46, 145 So. 2d 455,
461 (1962) (holding that executory-interest owners have “certain limited rights to enjoin the
possessory owner from waste of the inheritance and to recover damages for injuries [that]
. . . substantially [diminish] its value”). Cf. Cannon v. Barry, 59 Miss. 289, 302-05 (1881)
(holding that contingent remainder beneficiaries could not recover damages from a life
tenant for past waste but could enjoin the life tenant from future waste to the inheritance’s
detriment).
       2
           Because D.A. is a minor, we refer to him by his initials.

                                               2
for the trust’s termination either at the time of D.A.’s thirtieth birthday or his death,

whichever event occurred first. The will further stated that, at the time of termination, the

trust’s assets were to be divided evenly between D.A. and Knox. The will then granted

Claire and Jane a shifting executory interest by providing that, if both D.A. and Knox passed

away without any descendants before the trust’s termination, the trust’s assets were to be

distributed to Claire and Jane as beneficiaries, either directly or through conservatorships.

While the will relieved the trustees from having to render a periodic accounting to any court,

it stated that the trustees “shall . . . account fully and completely annually, throughout the

term of this [t]rust, to such income and/or corpus beneficiaries as there may be or[,] in the

event such beneficiary is a minor or a ward, then to such beneficiary’s guardian.”

¶5.    As stated, a month after executing her will, Brenda passed away on August 25, 2006.

Her will was probated in Leflore County, and Knox was appointed her estate executor. Also

upon his mother’s death, Knox was appointed executor de bonis non of his father’s estate.

In November 2007, the chancery court awarded custody of D.A. to his paternal grandfather

and step-grandmother, Carter and Linda Lang. In a subsequent judgment, the chancellor

found that adoption by the Langs served D.A.’s best interests.

¶6.    On February 8, 2008, Chancellor William Willard signed an order that addressed the

disposition of numerous motions and petitions filed below by the parties. In so doing, the

chancellor granted Claire’s requests to withdraw her previously filed motion for an

accounting of her mother’s estate and her petition for Knox’s disqualification as estate

executor. The chancellor further ordered that upon the closing of Brenda’s estate, Knox, as



                                              3
executor, take the following actions:

       [L]ist the household goods and personal belongings of Brenda . . . , as well as
       lockbox contents[,] that came into his possession as [e]xecutor and . . . state
       where these items are presently located, and any items converted to his
       personal possession or disposed of for his benefit will be noted and charged
       against any [e]xecutor’s fee, as may be determined and approved by this
       [c]ourt[; and]

       ....

       [F]urnish an accounting of [Brenda’s] [e]state from the date of death to the
       date of any final decree granting Claire . . . [g]uardianship of [D.A.] due to the
       appeal on file at this time . . . and[] that Claire . . . is entitled to an accounting,
       if and when she becomes a vested remainder beneficiary of this estate
       from the date of such vesting until delivery of assets to her.

(Emphasis added).

¶7.    Despite withdrawing her prior motion for an accounting, on August 7, 2015, Claire

filed a petition for a full accounting of her mother’s estate and testamentary trust. Claire’s

petition alleged that Knox and others associated with the administration of Brenda’s estate

had mismanaged and misappropriated estate and trust assets. Claire’s petition further

contended that, even though she was a remainder beneficiary of her mother’s will, she still

possessed the standing to demand an accounting. Jane also joined Claire’s petition for a full

accounting.

¶8.    On September 15, 2015, Claire filed a petition for relief from various chancery court

judgments, and a petition for compensatory and punitive damages. On January 4, 2016, she

filed an amended petition for compensatory and punitive damages. In her amended petition,

Claire sought to include claims against the various attorneys who represented the interests

of Brenda’s estate, the testamentary trust, and D.A.’s guardianship. On January 8, 2016,

                                                 4
Claire filed a motion seeking leave under Mississippi Rule of Civil Procedure 15(a) to admit

her amended petition for compensatory and punitive damages. On January 19, 2016, Judge

Michael Ward, who was specially appointed to the case, dismissed the claims against the

attorneys after he found that Claire had failed to state a claim under Mississippi Rule of Civil

Procedure 12(b)(6). On February 16, 2016, Claire filed a motion for leave to amend her

petition under Rule 15(a). Claire’s motion asked that she be allowed to amend her petition

to include the claims against the attorneys and to allege “fraud and negligence per se with the

correct specificity.”

