IN THE SUPREME COURT OF MISSISSIPPI

NO. 2005-IA-00699-SCT

NATIONAL HERITAGE REALTY, INC., MARINER

HEALTH CARE, INC. f/k/a MARINER POST-ACUTE

NETWORK, INC., GRANCARE, INC., EVERGREEN

HEALTHCARE, INC., GEORGE D. MORGAN, J. D.

LEE, ANGELA M. WHITTINGTON AND CHUCK

(CHARLES) SINCLAIR

v.

ESTATE OF EVA BOLES, DECEASED, ELIZA

PRICE, ADMINISTRATRIX

DATE OF JUDGMENT: 03/14/2005

TRIAL JUDGE: HON. JON M. BARNWELL

COURT FROM WHICH APPEALED: TALLAHATCHIE COUNTY CHANCERY

COURT

ATTORNEYS FOR APPELLANTS: L. CARL HAGWOOD

FAYE MURPHREE JAMES

ATTORNEYS FOR APPELLEE: SUSAN NICHOLS ESTES

DOUGLAS BRYANT CHAFFIN

KENNETH LUKE CONNOR

NATURE OF THE CASE: CIVIL - WRONGFUL DEATH

DISPOSITION: REVERSED AND RENDERED - 09/07/2006

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

CONSOLIDATED WITH

NO. 2005-IA-00750-SCT
2

NATIONAL HERITAGE REALTY, INC., MARINER

HEALTH CARE, INC. F/K/A MARINER POSTACUTE NETWORK, INC., GRANCARE, INC.,

EVERGREEN HEALTHCARE, INC., GEORGE D.

MORGAN, J. D. LEE, ANGELA M. WHITTINGTON

AND CHUCK (CHARLES) SINCLAIR 

v.

ESTATE OF EVA BOLES, DECEASED, ELIZA

PRICE, ADMINISTRATRIX

DATE OF JUDGMENT: 02/03/2005

TRIAL JUDGE: JON M. BARNWELL

COURT FROM WHICH APPEALED: TALLAHATCHIE COUNTY CHANCERY

COURT

ATTORNEYS FOR APPELLANTS: L. CARL HAGWOOD

FAYE MURPHREE JAMES

ATTORNEYS FOR APPELLEE: SUSAN NICHOLS ESTES

DOUGLAS BRYANT CHAFFIN

KENNETH LUKE CONNOR

NATURE OF THE CASE: CIVIL - WRONGFUL DEATH

DISPOSITION: REVERSED AND RENDERED - 09/07/2006

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

CONSOLIDATED WITH

NO. 2005-IA-00909-SCT

NATIONAL HERITAGE REALTY, INC., MARINER

HEALTH CARE, INC. F/K/A MARINER POSTACUTE NETWORK, INC., GRANCARE, INC.,

EVERGREEN HEALTHCARE, INC., GEORGE D.

MORGAN, J. D. LEE, ANGELA M. WHITTINGTON

AND CHUCK (CHARLES) SINCLAIR 

v.
3

THE ESTATE OF EVA BOLES BY AND THROUGH

ELIZA PRICE, ADMINISTRATRIX OF THE ESTATE

OF EVA BOLES, FOR THE USE AND BENEFIT OF

THE ESTATE OF EVA BOLES, AND FOR THE USE

AND BENEFIT OF THE WRONGFUL DEATH

BENEFICIARIES OF EVA BOLES

DATE OF JUDGMENT: 04/01/2005

TRIAL JUDGE: MARGARET CAREY McCRAY

COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANTS: L. CARL HAGWOOD

FAYE MURPHREE JAMES

ATTORNEYS FOR APPELLEE: SUSAN NICHOLS ESTES 

DOUGLAS BRYANT CHAFFIN

KENNETH LUKE CONNOR

NATURE OF THE CASE: CIVIL - WRONGFUL DEATH

DISPOSITION: REVERSED AND RENDERED - 09/07/2006

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

EASLEY, JUSTICE, FOR THE COURT:

PROCEDURAL HISTORY

¶1. This case involves the consolidation of three interlocutory appeals from Tallahatchie

and Leflore Counties, Mississippi. The interlocutory appeals arise from the opening of an

estate in the Chancery Court of the Second Judicial District of Tallahatchie County, which was

later closed and transferred to Leflore County, and the filing of a wrongful death lawsuit in the

Circuit Court of Leflore County. The Honorable Jon M. Barnwell was the chancellor presiding

in this estate matter in both Tallahatchie and Leflore Counties. 

¶2. Eva Boles (Boles) died on January 25, 2001, in Leflore County. Boles resided at the

Greenwood Health & Rehabilitation Center (Greenwood Health) for more than four years
4

prior to her death and at the time of her death. On October 3, 2001, Eliza Price (Price) filed

a petition for appointment as administratrix of the Estate of Eva Boles (the Estate) in the

Chancery Court of the Second Judicial District of Tallahatchie County, Mississippi. On

October 19, 2001, the chancellor appointed Price as the administratrix of the Estate. On

January 28, 2002, Price filed a complaint against National Heritage Realty, Inc.; Mariner

Health Care, Inc. f/k/a/ Mariner Post - Acute Network, Inc. (Mariner); Grancare, Inc.;

Evergreen Healthcare, Inc.; George D. Morgan; J. D. Lee; Angela M. Whittington; and Chuck

(Charles) Sinclair, (collectively “Defendants”), in the Circuit Court of Leflore County,

Mississippi. The complaint alleged that Boles suffered an injury as a result of inadequate care

by the staff of Greenwood Health. On December 18, 2002, the Estate filed an amended

complaint. 

¶3. On January 13, 2005, the Defendants filed a motion to render the order appointing

Price as administratrix of the Estate, void ab initio in the Tallahatchie County Chancery Court.

