                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 1999-CA-01130-SCT
BRYAN ELLIS DILL
v.
SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY, WALTER E. MOSELEY,
ADMINISTRATOR OF THE ESTATE OF MARY ELIZABETH MOSELEY DILL AND
TAYLOR ELIZABETH DILL

DATE OF JUDGMENT:                                  06/08/1999
TRIAL JUDGE:                                       HON. ROBERT L. LANCASTER
COURT FROM WHICH APPEALED:                         LOWNDES COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                            THOMAS L. KESLER
ATTORNEYS FOR APPELLEE:                            J. TYSON GRAHAM
                                                   JOSEPH JOSHUA STEVENS JR.
NATURE OF THE CASE:                                CIVIL - INSURANCE
DISPOSITION:                                       AFFIRMED - 01/25/2001
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                    2/15/2001



      EN BANC.

      WALLER, JUSTICE, FOR THE COURT:

¶1. This case arises from the Lowndes County Chancery Court's dismissal of Bryan Ellis Dill's claim to
certain life insurance funds which had been interpled into the registry of the court. Southern Farm Bureau
Life Insurance Company and Blue Bonnet Life Insurance Company interpled $213,000 in life insurance
benefits arising from the death of the insured, Mary Elizabeth Dill ("Liz"). A third insurance company,
AFLAC, having in effect a policy in the amount of $12,000, was later joined. Both the Estate of Liz Dill,
and the Dills' minor daughter, Taylor, by and through her guardian ad litem, asserted that Bryan was not
entitled to the life insurance proceeds because of his complicity in the death of Liz, his wife. The trial court
found that Bryan had intentionally and wilfully killed Liz and was therefore precluded from sharing in the
insurance proceeds. It then entered a final judgment under Rule 54(b) denying Bryan's claims. Bryan
appeals and raises only one assignment of error: Did the Lowndes County Chancery Court erroneously
apply the preponderance of the evidence quantum of proof? This case is apparently one of first impression
in Mississippi as this Court has never definitively addressed the proper quantum of proof in a dispute over
life insurance benefits.

                                      STATEMENT OF THE FACTS

¶2. Bryan's involvement in Liz's death is based on circumstantial evidence and requires a full development
of the facts surrounding this event. Liz disappeared from her home late in the evening of April 4, 1996, or in
the early morning hours of April 5, 1996. Bryan reported Liz missing a little after 7:00 a.m. on April 5. On
April 9, Liz's body was discovered in a wooded area in rural Lowndes County. She had been raped and
murdered, and her body was partially mutilated. Two brothers, Darnell Baldwin and Clint Baldwin, have
been convicted of Liz's capital murder. Darnell's conviction of capital murder and life sentence were
affirmed by this Court on appeal. See Baldwin v. State, 757 So. 2d 227 (Miss. 2000). DNA evidence
conclusively linked him as the person who raped Liz. Her murder was accomplished with one shot from a
high velocity rifle to the back of the head. The mutilation, which occurred post mortem, included the
removal of skin on the face, neck, and upper chest and the removal of the left breast, all achieved by the
use of a sharp knife.

¶3. On the day before her disappearance, Liz had been treated at a hospital emergency room for severe
back pain. She was having trouble walking; in fact, when the housekeeper and babysitter, Kelly Terrell,
arrived at the Dills' home, Liz was crawling on the floor to get to the kitchen. When Terrell left the house
late that afternoon around 4:30 or 5:00, the living room had not been picked up and the carpets had not
been vacuumed. Terrell claimed that Bryan never cleaned; a witness who was Liz's friend and former
roommate testified that Liz was a poor housekeeper.

¶4. On the day of her disappearance, Liz had returned to the hospital for more tests, and she was given a
prescription for pain medication. Liz's mother was keeping Taylor so that Liz could rest.

¶5. Bryan had planned on attending a cook-out with a group of friends at a cabin about 15 minutes away
known as "the Shack." When he left for the party that evening, Liz was on the couch and the doors to the
house were locked. There were four keys to the house: Liz, Bryan, and Liz's mother each had a key, and
there was a key hidden in the carport attic.

