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Case: 61CH1:13-cv-00089

Document #: 101

Filed: 01/10/2014

Page 1 of 4

IN THE CHANCERY COURT OF RANKIN COUNTY, MISSISSIPPI


IN THE MATTER OF THE ESTATE OF
THOMAS EDWARD BRADSHAW, JR., DECEASED

CAUSE NO. 13-89

MOTION TO DISMISS OBJECTION TO PETITION


TO PROBATE WILL AND APPOINT EXECUTOR
COMES NOW, Murphy Adkins, Executor of the Estate of Thomas Edward
Bradshaw, Jr., deceased, and files this his Motion to Dismiss Objection to Petition
to Probate Will and Appoint Executor, and in support thereof, would state unto this
Court the following:
I.
On April 19, 2013, Mississippi State University (MSU) filed its Objection to
Petition to Probate Will and Appoint Executor (Objection). In the Objection, MSU
prays for the following affirmative relief:
A.

That the 2010 will of Mr. Bradshaw be declared null and void;

B.

That the 2007 will be declared the true and valid will of Mr. Bradshaw;

C.

That Murphy Adkins be removed as Executor of the 2010 will;

D.

That a temporary administrator be appointed to take charge of and


manage the Estate of Mr. Bradshaw, pendente lite.
II.

In the Objection, MSU assets that it is an interested party to litigation


contesting the validity of the 2010 will because it was to receive all remaining
assets not specifically identified under the terms of the 2007 Trust and 2008
Amendment. [Doc. #11, 6]
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Case: 61CH1:13-cv-00089

Document #: 101

Filed: 01/10/2014

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III.
The Mississippi Supreme Court has stated there seems to be no
contradiction in the books of the fact that a person may not constitute himself both
Trustee and Beneficiary of the same Trust Estate, and that, when this is attempted,
there is no Trust Estate... Enochs & Flowers v. Roell, 154 So. 299, 301 (Miss.1934).
IV.
An inter vivos trust can not arise when the settlor retains both full equitable
interest and legal title in the trust property, since the essential character of a trust
is that the settlor effects a separation of these interests in the trust property.
90 C. J. S. Trusts 21. The sole beneficiary of a Trust cannot be the sole Trustee
of the Trust. Restatement (Second) of Trust 99 (1959).
V.
The 2007 Trust1 recites in Article III (A) thereof that the Trustee of the 2007
Trust shall be Thomas E. Bradshaw, Jr. Article IV recites that the beneficiary of the
Trust was to be Thomas E. Bradshaw, Jr. There is nothing that would indicate that
Thomas E. Bradshaw, Jr. did not serve as the Trustee of the 2007 Trust. There is
nothing to indicate that there were beneficiaries of the 2007 Trust other than Thomas
E. Bradshaw, Jr.
VI.
Based upon the aforementioned rule of law, the 2007 Trust never came to be
in existence because Mr. Bradshaw held both the legal and equitable interest in the

A true and correct copy of the 2007 Trust is attached as Exhibit A

hereto.
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Case: 61CH1:13-cv-00089

Document #: 101

Filed: 01/10/2014

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Trust property.
VII.
MSU asserts that it has standing to initiate and prosecute the contest of the
2010 Will because the 2007 Trust recites that upon the death of Mr. Bradshaw, the
Trustee of the 2007 Trust was to distribute the remaining assets of the Trust to MSU.
The 2007 Will was a pour over will that named the 2007 Trust as the beneficiary of
the residue of Mr. Bradshaw's Estate.
VIII.
Thus, MSU is not entitled to contest the validity of the 2010 Will, if MSU's only
claim to be an interested person is the fact that it was named a beneficiary of the
2007 Trust. The 2007 Trust was not created because the sole trustee of the Trust and
the sole beneficiary of the Trust were the same person.
WHEREFORE, PREMISES CONSIDERED, Executor moves this Court for an
Order that would dismiss the Objection on the basis that MSU is not an interested
person entitled to contest the 2010 Will of Thomas E. Bradshaw, Jr.
If Executor has moved for insufficient or inadequate relief, then Executor
moves this Court for an order that provides such further and other relief that the
Court deems just and equitable.
Respectfully submitted, this the 9th day of January 2014.
s/ Brenton M. Carter
DAVID RINGER, MSB #5364
BRENTON M. CARTER, MSB #104161
ATTORNEYS FOR MURPHY ADKINS,
EXECUTOR OF THE ESTATE OF THOMAS
EDWARD BRADSHAW, JR., DECEASED

Case: 61CH1:13-cv-00089

Document #: 101

Filed: 01/10/2014

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CERTIFICATE OF SERVICE
I, the undersigned, do hereby certify that I have this day filed the above and
foregoing Motion to Dismiss Objection to Petition to Probate Will and Appoint
Executor via the MEC system, which sent notice of such filing to all counsel of
record. I further certify that I have delivered VIA US MAIL, postage pre-paid, a true
and correct copy of same unto the following counsel of record:
Robert F. Walker, Esq.
Michael V. Bernier, Esq.
P.O. Box 14167
Jackson, MS 39236-4167

Elbert E. Haley, Jr., Esq.


645 Lakeland Drive East, Suite 101
Flowood, MS 39232

This the 9th day of January 2014.

s/ Brenton M. Carter
DAVID RINGER, MSB #5364
BRENTON M. CARTER, MSB# 104161
ATTORNEYS FOR MURPHY ADKINS,
EXECUTOR OF THE ESTATE OF THOMAS
EDWARD BRADSHAW, JR., DECEASED
RINGER LAW FIRM
DAVID RINGER, MSB #5364
BRENTON M. CARTER, MSB #104161
125 EAST MAIN STREET
POST OFFICE BOX 737
FLORENCE, MS 39073
TEL: (601)845-7349
FAX: (601)845-6799
G:\CLIENT\ADKINS, Murphy\Motion to dismiss.wpd