         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2015-CA-00360-COA

IN THE MATTER OF THE ESTATE OF JAMES                                        APPELLANTS
OLDRUM SMITH, JR., DECEASED: JAMES
OLDRUM SMITH, III AND PATRICK SMITH

v.

LELA SMITH FLOWERS AND LYN SMITH                                              APPELLEES

DATE OF JUDGMENT:                           01/16/2015
TRIAL JUDGE:                                HON. HOLLIS MCGEHEE
COURT FROM WHICH APPEALED:                  WARREN COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS:                   WILLIAM R. STRIEBECK
                                            DAVID RYAN LYNCH
ATTORNEYS FOR APPELLEES:                    DAVID M. SESSUMS
                                            RONALD C. MORTON
                                            ROBERT ANTHONY FISCHER
NATURE OF THE CASE:                         CIVIL - WILLS, TRUSTS, AND ESTATES
TRIAL COURT DISPOSITION:                    MOTION FOR CONSTRUCTION OF
                                            CODICIL GRANTED IN FAVOR OF
                                            APPELLEES
DISPOSITION:                                REVERSED AND REMANDED: 10/04/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       GRIFFIS, P.J., FOR THE COURT:

¶1.    This appeal comes from the probate of the estate of James Oldrum Smith Jr. As part

of the probate of the estate, a disputed issue arose as to the interpretation of a codicil that

would impact the transfer of stock owned by the decedent in three corporations. The Warren

County Chancery Court determined that the codicil was not ambiguous and did not allow for

the consideration of extrinsic evidence. The appellants disagree and filed a timely appeal.
We find reversible error and remand for further proceedings.

                         FACTS AND PROCEDURAL HISTORY

¶2.     James Oldrum Smith Jr. (“Big J.O.”) was a successful businessman who lived in

Warren County, Mississippi. He died on August 24, 2006. At the time of his death, he was

survived by three children: James Oldrum Smith III (“Little J.O.”), Patrick Raymond Smith,

and Lela Smith Flowers. Big J.O. also had one child that predeceased him, Jinx Peterson

Smith. Jinx left three surviving children: Jinx Peterson Smith Jr., Christopher Stanton Smith,

and Patricia Stafford Smith.

¶3.     On September 8, 2006, the Estate of J.O. Smith Jr. was opened in the chancery court.

The last will and testament of Big J.O., dated November 10, 1987, was admitted to probate.

In addition, the three codicils executed by Big J.O. were admitted to probate: codicil 1 dated

November 8, 1988; codicil 2 dated July 27, 2005; and codicil 3 dated December 12, 2005.

At the time in controversy here, Harry Kenneth Lefoldt Jr. was the administrator of the estate.

¶4.     The controversy before this Court concerns the interpretation of codicil 3. Big J.O.

did not obtain the assistance of a lawyer in the preparation or execution of codicil 3. It was

titled “Codicil #3 to the Will of J.O. Smith, Jr. which Will is dated November 10, 1987.” It

read:

        J.O. Smith, III will receive in the event of my death 41% of the shares that I
        own in Big River Shipbuilders, Inc., Vicksburg Plant Food, Inc. and Yazoo
        River Towing, Inc.

        Patrick Smith and Lela Smith Flowers will receive 39% of the stock that I own
        in Big River Shipbuilders, Inc. and Vicksburg Plant Food; and 29% of the
        stock of Yazoo River Towing, Inc. divided equally.



                                              2
¶5.    Big J.O. died on August 24, 2006. As of the date of his death, these companies had

the following shareholder ownership:

                                      Shareholder                   Shares         % Owned
       Big River Shipbuilders         Estate of J.O. Smith Jr.      80             80%
                                      J.O. Smith III                10             10%
                                      Jinx Smith (Estate)           10             10%

       Vicksburg Plant Food           Estate of J.O. Smith Jr.      800            80%
                                      J.O. Smith III                100            10%
                                      Jinx Smith (Estate)           100            10%

       Yazoo River Towing             Estate of J.O. Smith Jr.      3,483          69%
                                      J.O. Smith III                500            10%
                                      Jinx Smith (Estate)           500            10%
                                      Teresia White                 517            11%

¶6.    On December 2, 2012, Lyn Smith, Jinx’s widow, filed a motion for construction of

the codicil. This motion sought a determination of whether the codicil constituted a direct

bequest, or whether the assets listed in the codicil went to the residual estate. On September

7, 2011, the chancellor ruled that the codicil was unambiguous and constituted a direct

bequest of the assets to the named beneficiaries.

