IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-CA-00520-COA IN THE MATTER OF THE LAST WILL AND TESTAMENT OF DAN A. McINTOSH IV, DECEASED: BEVERLY QUICK, EX ECUTRIX APPELLANT

v. DAN A. McINTOSH III APPELLEE DATE OF JUDGMENT: 03/19/2018 TRIAL JUDGE: HON. W ILLIAM R. BARNETT COURT FROM W HICH APPEALED: COVINGTON COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: MICHAEL CLAYTON BAREFIELD W I LLIAM H. JONES ATTORNEY FOR APPELLEE: DAN A. McINTOSH III (PRO SE) NATURE OF THE CASE: W I LLS, TRUSTS, AND ESTATES DISPOSITION: AFFIRMED - 10/22/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. WESTBROOKS, J., FOR THE COURT: ¶1. This appeal arises f rom a disput e over a v ast c ollection of guns, am m u nition, and shooting accessories (gun collection) transf erred f rom Dan M cIntosh IV (Mac) to his f ather,
Dan McIntosh III ( Dan), through a bill of sale. Af ter Mac’s death, his m other, Beverly Quick,

was nam ed executrix of

his estate. On M ay 26, 2016, Beverly f iled a m otion to com

pel the
return o f t h e g u n c o l lection to the estate. Dan r ef used and argued that the bill of sale had transf erred ownership o f the gun collection f r o m M a c t o him

. The chancellor agreed and f ound the bill o f sale was b i nding and lef t the gun collection in Dan’s possession. Aggrieved,Beverly appealed. 1 T he record i s devoid of a rebuttal m ade by a clear preponderance of the

evidence that the transaction between Dan and Mac was a n invalid or i nadequate bill of sale.
For the r easons outlined below, we af f irm a s t he chancellor’s ruling is not m anif estly wrong or in error. FACTS ¶2. Mac died o n Decem ber 28, 2015. His m ot her, Beverly Quick, f iled a petition f

or to probate Mac’s w ill on March 14, 2 016. O n August 19, 2016, Beverly was nam ed executrix, and the chancellor ordered that all of Mac’s personal property be r e t urned to the estate. Beverly c l aim s that the gun collection convey ed to Dan is a part of Mac’s estate. ¶3. There are n o winners in this case. A f ather, Dan, l ost his son, Mac, to s uicide, and f rom the record we deduce that he l o s t M a c long bef ore he t ook his o wn lif

e. Mac hanged him self af

ter he was arre s ted f

or try ing to kill or at least threaten Dan by ( 1) throwing two Molotov cocktails in Dan’s windows and (2) r am m ing his Lexus into D an’s f ront porch. If that were not enough, upon his arrest, law enf orcem ent f

ound a loaded shotgun on the frontpassenger seat o f Mac’s Lexus—a loaded shotgun t hat he had taken f rom Beverly ’s house. 2
W h ile there was no proof that he had actually

shot the gun, it can be logically inf e rred that it w a s n ot there as a sign o f af f e ction. Years p rior t o that violent day , Mac e n tered into an

1 The Mississippi S uprem e Court i nitially denied Beverly ’s a ppeal f or lack of a f

inal judgm ent in accordance with Rule 54(b) of th e Mississippi Rules of Civil Procedure. The chancellor corrected his order on March 14, 2018, and Beverly f iled a new n otice of appeal in response to the corrected judgm ent.

2 Beverly testif ied that she knew then that Mac could not possess a f irearm

. 2agreem ent with Dan. At the c enter of the controversy in t his case is the resulting bill of sale

that was certainly

and unrebuttably

signed by

Mac. ¶4. Below is an im age of the of the bill of

sale adm itted into evidence:

T h e bill of sale is a contract f or the t ransf

er of goods described h ere as t he “rem ainin g f irearm s and am m

unition, gun saf

es, s torage b uilding or other shooting accessories not now held by agencies of the U nited State governm ent.” The docum ent begins by stating “f or good and valuable considerations ”

— plural. ( Em

phasis added; uppercase and boldf a ce om itted). The bill was signed on or about April 2, 2010, prior to dispositions o f Mac’s crim inal cases in state and f

ederal court. 3 ¶5. Mac was a r r e sted in 2006 f or shooting into an o ccupied dwelling in Covington County

. Dan exclusively r e p r esented M ac i n state court. Dan a lso instrum e ntally assisted

