IN THE SUPREME COURT OF MISSISSIPPI
N O. 2014-CT-00528-SCT ESTATE OF ROSE GREER, DECEASED: JOHN OAKS a/k/a JOHN OAKES

v. LINDA GREER BALL
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 03/20/2014 TRIAL JUDGE: HON. EDW ARD E. PATTEN, JR. TRIAL COURT ATTORNEYS: JOHN R. REEVES W I LLIAM D. BOERNER COURT FROM W HICH APPEALED: LINCOLN COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: JOHN R. REEVES JOHN JUSTIN KING ATTORNEYS FOR APPELLEE: W I LLIAM D. BOERNER BRAD RUSSELL BOERNER JOE ROBERT NORTON, IV NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE LINCOLN COUNTY CHANCERY COURT IS REVERSED AND REMANDED - 06/01/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. DICKINSON, PRESIDING JUSTICE, FOR THE COURT: ¶1. A provision in a l e a s e s t a ted that upon the l essor’s death, t he lessor’s rights—prim arily
the right t o receive lease pay m ents—transf

erred to the lessor’s daughter, who was not a party
to the l ease
. T h e lessor died, and the question presented under the f acts of this case iswhether the provision o f the lease or the provisions of the lessor’s will determ ine the owner

of the lease pay

m ents. W e granted certiorari because this Court previously h as not addressed

testam entary provisions i n a contract. Because we agree with the Court of A ppeals that the
convey ance was testam entary , and f or the reasons stated below, we af f i rm the judgm ent of
the Court of

Appeals.
FACTS AND PROCEDURAL HISTORY ¶2. Rose Greer l eased l and s he owned in Lincoln County to David and J e n e N unnery
. Section 3 of the lease—which extended until July 31, 2025, in autom atically renewing oney ear term s —stated:
In the event of the death of the L essor, this lease agreem ent shall not t erm i nate, rather the r ights and o bligations of Lessor shall im m ediately be transf erred to Linda Ball, who will also have the right to receive pay m e n ts hereunder. ¶3. Greer later executed a w ill leaving all her property to John Oakes a n d n a mi n g h i m
executor of her e state. Af ter Greer’s death, Oakes f iled a p etition in the Chancery Court of
Lincoln County to probate Greer’s will. The chancell or adm itted the will to probate and
issued Oakes letters testam entary

. ¶4. Oakes— a s e x e c u t o r

— then f iled a c om

plaint f or declaratory relief in the chancery court, asking the chancellor (1) to f ind Section 3 t estam entary in nature and declare it invalid
because i t l a c k e d the f

orm alities of a will; (2) to determ ine whether the lease rem ained in
ef f ect af ter Greer’s death; and (3) if enf orceable, to determ i ne Ball’s r ights and obligations

2under t he lease. 1 Ball responded that Section 3 sim ply assigned Greer’s rights, and that she was entitled to attorney ’s f ees and costs. ¶5. At the hearing, Oakes argued the chancellor should declare Section 3 invalid because
it was testam entary in n ature and lacked the f orm a lities of a will, and because Ball was not

an i ntended t h i rd-party benef iciary of the lease. B all argued that she was a third-party
be n e f i c i a r y of the l ease, and that Section 3 w as a valid assignm ent of Greer’s rights and obligations. ¶6. The chancellor c o n c l u d e d S e c t i o n 3 was n ot testam e ntary and that it ef f ectively assigned Greer’s r ights and o bligations. Oakes appealed the chancellor’s decision, arguing the chancellor had erred by f inding that the assignm ent was not testam entary

. ¶7. W e assigned t h e c a s e t o t h e C o u r t o f A ppeals, which reversed t he chancellor’s judgm ent, f

i nding that Section 3 was testam entary and unenf orceable. 2 Ball petitioned this
Court f or writ of certiorari, which we granted.

ANALYSIS ¶8. Since a t l e ast 1855, we have recognized that when an instrum ent, however sty led,
convey s an i n t e r e s t in property , b ut “the intention was, that it should have only a f uture operation af

ter death,” courts m

ust treat the instrum e nt as a will. 3 B ut until today , our cases

1 T h e c o m

p lain t n am ed b o th B all an d th e N u n n e r y s as d ef en d an t s. Wh ile th e N u n n ery s an sw ered an d f i led a co u n terclaim alleg in g O ak es h ad in terf ered w ith th eir rig h ts u n d er th e lease, th e p arties later ag reed t o d ism iss all claim s b y an d ag ain st t h e N u n n ery s an d to reco g n ize th e v alid i ty o f th e N u n n ery s’ lease.