¶6. Bryan went to the Shack for a party attended by 12 to 15 friends. The Shack was frequently used as a
party place by his friends who were often there several times a week. It was also used as a hunting cabin
and hunting dogs were kept there. The Shack was rented from the Baldwin family, and the Baldwin
brothers lived very close by. Patty Holliday, with whom Bryan was admittedly having an affair, was present.
Apparently, the affair had been going on for years. Liz knew of the affair and was unhappy with Bryan
about his relationship with Holliday and his failure to help in the rearing of their daughter. Holliday has been
living with Bryan in the home owned by Liz since December of 1997.

¶7. Around midnight, the Baldwin brothers arrived at the Shack in Darnell's old Monte Carlo. The car had
no mufflers and made a loud noise when it was in operation. Bryan spoke with the Baldwins and then they
left. Bryan claimed that the Baldwins returned around four hours later. Holliday saw the Baldwins at the
Shack around 2:30 a.m., they again spoke with Bryan for a few minutes, and the Baldwins' car returned
around 4:00 a.m. Holliday also says that another party attendee, Jimmy Cash, spoke to the Baldwins at
4:00 a.m. Holliday and Bryan left the Shack in separate cars around 5:00 a.m.

¶8. Kelly Terrell arrived at the Dill home around 8:00 or 8:30 the morning that Liz's disappearance was
reported. According to Terrell, the living room was picked up and the carpet had been vacuumed. Terrell
also looked for the key that was usually hidden in the carport attic and noticed that it was missing. Bryan
told Terrell that he would report the missing key to the police detectives.

¶9. Amanda Lemmons was also present at the Dill home that morning. She likewise stated that the house
was neat and that Liz's purse and keys were on the couch. Amanda worked with Liz at Community
Counseling. Liz trained Amanda and, about 3-1/2 weeks before her death, Liz had telephoned Amanda to
explain to her what life insurance policies were available by virtue of her employment at Community
Counseling. Bryan was present when Liz made the telephone call. The Blue Bonnet Life Insurance Policy
was purchased by Liz through her employment at Community Counseling.

¶10. Investigation of the home on the morning of Liz's reported disappearance showed no signs of forced
entry. A .25 caliber handgun was the only thing missing from the home.

¶11. Bryan made several statements to police and friends concerning Liz's disappearance and murder. He
also testified at the criminal trials of the Baldwin brothers and by video deposition in this case. Bryan told his
mother-in-law that he had locked the door when he left for the party at the Shack on the night of April 5.
He went back to get something and could not remember if he locked the door the second time he left.

¶12. Bryan told Officer Marc Miley that he had locked the door when he left but, upon returning, had
knocked for Liz to let him into the house. When Miley first arrived to investigate the disappearance, Bryan
told him that he feared that Liz had committed suicide because she had been upset about bad results from
tests on her back. When Miley returned with a search crew around 9:40 a.m., he noted that the washer and
dryer were in use. There was a .223 caliber rifle with a pistol grip, a high velocity weapon capable of
causing the fatal gun shot wound, on the kitchen table. The gun was also spotted by Officer Rick Speed, the
first police officer to arrive at the scene, at 7:21 a.m. The gun was breached, and there were cleaning items
with it on the table. Officer Kevin Petri picked up the weapon, smelled the barrel, and reported that the
weapon had been recently fired. Bryan said that he had fired the weapon that morning at a crow in the yard.

¶13. Bryan was adamant in his suspicion that a neighbor had taken Liz for the purpose of satanic rituals.
The neighbor was investigated but was later dismissed as a suspect because the police determined that he
was nothing more than a harmless eccentric.

¶14. A neighbor reported hearing a loud car in the Dills' driveway for over five minutes on the night of Liz's
disappearance, but no neighbor testified to hearing gunfire.

¶15. Another neighbor, Carolyn Bogie, reported hearing a woman scream and an idling car on the hill in the
area of the Dill house. She also heard male voices, and dismissed the racket as teenage vandals. Bogie
testified that she relayed this information to Bryan and he responded with his belief that his eccentric
neighbor was responsible. Bogie was upset by Bryan's allegations of satanic rituals and, fearful of Bryan, did
not relate the conversation to the police.