3 The signatures to the contract were not n otarized and is not needed. “It is basic contract law that a contract does n ot have to b e n otarized to be valid.” Union Healthcare , Inc. v. Morgan , 750 So. 2d 1268, 1274 (¶32) (Miss. Ct. App. 1999). 3Joseph Hollom a n in Mac’s representation in f e d e r a l c o urt. 4 Mac’s f

ederal prosecution

com m enced on or about J anuary 22, 2009, o ver a y ear bef ore the execution of the bill of sale.
Mac pled guilty t o a f

a v o r a b le resolution of the f ederal charges on May 5, 2010 (less than

one m o nth af

ter the bill of sale was executed), and the judgm ent was signed on July 21, 2010. According to Dan, he later notif ied Mac that he got the state c rim inal charges dism issed on

or about Septem

ber 30, 2010. As with a ll f ederal crim i nal convictions, Mac was unable to have a n y f irearm s or other deadly w eapons in his possession or under his control. The Bureau of Alcohol, Tobacco, Fir e a r ms , and Explosives ( ATF) seized several of his autom atic
weapons. It was undisputed that Mac did not want the f ederal governm ent to have access to the rem a inder of

his gun collection. ¶6. At the tim e M ac signed the bill of the sale, w h i c h w a s d a t e d April 2, 2 010, he had been receiving, and continued to receive, the benef it of his f ather’s legal services, which led
to M ac receiving an alm ost u nheard-of resolution of his crim inal charges. 5 B everly testif ied that Mac told her that he never signed the bill of sale. Beverly

was not a witness to the bill and had no other personal knowledge of its e x e c u t i o n. Jason Graham , Mac’s f riend, and
Laura McIntosh, Dan’s wif e, witnessed Mac sign the bill of sale. Further, a storage shed was

4 In his brief

, D an states t hat Beverly had hired Hollom a n f o r assistance in the f

ederal case, and Hollom an helped Dan occasionally , i ncluding when he was negotiating a plea deal f or Mac. Beverly c onceded i n her brief that Dan was instrum e ntal in negotiating the plea deal f or Mac.

5 According to Dan, Mac was sent to W iggins and then placed in a half way house in Hattiesburg in 2010 and given probation. 4built on Jason’s land f or the specif

ic purpose of storing the gun collection. ¶7. In 2014, f

our y ears af

ter th e signing of the c o ntract and resolution of h is crim inal charges, Mac went to Jason’s property unannounced and tried to take possession of all or part of the gun collection in order to sell t hem f or m oney to W inf

ord “ B ud” May

. M ay testif ied that Mac tried to retrieve the gun collection, and in response Jason told Mac that “[ he knew] they are [ Mac’s] guns, but [ Dan] sa i d d o n ’t take t hem

. ” He also testif ied to an altercation between Mac and Jason and then Mac and Dan. Mac lef t Jason’s property

without the gun collection. J as o n l a t e r t e s tif ied that he thought Dan w as the owner of the guns. He also testif i ed that in o rder f

or Mac to be released on bail i n 2006, “ [ J ason and Dan] did not want the guns to be in [ Mac’s] possession or nothing e l s e , ” a n d h e stated that Mac told him he could not have any

thing to do with a gun again. ¶8. In Decem

ber 2015, Beverly testif

ied that Mac called her f

rom his hom e and told her he was “in the m iddle of [ his] suicide” and that he h ad “one thing [ h e had] t o do bef ore [ his] lif e [ e n d e d ]

. ” He also told Beverly he had waited until there was nothing s he could do to prevent his s uicide and told her to open up the saf e inside her hom e. Beverly did n ot open the saf e but adm itted that her h usband kept guns in t heir play r oom inside h e r h o me . M a c, a convicted f

elon, t hen went to Beverly ’s hom e a n d t o o k a pistol and a shotgun f rom her play room . Beverly grabb e d t h e pistol f rom his back pocket but could n ot get the shotgun.
Mac t hen drove to Dan’s hom e, threw two b om bs in his window, and attem pted to drive his
Lexus through Dan’s f

ront door. Af

ter this attack, Mac was arrested, and he later ended his

5lif

e in the jail. ¶9. On August 2 , 2 017, a hearing was held to determ ine the validity o f t he bill of sale. In his Septem

ber 9, 2017 opinion, the chancellor m ade eleven f indings of

f a c t: 1. That there is no proof th a t D a n t o l d M a c t hat he h ad to convey the property to him to secure or com

ply with a plea agreem ent; 2. There is no proof t hat, at the tim e of t h e B i l l o f S a l e, t hat M ac was suf f ering f rom t he e f f ects of m ental illness o r under the e f f e cts of drugs such as to prevent him