The basis of the motion was that Boles was a resident of Leflore County at the time of her

death, not Tallahatchie County. On January 28, 2005, the chancellor conducted a hearing and

requested that the parties submit briefs on the issues before the chancery court. Thereafter, on

February 2, 2005, the Estate filed a petition for appointment of administratrix in the Chancery

Court of Leflore County. On February 3, 2005, the Tallahatchie County Chancery Court

transferred administration of the Estate to Leflore County and closed the Estate in Tallahatchie

County. On the same day, the Leflore County Chancery Court entered an order granting

Price’s petition for appointment as administratrix of the Estate. On February 28, 2005, the

Tallahatchie County Chancery Court entered the order transferring the Estate to Leflore
5

County Chancery Court and closing the Tallahatchie County case. The Defendants asserted that

they never knew of the Estate’s transfer from Tallahatchie to Leflore County until the order

was filed on February 28, 2005. Thereafter, the Defendants filed a motion requesting order

certifying issues for interlocutory appeal. On March 14, 2005, the Chancery Court of

Tallahatchie County entered an order which granted the Defendants’ motion to certify issues

for interlocutory appeal. The Chancery Court of Tallahatchie County also denied the

Defendants’ previous motion to render the order appointing Price as administratrix of the

Estate void ab initio. 

¶4. The Defendants filed a notice of appeal to this Court on March 30, 2005. This notice

of appeal concerned the Tallahatchie County Chancery Court order which transferred the Estate

from Tallahatchie County to Leflore County and closed the Tallahatchie County estate case.

This Court assigned the appeal number as 2005-IA-00750-SCT.

¶5. On April 6, 2005, the Defendants filed a second petition for interlocutory appeal with

an additional emergency request for stay. The second interlocutory appeal concerned (1) the

February 28, 2005, Tallahatchie County Chancery Court order which transferred administration

of the Estate to Leflore County and closed the Tallahatchie County estate, (2) the March 14,

2005, Tallahatchie County Chancery Court order that denied the Defendants’ previous motion

to render the order appointing Price as administratrix void ab initio, and (3) a request for stay

of the Leflore County Circuit Court lawsuit that was set for trial on May 16, 2005. On April

15, 2005, this Court granted the second petition for interlocutory appeal and the emergency

request to stay the scheduled Leflore County Circuit Court lawsuit trial. This interlocutory

appeal was assigned appeal number 2005-IA-00699-SCT. 
6

¶6. This Court’s April 15, 2005, order also consolidated the March 30, 2005, notice of

appeal, assigned appeal number 2005-IA-00750-SCT, with the second interlocutory appeal,

assigned appeal number 2005-IA-00699-SCT. On June 22, 2005, this Court denied the

Plaintiffs’ motion to reconsider granting the interlocutory appeal and emergency stay.

¶7. While the Defendants pursued their notice of appeal and petition for interlocutory

appeal and emergency stay with this Court, they also pursued a motion for summary judgment

in the Leflore County Circuit Court lawsuit. On March 15, 2005, the Defendants filed a

motion for summary judgment on the basis that Price, as administratrix, had no authority as a

matter of law to file or maintain the wrongful death lawsuit in Leflore County. The basis of

the argument was that Price was not a statutory wrongful death beneficiary pursuant to the

wrongful death statute, Miss. Code Ann. § 11-7-13 (1972), because she was not a spouse,

child, parent, or sibling of Boles. Price was Boles’s cousin. In addition, the Defendants argued

that the opening of the Estate and the appointment of Price as administratrix in the Tallahatchie

County Chancery Court was void ab initio for failure to meet the jurisdictional requirements

of Miss. Code Ann. § 91-7-63 (Rev. 2004). Leflore County Circuit Court Judge Margaret

Carey-McCray denied the Defendants’ motion for summary judgment without opinion.

Thereafter, the Defendants filed another petition for interlocutory appeal on the summary

judgment decision, assigned appeal number 2005-IA-00909-SCT. On June 2, 2005, this Court

also granted this petition for interlocutory appeal and consolidated it with appeal numbers

2005-IA-00750-SCT and 2005-IA-00699-SCT.
7

FACTS

¶8. Eva Boles died on January 25, 2001, in Leflore County, Mississippi. At the time of her

death, Boles was a resident of Greenwood Health in Leflore County, Mississippi. Boles had

resided at Greenwood Health more than four years prior to her death from June 27, 1996 to

January 25, 2001. Prior to her residence at Greenwood Health, Boles resided in Tallahatchie

County, Mississippi. 

¶9. After Boles’s death, Price, a cousin, filed a petition for appointment as administratrix

and for letters of administration for the Estate in the Chancery Court of the Second Judicial

District of Tallahatchie County, Mississippi. In the petition, Price alleged that Boles resided

in Tallahatchie County at the time of her death. However, the record reflects that the place of

death and the nursing home facility later was determined to be located in Leflore County, not

Tallahatchie County. The reason for opening an estate given in the petition stated:

As a result of alleged inadequate care in a nursing home facility located in

Tallahatchie County, Mississippi, the Decedent died on January 25, 2001, and

a resulting cause of action has accrued on behalf of Petitioner, Eliza Price.

Therefore, it is necessary that [an] estate be opened in order that such a cause

of action may be prosecuted.

The petition also stated that “[t]here are no other real or personal assets of the Estate of Eva

Boles other than this potential claim against the nursing home.” As such, Boles died owning

no real or personal property in Tallahatchie County. The Tallahatchie County Chancery

Court granted Price’s petition for appointment of administratrix and for letter of

administration on October 9, 2001. Once Price was appointed administratrix, Price, on behalf

of the Estate, filed a complaint in the Circuit Court of Leflore County, Mississippi on January

28, 2002. The complaint alleged negligence, medical malpractice, malice and/or gross
8

negligence, fraud, breach of fiduciary duty, statutory survival claim, and statutory wrongful

death. The Estate sought compensatory and punitive damages for Boles’s injuries. An

amended complaint was filed on December 18, 2002. The amended complaint alleged the

same causes of action and sought the same relief as the original complaint. In their answers

to the amended complaint, the Defendants asserted the issue of jurisdiction or capacity and

standing to sue.

¶10. Later, the Defendants filed a motion to render the order appointing Price as

administratrix of the Estate to be void ab initio in the Tallahatchie County Chancery Court.

Price then sought to transfer the Estate to Leflore County. The Tallahatchie County Chancery

Court closed the Estate and transferred administration of the Estate to Leflore County. The

Leflore County Chancery Court ratified Price’s prior actions. The order stated:

[T]hat the actions taken by Eliza Price as Administratrix of the Estate of Eva

Boles under authority of the Chancery Court of Tallahatchie County,

Mississippi, be, and the same are hereby, confirmed and ratified, or as necessary

authorized nunc pro tunc.

