text:
    In the Matter of the ESTATE OF Bobbye N. BRILL, Deceased and Annie Hobson Nichols, Deceased: Frank Nichols v. Shirlee N. PHILLIPS and Kathryn Kennington.
    No. 2009-CT-01968-SCT.
    Supreme Court of Mississippi.
    Dec. 15, 2011.
    Rhett R. Russell, Tupelo, Clarence McDonald Leland, W.O. Dillard, Jackson, attorneys for appellant.
    Robert David Marchetti, Camille Henick Evans, Gregg A. Caraway, Joshua P. Henry, Ridgeland, attorneys for appellees.
   ON WRIT OF CERTIORARI

CARLSON, Presiding Justice, for the Court:

¶ 1. Frank Nichols, individually and as executor of Annie Hobson Nichols’s estate, petitioned the Chancery Court for the First Judicial District of Hinds County to remove his sister, Shirlee Phillips, and Kathryn Kennington as coadministratrixes of the estate of his other sister, Bobbye Brill. The chancellor denied Frank’s petition. The chancellor also found that Bobbye’s will created a condition precedent, which Shirlee must perform in order to receive the residuary estate. Frank appealed the chancellor’s judgment, and we assigned this case to the Court of Appeals. In due course, the Court of Appeals, finding no error, affirmed the judgment of the chancery court. Nichols v. Phillips, 76 So.3d 709 (Miss.Ct.App.2011). This Court granted Frank’s Petition for Writ of Certiorari. Nichols v. Phillips, 69 So.3d 767 (Table) (Miss.2011). We now consider whether the Court of Appeals erred in affirming the judgment entered by the Chancery Court for the First Judicial District of Hinds County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Bobbye Brill died testate on April 1, 2004. She was survived by her mother, Annie Nichols, and her brother and sister, Frank Nichols and Shirlee Phillips, respectively. Brill’s holographic will states:

I, Bobbye Brill, leave my home and contents to my sister, Shirlee Phillips. My Thunderbird car I leave to my brother, Frank Nichols. The remainder of my estate I leave to my sister, Shirlee Phillips, with the understanding she will take care of my mother, Annie Nichols. Please be sure this is carried out.

The will was executed on March 10, 2004, and was witnessed by Charles DeKay and Mac Kennington, Jr.

¶ 3. The chancery court appointed Phillips and Kathryn Kennington as coadmin-istratrixes of Brill’s will. On June 16, 2004, Frank filed a caveat against the probate of Brill’s will, contending that Brill did not have testamentary capacity at the time she executed her will and that it was the product of Phillips’s undue influence. On January 11, 2005, Annie Nichols died testate. Frank was appointed executor of Annie’s estate. He then filed a motion to discharge Phillips and Kennington as coad-ministratrixes, claiming that Phillips had breached her fiduciary duty by using her position to benefit herself personally.

¶ 4. The chancellor entered an order on February 9, 2006, finding that Phillips had not breached her fiduciary duty as coad-ministatrix of Brill’s will. On May 8, 2007, the chancellor entered a final judgment and order, finding that Brill had testamentary capacity on the date her will was executed and that the holographic will was valid.

¶ 5. On May 23, 2007, Frank filed a petition for construction of Brill’s will, requesting that the chancellor construe the final two sentences of Brill’s will as either: (1) creating a testamentary trust benefit-ting Annie, with the residuary passing as intestate property; or (2) void due to the lack of termination date for the proposed trust. Two days later, on May 25, 2007, Phillips and Kennington filed a similar petition, requesting that the chancellor construe the last two sentences as creating a residuary bequest to Phillips. On August 23, 2007, Frank filed another motion to remove Phillips and Kennington as coad-ministratrixes, contending that they had used their fiduciary positions to seek personal gain for Phillips to the detriment of other beneficiaries of Brill’s will.

¶ 6. On November 19, 2007, the chancellor entered an order finding that the third sentence of Brill’s will “leaves the remainder of the Decedent’s estate to her sister, Shirlee N. Phillips, on the condition that she take care of her mother, Annie Nichols.” The chancellor also found that “the final sentence of the Will ... refers to each and every prior provision of the Will” and that “the third sentence of the Will makes very clear that if Shirlee Phillips took care of her mother, Annie Nichols, then Shirlee Phillips would be entitled to the remainder of the Decedent’s estate.” In this same order, the chancellor set an evidentiary hearing for February 5, 2008, to determine if Phillips had taken care of Annie, and thus had fulfilled the condition in Brill’s will.

¶7. After the hearing, the chancellor entered an order on June 3, 2008, essentially finding that Phillips had fulfilled the condition in Brill’s will and that Phillips should receive Brill’s residual estate. The order states, in part:

The Court finds that the Testatrix intended Shirlee Phillips to receive her residuary estate, but that she also intended for Phillips to care for their mother. Phillips is an intended beneficiary, and the residuary bequest should be upheld. The evidence shows that Phillips did render such reasonable and appropriate care to her mother and thus fulfilled the condition in the Will. Contestant Frank Nichols failed to present sufficient evidence to establish that Shir-lee Phillips did not “take care of” her mother, Ann Nichols. Therefore, Phillips is entitled to receive the entire residuary estate of Bobbye N. Brill.

(Emphasis original.) Frank then filed a petition for interlocutory appeal with this Court, contesting the chancellor’s interpretation of the will. We denied the petition.

¶ 8. On April 14, 2009, another hearing was held to determine the merits of Frank’s petition to remove Phillips and Kennington as coadministratrixies. The chancellor denied the petition, finding that no partiality resulted from Phillips’s dual role as fiduciary and beneficiary. On June 8, 2009, upon petition of Phillips and Ken-nington, the chancellor waived all annual accountings and the final accounting. On November 16, 2009, the chancellor entered a judgment closing Brill’s estate.

¶ 9. Frank appealed the chancellor’s judgment, and the case was assigned to the Court of Appeals. Nichols v. Phillips, 76 So.3d 709 (Miss.Ct.App.2011).

PROCEEDINGS IN THE COURT OF APPEALS

¶ 10. On appeal, Frank contended that the chancery court had erred in not enforcing bond, inventory, voucher, and accounting requirements; in not removing Phillips and Kennington as coadministra-trixes; and in interpreting the will. Nichols, 76 So.3d at 711, ¶ 1. In response, Phillips and Kennington claimed that the appeal was untimely. Nichols, 76 So.3d at 712-13, ¶ 11. The Court of Appeals held that the appeal was timely and affirmed the chancery court’s judgment, finding that the chancellor did not err by: not enforcing bond, inventory, or accounting requirements; not removing Phillips and Kennington as coadministratrixes; and finding that Brill’s will had created a conditional bequest. Nichols, 76 So.3d at 712-15, ¶¶ 11-23. Frank filed a motion for rehearing, which the Court of Appeals denied.

¶ 11. Frank then filed a Petition for Writ of Certiorari with this Court, which we granted. Nichols v. Phillips, 69 So.3d 767 (Table) (Miss.2011).

DISCUSSION

¶ 12. In his petition, Frank contends that the Court of Appeals failed to conduct a de novo review of whether the chancellor’s construction of Brill’s will — namely, whether the chancellor erred in finding that Brill’s will created a condition precedent. We agree with Frank’s contention and granted his petition on these grounds. Frank also claims in his petition that the Court of Appeals erred in affirming the chancellor’s judgment that Phillips had fulfilled the condition precedent; in denying Frank’s motions to remove Phillips and Kennington as coadministratrixes; and in refusing to require bond, inventory, and accounting. We find no error in the Court of Appeals’ analysis of these issues. Accordingly, we address only the issue of whether Brill’s will created a condition precedent.

WHETHER THE LANGUAGE OF BRILL’S WILL CREATED A CONDITION PRECEDENT.

A. Standard of Review

¶ 13. Trial courts are entitled to deferential review in matters involving questions of fact. Estate of Griffith v. Griffith, 30 So.3d 1190, 1193 (Miss.2010) (citing Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss.1994)). As such, this Court applies a manifest-error standard to a chancellor’s finding of facts. Estate of Griffith, 30 So.3d at 1193 (citing Goode v. Village of Wood-green Homeowners Ass’n, 662 So.2d 1064, 1070-71 (Miss.1995)). When reviewing a chancellor’s legal findings, however, the Court employs a de novo standard of review. Estate of Griffith, 30 So.3d at 1193 (citing In re Last Will & Testament of Carney, 758 So.2d 1017, 1020 (Miss.2000)). Questions of will construction — i.e., the existence of a conditional precedent — are questions of law and are reviewed under a de novo standard. See In re Carney, 758 So.2d at 1020 (“[T]he proper standard for reviewing a chancellor’s application of the rules of construction in wills and estates cases is de novo review applicable to all questions of law decided in chancery court.”); Estate of Homburg, 697 So.2d 1154, 1157 (Miss.1997).