¶9.    Each of the attorneys responded to Claire’s motion to amend. In their responses, the

attorneys noted that Claire had failed to “attach a proposed amended petition that would

permit the [c]ourt to determine whether justice requires that leave to amend be granted.”

Furthermore, due to their prior dismissal from the litigation, the attorneys argued that, even

if the court granted Claire’s motion to amend, the amendments would not affect them.

¶10.   On February 19, 2016, Knox filed a final accounting in his mother’s estate and a

petition to be discharged as executor. The final accounting was not set forth in the

chancellor’s final decree or made available to all interested parties. Instead, as provided in

the final decree, Knox prepared the estate accounting and presented it in camera to the

chancellor, D.A., and D.A.’s guardians, the Langs. On March 11, 2016, Judge Ward signed

an order denying Claire’s August 7, 2015 petition for a full accounting of her mother’s estate

and testamentary trust. Judge Ward acknowledged the prior court ruling stating that Claire

would be entitled to an accounting “if and when she [became] a vested remainder



                                               5
beneficiary” of her mother’s estate. However, after determining that Claire failed to

constitute such a beneficiary, Judge Ward denied Claire’s petition for a full accounting. On

March 21, 2016, Claire filed a motion for reconsideration of her petition for a full

accounting.

¶11.   Following a hearing on March 30, 2016, Judge Ward denied Claire’s Rule 15(a)

motion for leave to amend her petition with respect to the various attorneys involved with the

estate, the trust, and D.A.’s guardianship. Judge Ward ruled that Claire failed “to state how

she would amend her prior pleadings or . . . to attach a proposed amended pleading [that]

would allow the [c]ourt to determine whether justice required that she be given leave to file

amended pleadings[.]”

¶12.   On May 6, 2016, Judge Ward signed a final decree in the matter. Judge Ward ratified

Knox’s final accounting and granted Knox’s petition for discharge as estate executor. In

discussing Claire’s requests for a full accounting of her mother’s estate and testamentary

trust, Judge Ward found that the February 8, 2008 order denying her request for an

accounting “was not only a final order but that the time to appeal that [o]rder ha[d] long since

passed and . . . that the [o]rder of February 8, 2008, was an [a]greed [o]rder that all of the

parties agreed upon while adjudicating all of the issues . . . contained in that [o]rder.” Judge

Ward also dismissed Claire’s September 2, 2008 petition to contest Brenda’s will and to

demand a jury trial. Judge Ward found the September 2, 2008 petition was not only stale but

was also filed in bad faith since, in the court’s February 8, 2008 agreed order, Claire agreed

to withdraw her previously filed petition to investigate the will’s validity.



                                               6
¶13.   As to all other motions, petitions, and filings made by Claire and Jane, Judge Ward

dismissed them, stating that the sisters possessed “no standing in this cause, nor are they

beneficiaries of [their mother’s e]state with standing to seek any relief from the [e]state.”

Judge Ward further concluded that the only persons with a vested interest in the

administration of Brenda’s estate were Knox, D.A., and D.A.’s adoptive parents, the Langs.

As to D.A.’s testamentary trust, Judge Ward found the trust was never funded “due to the

[e]state not being of sufficient size.”

¶14.   Aggrieved by the chancery court’s various rulings denying their requested relief,

Claire and Jane appeal.

                                STANDARD OF REVIEW

¶15.   This Court applies a limited standard of review on appeals from chancery court.

Jackson v. Mills, 197 So. 3d 430, 437 (¶30) (Miss. Ct. App. 2016). If supported by

substantial credible evidence, we leave a chancellor’s factual findings undisturbed unless the

chancellor applied an incorrect legal standard, was manifestly wrong, or was clearly

erroneous. Id. We review questions of law de novo. Id.