¶7.    On August 13, 2014, Little J.O. filed a “Motion for Construction of 3[rd] Codicil.”1

In this motion, Little J.O. argued that, in codicil 3, Big J.O. intended for Little J.O. to receive

41% of the shares of each corporation and not just 40% of the shares owned by Big J.O.

Little J.O. also argued that Big J.O. did not intend for any of the shares to be left to his

grandchildren.



       1
          At the time this motion was filed, there were eighteen attorneys listed in the
certificate of service. This is to note the extent of the prior matters considered and the
complexity of the estate.

                                                3
¶8.    On February 28, 2014, Administrator Lefoldt filed a response to Little J.O.’s motion.

This response did not take a position, but asked the chancellor for a decision and a certified

final judgment under Mississippi Rule of Civil Procedure 54(b), so he could take the

appropriate action.

¶9.    On March 4, 2014, Patrick joined Little J.O.’s motion and attached the court’s earlier

September 7, 2011 judgment and the December 2, 2010 motion for construction of the

codicil filed by Christy Noah, as the guardian of the estate of Jinx Peterson Smith, and

Christopher Stanton Smith.

¶10.   On March 7, 2014, Trustmark Bank filed a “Memo on Practical and Legal Issues

Related to Codicil 3.” Trustmark argued that the distribution of shares did not make sense

without the inclusion of extrinsic evidence.

¶11.   The chancellor held a hearing on November 14, 2014. Counsel appeared and were

given an opportunity to examine witnesses. Then, on January 16, 2015, the chancellor

executed a memorandum opinion and order and Rule 54(b) judgment. The chancellor ruled

that codicil 3 was unambiguous and allocated the shares as follows:2

                                      # of shares
                      # of shares     owned by
Company               Outstanding    J.O. Smith Jr. J.O. Smith III Lela   Patrick   Residue
Big River
Shipbuilders          100            80             32.8           15.6   15.6      16

Vicksburg Plant
Food                  1,000          800            328            156    156       160


       2
        This chart only reflects this distribution of Big J.O.’s shares to Little J.O., Lela, and
Patrick. It does not include the shares owned by Little J.O. and Jinx’s estate prior to Big
J.O.’s death.

                                               4
Yazoo River
Towing                5,000          3,483          1,428.03       725    725      604.97

The chancellor also certified the judgment under Rule 54(b). Little J.O. and Patrick appeal.3

                                 STANDARD OF REVIEW

¶12.   “A chancellor’s factual findings will not be disturbed if supported by substantial

evidence, but if an erroneous legal standard is applied, appellate review is de novo.” In re

Estate of Black, 135 So. 3d 181, 182-83 (¶4) (Miss. Ct. App. 2013) (citing In re Estate of

Langston, 57 So. 3d 618, 619-20 (¶6) (Miss. 2011)). Further, “[w]hen reviewing a

chancellor’s legal findings, particularly involving the interpretation or construction of a will,

this Court will apply a de novo standard of review.” In re Estate of Saucier, 908 So. 2d 883,

886 (¶5) (Miss. Ct. App. 2005) (quoting In re Last Will & Testament of Carney, 758 So. 2d

1017, 1019 (¶8) (Miss. 2000)).

                                         ANALYSIS

¶13.   The issue for this Court is whether the chancellor improperly excluded extrinsic

evidence of Big J.O.’s intent in construing the codicil. Little J.O. and Patrick argue that the

codicil contained a latent ambiguity. Lela argues there was no ambiguity.