¶16. The police interviewed Bryan on April 8. He reported that Liz had between $12,000 and $25,000 in
life insurance, saying that her annual salary was more than the insurance proceeds and he therefore had no
motive to kill her. Officer Mulligan informed Bryan that no life insurance proceeds would be paid until a
body was found. The body was discovered the next day on April 9. Evidence revealed that the body had
been transported to the location where it was discovered. In a subsequent interview on April 23, the police
inventoried and took possession of Bryan's 24 guns. Bryan claimed he did not know how much life
insurance Liz had.

¶17. On the day that the body was found, the police had been informed from interviews with the other
party attendees that the Baldwins were at the Shack the night of Liz's disappearance and the Baldwin
residence was about 15 minutes from where the body was found. Two officers went to the Baldwins' house
to talk with them. Darnell was present, as was the Monte Carlo car. He was very nervous, and the officers
became suspicious. The officers were out of radio and phone range and had to leave the house to request
assistance. When they returned, Darnell and the Monte Carlo were gone. The car was reported stolen on
April 17. It was found in August of 1996 in Alabama. The car was completely burned, and no physical
evidence could be recovered.

¶18. In late April, Bryan went to see Guy Marian, Liz's boss at Community Counseling. Marian informed
Bryan of the $200,000 life insurance coverage from Blue Bonnet and AFLAC. Marian also gave Bryan the
necessary documentation to make claim to the funds, which Bryan completed and returned to him on May
1, 1996. On May 1, Bryan also executed proof of claim to Farm Bureau, and on May 8, 2000, he
executed a proof of claim with Commercial Life Insurance Company for a $15,000 policy. The $15,000
was paid into the Estate, and Commercial Life is not a party to this action. On May 7, Bryan told detectives
that he was only aware of $12,000 in life insurance benefits. In late May, Bryan told Detective Joe Young
that he would receive only a "dab" of life insurance.

¶19. Bryan was aware that he was a suspect in his wife's death. He told police that, after thinking about it,
he had recollected that Darnell had told him that night at the Shack that he had a "white woman" in the car.
Bryan claims that he did not suspect at the time that it was his wife and just walked away. Bryan wished
that he had stayed because maybe the Baldwins would have made a ransom demand. Bryan then suggested
that the police look at Weaver Road as the possible crime scene or that the car might be there. The car was
discovered near Weaver Road in August of 1996. In his deposition and at trial, Bryan said that Clint had
surreptitiously told him that there was a woman in the car so that Darnell could not hear. Bryan believed that
Darnell was the mastermind of the scheme to abduct, rape, and murder Liz, and that Clint had just gone
along with it.

¶20. On April 10, the evening after Liz's body was recovered, Danny Hickman, a bounty hunter and private
investigator, spoke with Bryan and a mutual friend to offer his assistance. Bryan told Hickman that evening
that when the Baldwins came to the Shack they told Bryan that they had a white woman in the car and that
something would happen to her if he, Bryan, did not lend them some money. Bryan's story to Hickman was
that the Baldwins had made that demand twice, at midnight and 2:00 a.m., and that Bryan, not realizing it
was his wife, told them to do whatever because he would not give them any money. Bryan told Hickman to
look for the Monte Carlo, the whereabouts of which Bryan claimed to know. He denied that there was any
life insurance proceeds but Bryan told Hickman that he was afraid to tell the police detectives he was
looking for the car because they might use it against him. Hickman and Bryan agreed that they would go to
look for the car the next morning, but when Hickman showed up at the house to get Bryan, no one
answered. Hickman left and had no more contact with Bryan.

¶21. Stanley Abrams gave a statement implicating Bryan in Liz's death to the police based on information
given him by Clint. Abrams was arrested along with Clint in July of 1996 for intimidating a witness, but
Abrams has not been prosecuted. Shortly before Clint's trial, Abrams and Bryan were seen talking. Abrams
has since been charged with perjury arising from his testimony at Clint's trial. Abrams had previously
worked, hunted, and fished with Bryan. Abrams pled "the Fifth" when asked about Clint's statements to
him, or Abrams's statement to police.

¶22. Scott Rushing, one of Bryan's friends, testified that Bryan told him that, the second time they arrived at
the Shack on the night in question, the Baldwins told Bryan that "your b**** is in the car." Rushing was
also present when one of Bryan's employees told Bryan that Liz's body had been found. When the Sheriff
arrived, Bryan's first question to the Sheriff was, "How bad is she messed up?" This question may have
been the result of information provided by Rushing or part of Bryan's plan to add fuel to his insistence that
Liz had been abducted for use in a satanic ritual.