                                          DISCUSSION

       I.     Standing

¶16.   On appeal, the parties disagree as to whether Claire and Jane have standing to request

an accounting of their mother’s estate and testamentary trust.          Since standing is a

jurisdictional issue, we review it de novo. SASS Muni-V LLC v. DeSoto Cty., 170 So. 3d 441,

445 (¶12) (Miss. 2015). Standing is to be determined at the commencement of a lawsuit. In



                                              7
re Estate of Baumgardner, 82 So. 3d 592, 599 (¶21) (Miss. 2012). Regarding the applicable

caselaw on standing, the Mississippi Supreme Court has stated the following:

       To have standing to sue, a party must assert a colorable interest in the subject
       matter of the litigation or experience an adverse effect from the conduct of the
       defendant, or as otherwise authorized by law. An interest is deemed colorable
       if it appears to be true, valid, or right. An individual’s legal interest or
       entitlement to assert a claim against a defendant must be grounded in some
       legal right recognized by law, whether by statute or by common law. For a
       plaintiff to establish standing on grounds of experiencing an adverse effect
       from the conduct of the defendant/appellee, the adverse effect experienced
       must be different from the adverse effect experienced by the general public.

SASS Muni-V, 170 So. 3d at 446 (¶13) (internal citations and quotation marks omitted).

¶17.   Mississippi precedent clearly establishes that vested remainder beneficiaries of a

testamentary trust have standing to file suit and that holders of a shifting executory interest

have some limited rights that can provide standing to file suit. See Baumgardner, 82 So. 3d

at 600-01 (¶¶27-28); Hemphill, 245 Miss. at 46, 145 So. 2d at 461.3 Claire and Jane claim

they are vested remainder beneficiaries of their mother’s testamentary trust while Knox

asserts his sisters have an unvested executory interest. As previously discussed, the

chancellor found Claire and Jane were unvested contingent remainder beneficiaries.

¶18.   In applying precedent to the instant case, we find that Claire and Jane possess a

shifting executory interest in their mother’s testamentary trust. A review of the will’s terms

reflects that Brenda’s estate vests in D.A. and Knox, but that D.A. and Knox inherit subject

to a condition of survivorship. See Hemphill, 245 Miss. at 46, 145 So. 2d at 461. D.A. and

Knox may be divested if the condition of survivorship is not fulfilled. If the survivorship

       3
        Cf. Cannon, 59 Miss. at 302-05 (holding that contingent remainder beneficiaries
could prevent a life tenant from future waste to the detriment of the inheritance).

                                              8
condition is not fulfilled, D.A. and Knox are then divested of their interests, which shift to

Claire and Jane as beneficiaries. Precedent establishes that, as the owners of a shifting

executory interest, Jane and Claire possess limited rights to prevent future waste. See id. See

also Columbus & Greenville Ry. Co. v. City of Greenwood, 390 So. 2d 588, 592 (Miss. 1980)

(applying the Hemphill holding to find that the heirs of original land grantors possessed a

reversionary interest capable of evaluation). “An executory interest is a future interest, which

is held by a third person, that either terminates another’s interest before its natural

termination, or begins after the natural termination of a preceding estate.” K.F. Boackle,

Real Property—Deeds and Conveyances, 7 Encyclopedia of Mississippi Law § 62:29 (2d. ed.

Jeffrey Jackson et al. eds.). “A shifting executory interest occurs when ownership shifts from

one transferee to another upon the occurrence of the subsequent event.” Scott v. Brunson,

569 S.E.2d 385, 387 (S.C. Ct. App. 2002). We now turn to a more specific review of the

terms of Brenda’s will and the legal consequences of those terms.

¶19.   In applying caselaw to the terms of Brenda’s will, we find the will’s terms reflect that,

in creating the testamentary trust, Brenda named D.A. the income beneficiary with the

principal to be placed in trust until the earliest of either D.A.’s thirtieth birthday or his death.

At either D.A.’s thirtieth birthday or his death, Brenda’s will directed that the trust’s principal

be evenly divided between D.A. and Knox “per stirpes to include adopted children.” The

terms of the will next discussed disbursement of trust assets to beneficiaries who were under

the age of twenty-one at the time of the trust’s termination, or who died before the trust’s

termination. Finally, in establishing that D.A. and Knox inherit subject to a condition



                                                 9
subsequent of survivorship, the will stated as follows:

       If there are no surviving beneficiaries, descendants of deceased former
       beneficiaries, former beneficiaries who are living, or descendants of deceased
       former beneficiaries, then his or her interest shall be distributed share and
       share alike to the [c]onservatorships for my two daughters[, Claire and Jane;]
       should either one or both of them not have a [c]onservatorship at the
       termination of this trust[,] then distribute their portion outright to them.