B. The Court of Appeals’ Opinion

¶ 14. The Court of Appeals’ opinion began by stating correctly that the standard of review is de novo. Nichols v. Phillips, 76 So.3d at 714, ¶ 20. But a reading of the Court of Appeals’ opinion reveals that it did not, however, conduct a de novo review. Rather, the Court of Appeals discussed the chancellor’s findings that the will was unambiguous, that it created a “conditional bequest,” and that Phillips had fulfilled the condition and was entitled to the remainder of Brill’s estate. Nichols, 76 So.3d at 714-15, ¶¶ 21-22. Then, the Court of Appeals cited Pace v. Pace, 24 So.3d 325, 331 (Miss.Ct.App.2009), for the proposition that an appellate court will not disturb a chancellor’s factual determination that a condition has been satisfied absent an abuse of discretion. Nichols, 76 So.3d at 714-15, ¶ 22. The opinion also cites In re Bradley’s Estate v. Graham, 187 Wash. 221, 59 P.2d 1129 (1936), and McNeese v. Conwill, 177 Miss. 427,170 So. 678, 678-79 (1936). Nichols, 76 So.3d at 714-15, ¶ 22. In Bradley’s Estate, the Supreme Court of Washington found that the testator intended that the residue of her estate go to her friend, and that the language, “she must take care of my dear eats[,]” “imposed no obligation except as it may appeal to the discretion and good will” ' of the testator’s friend. Id. at 225, 59 P.2d 1129. McNeese, discussed infra, held that, the testator’s will created a testamentary ■- trust. McNeese, 170 So. at 679. After citing these two cases, the Court of Ap--peals concluded that the chancellor did not err in finding that the language in Brill’s will created a conditional bequest. Nichf ols, 76 So.3d at 715, ¶ 23. Thus, the Court of Appeals did not conduct the requisite de. novo review.

C. Will Construction

¶ 15. In his petition for certiorari, Frank contends that Brill’s will created a testamentary trust for the benefit of Annie, and that the chancery court erred in finding that the will created a conditional bequest. In support of this contention, Frank cites several cases in which this Court has held that precatory language in a will may create a testamentary trust. See Yeates v. Box, 198 Miss. 602, 22 So.2d 411 (1945); Whitaker v. Commercial Nat’l. Bank & Trust Co., 179 Miss. 167, 174 So. 890 (1937); McNeese, 170 So. 678.

¶ 16. We find that these cases are distinguishable from today’s case. The will in Yeates stated in part:

I desire that my wife Mattie H. Box be cared for to the amount of Three Thousand Dollars per year that she have the use of home during her lifetime. She is also to have $5000.00 insurance O.R.C. Policy # 1, Series E ... I also want and desire that my old Uncle, L.W. Wofford be cared for until death & buried.

Yeates, 22 So.2d at 413. This Court in Yeates held that the specific provisions in the will directing the fiduciaries to pay the testator’s wife an annuity and care for the testator’s uncle until his death created a testamentary trust. Id. at 414. Because the will in Yeates provided specific details as to how the decedent’s wife and uncle were to be taken care of, Yeates is distinguishable from today’s case. No such details are present in Brill’s will.

¶ 17. Similar to Yeates, the will in Whitaker provided enough details to support a finding that the will created a testamentary trust. Whitaker, 174 So. at 892. The will in Whitaker read, in part:

That my sisters Irene, Lena and Junie C. Whitaker be allowed adequate funds for [their] support and maintenances, and each one to have equally as long as they are single, should any of them get married, then their share will be only half. Should all of them marry then all of their heirs my Brothers and Sisters shall share equally. Should any of my sisters mistood upon marry [sic] and be made widows for any cause then they shall be restored to their full share as long as widowes [sic]. If any of them should die leaving husband and child or children then their share or interest shall be held in trust for the benefit of the children.

Id. at 891. Again, Brill’s will does not contain the same directives as the will in Whitaker.

¶ 18. In McNeese, the decedent’s will read, in part:
Item II. I give devise and bequeath to my wife Bettie Finney all of my estate and property real and personal and mixed.
Item III. It is my will and desire that at the death of my wife Bettie Finney the remaining property, real, personal or mixed shall go to my nephew, Frank Finney and his wife, I am doing this for the kindness and affection that they have shown me in my last year and for the kindness they have shown my wife, Bettie Finney, who’s [sic] health has been bad for several years, and that I believe Frank Finney and his wife Mau-die Finney will take care of my wife in her declining years.

McNeese, 170 So. at 678. In finding that the will created a testamentary trust bene-fítting the decedent’s wife, the Court, in McNeese, held that the testamentary instrument must be read as a whole. Id. at 679. The Court also found that the decedent’s wife’s mental incompetence was an important fact in determining that the instrument created a testamentary trust. Id. Ultimately, McNeese found that, after the widow’s death, the nephew’s residuary estate should be charged with the cost of her care. Id.

¶ 19. Not only are the facts of McNeese distinguishable from today’s case, but the language of the two wills is as well. The McNeese will contains the clause “It is my will and desire that at the death of my wife Bettie Finney the remaining property, real, personal or mixed shall go to my nephew, Frank Finney and his wife.” Id. at 678. Brill’s will contained no provision directing how the residuary estate should be distributed upon Annie’s death.

¶ 20. McNeese gave some guidance for determining when a will creates a testamentary trust and when language in a will merely expresses a wish or desire. McNeese instructs that the language in the will, along with the surrounding circumstances, should be considered when determining if a testamentary trust is created. Id. at 679. But McNeese also warns that courts should be cautious when finding that a testamentary trust exists:

It is true that when express words are absent, courts must exercise due caution that words asserted to be the equivalent thereof shall not be pressed too far; nevertheless, the holdings have been generally to the effect that such a testamentary trust will arise when the intention is reasonably manifest or well infer-able from the entire language, viewed in light of all the surrounding circumstances.

Id.

¶ 21. In Ryals v. McPhail, 154 Miss. 295, 122 So. 493 (1929), this Court held that the following language did not create a testamentary trust:

I give, devise and bequeath unto my husband, Simon R. Robbins, all and singular my real and personal property where ever situated and of what ever kind or chattel that I may die possessed of, or any such property in expectancy or in which I may have any equitable interest, in fee simple to him, my said husband, to do with as seemeth to him best, and if in the Providence of God, I should die before my said husband, / desire that he should remember and provide at his death for my children, Mansen Lafayette Rials, Mary E. Mclnnis, and Lucy E. Ham.

Ryals, 122 So. at 493 (emphasis added). In finding that the will did not create a testamentary trust, the Court reasoned that the language was clear and unambiguous, that the will devised all of the testator’s property to her husband in fee simple, and that she “merely expressed the desire that [her husband] should, at his death, remember and make some provision for her children.” Id. at 493. This Court, in Ryals, reasoned that any provisions for the children were “clearly left to the choice and discretion of her husband.” Id.

¶ 22. More recently, in Estate of De-deaux v. Dedeaux, 584 So.2d 419 (1991), this Court interpreted a will that first devised all of the decedent’s “earthly possessions” to his wife, then in a subsequent paragraph directed that at his wife’s death, certain items were to be devised to other members of the family. The will read, in part: “It is my desire that if I should [precede] my wife Kay in death that all of my earthly possessions be received by her. Should she [precede] me in death; or should we die together; or at her death I would like to leave the following posses-, sions as listed.” Id. at 420. This Court' found that the phrase “at her death I would like to leave the following possessions as listed” was, at most, precatory. Id. at 421. In finding that the testator’s wife was the sole devisee under the will, the Court quoted Harvey v. Johnson, 111 Miss. 566, 71 So. 824 (1916), for the proposition that:

Where an interest or estate is given in one clause of a will in clear and decisive terms, it cannot be taken away or cut-down by raising a doubt upon the meaning and application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words giving the interest or the estate.

Estate ofDedeaux, 584 So.2d at 422.

¶ 23. With these cases in mind, we turn to the facts of today’s case. Frank asserts-that the third sentence in Bobbye’s will— “The remainder of my estate I leave to my sister, Shirlee Phillips, with the understanding that she will take care of my mother, Annie Nichols” — devises Bobbye’s residuary estate to Annie either “outright or through trust.” The chancellor and the Court of Appeals found that this sentence created a “conditional bequest.” Nichols, 76 So.3d at 715, ¶ 23. After reviewing the entire will, we find that the sentence creates neither a testamentary trust nor a “conditional bequest.” Rather, the sentence devised Brill’s residuary estate to Shirlee in fee simple. We find that the language “with the understanding that she will take care of my mother” was a preca-tory expression of Brill’s wish or desire and was not imperative.

¶24. The will in Ryals clearly stated that the testator’s property was to pass to her husband in fee simple. Although Brill’s will does not include the same clear language as the Ryals will, nothing in the will demonstrates that Brill intended to create a trust to benefit her mother or to condition her bequest to Phillips. Unlike the testators in Yeates and Whitaker, Brill gave no direction as to how Phillips should care for her mother. Without language that clearly evidences Brill’s intent, we cannot find that the will created a testamentary trust or a condition. Reading Brill’s will in its entirety, we find that Phillips is the devisee of Brill’s residuary estate in fee simple.