The Tallahatchie County Chancery Court denied the Defendants’ motion to render the order

appointing Price, as administratrix of the Estate, void ab initio. However, the Tallahatchie

County Chancery Court granted the Defendants’ motion to certify this issue for interlocutory

appeal. 

¶11. Concurrent with the chancery court proceedings, the Defendants filed a motion for

summary judgment with the Leflore County Circuit Court on March 15, 2005. The motion for

summary judgment asserted that (1) Price was not a statutorily wrongful death beneficiary, and

(2) the Tallahatchie County Chancery Court lacked subject matter jurisdiction to appoint Price
9

as administratrix. Miss. Code Ann. § 11-7-13 lists statutory wrongful death beneficiaries to

be a spouse, child, parent, or sibling of a decedent. Price was Boles’s cousin. Consequently,

the Defendants argued that Price’s appointment and opening of the Estate was void ab initio,

therefore, Price lacked authority to file or maintain the wrongful death lawsuit in circuit court

as a matter of law. The Defendants attached the affidavit of Roy Dumas (Dumas), previously

filed in their motion to render the order appointing administratrix void ab initio in the

Tallahatchie County Chancery Court, with their Leflore County Circuit Court motion for

summary judgment. Dumas, a regional vice-president of operations for Mariner Healthcare,

Inc., stated in his affidavit that Boles was a resident of Greenwood Health, located in Leflore

County, on or about June 27, 1996 until her death on January 25, 2001. Dumas also stated:

That while a resident at this nursing home facility in Greenwood, Leflore

County, Mississippi, that this was her permanent place of residence where she

could and did receive mail, could establish that as her place of residence where

she could exercise her right to vote, and was her place of residence for the

receipt of Medicaid/Medicare benefits.

The Circuit Court of Leflore County denied the Defendants’ motion for summary judgment

without opinion. Thereafter, the Defendants filed their petition for interlocutory appeal with

this Court. This Court granted and consolidated the three interlocutory appeals, 2005-IA00750-SCT; 2005-IA-00909-SCT; and 2005-IA-00699-SCT, from the Tallahatchie County

Chancery Court and the Leflore County Circuit Court decisions. See M.R.A.P. 5. 

¶12. The issues presented on appeal by the Defendants and the Plaintiff have been recast as

follows:

I. Whether the Defendants have standing to challenge the creation of

the Estate.
10

II. Whether Boles’s residence was in Tallahatchie County or Leflore

County.

III. Whether Price e rred by opening the Estate in Tallahatchie County

and whether the Tallahatchie County Chancery Court erred by

transferring the Estate from Tallahatchie to Leflore County

Chancery Court.

IV. Whe the r the Leflore County Circuit Court erred by denying the

Defendants’ motion for summary judgment.

DISCUSSION

I. Creation of the Estate

¶13. The Estate argues that the Defendants cannot challenge the creation of the Estate. This

argument is based on two assertions (1) the Mississippi Constitution of 1890 provides the

jurisdictional parameters of the chancery and circuit courts, and (2) the Defendants lack

standing to challenge the creation of the Estate. 

A. Jurisdiction

¶14. The Estate relies upon the Mississippi Constitution of 1890, art. 6, § 156 for its

argument that the circuit court has no authority, jurisprudentially and constitutionally, to

invalidate the chancery court’s decisions with respect to the Estate. The Estate argues that the

circuit court correctly denied the Defendants motion for summary judgment since estate

matters are not within a circuit court’s jurisdiction. Therefore, a circuit court cannot declare

the establishment of an estate and issuance of letters of administration void.

¶15. In Georgia-Pacific Corp. v. Mooney, 909 So. 2d 1081, 1086-87 (Miss. 2005), this

Court set forth the jurisdictional parameters of the chancery and circuit courts in this State,

stating:
11

Jurisdiction is a question of law, and this Court reviews questions of law de

novo. Burnette v. Hartford Underwriters Ins. Co., 770 So. 2d 948, 951 (Miss.

2000). See also Rogers v. [Eaves], 812 So. 2d 208, 211 (Miss. 2002). The

Mississippi Constitution of 1890 Art. 6, § 159 sets the jurisdictional

parameters of the chancery court and states:

The chancery court shall have full jurisdiction in the following

matters and cases, viz.:

(a) All matters in equity;

(b) Divorce and alimony;

(c) Matters testamentary and of administration;

(d) Minor's business;

(e) Cases of idiocy, lunacy, and persons of unsound mind;

(f) All cases of which the said court had jurisdiction under the 

 laws in force when this Constitution is put in operation. 

[emphasis omitted]. Miss. Code Ann. § 9-5-81 (Rev. 2002) also provides

jurisdiction to the chancery court and states:

The chancery court in addition to the full jurisdiction in all

the matters and cases expressly conferred upon it by the

constitution shall have jurisdiction of all cases transferred to it

by the circuit court or remanded to it by the supreme court; and

such further jurisdiction, as is, in this chapter or elsewhere,

provided by law. 

In contrast, the Mississippi Constitution of 1890, Article 6, § 156 provides that

“[t]he circuit court shall have original jurisdiction in all matters civil and

criminal in this state not vested by this Constitution in some other court, and

such appellate jurisdiction as shall be prescribed by law.” Miss. Const. of 1890

art. 6, § 156. Therefore, while chancery courts have jurisdiction of all matters

in equity, circuit courts are courts of general jurisdiction. Lawrence County

Sch. Dist. v. Brister, 823 So. 2d 459, 460 (Miss. 2001). 

¶16. The Estate is correct in its argument that the chancery court is vested with jurisdiction

of matters testamentary and of administration, like the administration of estates, in the

chancery courts of this State. See Miss. Const. art. 6, § 159. The Defendants pursued an

action in the Tallahatchie County Chancery Court to declare the Estate void ab initio. The
12

Tallahatchie County Chancery Court denied this motion and transferred the Estate to the

Leflore County Chancery Court. The Defendants petitioned and were granted interlocutory

appeal by this Court on the chancery court decision. The Defendants also petitioned and were

granted interlocutory appeal by this Court on the circuit court’s denial of their motion for

summary judgment. Both these issues are before this Court on two separate interlocutory

appeals which have been consolidated for appeal purposes by this Court. We will address

whether the Defendants have standing to maintain their action in the standing portion of this

issue. 