f rom exercising his f

ree will; 3. Mac sought, and received, the independent, private advice of his good f riend, Jason G raham , a n d decided thereaf t er to give the property to Dan; 4. That Mac h ad his crim inal lawy er, Joe Hollom an, available f or advice;
5. That Mac thereaf

ter enter e d a f

r e e and voluntary plea of guilty to the f ederal charge; 6. That Mac retained no access to the property ; 7. That som e of t he property was sold by Dan during Mac’s lif e t im e and Dan received the proceeds, not Mac; 8. That Mac sold the property specif ically excluded f

rom the Bill of Sale and received the proceeds; 9. That f

ro m A p r il 2010, until som etim e in 2014, Mac m ade n o attem pt to claim the property ; 10. Af t er he attem

pted to obtain possession of the property in 2014 and was rebuf f ed, he claim ed t he r e w a s n o Bill of Sale, but m ade no f urther attem pt, legally or otherwise, to secure the property ; and 11. There was no proof t hat, f rom April 2010, until his dem i se in Decem ber 2015, that M ac m ade any allegation that the Bill of Sale was im proper and took no action to challenge its execution.

6As a m atter of law, the chanc e l l o r f o u n d t h a t the April 2010 bill of sale was valid, and in response, Beverly

f iled her notice of

appeal. 6
STANDARD OF REVIEW ¶10. “This Court emp l o y s a l im ited standard of review when reviewing a chancellor’s decision.” Marshall Durbin Food Corp. v. Baker , 909 So. 2d 1267, 1273 (¶13) ( Miss. 2005) (citing Shirley v. Christian E piscopal Methodist Church , 7 48 So. 2d 672, 674 (¶9) (Miss.
1 999)). The chancellor is the f act-f inder and is charged with the obligation o f r e s o l v i n g disputes b etween the parties and likewise i s t he sole arbiter of the credibility of the witnesses.
Estate of Volmer v
. Volmer , 832 So. 2d 615, 622 (¶21) ( Miss. Ct. App. 2002). “W e will not interf ere with or d isturb a chancellor’s f indings of f

act unless those f

indings are m anif

estly
wrong, c learly e rroneous, or an e rroneous legal standard was applied.” M arsha l l D urbin Food Corp. , 909 So. 2d at 1273 (¶13). “Questions of law are reviewed de novo.” Id

. ANALYSIS ¶11. Beverly a r g u e s t h a t t he bill of s ale was not valid because Dan took advantage of Mac’s m ental illness and vulnerability

. Specif ically , she a rgues that Dan told Mac he could
not own t he gun collection due to the f elony guilty plea, and Dan f orced Mac to give the gun

6 The special chancellor also acknowledged in his opinion that “while not raised it also appears that no suit of a ny nature concerning the Bill of Sale was f i led until approxim ately six y ears f

r om its execution and the instant claim s hould be barr e d b y the s tatute of lim itations.” However, t he chancellor d i d n o t dism iss the claim in his f inal o rder. As m entioned Dan d id not raise the issue. W hen “[ t]he [ def e ndants] f ail[ e d] to raise the statute of lim itations issue at the trial level . . . the issue is waived.” Brown v. Thomas , 757 So. 2d 1091, 1094 (¶15) (Miss. Ct. App. 2000). The def e n se is not available. 7collection to h im

. Additionally , Beverly argues that there was no consi deration given to

support the bill of sale operating as a contract, m aking the bill of sale invalid. However, the record bef

ore us establishes a valid contract. The record does not set the stage f or considering
t h e s a l e to b e an inter vivos gif t, and theref

ore w e do n ot r each or consider the issue on appeal. ¶12. The chancellor f

ound as a m atter of law “that the April 2010, B ill of Sale f rom Mac
to Dan w as valid and that Dan becam e the owner of all of the item s included in the Bill of Sale at that tim e and, f

u rther, that at the tim e of his dem ise, the assets included in the Bill of Sale w ere not assets of M a c’s estate.” There need not be a ny f urther iterat i o n of his legal f inding. ¶13. A “bill of sale” is def i ned a s “an instrum ent f

or convey ing title to personal property , absolutely or by way of security .” Black’s Law Dictionary (10th ed. 2014). “ A t ransf er m ay be either an absolute assignm ent by way of gif t or sale, or an a s signm ent by way of m ortgage

or security only ; but in either c ase when a written docum ent of any s ort is used to ef f ect the transf er, the docum ent is called technically a ‘bill of sale.’” Albert Gibson, Arthur W eldon & H. Gibson Rivington, Gibson’s Convey ancing 302 (14th ed. 1933). Mississippi has long recognized that “the a cknowledgm ent of pay m ent contained in the ‘bill of sale’ is m erely a receipt which m ay be contradicted by parol e v idence.” Smith v. Stevens , 299 So. 2d 690, 691 (Miss. 1974) ( citing Fowlkes v
. Lea , 84 Miss. 509, 36 So. 1036 (1904)). A bill of sale is an instrum ent that is evidence of a contract. Historically t h e Mississippi Suprem e Court has used