CONCLUSION

¶ 25. Brill’s will conveyed her residuary estate to Phillips in fee simple. Accordingly, we find that the Court of Appeals and chancery court correctly awarded the residuary estate to Phillips, but that both courts erred in finding that the will created a conditional bequest. However, we have stated that “[a]n appellate court may affirm a trial court if the correct result is reached, even if the trial court reached the [correct] result for the wrong reasons.” Methodist Hosp. v. Richardson, 909 So.2d 1066, 1070 (Miss.2005) (citing Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993)).

¶ 26-. For the reasons we have discussed, the judgments of the Chancery Court for the First Judicial District of Hinds County, and the Court of Appeals are affirmed.

¶ 27. AFFIRMED.

WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.

      . While we agree with the analysis, including the chancellor’s finding that Phillips "did render such reasonable and appropriate care to her mother,” Annie Nichols, our disagreement with both the chancellor and the Court of Appeals is on the issue of whether the language of the will created a condition precedent.

      . See 97 C.J.S. Wills § 1381 (2001).
      Since conditions in a will are not favored, the courts will avoid a construction which would impose a condition, unless the intent to do so clearly appears. The words used
      in a will are not to be construed as importing a condition if they are fairly capable of different construction, especially when the latter course would carry out the intention of the testator.


source: Caselaw Access Project

author: BARNES, J., for the Court:

license: Public Domain

text:
    David TREJO, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-02133-COA.
    Court of Appeals of Mississippi.
    June 8, 2010.
    Rehearing Denied Oct. 12, 2010.

      Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General, by Laura Hogan Tedder, attorney for appellee.
    Before MYERS, P.J., BARNES and MAXWELL, JJ.
   BARNES, J., for the Court:

¶ 1. David Trejo appeals his conviction of possession of cocaine with intent to sell and sentence of sixty years as a habitual offender in the custody of the Mississippi Department of Corrections (MDOC). As there was no probable cause or reasonable suspicion to justify the initial traffic stop, we find that Trejo’s motion to suppress the evidence of the cocaine was erroneously denied by the circuit court. Accordingly, we reverse and render a judgment of acquittal.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. At approximately 1:00 a.m. on January 21, 2005, Trejo and his passenger, Pebbles Nutt, were traveling north on Interstate 55 between Madison, Mississippi and Canton, Mississippi. Trejo’s red Chevrolet SUV bore a Texas license plate. Trejo was traveling in the left-hand lane of the interstate at a speed of approximately sixty miles per hour (mph). The maximum posted speed limit was 70 mph; the minimum posted speed limit was 45 mph. Sergeant Chris Picou (Officer Picou) of the Madison County Sheriffs Department, who was traveling in the same direction, approached Trejo’s vehicle, and began to follow him. Officer Picou flashed his high-beam lights into Trejo’s vehicle in three quick successions, in order to get Trejo to move into the right-hand lane so that he could pass. However, Officer Picou later testified that there was no traffic in the right lane which would have prevented him from passing Trejo.

¶ 3. There is conflicting testimony as to what occurred next. According to the police report, Trejo moved into the right lane after the third time the officer flashed his high-beam lights. However, Officer Picou later testified that Trejo did not respond to these attempts; instead, he asserted that Trejo did not move over until Officer Picou activated his blue flashing lights. Regardless, upon the officer’s activation of the blue lights, Trejo immediately pulled over. Officer Picou approached the passenger-side window and asked for a driver’s license and proof of insurance. He also questioned Trejo and Nutt about their destination. Trejo presented a valid driver’s license and proof of insurance and informed the officer that the couple was traveling from Houston, Texas, to Ohio. According to the officer, Trejo and Nutt appeared to be sleepy and nervous and a strong odor of air freshener was coming from the vehicle, indicating to Officer Pi-cou that they may have been trying to cover up the smell of drug use. After a criminal history check, it was discovered that Trejo had been previously convicted of drug offenses; however, he had no outstanding warrants. Officer Picou ordered Trejo out of the vehicle and inquired about his criminal history. Trejo mentioned that he had been arrested for stealing a car several years ago; he did not mention any prior drug offenses. Officer Picou then requested consent to search the ear, but Trejo refused. Officer Picou informed Trejo that he was going to run his drug-sniffing dog around the car, and he asked Nutt to exit the vehicle. When she complied, Officer Picou noticed a bulge underneath her shirt in her midsection. He frisked her person and recovered four packages of cocaine. The officer handcuffed Nutt with his only pair of handcuffs, ordered Trejo to lie on the ground until backup arrived, and proceeded to read the couple their Miranda rights.

¶ 4. On November 29, 2005, Trejo was indicted for possession of cocaine with intent to sell. Prior to trial, Trejo filed a motion to suppress the evidence of the cocaine, asserting that Officer Picou lacked probable cause or reasonable suspicion to initiate the traffic stop and that the length of the detention “lasted longer than necessary to effect the purpose of the stop.” At the suppression hearing, which was held immediately prior to trial on April 1, 2008, Officer Picou admitted that Trejo had not violated any traffic law, nor was Trejo operating the vehicle in an erratic manner. Rather, the officer claimed that the stop was made for the following reasons: (1) concern that Trejo may have been tired or intoxicated; (2) the fact that Trejo had a Texas license plate; and (3) Trejo’s failure to respond to the officer’s attempts to move him into the right lane of traffic, coupled with his reduced rate of speed. The circuit court overruled Trejo’s motion to suppress stating that the officer had probable cause to stop Trejo for safety reasons, based upon the fact that he was traveling in the left-hand lane and failed to respond to the officer’s flashing high-beam lights. Further, the circuit court intimated that Trejo lacked standing to object to the evidence as the drugs were found on Nutt, not in the vehicle.

¶ 5. Trejo was convicted of possession of cocaine with intent to sell and a judgment of conviction was entered on April 8, 2008. Trejo filed a motion for a new trial and/or a motion for a judgment notwithstanding the verdict on April 11, 2008, which the circuit court subsequently denied. Following a sentencing hearing on December 12, 2008, Trejo received an enhanced sentence of sixty years as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007) and as a subsequent drug offender pursuant to Mississippi Code Annotated section 41-29-147 (Rev. 2005) in the custody of the MDOC. He was also ordered to pay a fíne of two million dollars. He now appeals his conviction citing several assignments of error. As we find the first issue on appeal to be disposi-tive of the case, we decline to address the remaining issues.

Whether the circuit court erred in denying Trejo’s motion to suppress.

¶ 6. In his motion to suppress, Trejo argued that the cocaine should not have been admitted as evidence as Officer Picou lacked probable cause or reasonable suspicion to stop Trejo’s vehicle. Therefore, the initial stop was not justified and, thus, resulted in an unreasonable search and seizure, violating the Fourth Amendment to the United States Constitution. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” See also Miss. Const, art. 3, § 23 (1890). However, the State argues that since the drugs were found on Nutt’s person and not in Trejo’s vehicle, Trejo had no standing to object to the search of her person. This contention is based on the circuit court’s finding at trial that since the drugs were not found in the vehicle, there was nothing for the court to suppress.

¶ 7. In Brown v. State, 19 So.3d 85, 89 (¶ 7) (Miss.Ct.App.2008), this Court stated that:

Whether a defendant has standing to challenge a seizure is a question of law; therefore, we address this issue de novo. United States v. Kye Soo Lee, 898 F.2d 1034, 1037 (5th Cir.1990). “The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” Lyons v. State, 942 So.2d 247, 250 (¶ 11) (Miss.Ct.App.2006)[.]

Here, both the State and the circuit court failed to acknowledge the “fruit of the poisonous tree” doctrine. This doctrine states that all evidence acquired as a result of an unreasonable search, including that evidence that is subsequently or indirectly acquired from, the search, is inadmissible. Jackson v. State, 418 So.2d 827, 829 (Miss. 1982) (citations omitted); see also Powell v. State, 824 So.2d 661, 667 (¶ 27) (Miss.Ct. App.2002) (“[t]he exclusionary rule is to bar use of the fruit of the poisonous tree of a Fourth Amendment violation”). The cocaine was obtained from Nutt’s person as a result of the traffic stop, which resulted in a “seizure” of Trejo. See Tate v. State, 946 So.2d 376, 382 (1117) (Miss.Ct.App. 2006) (“Traffic stops are considered to be seizures within the meaning of the Fourth Amendment.”) (citing United States v. Grant, 349 F.3d 192, 196 (5th Cir.2003)). Consequently, if the initial traffic stop was a violation of Trejo’s constitutional right under the Fourth Amendment, the cocaine is the “fruit” of that illegal seizure, and Trejo, as driver of the vehicle, has standing to assert the violation.