B. Standing

¶17. The Estate argues that the Defendants lack standing to challenge the chancery court’s

actions regardless of the whether the Defendants choose to challenge to the chancery court

actions in circuit court or chancery court. The Estate maintains that the Defendants are

potential debtors and not heirs or creditors of the Estate, therefore, they lack standing to

challenge the Tallahatchie County Chancery Court actions. The Estate relies on In re Estate

of Johnson, 779 So. 2d 164, 166 (Miss. Ct. App. 2000) and M.R.C.P. 24 dealing with

intervention. This case will be discussed in further detail below. 

¶18. The Defendants argue that as to the chancery court matter, the chancellor never

determined them to be without standing. Indeed, the chancellor merely denied the motion to

declare the Estate void ab initio and certified the jurisdictional issue for interlocutory appeal

without addressing standing. The Defendants also assert that the chancellor ratified their

appearance in the chancery court by hearing oral argument and ruling on their motion

challenging the opening of the Estate. The Defendants argue that the Tallahatchie County
13

Chancery Court lacked jurisdiction to open the Estate and appoint Price as administratrix

pursuant to Miss. Code Ann. § 91-7-63(1). This statute addresses the necessary requirements

to grant letters of administration in a particular county. 

¶19. Additionally, the Defendants argue that the Estate focuses on the wrong court in its

standing argument. The Defendants assert that they have standing since they have a right to

challenge the legal authority or capacity of a party plaintiff in the circuit court action pursuant

to M.R.C.P. 9(a). The Defendants maintain that the motion for summary judgment filed in the

Leflore County Circuit Court is not an appeal of the chancery court’s decision nor a request

for the circuit court to assume jurisdiction of the Estate opened in the Tallahatchie County

Chancery Court. Instead, the Defendants argue that by filing a lawsuit in the Leflore County

Circuit Court, the Estate subjected itself to the jurisdiction of the circuit court. Consequently,

the Defendants can challenge the circuit court action pursuant to M.R.C.P. 9(a). The Estate

is the only plaintiff in this action because Boles has no statutory wrongful death beneficiaries.

Price is Boles’s cousin and not a wrongful death beneficiary under Miss. Code Ann. § 11-7-13.

Therefore, in keeping with M.R.C.P. 9(a), the Defendants argue that they have been sued by an

invalid and void estate via the actions of an invalidly appointed administratrix. Since the Estate

is void, the Defendants argue that they are being sued by a plaintiff that is a non-entity and legal

nullity by a matter of law. In other words, an estate void ab initio cannot sue a defendant in

circuit court since a voided estate is not a real plaintiff, but a legal nullity. Accordingly, the

Defendants argue that any of the Plaintiff’s assertions that they lack standing to challenge the

authority of Price to maintain the Leflore County lawsuit is without merit.
14

¶20. In Johnson, the Court of Appeals found that Colson, a doctor being sued for negligence

by a putative father, lacked standing to intervene in a paternity and heirship suit in chancery

court. Colson wanted to intervene in the heirship action and for “all known heirs [to] be made

parties to the action to determine heirs” Id. The Court of Appeals found that Colson had no

conditional right to intervene, nor any asserted claim that there was a common question of fact

or law with either the paternity or heirship proceedings. Id. “[T]here is no suggestion that

Colson’s defense to the claim of negligence would be in anyway impacted by the paternity or

heirship actions.” Id. The Court of Appeals, further held that economic interests, such as

Colson’s desire to intervene to avoid the cost of defending a lawsuit brought by a wrong party,

in and of itself was insufficient to warrant intervention. Id. at 167. 

¶21. The Defendants argue that the Estate’s reliance on In re Johnson and M.R.C.P. 24

concerning intervention misses the point. By filing the motion in chancery court, the

Defendants assert that they were attacking the jurisdictional basis of the administrative

appointment of the administrator. The Defendants distinguish their claim from that of the

doctor in In re Johnson. 

¶22. Here, the Defendants argue that they are not challenging whether Price is qualified to

serve as administratrix nor whether Price is a blood relative of Boles as Colson did in In re

Johnson. Instead the Defendants challenge the subject matter jurisdiction based upon the

statutory requirement to open an estate in Mississippi. In addition, the Defendants claim that,

unlike In re Johnson, there is more than just an economic interest at stake in the lawsuit.

Punitive damages were sought by the Estate, which the Defendants argue are “quasi-criminal”
15

in nature. Indeed in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424,

432, 121 S. Ct. 1678, 149 L. Ed. 2d 674 (2001), the United States Supreme Court held that

punitive damages have been described as “quasi-criminal” in nature. The Supreme Court also

held that punitive damages “operate as ‘private fines’ intended to punish the defendant and to

deter future wrongdoing. A jury's assessment of the extent of a plaintiff's injury is essentially

a factual determination, whereas its imposition of punitive damages is an expression of its

moral condemnation.” Id. We agree. 

¶23. The Defendants also rely upon M.R.C.P. 9(a) to support their position that they have

standing. M.R.C.P. 9(a) states: “[t]he capacity in which one sues or is sued may be stated in

one’s initial pleading.” The comments to M.R.C.P. 9(a) state, in part:

A party desiring to raise an issue as to the legal existence, capacity, or authority

of a party will be required to do so by specific negative averment. This is

consistent with past procedure which held that affirmative defenses cannot be

relied upon unless specifically pleaded. . . If lack of capacity appears

affirmatively on the face of the complaint, the defense may be raised by a

motion pursuant to Rule 12(b)(6) (failure to state a claim upon which relief may

be granted), Rule 12(c) (a motion for judgment on the pleadings, or Rule (f) (a

motion to strike).

See also East Miss. State Hosp. v. Callens, 892 So. 2d 800 (Miss. 2004) (complaint did not

specify whether plaintiff was suing parties in their individual versus official capacity pursuant

to M.R.C.P. 9(a)); Frierson v. Delta Outdoor, Inc., 794 So. 2d 220, 224-25 (Miss. 2001)

(although the Court references a failure to plead insufficient legal capacity in the complaint,

pursuant to M.R.C.P. 9(a), it was actually the defendant who failed to allege insufficient mental

capacity until the appeal); Mosby v. Moore, 716 So. 2d 551, 560 (Miss. 1998) (Mills, J.,

dissenting in part) (plaintiffs required to allege capacity in their complaint).
16

¶24. We find that the Defendants have standing before the chancery and circuit courts. The

Defendants have standing in the chancery court action since they challenged the Tallahatchie

County Chancery Court’s subject matter jurisdiction to open the Estate. Pursuant to M.R.C.P.

