GRIFFIS, P.J., for the Court:
¶ 1. John Oaks, as executor of the estate of Rose Greer, deceased, filed a declaratory-judgment action that contested a lease assignment that purported to convey Greer's lessor rights to Linda Greer Ball upon Greer's death. The chancellor ruled in favor of Ball and upheld the lease assignment. In this appeal, Oaks argues that the trial court erred when it found the lease assignment to be valid, and when it determined that Ball was not responsible for the payment of casualty-insurance premiums on the property. We find error and reverse, render, and remand for further proceedings.
¶ 2. On May 3, 2002, Greer executed a lease agreement with Jene and David Nunnery. The lease was for certain farmland located in Lincoln County, Mississippi. The Nunnerys agreed to pay Greer $600 per month. According to the lease, the term of the lease began on August 1, 2000, and was for a one-year initial term. The lease included automatic one-year renewals, with a final termination date of July 31, 2025.
¶ 3. In controversy here is Section 3 of the lease agreement. It reads:
¶ 4. On July 31, 2009, Greer executed a will that left the remainder of her estate to Oaks. The will did not mention the lease assignment to Ball. Greer died on October 6, 2010. Oaks probated the will, and he was issued letters testamentary on October 26, 2010.
¶ 5. On September 24, 2013, Oaks filed a complaint for declaratory relief against Ball. In the complaint, Oaks asked for a declaratory judgment that found Section 3 of the lease agreement to be invalid. Oaks claimed that the assignment was not valid because it was testamentary in nature and did not comply with the requirements of a testamentary document. As alternative relief, Oaks sought a declaratory judgment that, if the assignment was valid, Ball was responsible for the payment of ad valorem taxes and insurance premiums on the property.
¶ 6. On February 20, 2014, the chancellor held a hearing. No testimonial evidence was received, and the parties stipulated the documentary evidence to include Greer's will and the lease agreement. After argument of counsel, the learned chancellor ruled that Section 3 of the lease agreement was not testamentary and the provision properly conveyed Greer's lessor rights to Ball. The chancellor ruled that Ball was to pay the ad valorem taxes on the property, and denied Oaks's request that Ball pay the casualty-insurance premiums on the property.
¶ 7. An appellate court "applies a de novo standard of review to questions of law, including a motion for a declaratory judgment." S. Carolina Ins. v. Keymon, 974 So.2d 226, 229 (¶ 9) (Miss.2008) (citation omitted).
¶ 8. Oaks makes a simple argument. He claims that Section 3 of the lease agreement constituted a testamentary conveyance. As a conveyance, the lease agreement was required to comply with the requirements of a testamentary document. Oaks contends the document did not comport with the testamentary requirements, which rendered the assignment invalid.
¶ 9. "A lease is both a contract and a conveyance." K.F. Boackle, Mississippi Landlord and Tenant Law with Forms § 1.2 (2005). As a contract, a lease is freely assignable unless a provision in the lease expressly states the contrary. See Jeffery Jackson & Mary Miller, Encyclopedia of Mississippi Law § 21:33 (2015).
¶ 10. During her life, Greer was the fee-simple owner of the property and had the right to lease it to the Nunnerys. Greer was entitled to the rental proceeds and could have assigned the proceeds to a third party if she wanted. The concern here, however, is that the assignment was only effective upon Greer's death. This Court is presented with a matter of law and must decide whether the chancellor was correct to decide that the lease-agreement provision constituted a valid assignment and not a testamentary conveyance.
¶ 11. Section 3 of the lease agreement assigns the lessor's rights to Ball upon Greer's death. In Buchanan v. Buchanan, 236 Miss. 751, 756, 112 So.2d 224, 227 (1959), the Mississippi Supreme Court held:
The supreme court further held:
Ford v. Hegwood, 485 So.2d 1044, 1045 (Miss.1986).