¶23. Randy Jamison saw Clint about 4:00 a.m. on the morning of April 6. Clint was visibly shaken and
vomiting, and he had a large sum of money on his person.

¶24. Brian Post witnessed a confrontation between Darnell and Bryan a few months before the murder.
Post also claimed to have noticed the door to the Dill home cracked open around 10:00 p.m. the night of
Liz's disappearance. Post worked for Bryan at the same time as Abrams and Clint and testified that Clint
hunted and fished with Bryan. One of Bryan's employees testified that Post had stated the door had been
partially opened around 11:30 p.m.

¶25. Bryan stipulated that he was in bad financial shape at the time of Liz's murder. Liz had guaranteed a
loan for Bryan to buy a pick-up truck.

¶26. Liz's estate includes the $15,000 life insurance proceeds from Commercial Life and the Dill home,
which is titled exclusively in Liz's name and which she had purchased prior to her marriage to Bryan. Liz
died intestate, leaving as her sole heirs Bryan and her daughter Taylor.

¶27. The Chancellor, applying a preponderance of the evidence quantum of proof, ruled that, more likely
than not, Bryan had wilfully and intentionally caused the Liz's death. The Chancellor concluded that the case
was one of circumstantial evidence, turning on the credibility of Bryan Dill. The Chancellor specifically found
that Bryan was not at all credible. Bryan's statements were evasive and inconsistent, ambiguous and
incomplete. For that reason, the Chancellor was not persuaded by Bryan's explanations.

¶28. Further evidence of Bryan's complicity in Liz's death were found by the Chancellor as well. The
Baldwins had no motive of burglary or robbery since nothing of value was taken from the home. There was
no forced entry, and the Baldwins had access to the spare key, which Bryan could have told them was in
the carport, and which Bryan later failed to report missing. Bryan had arranged for Liz to be home alone in
her weakened condition and himself to have an alibi by attending the party that evening. Bryan nonetheless
had contact with the Baldwins on three occasions that evening. Bryan had previous relationships with the
Baldwins to provide opportunity for conspiracy.

¶29. Bryan did not have affection for his wife. He left his wife when she was in severe pain and frightened
of negative test results to party with his friends and have sex with his girlfriend. He did not return until
sunrise.

¶30. Liz's body was found within a short time (less than a day) after Bryan was informed a body was
necessary to collect the insurance money. Obviously, the Baldwins could have disposed of the body in the
burned Monte Carlo, but did not because the body was needed to collect the insurance proceeds. The
body was placed in a location where it would be promptly found. The condition of the body was to obscure
motive and divert attention to the Dills' neighbor, as Bryan had alleged the neighbor's involvement from the
very beginning. The body was obviously well preserved for the three days prior to its discovery.

¶31. Bryan was in possession of a high velocity weapon which could have been the murder weapon. When
asked about its recent firing, Bryan had given a "ridiculous" story about shooting at a crow and then later
denied having made that statement. There was no explanation for the gun, shells, and cleaning equipment to
be on the kitchen table that morning. The cleaning and vacuuming when Liz was unable to do so and Bryan
had no history of such is equally highly suspect. Bryan had opportunity to clean up between the time he left
the Shack at 5 a.m. and reported Liz missing a little after 7 a.m.

¶32. Bryan's statements that he did not know how much life insurance was at stake are "not worthy of
belief." Bryan's statements to Hickman, Rushing, and Detective Young that mention the Baldwins talking
with him about his wife being in the car and them wanting money is highly indicative of the crime. Clint
Baldwin was seen later the morning after Liz's disappearance with a large sum of money.

¶33. The Chancellor also considered, over hearsay objections, the trial testimony of Lonnie Harris that
Darnell Baldwin said that he was paid by a woman's husband to rape, kill, and cut her up. Michael Ball
testified that Clint Baldwin told him that he and Darnell were paid to dispose of a body, but ended up killing
the woman. Written statements by Derrick Guyton and Stanley Abrams provide even more direct evidence
that Bryan conspired to kill his wife. Even though that direct evidence is suspect as it comes from other
convicted criminals(1) along with all of the circumstantial evidence, it shows that the evidence is
"overwhelming." Considering all of the evidence, the chancellor determined that Bryan had wilfully procured
the death of his wife and was not entitled to any of the interpled life insurance proceeds.