¶ 8. This Court analyzes an unlawful-seizure claim under a mixed standard of review. Brown, 19 So.3d at 89 (¶ 9) (citing Dies v. State, 926 So.2d 910, 917 (¶ 20) (Miss.2006)). We conduct a de novo review in determining “the existence of probable cause.” Id. (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). However, we limit our de novo review to the circuit court’s “decision based on historical facts reviewed under the substantial evidence and clearly erroneous standards.” Id. (quoting Ornelas, 517 U.S. at 699, 116 S.Ct. 1657). “In determining whether evidence should be suppressed, a [circuit] court’s findings of fact are not disturbed on appeal absent a finding that the [circuit court] judge applied an incorrect legal standard, committed manifest error, or made a decision contrary to the overwhelming weight of the evidence.” Id. (quoting Clair v. State, 845 So.2d 733, 734-35 (¶ 4) (Miss.Ct.App.2003)).

¶ 9. The United States Supreme Court, in Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), “held that an officer may, consistent with the Fourth Amendment, make a brief, investigatory detention without a warrant when the officer has a reasonable suspicion that criminal activity is afoot.” Rainer v. State, 944 So.2d 115, 118 (¶6) (Miss.Ct.App. 2006). An investigatory stop under Terry, requires “a two-tiered reasonable suspicion inquiry: 1) whether the officer’s action was justified at its inception, and 2) whether the search or seizure was reasonably related in scope to the circumstances that justified the stop in the first place.” Tate, 946 So.2d at 382 (¶ 17) (quoting Grant, 349 F.3d at 196). “As a general matter, the decision to stop an automobile is reasonable where the police [officer has] probable cause to believe that a traffic violation has occurred.” Goff v. State, 14 So.3d 625, 641 (¶ 48) (Miss.2009) (quoting Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). To determine whether probable cause exists, we must look at the “the totality of the circumstances!,]” viewing the evidence “in light of the observations, knowledge, and training of the law enforcement officers involved in the warrantless search.” Howard v. State, 987 So.2d 506, 510 (¶ 12) (Miss.Ct.App.2008) (quoting Comby v. State, 901 So.2d 1282, 1286 (¶ 7) (Miss.Ct. App.2004)). We must look at “what the officers knew before they initiated the search” in order to determine whether the suspicion for the stop was reasonable. Rainer, 944 So.2d at 118 (¶ 6) (citing Florida v. J.L., 529 U.S. 266, 271, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)). In making an investigatory stop, an officer “ ‘must be able to point to specific and articulable facts’ that justify the intrusion.” Id. (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868). “ ‘[M]ere hunches’ or ‘looking suspicious’ is insufficient to establish reasonable suspicion for an investigatory stop.” Qualls v. State, 947 So.2d 865, 371 (¶ 16) (Miss.Ct. App.2007) (citing Anderson v. State, 864 So.2d 948, 951 (¶ 13) (Miss.Ct.App.2003)). In other words, “there must be an objective basis for the stop.” Adams v. City of Booneville, 910 So.2d 720, 725 (¶ 16) (Miss. Ct.App.2005) (citing United States v. Escalante, 239 F.3d 678, 680-81 (5th Cir.2001)). However, “if it is clear that what the police observed did not constitute a violation of the cited traffic law, there is no ‘objective basis’ for the stop, and the stop is illegal.” Id. (quoting Escalante, 239 F.3d at 681).

¶ 10. To support his assignment of error, Trejo cites Couldery v. State, 890 So.2d 959 (Miss.Ct.App.2004), which is analogous to the facts of the present case. Robert Couldery was driving a rental vehicle with an out-of-state license plate along a Mississippi highway. He was traveling in the right-hand lane, but upon encountering a police vehicle on the right shoulder of the interstate, Couldery moved into the left lane and continued traveling in that particular lane. The officer, after short observation, pulled him over. Couldery was not violating any traffic law and had no outstanding warrants. Couldery, like Trejo, refused a search of his vehicle. However, after a K-9 search gave the officer reasonable suspicion, he searched the car. Illegal drugs were found in the backseat, and Couldery was arrested and subsequently convicted. The Mississippi Supreme Court reversed and rendered Couldery’s conviction, holding that the initial traffic stop was an unreasonable search and seizure under the Fourth Amendment as “Couldery’s actions in driving in the left lane of the right half of the interstate highway did not constitute a criminal offense as contemplated in [Mississippi Code Annotated section 63-3-601 (Rev.1996) ].” Id. at 963 (¶ 13).

¶ 11. In the present case, Officer Picou stated that his subjective basis for stopping Trejo was a “concern” that Trejo was tired or impaired based solely upon his failure to move over into the right lane when the officer flashed his high-beam lights into Trejo’s vehicle. He later admitted that he also took into consideration the fact that Trejo’s vehicle had a Texas license plate, furthering his suspicion that Trejo might be “fatigued” from traveling. However, the record does not demonstrate that Officer Picou ever suspected Trejo of any traffic violation. Trejo was not weaving or driving erratically, and there is no indication that Trejo was even aware that he was being followed by law enforcement; the record merely reflects that a vehicle flashed its high-beam lights into Trejo’s vehicle three times. This lack of awareness is supported by the fact that when Officer Picou turned on his flashing blue lights, Trejo promptly responded and pulled over to the side of the road. The State concedes that Officer Picou repeatedly testified that Trejo committed no traffic violation. Officer Picou merely testified that he had a “concern” that Trejo may have been tired or intoxicated. We find that the officer’s suspicion that Trejo was tired or impaired is not sufficient to constitute a reasonable basis for the traffic stop.

¶ 12. At the suppression hearing, it was additionally argued that Trejo may have violated statutory authority which requires slower traffic to remain in the right lane of the highway. Further, Officer Pi-cou testified that there are signs along the interstate that advise “slow-moving traffic” to stay in the right lane. However, both Officer Picou and the circuit court judge acknowledged that the traffic signs were merely advisory and that no statute prohibited Trejo from driving in the left lane.

[Defense counsel]: Now, there’s nothing against the law about Mr. Trejo being in the left lane going the speed that he was going, is there?
[Officer Picou]: There’s traffic signs that tell him to go to the right and he’s supposed to abide by the traffic signs. But technically? No.
[Defense counsel]: There’s no statute that prohibits him from driving in the left lane at the speed at which he was driving, is there?
[Officer Picou]: No.

Later, the circuit court judge stated: “In this instance, Mr. Trejo, he was using the left-hand lane, which is okay, but a car comes up behind you; advisory signs on the highway say ‘slower traffic keep right[.]’ ” (Emphasis added). Additional testimony reiterated this point:

[Defense counsel]: And is it against the law to travel in the left lane? Is there any statute that you know of or citation that you know of that can be issued for traveling in the left-hand traffic, left[-]lane traffic on the interstate?
[Officer Picou]: There’s no law that dictates that you can’t travel in the left lane, but there is a law that you must abide by traffic signs. So there are signs out there which tell you to travel in the right lane if you are traveling slower.
[Defense counsel]: Did you cite Mr. Tre-jo for that?
[Officer Picou]: No, I did not.

¶ 13. Although no specific statutory authority was cited at the suppression hearing to support the State’s argument, on appeal the State claims Trejo violated Mississippi Code Annotated section 63-3-603(d) (Rev.2004). As that section requires “vehicle[s] proceeding at less than the normal speed of traffic ” to be driven in the right-hand lane if available for traffic, the State argues that Officer Picou had probable cause to initiate the stop. Officer Picou, however, testified that Trejo was driving at an “appropriate range of speed for that particular area.” He also testified that there was only a “little bit of traffic” on the interstate at that time and that there was no other vehicle in the right-hand lane. Trejo’s rate of speed was ten miles below the posted maximum speed limit and did not fall below the minimum posted speed of 45 mph. There is no evidence that Trejo was, thus, traveling “at less than the normal speed of traffic at the time and place” he was stopped. The mere fact that Officer Picou came upon him at a higher rate of speed does not mean that Trejo was traveling at less than the normal rate of speed. Further, we take judicial notice of the fact that Trejo was stopped only a few miles north of the Jackson metropolitan area, which has a posted maximum speed limit of 60 mph. Therefore, we do not find Trejo’s rate of speed “slow-moving,” “slower-moving,” or “less than ... normal” when compared with the posted speed limits and considering the minimal traffic and late hour. Therefore, the State’s belated justification for the stop is insufficient. As defense counsel, Cynthia Stewart, in her argument on the motion to suppress, aptly summarized:

Mr. Trejo was not breaking any traffic laws. He was not driving in an unsafe fashion. He was not going below the [minimum] speed limit. He was not going above the [maximum] speed limit. He was not crossing the fog line. He was not weaving. He was not swerving. He was not doing anything that justified the stop.

¶ 14. We find that the circuit court erred in denying Trejo’s motion to suppress the evidence of the cocaine. Without the cocaine, there is no remaining evidence to uphold Trejo’s conviction. “The proper remedy for insufficient evidence is for the Court to reverse and render.” Readus v. State, 997 So.2d 941, 944 (¶ 13) (Miss.Ct. App.2008) (citation omitted). Accordingly, we reverse and render Trejo’s conviction and the resulting sentence and fine.