¶ 12. In Ford, the owners of a parcel of real property created a warranty deed that included the following provision: "[W]e, the undersigned J.O. HEGWOOD and wife, NANNIE MAY HEGWOOD, do hereby sell, convey[,] and warrant to our son, CARROLL DENNIS HEGWOOD, and HIS OWN BLOOD HEIRS, at OUR DEATH, the following described land[.]" Id. The supreme court ruled that the deed, dated June 20, 1951, conveyed the property to Carroll as of the date of the deed and left J.O. and Nannie May a life estate in the property. Id. at 1046. Under this interpretation, the supreme court concluded that the language did not indicate a testamentary intent by the Hegwoods, but rather demonstrated an immediate conveyance. Id. at 1047.
¶ 14. Both the Buchanan and Ford courts determined that the warranty-deed conveyances in each respective case illustrated the intent of the landowners to presently convey the land as of the execution of the warranty deeds, leaving a life estate to the themselves. Under this reasoning, the logical inference is that both the grantor and the grantee possess simultaneous, but distinct, interests. The key distinction between the warranty deeds in Buchanan and Ford and the lease agreement here, however, is that Ball and Greer could not contemporaneously possess the same rights afforded under the lease agreement.
¶ 15. During her life, Greer was the fee-simple owner of the property, and the lessor by virtue of the lease agreement. While Greer was alive, Ball had absolutely no interest in the property or the lease agreement whatsoever. Ball's interest in the lease agreement was conditioned upon Greer's death. Following the framework illustrated in Buchanan and Ford, this clearly indicated Greer's intent that the assignment "would have no effect until [her] death." Buchanan, 236 Miss. at 756, 112 So.2d at 227. Therefore, we conclude that Section 3 of the lease agreement acted as a testamentary document and failed to validly assign Greer's lessor rights to Ball unless it complied with the necessary testamentary requirements. Accordingly, this Court must determine whether the document was a valid testamentary instrument.
¶ 16. Mississippi law provides that "[e]very person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title and interest in possession, reversion, or remainder[.]" While Greer objectively met the age requirement, there was no indication of whether Greer was of "sound and disposing mind" or that the document represented a will.
¶ 17. Further, for a valid testamentary instrument, the document must "be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses" in her presence. Miss.Code Ann. § 91-5-1 (Rev.2013). Both Greer and the Nunnerys signed the lease agreement, arguably meeting the statutory guidelines. But for the instrument to be a valid will, the Nunnerys must meet the requirements of attesting witnesses:
In re Estate of Holmes, 101 So.3d 1150, 1152 (¶ 10) (Miss.2012). There is no indication in the record that the Nunnerys met any of these requirements. As such, we conclude as a matter of law that the lease agreement did not constitute a valid will.
¶ 19.
BARNES, ISHEE, CARLTON AND JAMES, JJ., CONCUR. WILSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., IRVING, P.J., AND FAIR, J. GREENLEE, J., NOT PARTICIPATING.
WILSON, J., dissenting:
¶ 20. I am persuaded that the unusual provision in the lease between Rose Greer and the Nunnerys is enforceable under Ford v. Hegwood, 485 So.2d 1044 (Miss. 1986). Therefore, I respectfully dissent.
¶ 21. As the majority explains, Ford did not involve a lease. It involved a "Warranty Deed" by which a husband and wife attempted to "sell, convey, and warrant" land to their son "at OUR DEATH," i.e., at the death of the husband and wife. Id. at 1045. Ford addressed the question whether such an instrument, though in the form of a deed, must be treated as testamentary. The opinion describes "two complementary lines of cases" on the subject. Id. One line of cases, exemplified by Tapley v. McManus, 175 Miss. 849, 854-55, 168 So. 51, 52 (1936), holds that when an instrument "makes no present conveyance of an interest in land or otherwise directs that the interest to be conveyed vests in the grantee only upon the death of the grantor, [it] is regarded as testamentary in character and is enforceable only if made in compliance with our statute of wills." Ford, 485 So.2d at 1045. The other line of cases stands for the proposition that if a deed "conveys a future interest in land which vests in the grantee effective upon delivery ..., though reserving in the grantor a life estate, the effect of which is to postpone only the grantee's right of possession or occupancy," it will be treated as a deed and enforced even if it does not comply with the statute of wills. Id. (citations omitted) (citing Buchanan v. Buchanan, 236 Miss. 751, 756-57, 112 So.2d 224, 226-27 (1959)). The Court thought that "rules of law emanating from these cases [were] clear, [so] no useful purpose would be served by a detailed consideration of same." Id. at 1046. Instead, the Court simply reported that it had "reviewed the language of the instrument under construction in each such case" (a total of fourteen were cited) and that the instrument in Ford fell somewhere between the two lines. Id. Thus, the Court's decision would "of necessity expand the rule of one line an inch or two toward the other." Id. Ford has not been cited on this issue in the thirty years since, so presumably the two lines remain wherever Ford left them.