¶14.   “A trial court begins its review [by] looking first within the ‘four corners’ of the

document at issue. If there exists no ambiguity within the writing, then further analysis is

proscribed.” Estate of Regan v. Estate of LeBlanc, 179 So. 3d 1155, 1159 (¶12) (Miss. Ct.

App. 2015) (quoting DeJean v. DeJean, 982 So. 2d 443, 448 (¶10) (Miss. Ct. App. 2007)).


       3
        While Lyn Smith and Lela Smith Flowers are both appellees in the action, Lyn filed
a “confession of appeal” on November 25, 2015, in which she confessed that the chancellor
had erred. Therefore, only Lela argues in favor of the chancellor’s decision on appeal.

                                               5
“Parol evidence may only be considered if the language of the will itself can be construed

to result in more than one interpretation as to the disposition of property.” Id. at (¶13)

(quoting Black, 135 So. 3d at 183 (¶5)). Therefore, we must first determine if an ambiguity

exits.

¶15.     There is a “patent ambiguity” where a will or codicil is ambiguous on its face. Robert

A. Weems, Wills and Administration of Estates in Mississippi § 9:9 (3d ed. 2003). Here, the

codicil indicates the names of the companies, the percentage of distribution of each company,

and the beneficiaries. We agree with the chancellor that there is no patent ambiguity.

¶16.     However, a latent ambiguity occurs if the testator’s intent remains uncertain when the

language of the will is applied to the external facts. Id. Little J.O. and Patrick point to the

third bequest in the codicil to demonstrate the latent ambiguity. There, the codicil purports

to bequeath 29% of the Yazoo River Towing shares without the qualifying language of

“shares that I own” that is in the first two bequests. This omission, according to Little J.O.

and Patrick, constitutes a latent ambiguity, which required the chancellor to consider the

parol evidence presented at the hearing. We agree.

¶17.     When we consider the words used in the codicil along with the external facts, we

conclude that Big J.O.’s intent in the codicil is unclear. At the time the codicil was executed

and as of Big J.O.’s death, the companies’ corporate ownership was as follows:

         Big River Shipbuilders      Shareholder                  Shares        % Owned
                                     Estate of J.O. Smith Jr.     80            80%
                                     J.O. Smith III               10            10%
                                     Jinx Smith (Estate)          10            10%

         Vicksburg Plant Food        Estate of J.O. Smith Jr.     800           80%

                                               6
                                   J.O. Smith III               100           10%
                                   Jinx Smith (Estate)          100           10%

       Yazoo River Towing          Estate of J.O. Smith Jr.     3,483         69%
                                   J.O. Smith III               500           10%
                                   Jinx Smith (Estate)          500           10%
                                   Teresia White                517           11%

¶18.   If we apply the codicil’s language according to the two different interpretations, two

different distributions occur. Under Lela’s interpretation, the ownership would be as

follows:

                                   Shareholder                  Shares        % Owned
       Big River Shipbuilders      J.O. Smith III               42.8          42%
                                   Jinx Smith (Estate)          10            10%
                                   Patrick Smith                15.6          16%
                                   Lela Smith Flowers           15.6          16%
                                   Estate of J.O. Smith Jr.     16            16%

       Vicksburg Plant Food        J.O. Smith III               428           43%
                                   Jinx Smith (Estate)          100           10%
                                   Patrick Smith                156           15%
                                   Lela Smith Flowers           156           16%
                                   Estate of J.O. Smith Jr.     160           16%

       Yazoo River Towing          J.O. Smith III               1,928.03      39%
                                   Jinx Smith (Estate)          500           10%
                                   Patrick Smith                505.035       10%
                                   Lela Smith Flowers           505.035       10%
                                   Teresia White                517           11%
                                   Estate of J.O. Smith Jr.     1,044.9       20%

It seems illogical that Big J.O. would execute a codicil to bequeath his shares in his

companies and intend to leave a portion to his residual estate or his predeceased children’s

heirs and not include them in the codicil.