                                        STANDARD OF REVIEW

¶34. "'This Court will not reverse a Chancery Court's factual findings, be they of ultimate fact or of
evidentiary fact, where there is substantial evidence in the record supporting these findings of fact." Smith v.
Jones, 654 So. 2d 480, 485 (Miss. 1995) (quoting Cooper v. Crabb, 587 So. 2d 236, 239 (Miss. 1991)
). Furthermore, if a chancellor's findings are supported by substantial evidence, they will not be disturbed
unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous or applied an
erroneous legal standard." Williams v. Williams, 656 So. 2d 325, 330 (Miss. 1995); Smith, 654 So.2d
at 485; Chamblee v. Chamblee, 637 So. 2d 850, 860 (Miss. 1994), quoted in Brocato v. Brocato,
731 So. 2d 1138, 1140 (Miss. 1999).

                                               DISCUSSION

¶35. This Court has held that a beneficiary who had wilfully taken the life of an insured could not recover
the proceeds of a life insurance policy. Gholson v. Smith, 48 So. 2d 603 (Miss. 1950). In Gholson v.
Smith, the Court found that the evidence showed that the beneficiary had wilfully and without justification in
law killed the insured. Id. at 605. However, the Court did not specifically set forth what quantum of proof
was used in weighing the evidence.

¶36. In the case sub judice, the learned Chancellor dutifully and carefully analyzed the law and evidence and
chose to apply the preponderance of the evidence quantum of proof. As cited by the Chancellor, this
decision is not without substantial precedent in other jurisdictions. See Horn v. Cole, 156 S.W.2d 787
(Ark. 1941); Liodas v. Sahadi, 562 P.2d 316 (Cal. 1977); Cooper v. Spring Valley Water Co., 116
P. 298 (Cal. Ct. App. 1911); Stone v. Union Fire Ins. Co., 107 P.2d 241 (Col. 1940); Verrastro v.
Middlesex Ins. Co., 540 A.2d 693 (Conn. 1988); Schaffer v. Lindy, 511 A.2d 1022 (Conn. App. Ct.
1986); Cheatle v. Cheatle, 662 A.2d 1362 (D.C. Ct. App. 1995); Carter v. Carter, 88 So. 2d 153
(Fla. 1956); Eskridge v. Farmers New World Life Ins. Co., 621 N.E.2d 164 (Ill. App. Ct. 1993);
Shelby Mfg. Co. v. Harris, 44 N.E.2d 315 (Ind. Ct. App. 1942); Neises v. Solomon State Bank, 696
P.2d 372 (Kan. 1985); Prince v. Aetna Cas. & Surety Co., 129 So. 2d 71 (La. Ct. App. 1961); Hinds
v. John Hancock Mut. Life Ins. Co., 155 A.2d 721 (Me. 1959); Ford v. Ford, 512 A.2d 389 (Md.
1986); Lopez v. New Jersey Bell Tel. Co., 240 A.2d 670 (N.J. 1968). Jones v. All American Life
Ins. Co., 316 S.E.2d 122 (N.C. Ct. App. 1984); Shrader v. Equitable Life Assurance Society, 485
N.E.2d 1031 (Ohio 1983); State Mut. Life Assurance Co. of America v. Hampton, 696 P.2d 1027
(Okla. 1985); Millar v. Semler, 3 P.2d 987 (Or. 1931); Taglianetti v. New England Tel. & Tel. Co.,
103 A.2d 67 (R.I. 1954); Rutledge v. St. Paul Fire & Marine Ins. Co., 334 S.E.2d 131 (S.C. Ct.
App. 1985); Horrell v. Utah Farm Bureau Ins. Co., 909 P. 2d 1279 (Utah Ct. App. 1996).

¶37. A Mississippi federal district court similarly applied a preponderance of the evidence standard to a
case such as this one. Davis v. Continental Cas. Co., 560 F. Supp. 723 (N.D. Miss. 1983). While that
case is not controlling, in light of the obvious majority of other jurisdictions applying the same quantum of
proof, we are persuaded that the Chancellor applied a correct legal standard in this case.