8the two term s interchangeably

. See Mitts v. Price , 129 Miss. 554, 163-65 (1922) (illustrating

the suprem e court em

ploy i ng t h e term s “bill of sale” and “contract” interchangeably i n its analy sis t o determ ine the reasonable perf orm a nce period under the bill of sale at issu e and dis c u s sing the bill of sale as a written contract f or the sale o f property ) ; see also Hercules Powder Co. v. W

estmoreland , 249 Miss. 849, 164 So. 2d 471, 474 (1964) ( using the phrase “bill o f sale or contract” when f i nding that a valid contract of em p loy m ent existed between co-def endants). ¶14. In order to f

o rm a v a lid contract, the laws of this S tate require the f ollowing: “(1) two

or m ore contracting parties; (2) c onsideration; ( 3) a n agreem ent that is suf f iciently def

inite; (4) parties with the legal capacity to m ake a contract; ( 5 ) mu tual assent; and (6) no legal prohibition precluding contract f orm ation.” G andy v. Estate of Ford , 17 So. 3d 189, 193 (¶7) (Miss. Ct. App. 2009). A valid contract has to be supported by consideration. Id. Consideration is, o f course, one o f the six elem ents required f or the existence of a valid contract. The Mississippi Suprem e Court has def ined consideration f or a prom i se as (a) an act o ther than a p rom ise, or (b) a f orbearance, or (c) the creation, m odif

ication or destruction of a legal relation, or ( d) a return prom ise, bargained f

o r and given in exchange f or the prom i se. Marshall D urbin Food Corp ., 909 So. 2d at 1273 (¶14) (citation a nd internal quotation m arks

om itted).
W h ere the instrum ent in controversy contains a statem en t o r r ecital of c o n s i deration, it creates a r ebuttable presum ption that consideration actuall y existed. The general rule is that this p resum ption is established even by such expressions as “f

or value,” “f

o r good and suf

f icient consideration,” “f

or value received” or, as in the present case, “f or valuable consideration.”

9Daniel v. Snowdoun Ass’n , 513 So. 2d 946, 950 (Miss. 1 987) (citations om itted). “W hile the

presum ption does not preclude the def endant f r om putting on proof d esigned to show that the consideration was not actually paid, his ‘rebuttal m ust be m ade b y a clear p reponderance of the evidence.’” Marshall Durbin Food Corp. , 9 09 So. 2d at 1274 (¶15) (quoting Daniel , 513 So. 2d at 950). ¶15. In Daniel , a nonprof it corporation ( Snowdoun) was established in a codicil of the will of the testatrix, Elizabeth Garth, convey ing the title to her childhood hom e to be opened as

a m u seum . Daniel , 5 1 3 So. 2d at 948. Other b equeaths were m ade to t he Mississippi University f

or W om en and St. Paul’s Episcopal Church. Id

. T he widower sued, seeking to

renounce the will, take his legal share, and have the bequests to M UW and St. Paul declared void. Id

. The nonprof

i t corporation w a s n o t n am ed as a party to the will contest, and its participation in settlem e nt negotiations was not clear. Id

. Regardless, a s e ttlem ent was reached, l eaving Snowdoun w ith about $10 0 , 0 0 0 a s a result. Id

. Daniel also executed a

m em orandum

of understanding (MOU) in which he agreed to set up an inter vivos trust as

a depository f

or the m oney . Id

. Snowdoun was nam ed the b enef iciary of t he trust. Id

. Daniel f ailed to set up the trust f

und, and Snowdoun sued f or specif ic perf orm ance. Id

. The MOU becam e the subject of litigation. Id

. The nonprof it sued Daniel f

or specif ic perf orm ance. Id

. In response Daniel claim ed the agreem ent f ailed f o r l a ck of consideration. Id