¶20.   Thus, Brenda’s will established that, if D.A. and Knox failed to satisfy the condition

of survivorship, they would be divested of their interests, which would then shift and be

distributed to Claire and Jane. Accordingly, a review of Brenda’s will reflects that she gave

Claire and Jane a shifting executory interest in the assets of the testamentary trust.4 As

stated, Mississippi precedent reflects that holders of a shifting executory interest enjoy

limited rights to enjoin the possessory owner from waste of the inheritance. See Hemphill,

245 Miss. at 38, 145 So. 2d at 457.5 We now turn to a review of applicable and instructive

Mississippi precedent.

¶21.   In Hemphill, the supreme court explained that an executory-interest owner’s limited

right rests upon the constitutional provision for due process. Id. at 46, 145 So. 2d at 461.

The Hemphill court found that Mississippi precedent and statutory law “place an independent

value and significance on future interests, whether ‘vested’ or not.” Id. at 47, 145 So. 2d at


       4
         See Hemphill, 145 So. 2d at 457 (finding that individuals who possessed a shifting
executory interest in land taken and allegedly damaged by the Mississippi Highway
Commission possessed limited compensable rights in the land); White v. Inman, 212 Miss.
237, 256, 54 So. 2d 375, 381-82 (1951) (finding the testator’s will devised to his daughter
an estate in fee simple defeasible subject to an executory limitation).
       5
        Cf. Cannon, 59 Miss. at 302-05 (holding that contingent remainder beneficiaries
could not recover damages from a life tenant for past waste but could enjoin the life tenant
from future waste to the inheritance’s detriment).

                                             10
462. The Hemphill court further explained that a contingent remainder interest “has achieved

status as a protectable interest for many purposes” when the “contingent remainder is limited

to an existing ascertained person[,]” like Claire and Jane in the instant case. Id. at 48, 145

So. 2d at 462. According to the Hemphill court, “[w]hen a contingent remainder is limited

to an existing ascertained person[,] there is no question but that the courts will recognize the

interest as having present existence.” Id.

¶22.   Thus, upon review of relevant caselaw and the record before us, we find the

chancellor erred in denying Claire and Jane’s request for an accounting of their mother’s

estate and testamentary trust. As holders of a shifting executory interest in their mother’s

estate, Claire and Jane possess limited rights to enjoin the possessory owners from future

waste of the estate. See id. at 38, 145 So. 2d at 457.6 As a result, we reverse the chancellor’s

judgment finding they lack standing to request an accounting, and we remand the case for

further proceedings consistent with this opinion.

       II.    Rule 15(a) Motion to Amend

¶23.   We next consider Claire and Jane’s contention that the chancellor erroneously denied

Claire’s Rule 15(a) motion to amend her petition. The sisters argue that none of the various

attorneys asserted they would suffer prejudice if the chancellor granted the motion to amend.

We review the denial of a motion to amend for abuse of discretion. Crater v. Bank of New

York Mellon, 203 So. 3d 16, 19 (¶7) (Miss. Ct. App. 2016).



       6
         Compare Baumgardner, 82 So. 3d at 600-01 (¶¶27-28) (holding that vested
remainder beneficiaries possessed standing to file suit), Cannon, 59 Miss. at 302-05 (holding
that contingent remainder beneficiaries could enjoin a life tenant from future waste).

                                              11
¶24.   As previously discussed, Claire filed an amended petition for compensatory and

punitive damages in which she sought to assert claims of fraud and negligence per se against

the attorneys who represented the interests of Brenda’s estate, the testamentary trust, and

D.A.’s guardianship. Claire then filed a Rule 15(a) motion for leave to admit her amended

petition. The specially appointed judge denied Claire’s motion for leave to admit and

dismissed her claims against the attorneys, finding that Claire failed to state a claim under

Rule 12(b)(6). The special judge also granted the attorneys’ motions to strike themselves as

defendants due to Claire’s failure to obtain leave to join them under Mississippi Rule of Civil

Procedure 21.

¶25.   Following the Rule 12(b)(6) dismissal of her claims, Claire filed a motion for leave

to amend her petition under Rule 15(a) to include claims against the attorneys and to allege

“fraud and negligence per se with the correct specificity.” However, Claire’s motion for

leave to amend failed to provide the substance of the amendment to inform the court of what

facts or acts constituted the fraud or negligence per se. See M.R.C.P. 9(b) (providing that

fraud must be pled with specificity); Faul v. Perlman, 104 So. 3d 148, 156 (¶26) (Miss. Ct.