2 E sta te o f G reer v. B a ll , 2 0 1 6 WL 1 7 3 9 0 5 2 , * 4 (M iss. C t. A p p . M a y 3 , 2 0 1 6 )

.
3 W a ll v. W a ll , 3 0 M i ss. 9 1 , 9 6 (1 8 5 5 ). 3have considered o nly its appl ication to an instrum ent p urporting to b e a deed, so this case

presents an issue of f

irst im pression. Section 3 of the l ease contains language sim i lar to that
which has rendered deeds testam entary

. But, unlike the purported deeds we have c onsidered,
this language a

ppears in a contract with other provisions that took ef f ect during the grantor’s
lif e. ¶9. In Ford v

. Hegwood , Justice Robertson, speaking f or a unanim ous Court, recognized
that our precedent on this issue “is well s ettled in two com plem entary lines of cases.” 4 First,
when the instrum e nt “contains its m aker’s p rovision that it m akes no present convey ance of

an interest in land o r otherwise directs that the interest to b e c onvey ed vests in the grantee only upon the death of the g rantor, s u c h an instrum ent is regarded as testam entary in
character and is e nf

orceable only i f m ade in c om pliance with our statute o f w ills.” 5 Second,
“where t he i nstrum ent convey s a f uture interest in l and w hich vests in the grantee ef f ective
upon delivery of the deed, though reserving in t he g rantor a lif e e s tate, t he e f

f e ct of which
is to postpone only the grantee’s r ight of possession or occupancy , the instrum e nt is a deed
in law subject to our law appertaining thereto and m a y be e f f e ctive notwithstanding f

ailure

to com ply with the statute of

wills.” 6

4 F o rd v. H eg w o o d , 4 8 5 S o . 2 d 1 0 4 4 , 1 0 4 5 (M iss. 1 9 8 6 ).

5 Id
. (citin g P eeb les v. R o d

g ers , 2 1 1 M iss. 8 , 5 0 S o
. 2 d 6 3 2 (1 9 5 1 ); W h ite v. In m a n , 2 1 2 M i s s
. 2 3 7 , 5 4 S o
. 2 d 3 7 5 (1 9 5 1 ); P a l m er v. R ig

g s , 1 9 7 M i ss. 2 5 6 , 1 9 S o
. 2 d 8 0 7 (1 9 4 4 ); G a sto n v. M

itch e ll , 1 9 2 M iss. 4 5 2 , 4 S o
. 2 d 8 9 2 (1 9 4 2 ); A tes v. A t es , 1 8 9 M iss. 2 2 6 , 1 9 6 S o . 2 4 3 (1 9 4 0 ); T

a p ley v. M cM a n u s , 1 7 5 M i ss. 8 4 9 , 8 5 4

– 5 5 , 1 6 8 S o
. 5 1 , 5 2 (1 9 3 6 ); S m ith v . B u ffin g t o n , 1 7 6 M i ss. 8 8 9 , 1 7 0 S o . 8 1 6 (1 9 3 6 )).

6 F o rd , 4 8 5 S o
. 2 d a t 1 0 4 5 (citin g B u ch a n a n v. B u ch a n a n , 2 3 6 M i ss. 7 5 1 , 7 5 6

– 5 7 , 1 1 2 S o
. 2 d 2 2 4 , 2 2 6

– 2 7 (1 9 5 9 ); T a n n er v . F o r em a n , 2 1 2 M iss. 3 5 5 , 5 4 S o
. 2 d 4 8 3 (1 9 5 1 ); 4¶10. The distinction turns on whether the instrum ent convey s a n y p resent interest to the

grantee. 7 It m atters n ot t hat som e additional i nterest m ay vest on the grantor’s death. For instance, we have f

ound that a deed is not testam entary when the grantor retains a lif e estate and convey s the rem a inde r i n t e r e s t to the grantee. 8 This is so even though the grantee’s
possessory interest will not v est until the grantor’s death because the grantee’s legal interest
vests at the m om e nt of

convey ance. ¶11. Under Section 3 of this lease, Greer’s rights and obligations under t h e l e a s e do not

vest in Ball—the grantee—until Greer’s death: “In the event of the death of the Lessor . . .
the r ights and obligations o f Lessor shall i m m ediately be transf erred to Linda Ball, who will
also have the right to receive p a y m ents h ereund e r
. ” 9 The term s “shall” and “will” denote
f uture events, and rights that “shall im m ediately be t ransf erred” u pon the occurrence of som e f uture event are n ot actually t ransf erred until t he f

uture e vent occurs. S o, S e c t i o n 3 itself

vests no right i n the grantee until the g rantor’s death a n d, standing alone, would be

testam entary

.