9, the Defendants also can challenge a party plaintiff in circuit court. The record reflects that

the Defendants challenged Price’s authority and capacity to maintain the lawsuit in each of

their answers. Therefore, the Defendants preserved their challenge to capacity in the Leflore

County Circuit Court action. Thus, the Defendants also have standing to challenge the Estate

as a party plaintiff in the circuit court action. 

II. Residence

¶25. Prior to addressing whether Price erred by opening the Estate in the Tallahatchie County

Chancery Court, the parties dispute Boles’s place of residence. Therefore, an initial

determination of whether Boles was a resident of Tallahatchie or Leflore County will be

discussed.

¶26. Miss. Code Ann. § 91-7-63(1) states, in part:

Letters of administration shall be granted by the chancery court of the county

in which the intestate had, at the time of his death, a fixed place of residence; but

if the intestate did not have a fixed place of residence, then by the chancery

court of the county where the intestate died, or that in which his personal

property or some part of it may be. 

¶27. The Defendants argue that Boles failed to meet any of the jurisdictionalrequirements

of Miss. Code Ann. § 91-7-63(1) to open an estate in Tallahatchie County. Price’s initial

petition for appointment of administratrix and for letters of administration stated that Boles

resided in Tallahatchie County at the time of her death and that as a result of alleged inadequate

care from a nursing facility located in Tallahatchie County, she died on January 25, 2001. The
 The Defendants also rely on an unpublished Mississippi federal district court opinion,

1

Cosby v. Liles, 1996 WL 408864 (N.D. Miss. 1996) which stated in part:

Factors often taken into account by courts in evaluating the domicile of a party

are: current residence; voting practices; location of personal and real property;

location of bank accounts; memberships in organizations and associations; place

of employment; driver's license and automobile registration; payment of taxes;

as well as several others. See13B Wright, Miller & Cooper, Federal Practice

& Procedure, § 3612 (1969). 

17

petition also stated that Boles had no real or personal assets other than the potential claim

against the nursing facility. Based on these assertions, the Tallahatchie County Chancery Court

appointed Price as administratrix of the Estate. Later, it was determined that the petition

contained errors. As it turned out, Leflore County, not Tallahatchie County, was where Boles

actually died and where the nursing home was located. The potential cause of action for

inadequate nursing care, therefore, was in Leflore County as well.

¶28. The Defendants contend that Leflore County was where Boles (1) had a fixed place of

residence at Greenwood Health, (2) died on January 25, 2001, and (3) had a personal property

by way of a potential claim against the Defendants for alleged personal injury. The Estate,

however, argues that Boles was a lifelong resident of Tallahatchie County until she entered the

nursing home in Leflore County. Further, the Estate argues that it is unclear whether Boles had

the requisite mental capacity to change her fixed place of residence or if she wanted to

someday return home to Tallahatchie County. 

¶29. Both parties rely in part on Halford v. Hines, 233 Miss. 786, 79 So. 2d 264 (1955), for

factors in determining residency. In Halford, a will contest case, Dorsey, a real property 1

owner in Franklin County, spent his last six years of life living in Jefferson County. Id. at
18

265-66. The matter was removed from Jefferson County to Franklin County. Id. at 269.

When determining residency, this Court considered testimony from various witnesses that (1)

Dorsey lived his entire life in Franklin County, except those six years in Jefferson County; (2)

he owned 808 acres of property in Franklin County; (3) two weeks prior to his death, Dorsey

told a witness that he was coming back to his “home” and stated that he never moved to

Jefferson County; (4) he never moved any household effects from Franklin County; (5) he only

brought a suitcase to Jefferson County; and (6) he was buried on his land in Franklin County.

Id. at 269. This Court affirmed the will contest being removed to Franklin Count on this basis.

Id. 

¶30. We find that Boles’s place of residency is Leflore County. Boles lived and died in

Leflore County for more than four years prior to her death. The Estate admits that the petition

filed in the Tallahatchie County Chancery Court was incorrect as to the location of Boles’s

death and nursing facility. Boles’s death occurred in Leflore County as evidenced in the death

certificate. Prior to her death, Boles had been a resident of Greenwood Health, the nursing

facility located in Leflore County. An affidavit provided by Dumas, a vice-president of

operations for Mariner, stated that Leflore County was where Boles had her permanent place

of residence, where Boles received mail, and where Boles received Medicaid/Medicare

benefits. In addition, Price stated in her petition filed with the Tallahatchie County Chancery

Court that apart from the potential lawsuit against the nursing home, Boles had no other real

or personal assets. The alleged cause of action for the nursing home negligence occurred in

Leflore County, not Tallahatchie County as initially asserted by Price. Further, Boles had

never been placed under conservatorship. Therefore, any claim as to Boles’s mental capacity
19

is without merit. We find that Boles was a resident of Leflore County.

III. The Chancery Court action

A. Whether the Tallahatchie County Estate was void ab initio

¶31. We now turn to whether opening the Estate in Tallahatchie County was void ab initio.

The Defendants argue that opening the Estate in Tallahatchie County and the appointment of

Price in Tallahatchie County are void, not voidable. The basis of the Defendants’ assertion is

that the statutory requirements in regard to venue for some chancery matters are exclusive,

meaning that the requirements are jurisdictional and, thus, these types of cases must be

dismissed and cannot be transferred if filed in the wrong county. In addition, the Defendants

argue that in those chancery matters where venue is exclusive, or in other words jurisdictional,

any matters filed in a wrong county are void ab initio and any orders of the chancery court are

void ab initio due to a lack of subject matter jurisdiction. Here, the Defendants argue that this

estate matter is one of these instances where venue is jurisdictional. The Defendants

analogize the divorce statute with the estate statute.

¶32. Indeed, this Court has held that the divorce statute prescribing where a divorce suit

must be filed goes to subject matter jurisdiction and not mere venue. Price v. Price, 202 Miss.