¶ 22. The Court explained that a decision regarding which line of cases to expand had to be made
Id. Thus, if possible, we should uphold an instrument by which an individual attempted to dispose of her property as she sees fit. To that end, we must construe such an instrument with "an appropriate degree of liberality" in a way that renders it valid rather than invalid, and we must resolve "doubtful cases" in favor of finding the instrument valid.
¶ 23. Applying these principles, the Court upheld and enforced the warranty deed at issue in that case. The Court reasoned,
Id. at 1047. The first sentence simply stated the obvious. The Hegwoods' intent was clear. The question was whether the instrument expressing their intent was invalid because it did not comply with the statute of wills, as is generally required when a person wants to convey property to another at his or her death. On that issue, the Court seemed to say that because "our law allows" such a transaction to be accomplished through a deed with a reservation of a life estate, the Court was compelled to construe the deed in that way and enforce it. See id. Thus, the Court interpreted the deed as conveying "fee simple title" upon execution "subject only to a life estate." Id. The Court did so even though the plain language of the deed, which was recorded only after Mr. Hegwood died eleven years later, stated that the conveyance would occur only at the Hegwoods' death. See id. at 1045, 1047.
¶ 24. The Court summarized the overarching rule on this issue as follows:
Id. at 1047 (emphasis added). Buchanan, supra, had similarly stated:
Buchanan, 236 Miss. at 756, 112 So.2d at 227 (emphasis added).
¶ 25. This case involves a lease, not a deed. And while Ford is the closest precedent, the fact that the case involves a lease is relevant to our analysis. To begin with, it is undisputed that "the instrument itself" — the lease — was intended to and did take effect when it was executed. Thus, if the relevant "instrument" is the lease, this point alone seems to be a sufficient reason not to regard the challenged provision as testamentary.
¶ 26. But even if our analysis must focus on the specific language that Oaks challenges, it should be enforced as written. It is important to keep in mind that the language at issue is only part of one section of a twenty-five year lease agreement between the Nunnerys and Greer. The Nunnerys agreed to this language and, for all we know, may have requested it or even insisted on it. Particularly given the length of the lease and the Nunnerys' use of the property to operate their dairy business, the Nunnerys may have assigned some value to a contractual right to deal with a specifically identified person — rather than some unknown heir or heirs — in the event of Greer's death.
¶ 27. Regardless of why this language was inserted in the lease agreement, the larger point is that it was part of a valid agreement between Greer and the Nunnerys. Therefore, Greer could not have revoked the language unilaterally or without the Nunnerys' consent. For this reason, I am unable to say that it "affirmatively and clearly appears from the language of the instrument itself, giving due consideration to all its provisions, that it was the intention of the person[s] signing it that the instrument itself would have no effect until [Greer's] death." Buchanan, 236 Miss. at 756, 112 So.2d at 227 (emphasis added). The Nunnerys had an immediate right to insist that this agreed-upon provision remain a part of their lease agreement without change.
¶ 28. I read Ford to say that we should refuse to enforce a voluntary assignment of property rights only if it "affirmatively and clearly appears from the language of the instrument" that it was intended only
¶ 29. Although certain language in Ford and Buchanan can be read to support the majority opinion, I am persuaded that the lease provision at issue in this case is enforceable under the principles articulated and applied in those decisions. Accordingly, I respectfully dissent.
LEE, C.J., IRVING, P.J., AND FAIR, J., JOIN THIS OPINION.