W a tts v. W a tts , 1 9 8 M i ss. 2 4 6 , 2 2 S o
. 2 d 6 2 5 ( 1 9 4 5 ); G ra h a m v . T rip lett , 1 4 8 M iss. 2 9 9 , 1 1 4 S o
. 6 2 1 ( 1 9 2 7 ) ; J

o h n so n v . S eely , 1 3 6 M i ss. 6 0 , 1 0 3 S o
. 4 9 9 (1 9 2 5 ); S tu b b lefield v. H a yw o o d , 1 2 3 M iss. 4 8 0 , 8 6 S o
. 2 9 5 (1 9 2 0 ); W a ll , 3 0 M i ss. at 9 6

– 1 0 0 ).

7 P eeb l e s , 5 0 S o . 2 d at 6 3 4

.
8 S ee T a n n er , 5 4 S o
. 2 d at 4 8 4 (“T h e in stru m en t w a s ex e cu ted an d ack n o w led g ed in th e f o rm o f a d eed an d d u ly d eliv ered an d th e co n sid eratio n th e ref o r p aid , an d b y

its p l ain term s i m m ed iately v ested t h e title to th e lan d in th e g ran tee, su b j ect o n ly to th e reserv atio n o f th e rig h t o f p o ssessio n in t h e g ran to r, J. R

. F o rem a n , s o lo n g as h e liv ed

. T h e in stru m en t m u st, th eref

o re, b e g i v en ef

f ect as a v alid d eed .”).

9 (E m p h asis ad d e d .) 5¶12. But it is u n d i s p u t e d t h a t t h e l e a s e between Greer—the lessor/grantor—and the

Nunnery s—the lessees—took ef f e ct during Greer’s lif

e. W ere Ball—the g rantee—a party
to t he c ontract itself

, w e t hink this case squarely would be analogous to those involving lif e
estates and rem ainder interests. W hereas a convey ance of real property subject to a lif e estate
im m ediately v ests a legal interest in the grantee but a possessory i nterest only upon the grantor’s d eath, so t oo would a contract t o purchase the property o n death im m e diately vest

a contractual interest i n the g rantee and a right t o title t o the property at death. In f act, when

we f irst recogn i z e d t h at a d eed c ould be deem ed testam entary , w e m ade a point to explain
that the convey a nce w a s a g i f t, not a contract, i m

p ly ing that our analy sis w ould have been
dif f erent had a contract been at issue. 10 ¶13. That said, Ball was not a party to the lease. At m ost, Ball m ay have been a n intended third-party benef

i ciary

. 11 An intended third-party b enef iciary “‘m ay i n h i s o w n right and

10 W a ll , 3 0 M i ss. a t 9 6

– 7 ( c i tin g M o o re v . M cK ie , 1 3 M i ss. 2 3 8 (1 8 4 5 ) ) (“T h e f irst f eatu re in it to b e o b serv ed i s, th at it p u rp o rts to b e a d eed o f co n v ey an c e, in co n sid eratio n o f l o v e an d af

f ectio n , an d also f

o r a n o m in al m o n ey co n sid eratio n
. In th is resp ect, it sh o u ld rath er b e reg ard ed a s a d eed o f g if t, th an as o n e o f b arg ain an d sale; an d f ro m t h e statem en t o f t h e co n sid eratio n , it w o u ld ap p ear th at th e m o n ey p art o f it w as in serted u n d e r th e id ea th at it w as n ecessary to g iv e v alid ity to it, w h en th e in stru m en t w as really in t en d e d to b e a g if t to h is b ro th e rs an d sisters.”); see a lso M iss. C o d e A n n
. § 9 1 -7 -2 2 1 (R ev . 2 0 1 3 ).