¶19.   Under Little J.O. and Patrick’s interpretation, the ownership would be as follows:



                                             7
                                    Shareholder                   Shares         % Owned
       Big River Shipbuilders       J.O. Smith III                51             51%
                                    Jinx Smith (Estate)           10             10%
                                    Patrick Smith                 19.5           20%
                                    Lela Smith Flowers            19.5           19%

       Vicksburg Plant Food         J.O. Smith III                510            51%
                                    Jinx Smith (Estate)           100            10%
                                    Patrick Smith                 195            19.5%
                                    Lela Smith Flowers            195            19.5%

       Yazoo River Towing           J.O. Smith III                2,540          51%
                                    Jinx Smith (Estate)           500            10%
                                    Patrick Smith                 722            14%
                                    Lela Smith Flowers            722            14%
                                    Teresia White                 517            11%

Under this interpretation, Little J.O. would have 51% of each of the corporations, giving him

a controlling stake in each company. It would also give the remaining shares in each

corporation to Patrick and Lela without leaving any remaining shares to the residual estate.

¶20.   Based on these different interpretations, bequest three could either mean that Big J.O.

intended to convey the shares he owned, or that he intended distribution of the total

percentage of the company. “An ambiguity is defined as a susceptibility to two reasonable

interpretations.” Dalton v. Cellular S. Inc., 20 So. 3d 1227, 1232 (¶10) (Miss. 2009) (quoting

Am. Guar. & Liab. Ins. v. 1906 Co., 129 F.3d 802, 811-12 (5th Cir. 1997)). Though the

inconsistent language appears only in the third bequest, the effect of the two interpretations

renders the entire codicil ambiguous.

¶21.   “[I]f an examination of the will shows the testator’s intention to be unclear, the court

will examine the facts and circumstances surrounding the testator at the time of making the

will, and extrinsic evidence may be admissible to ascertain the testator’s intention.” 9 Jeffrey

                                               8
Jackson & Mary Miller, Encyclopedia of Mississippi Law § 75:88 (2002). Because there are

two reasonable interpretations, the codicil is ambiguous, and the chancellor should have

considered the extrinsic evidence. Therefore, this Court reverses the decision of the

chancellor and remands this case for further proceedings.

¶22. THE JUDGMENT OF THE WARREN COUNTY CHANCERY COURT IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO LELA SMITH FLOWERS.

     LEE, C.J., BARNES, ISHEE AND CARLTON, JJ., CONCUR. WILSON, J,
CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.
FAIR, JAMES AND GREENLEE, JJ., NOT PARTICIPATING.

       IRVING, P.J., DISSENTING:

¶23.   The majority reverses and remands this case to the Chancery Court of Warren County

because it finds that the chancery court erred in finding no ambiguity in codicil 3 to the last

will and testament of J.O. Smith Jr.        I agree with the chancellor that codicil 3 is

unambiguous. Therefore, I respectfully dissent. Rather than reversing and remanding this

case, I would affirm the chancellor’s finding that codicil 3 is unambiguous but would modify

the judgment to correct the chancellor’s allocation of the shares of Yazoo River Towing,

because I find that the chancellor erred in making the mathematical calculations.

¶24.   Codicil 3 reads as follows:

       J.O. Smith III will receive in the event of my death 41% of the shares that I
       own in Big River Shipbuilders, Inc., Vicksburg Plant Food, Inc. and Yazoo
       River Towing, Inc.

       Patrick Smith and Lela Smith Fowers will receive 39% of the stock that I own
       in Big River Shipbuilders, Inc., and Vicksburg Plant Food; and 29% of the


                                              9
       stock4 of Yazoo River Towing, Inc., divided equally.