. H e claim ed that he only of

f ered encouragem ent and appreciation, which is not consideration. Id at 949. The court was lef

t to weigh w hether the MOU was supported by consideration. Id

. The case

10cited bedrock canons f or the elem ent of consideration in agreem ents: “[ M]ere sentim en t s such as a f f ection, love and the like, cannot in them selves f urnish adequate consideration f or

an enf orceable contract

. . . considerations m ust com e f

rom the parties to the agreem ent.” Id

. at 9 49. Further explaining that “[ c ]onsideration m eans s om ething which is of som e value in the ey e of th e l a w , mo v i n g f rom the plaintif

f ; it m a y be som e benef

it to the def

endant or

som e detrim ent to the plaintif f ; but in all events it m

u st be m oving f

r om the plaintif

f .” Id

. ¶16. W h ile Daniel tried t o claim that Snowdoun had no inducem ent because their interests

were aligned during the settlem ent that led to the MOU, Snowdoun claim ed that it intervened in the n egotiations because of Daniel’s encouragem ent. The Mississippi S upr e m e Court f ound that the record could support both and held it “will not overturn a chancellor’s f inding of f act unless he is m anif

estly wrong.” Id. at 951. ¶17. In the present case, Beverly claim s that no consideration exists to support the bill of sale a nd i s theref

ore invalid. W e disagree. It i s an undisputed f act that M ac did not want the f ederal governm ent to have access to all o r part of h is gun collection. T hat w as som ething of value to Mac t h a t mo t i v a t ed him t o contract w ith his f ather. This is one theory that supports the elem ent of

consideration in the bill of sale. ¶18. Another theory of consideration is Dan’s successf ul r epresentation of Mac in his crim inal m atters. Mac received the b enef it of the legal services which led to lenient dispositions of his dual crim i nal m atters. Although based on dif f erent reasons, we a gree with the chancellor that the bill of sale is valid evidence of a contract. The chancellor had m ore

11than enough evidence not only to inf er, but also def

initely conclude, that there was a valid contract between f

ather and son and also attorney and client. ¶19. Beverly ’s only

proof is that Mac claim ed he never signed the bill o f sale—the sam e bill that was presented with Mac’s signature on it. Neither Beverly nor May were present at the execution of t he d o cum e nt. Jason witnessed the signing o f the bill of s al e . J a s o n also testif i ed that he thought Dan was the owner of the gun collection. Jason continued to testif y
t h a t in order f

or Mac to be released o n bail, “ they did not want the g uns to be in his possession or nothing else.” He also concluded h is testim ony by say ing that Mac told him he could not have any

thing to do with a gun again. ¶20. Beverly m ade no rebuttal by a clear preponderance o f the evidence that the bill of sale

was invalid or t hat any

thing other t h a n a n e n f

orceable contract existed b etween Dan and
Mac. Mac accepted the legal services of his f ather and received independent a dvice f rom his close f riend Jason and f

rom l egal c ounsel hired by his m other. Also noteworthy is that Jason

never t estif

ied that Mac w as incapacitated when he signed the bill of s ale. Lastly , there was

no unequivocal opinion about h i s m ental capacity at t he t im e he convey e d the guns. The f acts bef ore the chancellor did not set the stage f or an inter v ivos gif

t. W e af f irm t he chancellor’s ruling as it is not m anif

estly wrong or in error. ¶21. AFFIRMED. BARNES, C.J., CARLTON, P.J., GREENLEE, McDONALD AND M cCARTY, JJ., C ONCUR. L A WRENCE, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY J. WILSON, P.J., TINDELL AND C. WILSON, JJ.

12LAWRENCE, J., DISSENTING:

¶22. The m ajority opinion does what the chancellor did not. I t f inds that the bil l of sale

was a legal contract with good and v aluable consideration. The proble m i s t h at the chancellor never f

ound what the m ajority now f inds. There is little doubt in M ississippi law that a bill of sale can represent a transf er of property by either a contract, w hich to be valid would require consideration along with several o ther f actors, or an inter vivos gif t. The

m ajority concludes that, in this case, the tran s f e r o f t h e g u n collection was the result of a valid contract. The chancellor never f ound t hat, and he never used those w ords. H e m erely

s a i d t h e bill of sale was valid without articulating what exactly the docum ent wa s a n d whether the essential elem e nts were m et. T he chancellor also never com pleted an analy sis of t he other essential elem ents n ecessary f or a contract. The chancellor n ever com pleted an analy sis of the essential elem ents necessary f or a valid gif

t. B ecause there are dif

f erent legal standards as to whether a transf er is a valid contract or an inter vivos gif t , a n d the chancellor

never articulated w hich standard he use d o r e x actly what ty pe of transf

er occurred, I respectf ully dissent. I would reverse and rem and this case to the chancery court f or a f actual determ ination as to exactly what standard the chancellor em ploy ed and specif

i cally what he f ound the docum e nt operated as under the law. ¶23. The b ill of sale i n q u estion was s igned on April 2 , 2 010. It w as never notarized. The bill of sale included “all of [ M ac’s] rem aining f irearm s and am m

u nition, gun saf

es, storage buildings or o ther shooting accessories not n o w h e l d by agencies of the U nited States