¶ 15. Based on this holding, we need not address Trejo’s remaining claims of error as they have been rendered moot.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS REVERSED, A JUDGMENT OF ACQUITTAL IS RENDERED, AND THE APPELLANT IS DISCHARGED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., NOT PARTICIPATING.

      . We note that at one point during the hearing, the judge stated that Trejo did not move over until the third time that the officer had flashed his high-beam lights. However, the judge later corrected himself, stating that Tre-jo did not move over until Officer Picou activated his blue flashing lights.

      . Subsection 63-3-603(d) states that:
      Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway.
      (Emphasis added).
      We note that Mississippi Code Annotated subsection 63-3-603(c) (Rev.2004) states that: "Official signs may be erected directing slow-moving traffic to use a designated lane or allocating specified lanes to traffic moving in the same direction, and drivers of vehicles shall obey the directions of every such sign.” (Emphasis added). However, the State does not argue that Trejo’s vehicle was "slow-moving” under the meaning of subsection (c). Rather, it relies upon the provisions of subsection (d) relating to traffic moving less than the normal speed of traffic — that is, slower traffic.

      . The police report stated that Officer Picou approached Trejo’s vehicle around mile marker 114 of Interstate 55. The officer testified that he pulled Trejo over approximately one mile later.


author: CARLTON, J., for the Court:

text:
    In the Matter of the ESTATE OF Bobbye N. BRILL, Deceased and Annie Hobson Nichols, Deceased: Frank Nichols, Appellant v. Shirlee N. PHILLIPS and Kathryn Kennington, Appellees.
    No. 2009-CA-01968-COA.
    Court of Appeals of Mississippi.
    March 22, 2011.
    Rehearing Denied June 21, 2011.

      Rhett R. Russell, Tupelo, Clarence McDonald Leland, W.O. Dillard, Jackson, attorneys for appellant.
    Robert David Marchetti, Camille Henick Evans, Ridgeland, attorneys for appellees.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   CARLTON, J., for the Court:

¶ 1. Frank Nichols (Frank), in his individual capacity and as the executor of the Estate of Annie Hobson Nichols, appeals the decision of the Hinds County Chancery Court denying his petition to remove his sister, Shirlee Phillips (Shirlee), and Kathryn Kennington (Kathryn) as co-admin-istratrices of the will of his other sister, Bobbye Brill (Bobbye). Frank also claims that the chancellor erred in determining that Bobbye’s will set forth a condition precedent which Shirlee must perform in order to obtain the residuary assets, and she also erred by not enforcing the requirements of the will for a bond, an inventory, and an accounting as mandated by Mississippi Code Annotated sections 91-7-41 (Rev. 2004), 91-7-93 (Rev. 2004), and 91-7-277 (Rev. 2004). Finding no error, we affirm.

FACTS

¶ 2. Bobbye died on April 1, 2004. Bob-bye’s two sons predeceased her, and she was survived by her mother, Annie, and her siblings, Frank and Shirlee. Bobbye’s holographic will, dated March 10, 1904, states in its entirety:

I, Bobbye Brill, leave my home and contents to my sister, Shirlee Phillips. My Thunderbird car I leave to my brother, Frank Nichols. The remainder of my estate I leave to my sister, Shirlee Phillips, with the understanding she will take care of my mother, Annie Nichols. Please be sure this is carried out.

The chancery court appointed Shirlee and Kathryn as co-administratrices of Bob-bye’s will. On May 12, 2004, the chancellor entered a decree admitting Bobbye’s will to probate.

¶ B. On January 11, 2005, Annie died testate, and Frank was appointed executor of his mother’s estate. On June 16, 2004, Frank filed a caveat against the probate of the will in common and solemn form, alleging that Bobbye lacked testamentary capacity at the time of the execution of her holographic will, and he alleged that his sister’s will was the product of undue influence by Shirlee.

¶ 4. After a hearing held on November 17, 2005, which addressed Frank’s motion to discharge the co-administratrices, the chancellor entered an order on February 9, 2006, denying the motion, stating that he found no inappropriate behavior on the part of Shirlee that would rise to the level of a violation of her fiduciary duty as co-administratrix.

¶ 5. As to the issue of testamentary capacity, the chancellor entered a judgment on May 8, 2007, finding that Frank failed to provide substantial evidence to show that Bobbye lacked testamentary capacity at the time she drafted and executed her will; thus, the chancellor held that the will was valid.

¶ 6. On May 25, 2007, Shirlee and Kathryn filed a petition for construction of Bobbye’s will with a request that the will be construed to leave the residuary of the estate to Shirlee, as sole residuary beneficiary, free of any expressed or resulting trust. The chancellor issued a bench opinion on August 17, 2007, and interpreted the will as conditioning that if Shirlee took care of Annie, then Shirlee would be entitled to the remainder of Bobbye’s estate. On August 23, 2007, Frank filed another motion to remove Shirlee and Kathryn as co-administratrices, claiming that Shirlee and Kathryn had utilized their fiduciary positions to seek personal gain for Shirlee to the detriment of other beneficiaries of Bobbye’s will.

¶ 7. On February 5, 2008, the chancellor held a hearing and considered witnesses’ testimonies to determine whether Shirlee had fulfilled the conditional bequest of taking care of Annie until her death. On June 6, 2008, the chancellor entered an opinion finding that Shirlee had rendered reasonable and appropriate care to her mother, and she found that the residuary bequest should be upheld. Frank then filed a petition for an interlocutory appeal, taking issue with the chancellor’s interpretation of the language of the will, which was summarily denied by the Mississippi Supreme Court.

¶ 8. With respect to Frank’s final motion, the chancellor held a hearing on April 14, 2009, addressing Frank’s motion to remove Shirlee and Kathryn as co-adminis-tratrices. The chancellor subsequently issued a judgment finding that no partiality resulted from Shirlee’s dual role as fiduciary and beneficiary, and she denied Frank’s petition to remove the co-administratrices. The chancellor did, however, direct the law firm representing both the co-administra-trices and Shirlee in her individual capacity, to elect to represent either one such party or the other.

¶ 9. On June 8, 2009, upon petition of Shirlee and Kathryn, the chancellor waived all annual accountings except for the first and second annual accountings and the final accounting. On November 16, 2009, the chancellor entered a judgment approving the accountings and closing Bobbye’s estate. Frank now appeals on behalf of himself and Annie’s estate.

STANDARD OF REVIEW

¶ 10. This Court may not disturb a chancellor’s findings if they are supported by substantial evidence. In re Estate of Johnson v. Moore, 735 So.2d 231, 236 (¶ 24) (Miss.1999) (citing In re Estate of Harris v. Bradley, 539 So.2d 1040, 1043 (Miss.1989)). We will not disturb a chancellor’s findings unless he abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. (citing Tinnin v. First United Bank of Miss., 570 So.2d 1193, 1194 (Miss.1990)). However, “[w]hen presented with a question of law, ... [this Court] conducts a de novo review.” Estate of Wright v. Cromwell, 829 So.2d 1274, 1276 (¶ 5) (Miss.Ct.App.2002) (citation and quotation omitted). Finally, “[t]his Court must determine if effect was given to the testat[rix]’s intent when reviewing the decision of the chancellor.” In re Estate of Homburg v. Clark, 697 So.2d 1154, 1157 (¶ 11) (Miss.1997) (citing Tinnin v. First United Bank of Miss., 502 So.2d 659, 663 (Miss.1987)).

DISCUSSION

I. Untimely Appeal

¶ 11. As a preliminary issue, we will address Shirlee and Kathryn’s claim that this appeal, filed on December 10, 2009, regarding the 2007 and 2008 rulings interpreting the will, was untimely filed under Mississippi Rule of Appellate Procedure 4(a), which requires an appeal to be filed within thirty days after entry of the judgment or order being appealed. Shirlee and Kathryn argue that Frank filed an interlocutory appeal, and not a direct appeal, of the June 6, 2008 judgment in which the chancellor determined that Shir-lee had properly completed the condition precedent established in Bobbye’s will; thus, she could receive the residuary estate. Shirlee and Kathryn claim that the June 6, 2008 order constituted a final judgment; thus, a direct appeal challenging the construction or interpretation of the will should have been made at that time.

¶ 12. However, the record reflects that the 2008 judgment did not settle all issues pending before the parties; thus, we find that this judgment did not constitute a final judgment. See M.R.C.P. 54(b). Frank also points out that the supreme court denied his petition for interlocutory appeal without ruling upon its merits. We find Frank’s appeal to be timely and properly before this Court.

II. Bond, Inventory, and Accounting Requirements; Removal of Co-administratrices

¶ 18. Frank argues that the chancellor erred by not enforcing the bond, inventory, and accounting requirements of Bobbye’s will. He also argues that the chancellor erred in denying his motions to remove Shirlee and Kathryn as co-admin-istratrices. Frank asserts that he made numerous pleas for the chancellor to remove and substitute the co-administra-trices, to disqualify the attorneys who were simultaneously representing both the co-administratrices and Shirlee, and to compel Shirlee and Kathryn’s fulfillment of statutory and fiduciary duties.