268, 32 So. 2d 124 (1947). In Slaughter v. Slaughter, 869 So. 2d 386, 391 (Miss. 2004), this

Court held:

[I]n Price v. Price, 202 Miss. 268, 271-72, 32 So. 2d 124, 125 (1947), [we]

stated “that the statute prescribing where the suit must be instituted is not a mere

statute of venue that may be waived but one of jurisdiction of the subject matter

of the suit.” Id., at 271-72, 32 So.2d at 125 (citing Amis in Divorce in

Mississippi, Sec. 240). See also Carter v. Carter, 278 So. 2d 394, 396 (Miss.

1973) (referencing a review of authorities which state in effect “that a divorce

suit brought in the wrong county goes to the jurisdiction, and is not a mere
20

matter of venue”). 

This Court has held that in divorce cases if venue is not proper then the action should be

dismissed, not transferred to the correct county. Slaughter, 869 So. 2d at 391. See also 

Price, 32 So. 2d at 126; Cruse v. Cruse, 202 Miss. 497, 500, 32 So. 2d 355, 355 (1947).

“However, this Court has held that if a court that [sic] has no subject matter jurisdiction in a

case the judgment is rendered void, not voidable.” Id.

¶33. This Court has limited case law on estate matters. In Day v. Hart, 232 Miss. 516, 517,

99 So. 2d 656, 657 (1958), this Court addressed whether the Lincoln County Chancery Court

had jurisdiction to grant administration under the “county where the intestate died” pursuant

to Section 525 of the Code of 1942. Miss. Code Ann § 91-7-63(1) is derived from Section

525 of the Code of 1942. Day, a Louisiana resident, and Hall, a Mississippi resident, were

killed in a traffic collision caused by Day in Lincoln County. Id. at 657. Hall’s parents

petitioned the Lincoln County Chancery Court seeking the appointment of an administrator for

the estate of Day in order to bring suit in Mississippi. Id. at 658. This Court held that the

Lincoln County Chancery Court had jurisdiction to grant administration on the estate of Day.

Id. at 660. This Court held:

Under said Section 525 of the Code of 1942 jurisdiction to grant

administration is conferred upon the chancery court of the county in which the

decedent died. The statute is clear and unambiguous and must be construed to

mean what it says. A similar statute is not unknown to other jurisdictions. 

Id. at 660. (Emphasis in the original). Clearly, then Miss. Code Ann. § 91-7-63(1) is

jurisdictional in nature. Section 91-7-63(1) authorizes three possible places to open an estate,

those being (1) the chancery court of the county where the intestate had a fixed place of
21

residence at the time of death; (2) if there was no fixed place of residence, then the chancery

court of the county where (a) the intestate died, or (b) where his personal property or some

part may be.

¶34. The Estate argues that Tallahatchie County did not lack jurisdiction because Boles was

a resident in that county prior to entering the nursing home. In Issue II, Boles was determined

to be a resident of Leflore County, therefore this argument is without merit. The Estate argues

that this Court’s holding in Halford, 79 So. 2d 264, contradicts the Defendants’ position. In

Halford, this Court affirmed the chancellor’s decision to allow a transfer of a will contest case

to the county with the proper venue. Id. at 269. Therefore, the Estate contends that the

chancellor in the case sub judice correctly transferred the Estate from Tallahatchie to Leflore

County. 

¶35. Halford is distinguishable from the case before the Court today. Importantly, the issue

of jurisdiction was not raised or considered by this Court in Halford. Later, this Court in Day,

previously discussed above, determined that the language of Section 525 of the Miss. Code of

1942, from which Miss. Code Ann. § 91-7-63(1) is derived and contained almost identical

statutory language, is jurisdictional. Therefore, we find like the contested divorce statute, the

estate statute prescribing where an estate must be filed goes to subject matter jurisdiction and

not mere venue. See Price v. Price, 32 So. 2d 124. Following the logic of the divorce statute,

if venue is not proper as to an estate, then the action should be dismissed, not transferred to

the correct county. Slaughter, 869 So. 2d at 391. 

¶36. Accordingly, we find like the divorce statute Miss. Code Ann. § 93-5-11, the estate

statute at issue here, Miss. Code Ann. § 91-7-63(1), is an exclusive venue statute, making it
22

jurisdictional in nature. Price petitioned to open the Estate in Tallahatchie County. The facts

surrounding Boles’s death met none of the requirements for filing a petition in Tallahatchie

County. Boles resided, died, and had her only potential asset, a lawsuit against the nursing

facility, in Leflore County. Therefore, Tallahatchie County never had subject matter

jurisdiction in the Estate and opening the Estate and appointing Price as administratrix was

void, not voidable. Further, the transfer from Tallahatchie County to Leflore County was

improper. The transfer from Tallahatchie County to Leflore County failed to cure the

underlying jurisdictional problem with this case. The Tallahatchie County Chancery Court had

no subject matter jurisdiction to either open an estate or appoint Price as administratrix. The

chancellor should have dismissed, not transferred, the Tallahatchie County Chancery Court

estate case, and Price should have filed a new petition in Leflore County. 

B. Whether the administratrix’s actions are void.

¶37. The Estate argues that Price’s actions as administratrix were valid and should be upheld

by this Court. Even if the appointment of Price as administratrix were declared void, the Estate

argues that Price’s acts as administratrix would not be invalid. The Estate contends that the

Tallahatchie County Chancery Court did not transfer a “nullity” since it closed the Estate. At

the same time, letters of administration were issued in the Leflore County Chancery Court

“effectively opening” the Estate in Leflore County. The chancellor then ratified Price’s

actions performed while under the authority of the Tallahatchie County Chancery Court. 
 The Estate relies on the following Mississippi cases: Giglio v. Woollard, 126 Miss. 2

6, 88 So. 401 (1921); Gill v. Johnson, 206 Miss. 707, 40 So. 2d 600 (1949); Boyd v. Swing,

38 Miss. 182 (1859); and Ragland v. Green, 22 Miss. 194 (1850).

 M.R.C.P. 17(a) states: 3

Every action shall be prosecuted in the name of the real party in interest. An

executor, administrator, guardian, bailee, trustee, a party with whom or in whose

name a contract has been made for the benefit of another, or a party authorized

by statute may sue in his representative capacity without joining with him the

party for whose benefit the action is brought. No action shall be dismissed on

the ground that it is not prosecuted in the name of the real party in interest until

a reasonable time has been allowed after objection for ratification of

commencement of the action by, or joinder or substitution of, the real party in

interest; and such ratification, joinder or substitution shall have the same effect

as if the action had been commenced in the name of the real party in interest.