13governm ent.” Bef ore Mac f o und trouble with the law, h e was a f irearm s collector and dealer and possessed h undreds o f f irearm s. W hile the b i l l o f sale contained Dan’s signature and what appeared to be Mac’s signature, Beverly testif ied that M ac told her he n ever signed the bill of sale. Af

ter the bill of sale was signed, Mac wrote D a n a check to build a storage shed
to s tore the v ast gun collection not on Dan’s property , but o n the p roperty of Jason Graham , who was a f

riend of Mac’s. ¶24. It is im

portant t o note that both Beverly , Mac’s m o ther, and Dan testif ied that their son had m ental illness. B everly specif ical l y t estif

ied that her s o n had schizophrenia and was
prone t o hallucinations. The chancellor f irst f ound in his o rder that “[ d]uring this entire tim e perio d , Mac suf

f ered f rom bouts of m ental illness a n d drug abuse.” (Em phasis added). Contrary to that f

inding of f

a ct in his order, however, the ch a n c ellor also f ound “[ t]here is

no proof that, at the tim e of the bill of sale, that Mac w as s uf f ering f rom the ef

f ects of m ental illness or under the ef

f ects of drugs

. . . .” Those f indings o f f

act seem inconsistent and contrary to the credible evidence provided by both Dan and Beverly

. ¶25. On May 5 , 2010, Mac pleaded guilty to violating f ederal gun laws. He was p laced on p r obation. In late 2013 o r early 2014, 7 Mac sold som e of his w eapons that were i n t h e possession of the Bureau of Alcohol, Tobacco, Firearm s, a n d Explosives (ATF) t o another
gun dealer f

or approxim ately $262,000. Mac m a de a p rof it of a pproxim ately $250,000 f

rom

7 The actual date is unclear. This l anguage was taken directly f r om the chancellor’s opinion. 14that sale. In 2014, Mac tried to take possession of the rem aining item s in the gun collection

stored at Jason’s h om e in order to sell them

. W inf ord “Bud” May testif

ied to an altercation between M ac a nd Jason and then Mac a nd Dan. Bud told the court that Jason m et Mac outside of Jason’s hom e. The chancellor specif i cally f ound that Mac announced his intention
to take possession of the i tem s in his gun collectio n t h a t w e r e in the storage shed. Jason called Dan, and D an instructed him to not let Mac take the property

. Bud testif ied that Mac

was “irate” a nd “didn’t want to leave without h is guns.” These series of transactions between
Dan and Mac obviously indicate that Mac t hought the guns were still his despite the bill of sale that is the subject of

this case. ¶26. It is without dispute that in Decem ber 2015, M ac c alled Beverly , his m other, and told her he had som e “unf

inished business and needed a gun.” Further, he told Beverly that he

was “ in the m iddle of [ h is] suicide” and that he had “one thing [ he had] to do bef ore [ his] lif

e [ ended].” At this point, Mac drove to Beverly ’s h om e and retrieved a shotgun and then drove
to Dan’s hom e. W hile at Dan’s hom e, Mac threw Molotov c ocktails t hrough two windows and attem pted to drive h is Lexus through the f ront door o f D an’s hom e . Dan called the police, Mac was arrested, and several day s later Mac tragically com m itted suicide while in jail. ¶27. The c hancellor m ade eleven f indings of f

act f ollowing the August 2, 2 017 hearing to determ ine the validity o f the bill of sale. Am ong t hose f indings of f

acts were the f

ollowing: 1. There is no proof that Dan told Mac that he had to convey the property to him to secure or com

ply with a plea agreem ent;
152. T h e r e i s n o p r o of that, at the tim e of the bill of sale, t hat M a c w a s suf f ering f rom t he e f f ects of m ental illness o r under the e f f e cts of drugs such as to prevent him

f rom exercising his f

ree will; 3. Mac sought, and received, the independent private advice of his good f riend, Jason G raham , and d ecided thereaf ter to give the property to Dan ; 4. That Mac h ad his crim inal lawy er, Joe Hollom an, available f or a dvice;
5. T h a t M ac thereaf

ter entered a f

ree and voluntary plea o f guilty to t h e f ederal charge; 6. That Mac retained no access to the property ; 7. That som e of t he property was sold by Dan during Mac’s lif e t im e and Dan received the proceeds, not Mac; 8. That Mac sold the property specif ically excluded f