¶ 14. Frank filed motions to discharge Shirlee and Kathryn as co-administratrices on November 8, 2005, and August 21, 2007. The chancellors denied these motions, finding that no conflict existed between the interest of Shirlee as a fiduciary and her interest as beneficiary. In the second order denying Frank’s motion to discharge the co-administratrices, the chancellor acknowledged that in Watson v. Caffery, 236 Miss. 223, 236-37, 109 So.2d 862, 868 (1959) the Mississippi Supreme Court held that hostility existing between executor and one of the legatees would not justify the executor’s removal from office.

¶ 15. Frank also claims that the chancellor erred by not enforcing the bond, inventory, and accounting requirements of the will. Frank alleges that section 91-7-93 requires the co-administratrices to return an inventory verified on oath of the property of the decedent within ninety days of the granting of the letters of administration. Frank additionally charges that Shirlee and Kathryn failed to file any accounting with the court, as required by section 91-7-277, until August 13, 2009, despite Franks’s numerous requests.

¶ 16. In the present case, the chancellor entered a judgment waiving the bond requirements and all accounting requirements except the first and second annual accountings and the final accounting. We note that a court possesses the discretion to waive annual accountings if the beneficiaries approve and the interests of creditors are not jeopardized. Estate of Holt v. Scott, 806 So.2d 296, 298 (¶¶ 6-9) (Miss.Ct.App.2001). See also Robert E. Williford, Miss. Probate and Administration of Estates § 20:1 (3d ed. 2010). In a judgment entered on November 16, 2009, the chancellor deemed Shirlee the sole beneficiary under the will, save for the Thunderbird automobile, and also deemed her the sole residuary beneficiary under the will. Frank, however, did not possess the status of beneficiary of the residuary estate; therefore, he was not entitled to an accounting of the residuary estate.

¶ 17. In addition, the record reflects that Shirlee and Kathryn indeed filed two inventories between April 2005 and August 2009, which the chancellor approved in her November 16, 2009 judgment. We also acknowledge that Mississippi Code Annotated section 91-7-43 (Rev. 2004) provides a statutory exception to the requirement for filing an inventory where the executor possesses the status of a residuary legatee. See Williford, Miss. Probate and Administration of Estates § 10:1.

¶ 18. Based on our review of the record, we cannot find under the circumstances that the chancellor’s judgment was manifestly wrong, clearly erroneous, or applied an erroneous legal standard; therefore, her findings will not be disturbed. Accordingly, this issue is without merit.

III. Conditional Bequest

¶ 19. Frank argues that Bobbye intended to benefit Annie through the language in the last two sentences of her will. However, Frank claims that should this Court find that Bobbye possessed no intent to benefit Annie, the last two sentences should be deemed void or otherwise unenforceable. Frank further argues that in the event that this Court finds that the two-sentence residuary clause in Bobbye’s will conveyed an interest to Shirlee, this Court should find that the interest was subject to a condition precedent which Shirlee failed to fulfill. Shirlee argues, however, that these last two sentences are bequests and devises to her, free and clear of any claims of Annie’s estate.

¶ 20. We acknowledge that “the paramount and controlling consideration” when construing the language of a will “is to ascertain and give effect to the intention of the testator.” Matter of Last Will and Testament of Lawson v. Lambert, 792 So.2d 977, 979 (¶ 7) (Miss.2001). Additionally, the supreme court has stated that “[t]he surest guide to testamentary intent is the wording employed by the maker of the will.” Tinnin, 502 So.2d at 663. “If the language of the will is clear, definite, and unambiguous, the court must give to the language its clear import.” Rousseau v. Rousseau, 910 So.2d 1214, 1219 (¶ 17) (Miss.Ct.App.2005) (quoting Seal v. Seal, 312 So.2d 19, 21 (Miss.1975)). This Court applies a de novo standard when reviewing a chancellor’s construction of a will. Estate of Hamburg, 697 So.2d at 1157 (¶ 11).

¶ 21. In a bench opinion entered on August 17, 2007, the chancellor found that the language in Bobbye’s will stating, “[t]he remainder of my estate I leave to my sister, Shirlee Phillips, with the understanding she will take care of my mother, Annie Nichols. Please be sure this is carried out,” was not ambiguous on its face. The chancellor held the language established that if Shirlee took care of her mother, then Shirlee would be entitled to the remainder of Bobbye’s estate.

¶ 22. In the June 3, 2008 judgment, the chancellor found that Bobbye’s will placed no particular standard or requests on the care her mother was to receive from Shir-lee. After hearing the witnesses testify, the chancellor determined that Shirlee had presented sufficient evidence to establish that she had fulfilled the conditional bequest of taking care of Annie; thus, the chancellor found Shirlee was entitled to receive Bobbye’s entire residuary estate. See Pace v. Pace, 24 So.3d 325, 331 (¶¶ 14-16) (Miss.Ct.App.2009) (This Court will not disturb a chancellor’s factual determination that a condition has been satisfied absent an abuse of discretion.). With respect to testamentary intent as to the residuary estate, the chancellor cited In re Bradley’s Estate v. Graham, 187 Wash. 221, 59 P.2d 1129 (Wash.1936), where the decedent devised her residuary estate to her “dear friend and companion” and stated that “she must take good care of my dear cats[.]” The Washington court clarified that the decedent did not intend that the entire residue of her estate be expended for the benefit of the cat; rather, she intended her friend to benefit from the bequest. Additionally, in McNeese v. Conwill, 177 Miss. 427, 170 So. 678, 678-79 (1936), our supreme court acknowledged that:

Wills containing provisions for the care and maintenance of another or others ... have, in many cases, been held to create trusts although no express technical words were used.... [W]ords which on their face would seem to express only a wish or hope or expectation or confidence have often been held, when taken in connection with all the surrounding facts, to make the devisee a trustee for the person or persons in whose favor such expressions are used, provided the testator has pointed out with sufficient clearness and certainty both the subject-matter and the objects of the intended trust.

¶ 23. Thus, we find no error in the chancellor’s determination that the last two sentences of Bobbye’s will clearly convey Bobbye’s testamentary intent that Shirlee receive her residuary estate upon satisfaction of the stated condition. See In re Last Will and Testament of Carney v. Carney, 758 So.2d 1017, 1020 (¶ 12) (Miss. 2000). We further find no abuse of discretion in the chancellor’s determination that Shirlee had fulfilled the conditional bequest created by Bobbye’s will. See Estate of Johnson, 735 So.2d at 236 (¶ 24). This issue is without merit.

¶ 24. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR.

      . Testimony revealed that Bobbye actually drafted and executed the will on March 10, 2004.

      . Although Frank’s petition for interlocutory appeal does not appear in the record before this Court, we note that the record does reflect that on July 29, 2008, the Mississippi Supreme Court denied to hear the interlocutory appeal. See also M.R.C.P. 54(b).

      . Judge Stuart Robinson ruled to deny the first motion, and Judge Patricia Wise ruled to deny the second motion.

      . Shirlee and Kathryn filed a motion to dismiss the appeal based on untimeliness on April 1, 2010. The supreme court denied the motion to dismiss on May 12, 2010.


author: GRIFFIS, P.J., for the Court:

text:
    Bobbie Sue KIMBROUGH, Appellant/Cross-Appellee v. Robert Earl KIMBROUGH, Appellee/Cross-Appellant.
    No. 2009-CA-01019-COA.
    Court of Appeals of Mississippi.
    May 3, 2011.
    Rehearing Denied Sept. 20, 2011.
    Certiorari Denied Dec. 15, 2011.

      John A. Ferrell, Booneville, attorney for appellant.
    Jak McGee Smith, Tupelo, attorney for appellee.
   GRIFFIS, P.J., for the Court:

¶ 1. Robert Earl Kimbrough and Bobbie Sue Kimbrough agreed to a divorce based on irreconcilable differences. They submitted to the chancellor the issues of property division and custody of their five-year-old daughter, Kaitlin Suzanne Kimbrough. The chancellor divided the marital property and awarded sole physical custody of the daughter to Robert, with joint legal custody and visitation awarded to Bobbie Sue. Bobbie Sue now appeals the award of custody to Robert and certain parts of the property division. Robert cross-appeals and contests other parts of the property division. We find no reversible error and affirm.

FACTS

¶ 2. Robert and Bobbie Sue were married on April 12, 2002. Bobbie Sue had a son from a previous relationship, named Drew, who was born on September 21, 1995. Robert and Bobbie Sue had a daughter, Kaitlin, who was born on July 30, 2003.

¶ 3. They separated in July 2007. Bobbie Sue filed for divorce that same month.

¶ 4. Prior to the marriage, Robert owned a tract of land in Saltillo, Mississippi. Robert’s house and his business, a motorcycle-repair shop called the “Motorcycle Doctor,” were located on the property. During the marriage, Robert, Bobbie Sue, Drew, and Kaitlin lived in the house, and Robert continued to operate his business.