11 M iss. H ig h S ch o o l A ctivities A ss’n , I n c . v. T ra il , 1 6 3 S o
. 3 d 2 7 4 , 2 7 7 ( M iss. 2 0 1 5 ) (q u o tin g Y

a zo o & M .V .R . C o . v. S id eb o a rd , 1 6 1 M i ss. 4 , 1 3 3 S o
. 6 6 9 , 6 7 1 (1 9 3 1 ) ) (“In o n e o f o u r o ld er cases w e articu lated a th ree-p art test to d eterm in e w h en a th ird p arty q u alif ies as an i n ten d ed b en ef

i ciary : ‘(1 ) w h en th e term s o f th e co n tract are ex p ressly b ro ad en o u g h to i n clu d e th e th ird p arty eith e r b y n a me a s o n e o f a s p ecif ied class, an d (2 ) t h e said p arty w a s ev id en tly w ith in th e in t en t o f th e term s so u sed , th e said th ir d p arty w ill b e w ith in its b en ef its, if (3 ) th e p ro m issee h a d , in f act, a s u b stan tial an d a rticu late in terest in th e w elf are o f th e said th ird p arty

in resp ect to th e su b

j ect o f th e co n tract.’”). 6nam e, enf

orce a p r om ise m ade f

o r h i s b enef

it even though he is a stranger both to the
contract and the consideration.’” 12 ¶14. If Ball was not an intended third-party benef iciary , it is clear she h ad no vested interest during the lif

e of the g rantor a nd the c hancellor e rred b y f inding that the convey ance was not
testam entary . If she was an intended third-party b enef iciary , the answer to that question is

m ore nuanced. T he parties to the c ontract had vested c ontractual r ights during the lif e of the grantor. An intended third-party benef iciary possesses the right to enf orce the prom ise f

or her benef it in the contract. That said, t he parties to a c o n t r a ct m ay agree to d ischarge or

m odif y p rom i ses that benef

it an intended third-party benef i c i a r y except w hen t he contract contains a provision to t he contrary or under c ertain f actual circum stances not at issue here. 13 ¶15. A right is vested when i t has “becom e a com pleted, consum m a ted r ight f or present or
f uture enjoy

m ent; not c ontingent; unconditional; absolute.” 14 Because Gree r a n d the Nunnery s could have m o dif ied the lease t o r e mo v e Ball’s benef it u nder Section 3, Ball possessed no vested right in the contract even if she were a n intended third-party benef iciary

. So, contrary to the dissent’s view, it m atters not that Greer n eeded the Nunnery s’ consent to
term inate this provision during her lif etim e. T he relevant q

uestion is when the interest vests
in the grantee and whether it m ay be m odif ied during the grantor’s lif e, not who has the right

to p revent any interest f

rom v esting. Because Ball, the grantee, l acked a vested right, Section

12 B u rn s v. W

a sh in g to n S a vin g

s , 2 5 1 M iss. 7 8 9 , 7 9 5 , 1 7 1 S o
. 2 d 3 2 2 , 3 2 4 (1 9 6 5 ) (q u o tin g 1 7 A m . Ju r. 2 d C o n tra cts § 3 0 2 , at 7 2 2 (1 9 6 4 )).

13 R esta tem en t (

S eco n d ) o f C o n tra cts § 3 1 1

.
14 V ested , B lack ’s L aw D ictio n ary 1 3 4 2 (ab r. 9 th ed

. )

. 73 m

ust be deem ed testam entary in nature and treated as a will. 15 The parties agree the lease
f ailed to com

ply with the statutory

f orm alities required o f a will, s o we af f irm the Court of Appeals’ decision to reverse the chancellor’s decision f i nding Section 3 enf

orceable.
CONCLUSION ¶16. Because we f

ind Section 3 testam entary i n n ature, we af f i r m t h e C o u r t of

Appeals’
d e c i s i o n t o reverse the chancellor’s decision t hat this p rovision was enf o rceable. W e reiterate, as noted above, t hat t he chancellor’s ruling b elow and our ruling t oday af f ect only
Ball’s rights under S ection 3 of the lease. The p arties stipulated b elow that the Nunnery s’
lease itself

is valid. ¶17. THE J U D G M E N T O F T H E COURT OF APPEALS I S AFFIRMED. THE JUDGMENT OF THE LINCOLN COUNTY C H A N C ERY COURT IS REVERSED AND REMANDED. WALLER, C.J., RANDOLPH, P.J.,COLEMAN, MAX W ELL AND BEAM, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEP A R A T E WRITTEN OPINION JOINED BY KING AND CHAMBERLIN, JJ. KITCHENS, JUSTICE, DISSENTING: ¶18. I re s p e c t f

u l l y d i s s e nt. The lease agreem ent at issue was a contract between Rose Greer, as lessor, and J ené and D avid Nunnery (the Nunnery s), as l essees. Lessor and lessees agreed that Greer would lea s e t h e Nunnery s a tract of land f or a dairy f

arm f or a period of twenty

- f ive y ears. Greer a nd the Nunnery s also agreed t hat, in the event o f Greer’s death, her