¶38. Bryan believes that the Chancellor applied an erroneous legal standard in concluding that the quantum
of proof was preponderance of the evidence. Bryan's argument is that this case involves fraud against an
insurance company, a situation in which this Court has concluded that the correct quantum of proof is by
clear and convincing evidence. See McGory v. Allstate Ins. Co., 527 So. 2d 632 (Miss. 1988). In
McGory, the insurance company brought suit against the insureds to divest them of proceeds paid under a
fire insurance policy. The insurance company alleged that the McGorys had deliberately burned their home
to fraudulently obtain insurance proceeds. This Court reversed a jury verdict in favor of the insurer, finding
that the correct quantum of proof was a clear and convincing standard, as opposed to the preponderance
of the evidence standard commonly used in civil cases. The Court concluded that the case was one for
fraud, which has traditionally carried with it the higher quantum of proof. See Beck Enters., Inc. v. Hester,
512 So. 2d 672, 675 (Miss. 1987), cited in McGory, 527 So. 2d at 635 (other citations omitted). The
Court reasoned that there was not enough to distinguish the typical fraud case from a civil arson case. The
Court stated that the "[q]uantum of proof standards reflect the degree of confidence we demand for
particular findings. They measure our willingness to risk error." Id. at 635 (citations omitted).

¶39. The present case is distinguishable from McGory. Since this action is not brought by a party alleging
fraud upon them, it is different from a typical fraud case. See Stewart v. Domestic Loans of
Brookhaven, Inc., 199 So. 2d 444 (Miss. 1967); Allen v. Thompson, 248 Miss. 544, 158 So. 2d 503
(1963); McMahon v. McMahon, 247 Miss. 822, 157 So. 2d 494 (1963).

¶40. Generally, a party alleging fraud must prove that there was a false or misleading statement, and some
reliance thereon by the victimized party. McMahon, 157 So. 2d at 501. For example, in Kansas, the court
applied the rule that a beneficiary who has unlawfully killed an insured may not collect from the insurance
company if that company can prove by clear and convincing evidence that the policy was fraudulently
obtained, i.e. that the beneficiary procured or arranged procurement through an unknowing insured with the
purpose of killing the insured to obtain the insurance proceeds. Chute v. Old American Ins. Co., 629 P.
2d 734, 738-39 (Kan. Ct. App. 1981). If the insurance company, then, proves that it was misled to
provide coverage under such circumstances, the insurance company can deny benefits because the
insurance contract is void due to fraud. That case is similar to McGory where the insurance company
alleged that the insured parties had obtained fire insurance with the intent of defrauding the insurance
company by intentionally setting fire to the property.
¶41. In this case, however, the elements of fraud are not present or necessary to the determination. The
insurance companies are not seeking to deny coverage, but, instead, interpled the funds to make payment
on what they considered to be valid insurance contracts, not contracts that are voided due to fraud. The
dispute in this case is among the potential beneficiaries. Therefore, this case does not involve an allegation
of fraud. This dispute is simply to determine a rightful beneficiary to the interpled funds. The only thing that
need be proved in this case is that Bryan wilfully procured the death of his wife without justification at law.
Gholson, 48 So. 2d at 605.

¶42. There are also public policy considerations which favor use of the preponderance of the evidence
quantum of proof. Gholson's pronouncement that a person who had unjustifiably taken the life of another
could not make claim to life insurance benefits rested on sound public policy, as stated in Miss. Code. Ann.
§ 91-1-25 (1994), which prohibits inheritance by an heir who wilfully causes or procures the death of a
decedent. Gholson, citing the predecessor statute, extended that public policy to establish the controlling
principle that neither should a "guilty" party make claim to life insurance proceeds. 48 So. 2d at 604. There
is a strong public policy against allowing someone to procure the death of another and then profit from the
illegal act. Public policy weighs heavily against requiring a heightened quantum of proof than that normally
required in a civil suit, preponderance of the evidence.

                                               CONCLUSION

¶43. The correct legal standard was applied in this case. The judgment of the Chancery Court of Lowndes
County that Bryan Dill wilfully and intentionally caused the death of his wife and should not be entitled to
any of the interpled life insurance funds is based on substantial evidence and is AFFIRMED.

¶44. AFFIRMED.