23

¶38. The Estate relies on a number of Mississippi cases where this Court ratified the actions

of administrators and administratrixes. The Defendants contend that none of the cases upon 2

which the Estate relies, concern failed jurisdiction. We agree. All of the Estate’s cases

concern the ratification of an administrator’s actions when dealings with third parties. As such,

all the Estate’s cases are distinguishable from the jurisdictional issue before the Court today.

¶39. The Estate also argues that Methodist Hosp. of Hattiesburg v. Richardson

(Richardson II), 909 So. 2d 1066 (Miss. 2005), is controlling and allows for a reasonable

time to substitute pursuant to M.R.C.P. 17. In Richardson II, this Court referenced 3

Richardson v. Methodist Hospital of Hattiesburg, 807 So. 2d 1244 (Miss. 2002)

(Richardson I), in which this Court affirmed a circuit court decision to grant summary

judgment in favor of hospital on the issue of wrongful death, yet allowed a claim for a survival

action. Richardson II, 909 So. 2d at 1068. On remand, the circuit court granted the

hospital’s summary judgment motion claiming that the real party in interest, the Estate of
24

Vivian Wheeless, was not a party to the actions as an estate had never been opened. Id. Three

days after the circuit court decision, Richardson filed a petition in the Lamar County Chancery

Court to open an estate for Wheeless and to appoint Richardson as administratrix. Id.

Thereafter, Richardson filed an amended complaint with the circuit court. Id. at 1068-69. The

hospital filed a motion for summary judgment, which was the issue this Court addressed on

interlocutory appeal in Richardson II. The hospital’s motion for summary judgment claimed,

in part, that the Estate of Wheeless was a stranger to the litigation. Id. at 1069. This Court

held that pursuant to M.R.C.P. 17, “the real party in interest joined the suit within a reasonable

time after objection.” Id. at 1073. Therefore, the Estate asserts that like Richardson II, the

Leflore County Chancery Court Estate of Eva Boles was substituted as the real party in

interest.

¶40. The Defendants distinguish Richardson II from the case today. The Defendants assert

that the underlying difference in Richardson II was that this Court did not have to address

whether the plaintiff was the proper party or whether the case was properly filed. Here, the

Defendants argue that the appointment of the administratrix and the opening of the Estate were

void ab initio, therefore, as a matter of law Price had no authority to file the wrongful death

action in Leflore County Circuit Court in 2002. In addition, the Defendants claim that the real

party in interest is the Estate of Eva Boles, however, the Estate is null and void since it is void

ab initio. As for M.R.C.P. 17, the Defendants argue that substituting the Estate into the Leflore

County Circuit Court action is not permissible because the action was initially brought be one
25

lacking capacity to bring the suit, unlike the plaintiffs in Richardson II. Consequently, the

Defendants maintain that substitution cannot cure the deficiencies in the case.

¶41. Richardson II is distinguishable from the case sub judice. In Richardson II, there was

never an issue of whether the Wheeless estate was filed in the wrong county. Initially,

Richardson, the daughter and an heir, filed a wrongful death claim individually and on behalf

of her siblings with no separate wrongful death claim on behalf of the Estate of Wheeless.

Richardson II, 909 So. 2d at 1067. No estate was open at the time that Richardson filed the

lawsuit. Id. When this Court found that there was a survival claim, the hospital challenged the

ruling on remand asserting that the real party in interest, Wheeless’s estate, was never opened

by Richardson. Id. at 1068. After opening an estate, the circuit court permitted Richardson

to amend the complaint in the pending action to add Wheeless’s estate. Id. at 1068-69. This

Court found that Richardson properly ratified and joined the action by amending the complaint

within a reasonable time. Id. at 1070. 

¶42. In contrast to Richardson II, the Estate filed the initial estate matter in the wrong

chancery court, therefore, the Tallahatchie County Chancery Court Estate was void ab initio.

In keeping with this logic and the fact that the Estate was void, Price had no authority to file

the lawsuit in Leflore County. Price also was not a wrongful death beneficiary pursuant to

statute. The fact that the Tallahatchie County Chancery Court later transferred the case to

Leflore County is of no consequence and cannot ratify the Leflore County Estate nor the filing

of the circuit court action. Price never had the authority to file the lawsuit in Leflore County

on behalf of the void Tallahatchie County Estate. Therefore, no actual or legitimate Estate ever
26

existed and accordingly there was never a legitimate plaintiff in the Leflore County Circuit

Court action. We find that the action was filed by a void estate through an administrator whose

appointment also was void.

IV. Circuit Court summary judgment

¶43. The Leflore County Circuit Court denied the Defendants’ motion for summary

judgment which challenged Price’s authority to maintain the wrongful death lawsuit in Leflore

County. The trial court simply denied the motion without further explanation. The Defendants

argue that the Leflore County Circuit Court erred by denying their motion for summary

judgment because as a matter of law, Price had no authority or capacity to file the wrongful

death suit in Leflore County. 

¶44. This Court set forth the standard of review in summary judgment cases in Citifinancial

Retail Services v. Hooks, 922 So. 2d 778, 779 (Miss. 2006):

This Court applies a de novo standard of review on appeal from a denial

of summary judgment by the trial court. Saucier ex rel. Saucier v. Biloxi Reg'l

Med. Ctr., 708 So. 2d 1351, 1354 (Miss. 1998). See also Jenkins v. Ohio Cas.

Ins. Co., 794 So. 2d 228, 232 (Miss. 2001); Russell v. Orr, 700 So. 2d 619,

622 (Miss. 1997); Richmond v. Benchmark Constr. Corp., 692 So. 2d 60, 61

(Miss. 1997); Northern Elec. Co. v. Phillips, 660 So. 2d 1278, 1281 (Miss.

1995).