¶ 5. Robert and Bobbie Sue decided to make additions to the house and took out a mortgage for that purpose in the amount of $56,000. Over the next twenty-two months, prior to their separation, they each paid $200 a month on the mortgage. Bobbie Sue’s payments totaled $4,400.

¶ 6. In the property division, the chancellor classified the house as marital property and determined the equity to be $166,000. The chancellor awarded the house to Robert and awarded Bobbie Sue $4,400 as her equitable interest, to be paid by Robert in cash. The chancellor classified the business as Robert’s separate property.

¶ 7. Robert and Bobbie Sue also owned several pieces of personal property. Prior to the marriage, Robert acquired a 2001 GMC Sierra pickup truck, a 1992 Chevrolet Motorcoach, and a 2000 Suzuki four-wheeler. The chancellor classified these items as marital property. Robert’s Rule 8.05 financial disclosure statement valued the truck at $32,000, the motorcoach at $35,000, and the four-wheeler at $6,000. Robert now claims that the “values” he listed in his disclosure were the prices he had paid for the items, not his estimate of their current value, which would be considerably less. The chancellor adopted the values used in Robert’s disclosure and awarded the items to Robert, with a one-half equitable interest to Bobbie Sue, to be paid by Robert in cash. The effect was that the parties split the equity in these items for a total of $36,500 each.

¶ 8. During the marriage, Robert and Bobbie Sue acquired a 2002 GMC Yukon, a pontoon boat, a camper, a tractor, a die machine, and a lift board. The chancellor classified these items as marital property. The Yukon was valued at $10,000. The boat and camper, collectively, were valued at $9,000. The tractor was valued at $4,500. The die machine and lift board, collectively, were valued at $1,741. The chancellor awarded the Yukon, the boat, and the camper to Bobbie Sue with no equitable interest to Robert. The chancellor awarded the tractor, die machine, and lift board to Robert with a one-half equitable interest to Bobbie Sue, to be paid by Robert in cash. For these items, Bobbie Sue received $22,120.50 of the equity, while Robert received $3,120.50.

¶ 9. Bobbie Sue had a 401(k) retirement account through her employer, Mac’s Tires. The chancellor classified the account as marital property. He determined the value of the account was unknown, even though Bobbie Sue had testified that it was worth between $8,000 and $11,000. The chancellor awarded the account to Bobbie Sue with no equitable interest to Robert.

¶ 10. To summarize the property division, excluding the 401(k), the chancellor determined the marital property had a total value of $264,241. Robert was awarded assets valued at $201,220.50, and Bobbie Sue was awarded assets valued at $63,020.50.

¶ 11. Most of the testimony, during a lengthy trial, focused on the issue of who would have custody of Kaitlin. Four main points were developed. First, both Robert and Bobbie Sue had substance-abuse problems. During Uhe marriage, Robert drank several beers daily, while Bobbie Sue smoked marijuana daily. Both claimed to have stopped after the separation. Second, Robert’s witnesses testified that he was the more attentive of the two parents and that he was the primary caregiver. Bobbie Sue’s employment at Mac’s Tires required her to be at work from approximately 8:80 a.m. to 5:00 p.m. five days a week, while Robert’s self-employment at the Motorcycle Doctor gave him greater flexibility and allowed him more time with Kaitlin. Third, Bobbie Sue had committed post-separation adultery with two different men. She carried Kaitlin on outings with her boyfriends several times. Fourth, Robert had been physically violent toward Bobbie Sue. Two different incidents were described. In one, Bobbie Sue sustained slight bruising on her arm after Robert grabbed her, and in the other, Robert threatened to punch her but did not.

¶ 12. The chancellor considered the evidence, applied the Albright factors, and found that it was in Kaitlin’s best interest for Robert to have sole physical custody, with joint legal custody and visitation awarded to Bobbie Sue. The appeal is from this judgment.

STANDARD OF REVIEW

¶ 13. This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (¶ 5) (Miss.2002).

ANALYSIS

1. Chancellor Littlejohn’s Recusal

¶ 14. This case was assigned to Chancellor Talmadge Littlejohn. Chancellor Littlejohn heard one day of testimony and then recused himself. The record does not disclose the reasons for his recusal. The case was then reassigned to Chancellor John Hatcher. Chancellor Hatcher heard five days of testimony before he entered the judgment. The parties did not ask for or obtain a transcript of the hearing before Chancellor Littlejohn. Neither party made a transcript available to Chancellor Hatcher.

¶ 15. Bobbie Sue claims that it was reversible error for Chancellor Hatch-er to render judgment without considering the testimony elicited before Chancellor Littlejohn. Bobbie Sue, however, cites no legal authority. The Mississippi Supreme Court has held:

Failure to cite any authority is a procedural bar, and this Court is under no obligation to consider the assignment of error. Mississippi Rule of Appellate Procedure [28(a)(6) ] requires that the argument in an appellant’s brief must contain “the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied upon.”

Owen v. Owen, 928 So .2d 156, 168 (¶ 33) (Miss.2006) (internal citations omitted). Accordingly, this issue is waived.

¶ 16. Nevertheless, our review of the record indicates that no substantial evidence was revealed in the hearing before Chancellor Littlejohn that was not also revealed before Chancellor Hatcher. Bobbie Sue certainly had ample opportunity to make a transcript available to Chancellor Hatcher, to recall the witnesses, and to ensure all of her evidence was presented to the deciding judge. She did not. With such opportunity available, she may not now complain. Therefore, we find that this issue has no merit.

2. Property Division

a. The Marital Home

¶ 17. Bobbie Sue argues that the chancellor erred when he awarded her only $4,400 as her equitable interest in the marital home. Chancellors must equitably divide marital property, but they do not have to equally divide it. Shoffner v. Shoffner, 909 So.2d 1245, 1249-50 (¶ 12) (Miss.Ct.App.2005). They are vested with broad discretion, and we will not reverse their property division unless it is manifestly wrong. Id. In addition, the question is not whether one individual marital asset was equitably divided; the question is whether the marital assets, as a whole, were equitably divided. See Wells v. Wells, 800 So.2d 1239, 1243-44 (¶¶ 7-8) (Miss.Ct.App.2001) (affirming property division where wife received all of the marital home’s equity).

¶ 18. Robert received $161,600 of the home’s equity, while Bobbie Sue received only $4,400, which is a mere 2.6% of the equity. The chancellor determined that, although the property was to be considered a marital asset, Robert had owned the house and the adjacent business, free of any liens, for many years prior to the marriage, while the marriage only lasted five years until the separation. Clearly, this was the reason the chancellor awarded Robert the majority of the home’s equity.

¶ 19. We do not look at the division of one asset in isolation. Id. While Bobbie Sue received a small share of the equity in the home, she received a sizeable share of the personal property. Looking at the assets as a whole, Robert received $201,220.50, while Bobbie Sue received $63,020.50, not including her 401(k).

While Bobbie Sue was awarded only 24% of the marital property, this division was within the wide discretion that chancellors have in making these difficult decisions. See Redd v. Redd, 774 So.2d 492, 496 (¶ 15) (Miss.Ct.App.2000) (reversing on other grounds but stating that a 77% to 23% division of the marital property, standing alone, would not have been a ground for reversal).

¶ 20. Under our highly deferential standard of review, we cannot conclude that the chancellor was manifestly wrong when he awarded Bobbie Sue $4,400 as her share of the marital home. This issue is without merit.

b. Robert’s Business

¶ 21. Bobbie Sue next argues that the chancellor erred when he classified Robert’s business, the Motorcycle Doctor, as Robert’s separate property. The effect of the classification was to exclude the business from equitable division and deprive Bobbie Sue of any interest in it.

¶ 22. “A business interest owned prior to marriage is the separate property of the owning spouse, at least to the extent of its value at the time of the marriage.” Deborah H. Bell, Bell on Mississippi Family Law § 8.03[2] (citing Craft v. Craft, 825 So.2d 605, 609 (¶ 14) (Miss.2002)). Appreciation of a separate business interest, which occurs during the marriage and is attributable to the efforts of either spouse, is marital property. Id. at § 8.03[3][b] (citing Craft, 825 So.2d at 609 (¶ 14)). The burden of proof is on the non-owning spouse to show both the appreciation in value of the separate business interest and that such appreciation was attributable to the efforts of either spouse. Waring v. Waring, 747 So.2d 252, 256 (¶ 18) (Miss. 1999).

¶ 23. Robert owned the Motorcycle Doctor for approximately eighteen years prior to the marriage. Clearly, the Motorcycle Doctor was his separate property. Any appreciation in value of the business during the marriage attributable to Robert’s or Bobbie Sue’s efforts could be marital property. However, Bobbie Sue did not offer any evidence of such appreciation. As a result, the chancellor could not have awarded her an equitable interest in Robert’s business.