rom t he Bill of S ale and received the proceeds; 9. That f

rom April 2010, until so me tim e in 2014, Mac m ade no attem pt to claim the property ; 10. Af t er he attem

pted to obtain possession o f the property in 2014 and was rebuf f ed, he cl a i m e d t h e re w as no bill of sale, but m ade no f urther attem pts, legally

or otherwise, to secure the property ; and 11. There is no proof that, f rom April 2 010 until his dem ise in Decem ber 2015, that Mac m ade any allegation that the bill of sale was im

proper and took no action to challenge its execution. (Em phasis added). I n f

inding num

ber three, the chancellor concluded that “Mac sought, and received, the independent private advice of h is good f riend, J ason G r a h a m, a nd decided thereaf ter to give the property to Dan

. ” (Em phasis added). Despite t he above f indings of f acts, the chancellor never indicated the exact m a n ner i n which the guns were given to Dan.

16W a s it a valid contract that m et the essential elem e nts required by M ississippi law, including

consideration, or was it a n inter vivos gif t? The chancellor’s eleven f i ndings of f

act could point to either conclusion. The chancellor never addressed t he consideration issue, and in f act, the only tim e he m entioned t he word consideration w as in s t ating Beverly claim ed “the bill of sale f

ailed because of lack of consideration.” T he chancellor never again uttered the word “ consideration” or f or that m atter the word “contract” in a ny of h is f indings and never analy zed what, if any , consideration occurred or what p roof existed as to the other essential elem ents of

a contract. ¶28. A bill of sale acts as “[ a]n instrum ent f or c o nvey ing title to persona l p r o p e r t y , absolutely or by way of security .” Black’s Law Dictionary ( 10th ed. 2014). In order to f orm

a valid contract, t he laws o f this state require each of the f o llowing elem ents: “(1) two o r

m ore contracting parties; (2) consideration; (3) an agreem ent that is s uf f iciently def

inite; (4) parties with the legal ca p a c i t y t o ma k e a contract; (5) m utual assent; and (6) no legal prohibition precluding c ontract f orm ation.” G andy v. E

state of Ford , 1 7 So. 3d 1 89, 193 (¶7) (Miss. Ct. A pp. 2009). To prove an inter vivos g if t, clear and convinc i n g e v i d e n ce is required to p rove: “(1) that the donor w as c o m petent to m ake a gif

t; (2) that the donation was

a v oluntary act a nd the donor h ad donative intent; (3) that the gif t m ust be com

plete and not conditional; (4) that d elivery w as m ade; a nd (5) that the gif t was irrevocable.” In re Estate of Laughter , 2 3 So. 3d 1055, 1066 (¶50) (Miss. 2009). “A chancellor’s f inding of f

act will not be disturbed unless m anif estly wrong or clearly

erroneous.” Lowrey v. Lowrey , 25 So.

173d 274, 285 (¶26) (Miss. 2 0 09) (internal quotation m arks om i tted). “However, t he Court will

not hesitate to reverse if it f i nds the c hancellor’s de c i s i o n i s m anif estly wrong, o r that the
court applied an erroneous legal standard.” Id

. (quoting O wen v. Owen , 928 So. 2d 156, 160 (¶10) (Miss. 2006)). In t his case, we do not know which standard the c hancellor applied or exactly what he f

ound. He never indicated whether the bill o f sa l e r e p resented a valid contract or an inter vivos gif t. Because he n ever said what the bill of sale represented, we do not know what standard was applied and i f it was applied correctly

. This Cou rt should

n ot have to guess or speculate a t t he rulings of the trial c ourt. Because it is unclea r w h i c h standard the c hancellor applied a nd what he f ound as to the essential elem ents of e a c h standard, this alon e n e c e s s i t a tes a reversal and a rem and of this case f or a f urther f actual determ ination and application of the law. ¶29. In m y opinion, the ma j o r ity essentially adm its t hat the chancellor f a i led to f ind suf f i cient f acts to support a valid contract and consideration by asserting “one theory ” and then “[ a ]nother theory ” f

or the determ ination of

whether legal consideration was given f or this “contract.” The m ajority states: It is an u n disputed f