Rule 56(c) of the Mississippi Rules of Civil Procedure provides that

summary judgment shall be granted by a court if “the pleadings, depositions,

answers to interrogatories and admissions on file, together with affidavits, if

any, show that there is no genuine issue as to any material factA” M.R.C.P.

56(c); see Saucier, 708 So. 2d at 1354. The moving party has the burden of

demonstrating there is no genuine issue of material fact while the non-moving

party should be given the benefit of every reasonable doubt. Tucker v. Hinds

County, 558 So. 2d 869, 872 (Miss. 1990). See also Heigle v. Heigle, 771 So.

2d 341, 345 (Miss. 2000). A fact is material if it “tends to resolve any of the

issues properly raised by the parties.” Palmer v. Anderson Infirmary

Benevolent Ass'n, 656 So. 2d 790, 794 (Miss. 1995).
27

“If, in this view, there is no genuine issue of material fact and, the moving

party is entitled to judgment as a matter of law, summary judgment should

forthwith be entered in his favor. Otherwise, the motion should be denied.”

Williamson ex rel. Williamson v. Keith, 786 So. 2d 390, 393 (Miss. 2001).

“Issues of fact sufficient to require denial of a motion for summary judgment

obviously are present where one party swears to one version of the matter in

issue and another says the opposite.” Tucker, 558 So. 2d at 872.

Of importance here is the language of the rule authorizing summary judgment

‘where there is no genuine issue of material fact.’ The presence of fact issues

in the record does not per se entitle a party to avoid summary judgment. The

court must be convinced that the factual issue is a material one, one that matters

in an outcome determinative sense. . .the existence of a hundred contested

issues of fact will not thwart summary judgment where there is no genuine

dispute regarding the material issues of fact. Simmons v. Thompson Mach. of

Miss., Inc., 631 So. 2d 798, 801 (Miss. 1994)(citing Shaw v. Burchfield, 481

So. 2d 247, 252 (Miss. 1985)). The evidence must be viewed in the light most

favorable to the non-moving party. See Russell, 700 So. 2d at 622; Richmond,

692 So. 2d at 61; Northern Elec. Co., 660 So. 2d at 1281; Simmons, 631 So.

2d at 802; Tucker, 558 So. 2d at 872.

To avoid summary judgment, the non-moving party must establish a

genuine issue of material fact within the means allowable under the Rule.

Richmond, 692 So. 2d at 61 (citing Lyle v. Mladinich, 584 So. 2d 397, 398

(Miss. 1991)). “If any triable issues of fact exist, the lower court's decision to

grant summary judgment will be reversed. Otherwise the decision is affirmed.”

Richmond, 692 So. 2d at 61.

Much of the Defendants’ argument parallels the reasoning on the standing issue previously

addressed by this Court. The Defendants assert that (1) Price’s appointment as administratrix

of the Estate was void ab initio, (2) they raised the issue of capacity or authority to sue in their

answers pursuant to M.R.C.P. 9, and (3) Price failed to prove that she has capacity to maintain

the action because (a) her appointment in Tallahatchie County as administratrix was void as a

matter of law for lack of subject matter jurisdiction, and (b) Price was a first cousin once

removed of Boles, therefore, she was not a statutory wrongful death beneficiary with individual

capacity to bring suit. 
 Boles had no living husband, children, or parents. She only had second cousins at the

4

time of death.

28

¶45. In fact there are no statutory wrongful death beneficiaries of Boles, the Estate is the

only plaintiff. Further, the Defendants assert that the Estate subjected itself to the jurisdiction

and subsequent scrutiny of Leflore County by filing the lawsuit. The Defendants also assert

that if the Estate is void because the Tallahatchie County Chancery Court lacked jurisdiction

to open an estate or appoint Price as administratrix, then there is no plaintiff and the lawsuit

must be dismissed.4

¶46. The Estate maintains that the Defendants cannot challenge the chancery court’s actions

regardless of whether they assert the claim in chancery or circuit court as they cannot attack

the creation of the Estate and they lack standing. Much of the Estate’s argument has been

addressed in the standing and residence issues above and will not be reiterated here.

¶47. Considering all of the case law mentioned in both parties briefs and discussed in detail

in the above issues, we find the trial court erred by not granting the Defendants’ motion for

summary judgment. The Defendants challenged Price’s authority and capacity to maintain the

wrongful death action based upon the opening of the Estate and appointment of Price as

administratrix as being void ab initio. In their answers, the Defendants raised the issue of

capacity of Price to maintain the action. In their motion for summary judgment, the

Defendants had a death certificate that showed that Boles died in Leflore County. Greenwood

Health was located in Leflore County. An affidavit by Dumas, vice-president of operations at

Mariner, stated that Boles was a resident of Greenwood Health from June 1996 until her death

on January 25, 2001. Dumas also stated that Boles’s place of residence was Greenwood
29

Health, she received mail and Medicaid/Medicare benefits at the nursing facility in Leflore

County. The Estate provided no evidence that Boles’s was a resident of Tallahatchie County.

¶48. We find that the trial court erred by denying the Defendants’ motion for summary

judgment. The Tallahatchie County Chancery Court had no jurisdiction to open an estate and

appoint Price as administratrix. As such, Price did not have the capacity or authority to bring

the wrongful death suit in the Circuit Court of Leflore County as an administratrix of the void

Estate. Accordingly, the Leflore County Circuit Court erred by denying the Defendants’

motion for summary judgment.

CONCLUSION

¶49. For the foregoing reasons, the Tallahatchie County Chancery Court decision to deny

the Defendants’ motion to render the appointment of Price, as administratrix of the Estate, is

reversed. The Tallahatchie County Chancery Court transfer of the Estate to Leflore County

also is reversed. In addition, the Leflore County Circuit Court’s denial of summary judgment

is reversed, and judgment is rendered in favor of the Defendants as the Estate opened in the

Tallahatchie County Chancery Court was void ab initio, and therefore, Price lacked capacity

as a proper plaintiff to bring the law suit in the Leflore County Circuit Court. ¶50. 

REVERSED AND RENDERED.

SMITH, C.J., WALLER, P.J., AND CARLSON, J., CONCUR. COBB, P.J., AND

DICKINSON AND RANDOLPH, JJ., CONCUR IN RESULT ONLY. DIAZ AND GRAVES,

JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.