      PITTMAN, C.J., SMITH, MILLS AND COBB, JJ., CONCUR. BANKS, P.J., DISSENTS
      WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J., AND DIAZ, J.
      McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BANKS,
      P.J., AND DIAZ, J. EASLEY, J., NOT PARTICIPATING.

      BANKS, PRESIDING JUSTICE, DISSENTING:

¶45. Because in my view the correct standard of proof to be applied in this case is the higher clear and
convincing evidence standard, I would reverse and remand for the chancellor to review the evidence
applying this heightened standard of proof. Accordingly, I respectfully dissent.

¶46. While I respect the chancellor's analysis and am sympathetic to the argument of the Estate and the
minor child that the law should not protect someone who attempts to profit by procuring the death of
another, there also remain valid reasons for maintaining a heightened quantum of proof. This action is of a
quasi-criminal nature and will prevent recovery or inheritance by Bryan if the chancellor finds that he
procured the death of his wife. By analogy, we have held that there is a heightened standard of proof for
adultery as a ground for divorce since such a finding may hinder an award of alimony to the guilty party.
Also, like fraud and embezzlement, a separate criminal cause of action may be maintained based on
adultery. Miss. Code Ann. § 97-29-1 (2000); McCraney v. McCraney, 208 Miss. 105, 43 So. 2d 872,
875 (1950).

¶47. Ultimately, contrary to the majority's assertion, this case does involve a claim of a fraudulent action
against an insurance company. Dill's alleged act of conspiring with the Baldwins to kill Liz was an attempt to
mislead the insurance companies in order to obtain life insurance proceeds and amounts to an attempt to
defraud the insurance company. This Court's holding in McGory dictates that in a case involving fraud
against an insurance company, the correct quantum of proof is by clear and convincing evidence. See
McGory v. Allstate Ins. Co., 527 So.2d 632, 635-36 (Miss. 1988). Using the rationale of McGory, I am
unable to distinguish this case from any other insurance fraud case and unwilling to risk an erroneous
determination in a case of quasi-criminal nature.

¶48. The Estate avers that, if he had used the higher quantum of proof, the chancellor would have still
concluded that Bryan should not recover the insurance proceeds. As the Estate points out, the chancellor
characterized the evidence of Bryan's involvement in the death of his wife as highly probable, overwhelming,
and conclusive. He found that the case was one of circumstantial evidence and that it turned on Bryan's
credibility. He specifically found that Bryan was wholly without credibility. Bryan's statements were evasive,
inconsistent, ambiguous and incomplete, especially in light of the other evidence of his complicity in Liz's
death. In addition, the Estate submits that both of the Baldwin brothers were convicted of capital murder
under the beyond a reasonable doubt standard of proof based on less evidence than was admitted in this
civil case. Nevertheless, the chancellor applied a preponderance of the evidence quantum of proof, finding
that, more likely than not, Bryan had wilfully and intentionally caused the Liz's death. While the record
indicates that the chancellor carefully considered the facts of this case, we may not uphold the judgment that
was based on a preponderance of the evidence where our precedents indicate that a heightened standard is
appropriate. Nor should this Court substitute its judgment for that of the trial court. While the chancellor
may indeed come to some conclusion applying the proper standard, it is not for this court to assume that
result. This case should be remanded to the chancellor for a new determination using the clear and
convincing evidence quantum of proof.

      McRAE, P.J., AND DIAZ, J., JOIN THIS OPINION.

      McRAE, PRESIDING JUSTICE, DISSENTING:

¶49. The majority concludes that the proper standard of review in this case is a preponderance of the
evidence standard in finding that the benefits to the company's insured should be denied. I dissent because
the proper standard of review should be the clear and convincing evidence standard.

¶50. This case is not any different from any other fraud case, and our case law consistently shows that the
burden of proof of a plaintiff proving fraud should be clear and convincing evidence. Cotton v.
McConnell, 435 So. 2d 683, 685-86 (Miss. 1983) (citing Alabama & V. R. v. Kropp, 129 Miss. 616,
633, 92 So. 691, 693 (1922); Aponaug Mfg. Co. v. Collins, 207 Miss. 460, 478, 42 So. 2d 431, 436-
37 (1949); Parker v. Howarth, 340 So. 2d 434, 437 (Miss. 1976); Hamilton v. McGill, 352 So. 2d
825, 831 (Miss. 1977); Clement v. R.L. Burns Corp., 373 So. 2d 790, 795 (Miss. 1979); Mosby v.
Gandy, 375 So. 2d 1024, 1028 (Miss. 1979)). See also McGory v. Allstate Ins. Co., 527 So. 2d 632,
635 (Miss. 1988) (citing Beck Enters., Inc. v. Hester, 512 So. 2d 672, 672 (Miss. 1987); Cherry v.
Anthony, Gibbs, Sage, 501 So. 2d 416, 420 (Miss. 1987); Johnson v. Brewer, 427 So. 2d 118, 126
(Miss. 1983) (holding "Mississippi Law requires that a party charging fraud prove his charge by clear and
convincing evidence.").