act that Mac did not want the f ederal governm ent to have access to all or p art o f his gun collection. That was som ething of value to Mac that m otivated him to contract with his f ather. This is one theory t hat supports the elem ent of consideration in the bill of sale. A n other theory of consideration is Dan’s successf ul representation of M ac in his cri minal m att e r s . Mac received the benef it of the legal s ervices which led to l enient dispositions o f his dual crim inal m atters. Although based on dif f e rent reasons, we agree with the chancellor that the bill of sale is valid evidence of a contract. The chancellor had m o re than enough e vidence not only t o inf er, b u t also def initely c onclude, that t here was a v alid contract between f ather and son and
18also attorney and client. (Em phasis added). W ith all due respect, t his Court is n ot the f inder of f act. The chancellor

never d eterm ined in his written order what the consideration was f or the contract the m ajority

now say s i s v a l i d u nder M ississippi law. The m ajority is s peculating what “theory ” m ay prove consideration when that is not this Court’s role. If t his Court h as to create theories as
to consideration then that ipso f a cto proves the chancellor did n ot m ake such a f inding. For if there was such a f

inding by the chancellor, we should sim p ly be able to read the order of the chancery court f

or that determ ination. However, r eading the order o f the chancery court
to determ ine w hat consideration was given or whether the transf er was or was not a contract

or a g if t provides no guidance. W hy ? B ecause t he chancellor never stated in his order what served as consideration or whether this transf er was, in f

act, a contract or a gif

t

. ¶30. A s stated previously , t he only tim e the chancellor ever m entioned t h e w o r d consideration was in describing Beverly ’s argum ents and then never wrote the word again in h is e ntire order. Further, the chance l l o r never m entioned the word “contract,” “m utual assent,” or any other e lem ent of a valid contract. L ikewise, the chancellor never m entioned the standa rd of

, or any f

indings of f

a cts as to, the essential elem ents of a gif t. The Mississippi Suprem e Court m a de c lear in Century 21 Deep South Properties Ltd. v. Corson , 612 So. 2d 359, 367 (Miss. 1992) (citing Johnson v. Black , 469 So. 2d 88, 90 (Miss. 1985)), that “this Court does n ot s it t o redeterm ine questions of f act.” W e “m ay not credit unspoken f indings n ot f

a irly inf errable f r om the trial court’s action.” Id

. (quoting Riddle v. State , 580

19So. 2d 1195, 1 2 0 0 ( M i s s . 1991)). Sim ply put, the f

acts do n ot exist in this record to suf f i ciently establish that the bill of sale was intended to op erate as a contract, with consideration, without f

u rther f act f inding b y t h e c h a n c ellor. I t is not “f airly inf errable” whether t he chancellor considered the b ill of sale a valid c o ntract or a valid i nter vivos gif t. ¶31. Further, Beverly alleged, w hate v e r t h e transf er actually was, it was i nvalid because
Dan a nd Mac h ad a f

iduciary or co n f

i d e n t i a l r elationship, a nd Dan f ailed to rebut the
presum ption of undue inf

luence that arose as a result of t hat relationship. S ee I n re Smith , 170 So. 3d 530, 536-37 (¶¶15-17) (Miss. Ct. App. 2 014). Beverly claim s t hat b ecause Dan

was Mac’s attorney at the tim e the bill of sale was signed, and because Dan counseled Mac that he could not “ own” the weapons, there was a conf idential relationship between the two. T h e suprem e c ourt has f

ound that “[ w]henever there is a relation between two pe o p l e i n which one person is in a position to exercise a dom inant inf luence upon the other” there is

a f iduciary relationship between the two. Henricks v. James , 421 So. 2 d 1031, 1041 (Miss. 1982). The chancellor never addressed this assertion and the m ajority does not consider it either. The chancellor f

ailed to set f

orth the correct legal standard he applied on this issue and the f a ctual f indings relating thereto. ¶32. Gen e r a l l y , “[ a]s a practical m atter, we can better perf orm o ur f unction i f we know what the trial court did, and why .” Tricon Metals & Services I nc . 516 So. 2d 236, 239 (Miss. 1987). The roles of this Court a nd the trial court are separate. Id

. O ur role i s not as a trier of f act. Id . (citing Allgood v. Allgood , 473 So. 2d 416, 4 21 (Miss. 1985)). T he transf er of

20property f

rom Mac to his f

ather D an is ridd l e d w i t h questions. Mainly , was the transf er a valid contract with legal c on s i d e r a t i o n or was it a valid gif t? Because there are f

actual determ inations necessary as to exac t l y w h a t the bill of sale represents that m ust be m ade bef ore this Court can do its legally im posed duties, I would reverse and rem a n d f or f urther f actual f indings by the c hancellor and an application o f the law to those f acts. Accordingly , I dissent. J. WILSON, P.J., TINDELL AND C. WILSON, JJ., JOIN THIS OPINION.

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