App. 2012) (discussing the elements a plaintiff must show to establish negligence per se).7

The motion to amend instead contained only bare allegations and no facts from which to

determine the existence of a cause of action.

¶26.   One of the attorneys identified in Claire’s petition and amended petition filed a



       7
        See also Price v. Price, 430 So. 2d 848, 849 (Miss. 1983) (“When a party proposes
to amend his pleading, he should ordinarily make known to the trial court the substance of
his proposed amendment.”).

                                              12
response that the other attorneys joined. In asking the court to deny Claire’s Rule 15(a)

motion to amend, the attorneys noted that Claire had failed to “attach a proposed amended

petition that would permit the [c]ourt to determine whether justice requires that leave to

amend be granted.” The attorneys also noted they had been “dismissed as [respondents] . . .

as a result of [Claire’s] failure to obtain leave of court to add [them] as [parties].”

Furthermore, the attorneys contended that, even if the court granted Claire’s motion to

amend, the amendments would not affect them because of their prior dismissal from the

matter under Rule 21. As discussed, the record shows that Claire’s motion for leave to

amend indeed failed to inform the chancellor of what facts or acts constituted fraud or

negligence per se.

¶27.   Where a trial court dismisses a complaint under Rule 12(b)(6) for failure to state a

claim, Rule 15(a) requires the trial court to freely give the plaintiff the opportunity to amend

her complaints “when justice so requires.” M.R.C.P. 15(a). As previously discussed, we will

affirm the chancellor’s decision “unless the discretion he used is found to be arbitrary and

clearly erroneous.” Breeden v. Buchanan, 164 So. 3d 1057, 1064 (¶27) (Miss. Ct. App.

2015) (quoting Poole v. Avara, 908 So. 2d 716, 721 (¶8) (Miss. 2005)). In the present case,

we have the benefit of the chancellor’s explanation since the record sets forth why he denied

Claire’s Rule 15(a) motion to amend. See Breeden, 164 So. 3d at 1064 (¶¶28-31) (finding

an abuse of discretion where a chancellor failed to explain his denial of the plaintiff’s Rule

15(a) motion). The specially appointed judge found that Claire had failed “to state how she

would amend her prior pleadings or . . . to attach a proposed amended pleading [that] would



                                              13
allow the [c]ourt to determine whether justice required that she be given leave to file

amended pleadings[.]”

¶28.   The record here demonstrates that Claire failed to meet her burden to sufficiently

support an amendment of her petition. Furthermore, the chancellor dismissed the attorneys

from the litigation under Rule 21 because Claire failed to obtain the court’s leave to join

them, and Claire filed no appeal of the attorneys’ dismissal. See Crater, 203 So. 3d at 21

(¶16) (finding no abuse of discretion in the denial of a Rule 15(a) motion to amend where the

motion only asserted claims against a nonparty and the claims were futile). For these

reasons, we find no abuse of discretion from the chancellor’s denial of Claire’s Rule 15(a)

motion to amend. See id. at 19 (¶7). We therefore affirm the chancellor’s judgment with

regard to this issue.

                                      CONCLUSION

¶29.   We affirm the portion of the chancellor’s judgment denying Claire’s Rule 15(a)

motion to amend her petition. However, upon finding that Claire and Jane, as holders of a

shifting executory interest, have some limited rights, we reverse the portion of the

chancellor’s judgment holding that the sisters lack standing to request an accounting of their

mother’s estate and testamentary trust. We therefore remand this case so the chancellor may

grant an accounting consistent with Claire and Jane’s limited rights as holders of a shifting

executory interest to prevent future waste.

¶30.   AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

     LEE, C.J., GRIFFIS, P.J., BARNES AND GREENLEE, JJ., CONCUR.
IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE

                                              14
WRITTEN OPINION. TINDELL, J., CONCURS IN PART AND DISSENTS IN PART
WITH SEPARATE WRITTEN OPINION, JOINED BY WILSON, J. FAIR AND
WESTBROOKS, JJ., NOT PARTICIPATING.