(Emphasis and footnote added).          The majority finds ambiguity because the third

bequest—that specifies that twenty-nine percent of the stock of Yazoo River Towing is to

be divided equally between Patrick and Lela—does not include the language “that I own” to

describe the stock being bequeathed. The majority concludes that the absence of this

language in one of the three bequests made in codicil 3 evidences a latent ambiguity, because

it is susceptible to two reasonable interpretations: either (1) that Big J.O. intended to convey

to Lela and Patrick twenty-nine percent of the stock that he owned in Yazoo River Towing,

or (2) that Big J.O. intended to convey to Lela and Patrick twenty-nine percent of the total

stock of Yazoo River Towing. I agree that the bequest is susceptible to two interpretations.

However, it is my view that the bequest is susceptible to only one reasonable

interpretation—that in codicil 3, Big J.O. was bequeathing—in each bequest—only

percentages of the percentage of stock that he owned, not percentages of all the stock of

Yazoo River Towing.

¶25.   The facts indicate that at the time of Big J.O.’s death, the division of ownership in

Yazoo River Towing’s 5,000 outstanding shares was as follows:

       Shareholder                                 Shares                        % Owned
       Big J.O.                                    3,483                         69%
       Little J.O.                                 500                           10%
       Estate of Jinx Smith                        500                           10%
       Teresia White                               517                           11%

Big J.O. did not own one hundred percent of the stock of Yazoo River Towing; rather, he



       4
           Note that the phrase “that I own” is missing here.

                                              10
owned sixty-nine percent of it. Sixty-nine percent of Yazoo River Towing’s stock equates

to 3,483 shares. Thus, Big J.O. could not have intended to bequeath twenty-nine percent of

5,000 shares in Yazoo River Towing to Patrick and Lela, because he did not own 5,000

shares. One simply cannot give away what one does not own.

¶26.   The chancellor clearly manifested the same belief, as he maintains throughout his

judgment that codicil 3 reflects Big J.O.’s unambiguous intent to leave twenty-nine percent

of the stock he owned in Yazoo River Towing to Patrick and Lela:

       [Big J.O.] left the stock he owned to his three surviving children in the
       percentages stated. The effect of [Big J.O.’s] bequests of the specified
       percentages of the stock he owned in Big River Shipbuilders, Inc., Vicksburg
       Plant Food, Inc. and Yazoo River Towing, Inc. is that a portion of the
       corporate stock owned by [Big J.O.] passes through the residuary clause of the
       Will.

       The Court has construed Codicil #3 as written and signed by [Big J.O.] in plain
       and unambiguous language that he left the corporate stock he owned to each
       of his three living children in the percentages set forth above.

       The Court, giving effect to the plain, clear and simple language in Codicil #3
       to the Last Will and Testament of [Big J.O.], hereby concludes and enters as
       its Final Judgment that [Big J.O.] left the stock he owned in Big River
       Shipbuilders, Inc., Vicksburg Plant Food, Inc. and Yazoo River Towing, Inc.
       to his three surviving children, [Little J.O.], [Patrick,] and [Lela], in the
       percentages stated in Codicil # 3. The effect of [Big J.O.’s] bequests of the
       specified percentages of the stock he owned in Big River Shipbuilders, Inc.,
       Vicksburg Plant Food, Inc. and Yazoo River Towing, Inc. is that a portion of
       the corporate stock owned by [Big J.O.] passes through the residuary clause
       of [Big J.O.’s] Last Will and Testament.

(Emphasis added). Further, the chancellor implies in a footnote of his order that the phrase

“that I own” is unnecessary and he would not read it into what Big J.O. wrote, as its absence

did not diminish his finding that Big J.O. intended to bequeath twenty-nine percent of the



                                             11
shares he owned to Patrick and Lela. I agree with the chancellor that Big J.O.’s failure to

include this qualifying language in the bequest at issue is hardly a fatal flaw rendering the

entire codicil ambiguous.

¶27.   Unfortunately, however, the chancellor used the wrong numbers when calculating the

amount of shares of Yazoo River Towing to be divided. In footnote one of his judgment, the

chancellor states: “Codicil 3 leaves 29% ‘of the stock of Yazoo River Towing’ to Lela and

Patrick, divided equally, or 14.5% of the 5,000 outstanding shares of Yazoo River Towing.”