15 T h e d i ssen t co r

rectly states t h a t “ [ w ] h en ‘individuals s eek to accom plish ends authorized by our law, we are o b liged to take upon ourselves a p ositive attitude that the law m ay s erve, not thwart, the legitim ate aspirations of those individuals.’” Dis. Op. at ¶ 19 ( q uoting Ford v. Hegwood , 485 So. 2d 1044

– 1046 (Miss.1986). But here the end the parties sought to accom

plish—a testam entary convey a n ce without the statutory f orm alities of a will—is not “authorized by our law.” 8daughte r , L i n d a Greer Ball, would “step i nto her shoes” and assum e the rights and

obligations o f lessor, including t he right to r eceive the rental pay m ents. The m ajority likens
this arrangem ent to cases that involved f ailed deeds in which a purported grantor attem pted

to convey to the purported grantee an interest in land upon the grantor’s d eath. See Ford v. Hegwood , 485 So. 2d 1 044, 1045 (Miss. 1986) (collecting cases). This Court has held that
such an instrum ent is not a deed unless it m a k es a present c onvey ance of an interest in land,
f or exam ple, a rem ainder interest. Id. at 1045. If the instrum ent m a kes no present convey ance of a n interest, the i nstrum ent is t estam entary i n nature and is of no ef f ect unless it m eets the legal requirem ents of

a valid will. Ford , 485 So. 2d at 1045. ¶19. W h at the m ajority m isses is that, unlike the cases on which it relies, the lease at issue
is not an instrum ent by which a grantor attem pts to convey real p roperty to a grantee. Greer
did not undertake unilaterally t o donate o r convey the rental p ay m ents t o her daughter. Rather, Greer and the Nunnerys negotiated a contract term requiring that, in t he event of
Greer’s death, the Nunnery s would pay rent to Ball, and B all would assum e the duties of the
lessor s et f

orth in t he c ontract f

orm erly perf

orm ed b y Greer. Those d

uties i nclude p ay ing real property t a xes, pay ing f

o r posts and wire f

o r f ences reasonably needed by the N unnery s, inspecting the p roperty , a nd giving written advance approval (or d isapproval) of any deviation f

rom the Nunnery s’ use of the prope r t y as a dairy business. The contractual language expres ses a clear intent and agreem ent by the N unnery s to deal with Ball in the

event o f G r e er’s death. And t his Court’s prim ary purpose when reviewing a contract is to determ ine and give e f

f ect to the intent of c ontracting parties. B rothers v. Winstead , 129 So.

93d 906, 9 13 (Miss. 2014). W h en “individuals seek to accom p lish ends authorized by our law,

we are obliged to take u

pon ourselves a positive attitude that the law m ay s erve, not thwart, the legitim ate aspirations of those individuals.” Ford , 485 So. 2d at 1046. ¶20. Another c onsideration underm ines t he m ajority ’s conclusion t hat the lease provision

at issue was testam entary in nature. A will m ay b e revoked a t a n y tim e during the lif e of the

testator. Trotter v. Trotter , 490 So. 2d 827, 832 (Miss. 1986). Thus, a purported deed that
convey s no interest i n land u ntil the grantor’s death i s t e stam entary because it m ay be
revoked any t ime b e f

ore t he grantor’s death. Because the dairy f arm lease was a contract between Greer and the Nunnery s, G r e e r c o uld not have revoked the term assigning the
lessor’s duties to Ball upon G reer’s death. Rather, both Greer and the Nunnery s w ould have
had to agree to such an a lteration. Theref ore, this case cannot be likened t o the cases f inding

a purported deed to be testam entary in nature. In a l l of those cases, t h e g r antor c ould have
revoked the instrum ent at any tim e prior to his or her death. ¶21. This Court has cautioned restraint in this a r ea, stating t hat “an instrum ent

. . . should
be adjudicated testam entary in c haracter a n d subject to t he statute of wills only where such
af f irm atively and clearly appears f rom the language of the instrum ent.” Ford , 4 85 So. 2d at
1 0 4 7

. We are to resolve doubts i n f avor of giving ef

f ect to t he i ntention e x pressed in th e instrum ent. Id. Because the lease provision at issue is not a f f i rm atively and clearly

testam entary i n c haracter, I would af f irm the chancellor’s f

inding that the l ease p rovision at issue was a valid assignm e nt of the lessor’s rights and obligations. KING AND CHAMBERLIN, JJ., JOIN THIS OPINION.

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