       TINDELL, J., CONCURRING IN PART AND DISSENTING IN PART:

¶31.   It is said that all good things must come to an end. In this case, it is time for a bad

thing to come to an end.8 I agree with the majority’s finding that no abuse of discretion arose

from the chancellor’s denial of Claire’s Rule 15(a) motion to amend. However, I disagree

with the majority’s finding that the chancellor erred by denying Claire and Jane’s request for

an accounting of the estate and testamentary trust of their mother, Brenda. Because I would

affirm the chancellor’s judgment bringing this case to an end, I concur in part and dissent in

part from the majority’s opinion.

¶32.   I do not find Hemphill v. Mississippi State Highway Commission, 245 Miss. 33, 145

So. 2d 455 (1962), a case heavily relied upon by the majority, to be determinative of or

applicable to the present case. In Hemphill, the discussion of the future executory interests

centered entirely on the constitutional guaranty of protection from governmental taking of

and damage to real property without compensation. Id. at 37, 145 So. 2d at 457. To ensure

protection of that constitutional guaranty, the court therein focused on the potential for a

compensable interest in property to those holding any and all “future interests, whether

‘vested or not.’” Id. at 48, 145 So. 2d at 462. The appellants’ standing question in Hemphill

was grounded in that particular and limited executory interest and determined by the



       8
        The estate has been open for over ten years. After voluminous pleadings by the
Appellants, the assets of the estate have been depleted to a point that the trust cannot even
be funded.

                                              15
appellants’ legal right to compensation for governmental taking of and damage to lands

without compensation as provided in Article 3, Section 17 of the Mississippi Constitution.

Id. at 37-48, 145 So. 2d at 457-62.

¶33.   Unlike Hemphill, Claire’s accounting request infringes upon no constitutional right

of any party with any future, shifting, contingent, remainder, or other interest. And, as stated

by the majority, “[a]n individual’s legal interest or entitlement to assert a claim against a

defendant must be grounded in some legal right recognized by law, whether by statute or by

common law.” Maj. Op. at (¶16) (quoting SASS Muni-V LLC v. DeSoto Cty., 170 So. 3d 441,

446 (¶13) (Miss. 2015)) (internal citations and quotation marks omitted). The present case

does not involve the legal right at issue in Hemphill, one recognized by law and set forth in

Article 3, Section 17 of the Mississippi Constitution. The “vested or not” status of the

shifting executory interests is an important distinction that must be considered. And

furthermore, unlike the majority, I find that the sisters’ executory interest has never vested.

¶34.   Brenda’s will named D.A. the income beneficiary of her testamentary trust. At either

D.A.’s death or his thirtieth birthday, the trust’s principal was to be evenly divided between

D.A. and Knox “per stirpes to include adopted children.” The will then discussed the

disbursement of trust assets to beneficiaries who were under twenty-one years old when the

trust terminated or who died before the trust’s termination. Finally, the will provided:

       If there are no surviving beneficiaries, descendants of deceased former
       beneficiaries, former beneficiaries who are living, or descendants of deceased
       former beneficiaries, then his or her interest shall be distributed share and
       share alike to the [c]onservatorships for [Brenda’s] two daughters[, Claire and
       Jane;] should either one or both of them not have a [c]onservatorship at the
       termination of this trust[,] then distribute their portion outright to them.

                                              16
¶35.   The will established that the trust assets vested in D.A. and Knox. Their interests

shifted to the sisters only after the natural termination of D.A. and Knox’s estate and only if

D.A. and Knox died with no descendants. Based upon this reading of Brenda’s will, I agree

with the majority that Brenda provided the sisters with a shifting executory interest in her

testamentary trust. However, unlike the majority, I find that the language of Brenda’s will

gave the sisters a purely executory interest that has not become possessory. Their shifting

executory interest remains unvested and, as a result, they lack standing necessary to demand

an accounting of their mother’s trust. See Bridgforth v. Gray, 222 So. 2d 670, 672 (Miss.

1969) (“So long as an executory interest remains a future interest, it is non-vested.”). See

also 31 C.J.S. Estates § 144 (2017) (recognizing that executory interests remain unvested

until they become possessory).

¶36.   As a result, I would therefore affirm the chancellor’s judgment that the sisters lack

standing to request an accounting. Accordingly, I concur in part and dissent in part from the

majority’s opinion.

       WILSON, J., JOINS THIS OPINION.




                                              17