Applying these numbers would result in the following division:

       Shareholder                                 Shares
       Little J.O.                                 1,428.03
       Lela                                        725
       Patrick                                     725
       Residue                                     605.97

According to this calculation, Big J.O. would be devising forty-one percent—1,428.03

shares—of his 3,483 shares to Little J.O. and twenty-nine percent—1,450 shares—of the

5,000 outstanding shares to Lela and Patrick, which amounts to each receiving 725 shares.

This result is wholly incompatible with the rest of the chancellor’s order, in which he clearly

finds that Big J.O. intended to convey forty-one percent of the shares he owned in Yazoo

River Towing to Little J.O., and twenty-nine percent of the shares he owned in Yazoo River

Towing to Lela and Patrick, to be divided equally. When contrasted with the rest of the

judgment’s language, it is apparent that the chancellor simply applied the wrong number to

his calculations, and that his true intent was to divide between Patrick and Lela twenty-nine

percent of the shares of Yazoo River Towing owned by Big J.O. Such a calculation would



                                              12
have resulted in the following:

       Shareholder                                  Shares
       Little J.O.                                  1,428.03
       Lela                                         505
       Patrick                                      505
       Residue                                      1045.97

There is absolutely no language in the remainder of the chancellor’s judgment to support the

finding that he interpreted codicil 3 to bequeath to Lela and Patrick twenty-nine percent of

the outstanding shares in Yazoo River Towing. The fact that this single footnote uses the

number of outstanding shares, which is at odds with at least three other instances where the

chancellor uses the number of shares owned by Big J.O., clearly denotes a mathematical error

and not an intent on the chancellor’s part to allocate twenty-nine percent of 5,000 shares to

Patrick and Lela.

¶28.   Notwithstanding the chancellor’s error in calculation, he was correct in holding that

codicil 3 is unambiguous. As stated, the majority maintains that the omission of “that I own”

in the third bequest of codicil 3 gives rise to two reasonable interpretations and thus

constitutes a latent ambiguity; however, this is simply not the case:

       An “ambiguous” word or phrase is one capable of more than one meaning
       when viewed objectively by a reasonably intelligent person who has examined
       the context of the entire integrated agreement and who is cognizant of the
       customs, practices, usages and terminology as generally understood in the
       particular trade or business.

Dalton v. Cellular S. Inc., 20 So. 3d 1227, 1232 (¶10) (Miss. 2009) (emphasis added). The

context of codicil 3, in its entirety, evidences a clear intent by Big J.O. to devise percentages

of shares that he owned in each of the three companies in all three of his bequests. In two



                                               13
of the three bequests, he expressly stated this intent. It would be illogical to find that because

Big J.O. omitted “that I own” in the third bequest, he must have suddenly altered his desire

from bequeathing shares that he owned to bequeathing total shares outstanding. Further, it

would be inconsistent to conclude that Big J.O. intended to convey twenty-nine percent of

the total shares outstanding in Yazoo River Towing to Patrick and Lela, when his previous

statement expressly conveyed forty-one percent of the shares that he owned in Yazoo River

Towing to Little J.O. The context of codicil 3 compels the conclusion that Big J.O.

bequeathed to Patrick and Lela twenty-nine percent of the shares that he owned in Yazoo

River Towing—not twenty-nine percent of the outstanding shares of Yazoo River

Towing—because only a bequest of a percentage of the percentage of the shares that Big

J.O. owned is consistent with all of the other bequests that he made in codicil 3. And while

it is true that Big J.O. owned more than twenty-nine percent of the 5,000 shares of Yazoo

River Towing, it would indeed be unusual terminology and usage for him to speak of

bequeathing a percentage of the entire shares of Yazoo River Towing when he did not own

all of the shares. Thus, when considering the entire context of codicil 3, there is no

ambiguity, and it is evident that the chancellor merely applied the wrong numbers when

making his calculations.

¶29.   For the reasons stated, I dissent. I would affirm the chancellor’s judgment as modified

to correct the chancellor’s apparent miscalculation.




                                               14