¶51. The majority attempts to distinguish McGory v. Allstate Ins. Co., 527 So. 2d 632, 635 (Miss. 1988)
, stating "this action is not brought by a party alleging fraud upon them." The majority cites to three cases as
examples of typical fraud cases and states that this case is different because it only deals with to whom the
insurance company will pay the funds. The three cases are Stewart v. Domestic Loans of Brookhaven,
Inc., 199 So. 2d 444 (Miss. 1967); Allen v. Thompson, 248 Miss. 544, 158 So. 2d 503 (1963); and
McMahon v. McMahon, 247 Miss. 822, 157 So. 2d 494 (1963). Whether this action is brought by the
insurance company or not is irrelevant. The element of fraud is in question in this case. Otherwise, there
would have been no reason for the insurance company to interpled the funds. These cases concern fraud in
various situations and apply the clear and convincing standard of proof.

¶52. In Stewart, this Court reversed the ruling of the chancellor, who denied Stewart a certain sum of
money. This Court found that the appellees, the loan company and others, had failed to prove a charge of
fraud and embezzlement by clear and convincing evidence, and therefore, they could not receive credit for
the sum. Instead, this money belonged to Stewart. Stewart, 199 So. 2d at 444. This Court stated where a
claim is made involving fraud or embezzlement, proof must be established by clear and convincing evidence
before recovery may be allowed. Id. at 445 (citing Allen and McMahon). Stewart made no distinction as
to who brought the claim, as the majority alludes to, that would distinguish it from the present case. In
addition, Stewart cited Allen and McMahon for support of the clear and convincing standard to be
applied in cases of fraud.

¶53. Also, in McMahon, McMahon's amended complaint alleged that a quitclaim deed was secured by
fraud and duress by the appellee. McMahon, 157 So. 2d at 496. The Court concluded fraud must be
proven by clear and convincing evidence. Id. at 499. In Allen, a real estate case, it was undisputed that
Allen had the burden of proving the elements of his complaint alleging fraud by clear and convincing
evidence. Allen, 158 So. 2d at 504, 508-09. In stating this conclusion, Allen quoted a 1907 case, Locke
v. Friedman, Keiler & Co., 90 Miss. 3, 4-5, 43 So. 673, 674 (1907), establishing this state's long history
of recognizing the clear and convincing standard for proof for fraud.

¶54. Quantum of proof standards measure our willingness to risk error, and they reflect the degree of
confidence a court will demand for particular findings. McGory, 527 So. 2d at 636. This case is not any
different from any insurance case where an element of fraud is in question. Bryan was never charged by the
district attorney for the murder of his wife, Liz, but there was significant proof found by the trial court
indicating Bryan either killed Liz himself or solicited the help of the Baldwin brothers to do it. The chancery
court stated in its memorandum opinion, filed June 8, 1999, that, "[t]he existence of the conspiracy between
the Baldwins and Dill is affirmed." In addition, in the chancery court judgment, filed the same day, the court
stated, "The Defendant, Bryan Ellis Dill, shall not recover any of the interpled life insurance proceeds based
upon his having intentionally and wilfully killed the insured, Mary Elizabeth Dill, his wife, by and through the
agency of Darnell Baldwin and Clint Baldwin." Therefore, there is sufficient evidence of fraud in this case
relating to the insurance policy in question.

¶55. For the above reasons, I dissent. I would reverse this case and remand it to have the chancellor apply
the proper standard of clear and convincing evidence.

      BANKS, P.J., AND DIAZ, J., JOIN THIS OPINION.

1. The Chancellor found that the statements were admissible evidence and, given the corroborating
evidence, credible.