¶24. The chancellor was correct to classify the Motorcycle Doctor as Robert’s separate property. This issue has no merit.

c. The Truck, Motorcoach, and Four-Wheeler

¶ 25. Robert argues that the chancellor erred when he classified the GMC Sierra pickup truck, the Chevrolet motor-coach, and the Suzuki four-wheeler as marital property. Robert argues that he acquired these items prior to the marriage; therefore, they are his separate property. In addition, Robert argues that the chancellor erred when he used the values Robert assigned the items in his Rule 8.05 financial statement. Robert claims that he made a mistake in that statement when he listed the prices he had paid to acquire the items instead of his estimate of their current values.

¶ 26. As for classification of the items, it appears they should have been classified as Robert’s separate property. Personal property acquired prior to the marriage is the separate property of the owning spouse, unless it has been so extensively used for family purposes that it loses its identity as separate property and becomes marital property. King v. King, 760 So.2d 830, 836 (¶ 19) (Miss.Ct.App. 2000). Bobbie Sue testified that Robert acquired the items before the marriage, and there was no evidence that they had been extensively used by the family. Therefore, it appears the items should have been classified as Robert’s separate property.

¶27. However, we will not reverse the chancellor’s judgment because of this possible error in classification. Where the overall division is fair, an error in classification does not warrant reversal. See Tillman v. Tillman, 716 So.2d 1090, 1095 (¶ 25) (Miss.1998). We note that Robert received 97.4% of the equity in the marital home and 76% of all the marital property. Certainly, from Robert’s perspective, the overall division was fair.

¶ 28. As for valuation of the items, the only evidence either party submitted on the issue was Robert’s Rule 8.05 financial statement. Chancellors may rely on these statements to value property when the parties fail to offer any other evidence as to value. Studdard v. Studdard, 894 So.2d 615, 618-19 (¶ 10) (Miss. Ct.App.2004). “ ‘To the extent that further evidence would have aided the chancellor in [his] decision, the fault lies with the parties and not the chancellor.’ ” Id. (quoting Messer v. Messer, 850 So.2d 161, 170 (¶ 43) (Miss.Ct.App.2003)).

¶ 29. We find no reversible error in the chancellor’s classification and valuation of these items. While the items should have been classified as Robert’s separate property, reversal is not warranted because the overall division was fair. Furthermore, in his valuation of the items, the chancellor relied on the only evidence the parties made available to him. This issue is without merit.

d. The Yukon, Pontoon Boat, Camper, and JfOl(lc)

¶ 30. Robert argues the chancellor erred when he awarded Bobbie Sue all of the equity in the Yukon, the pontoon boat, the camper, and Bobbie Sue’s 401(k). Robert argues the chancellor should have awarded him a one-half equitable interest in these items, just as the chancellor awarded Bobbie Sue a one-half interest in the other personal property.

¶ 31. Again, the question is whether the marital property, as a whole, was equitably divided; assets are not looked at in isolation. Wells, 800 So.2d at 1243-44 (¶¶ 7-8). “[T]his Court is charged with determining whether the entire property division was equitable, not whether each marital asset was equitably divided.” Tillman, 716 So.2d at 1095 (¶ 25).

¶ 32. When the division of all the assets is examined, it is clear that there is no merit to Robert’s contention that he did not receive an equitable share. He received 76% of the marital property, and he received 97.4% of the marital home’s equity-

¶ 33. Furthermore, it is clear that the chancellor awarded Robert a large share of the marital home, and to compensate, he awarded Bobbie Sue a large share of the personal property. To arrive at an equitable distribution of marital property, chancellors may “award a primary asset such as a ... home ... to one party, with the other receiving assets or payments comparable in value.” Bell on Mississippi Family Law § 6.08[l][c]. In Collins v. Collins, 722 So.2d 596, 599-600 (¶¶ 12-15) (Miss. 1998), the chancellor awarded the entire marital home to the husband, and to compensate, he awarded other assets to the wife. The Mississippi Supreme Court affirmed the chancellor’s judgment. Id. This is a permissible way to make an equitable division of the marital property. There was no error, and this issue is without merit.

3. Custody of Kaitlin

¶ 34. Bobbie Sue argues the chancellor erred when he awarded sole physical custody of Kaitlin to Robert. “It is appropriate to consider here that our limited scope of review directs that ‘[w]e will not arbitrarily substitute our judgment for that of the chancellor who is in the best position to evaluate all factors relating to the best interest[ ] of the child.’ ” Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993) (quoting Yates v. Yates, 284 So.2d 46, 47 (Miss.1973)).

¶ 35. “[T]he polestar consideration in child custody cases is the best interest and welfare of the child. According to Albright, the chancellor must consider certain factors in determining the child’s best interest.” Wells v. Wells, 35 So.3d 1250, 1254 (¶ 11) (Miss.Ct.App.2010) (citing Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983)).

¶ 36. We will address Bobbie Sue’s arguments with respect to each Albright factor.

a. Age, Health, and Sex of the Child

¶ 37. The chancellor found this factor favored neither party. Kaitlin was a healthy, five-year-old girl at the time of the divorce. Bobbie Sue argues that Kaitlin was of “tender years” and that this factor should have favored her.

¶ 38. The Mississippi Supreme Court articulated the current state of the tender-years doctrine in Copeland v. Copeland, 904 So.2d 1066, 1075 (¶34) (Miss. 2004), stating:

In Buntyn v. Smallwood, 412 So.2d 236, 238 (Miss.1982), this Court noted that if the mother of a child of tender years is fit, then she should be awarded custody. “[A] child is no longer of tender years when that child can be equally cared for by persons other than the mother.” Mercier v. Mercier, 717 So.2d 304, 307 (Miss.1998). However, this doctrine has been weakened in recent years and now is only a presumption to be considered along with the other Albright factors.,

In Copeland, the supreme court upheld the chancellor’s custody award of a two-year-old boy to his father. Id. at 1070 (¶ 8), 1077 (¶46). In another case, the court held that a seven-year-old child is “long past” his or her tender years. Torrence v. Moore, 455 So.2d 778, 780 (Miss.1984) (citing Duncan v. Duncan, 119 Miss. 271, 80 So. 697 (1919)). In addition, the court has suggested that a four-year-old child is no longer of tender years. Lee v. Lee, 798 So.2d 1284, 1289 (¶ 18) (Miss.2001).

¶ 89. The chancellor was not manifestly wrong when he decided that Kaitlin, a five-year-old girl, was not of tender years. Therefore, we find no error in the chancellor’s determination of this factor.

b. Continuing Care of the Child Prior to Separation

¶ 40. The chancellor decided that this factor favored Robert. The bulk of the testimony at trial indicated that Robert was the more attentive parent. He took Kaitlin to daycare everyday and picked her up, and he cooked most of the meals. Kaitlin was generally described as a “daddy’s girl.”

¶ 41. Bobbie Sue argues, essentially, that the chancellor misunderstood the evidence and that this factor should have either favored her or favored neither party. Nevertheless, there was substantial evidence to support the chancellor’s finding. This Court has stated:

Our job is not to reweigh the evidence to see if ... we might decide the case differently. Rather, if we determine that there is substantial evidence in the record to support the findings of the chancellor, we ought properly to affirm.

Carter v. Carter, 785 So.2d 1109, 1114 (¶ 18) (Miss.Ct.App.1999). There was substantial evidence in the record to support the chancellor’s finding.

c. Parenting Skills

¶ 42. The chancellor found this factor favored neither parent. He stated that both parents had “equally good parenting skills” and that both had done “things that were harmful or potentially harmful to their child in their substance abuse problems, which have been rehabilitated.”

¶43. Bobbie Sue argues this factor should have favored her. She points to testimony that Robert would, on occasion, drive a car, with Kaitlin in it, after having had a few beers. She also points to evidence of physical abuse. On one occasion Robert grabbed her arm, and on another occasion, he raised his fist and threatened to punch her but did not actually punch her.

¶ 44. As for the physical abuse, the evidence was not sufficient to convince the chancellor to invoke the presumption against granting custody to a parent with a history of family violence. The chancellor did not think these incidents deserved the weight Bobbie Sue claimed they deserved. As for drinking and driving, there was also testimony that Bobbie Sue smoked marijuana at the house in a location where Kaitlin could have seen her. The chancellor believed both parties when they said they had ceased drinking and using drugs since the separation, and he did not assign much weight to this evidence.

¶ 45. Again, Bobbie Sue essentially asks this Court to substitute its own evaluation of the evidence for the chancellor’s. Our review is more limited than that. While we might have decided the issue differently than the chancellor, the question before us is whether the chancellor’s findings were supported by substantial evidence. Here, they were.

d. Willingness and Capacity to Provide Primary Child Care and Employment Responsibilities

¶ 46. The chancellor found this factor favored Robert. The chancellor cited the fact that Bobbie Sue had to work five days a week and a few Saturdays a year from 8:30 a.m. to 5:00 p.m. at Mac’s Tires, while Robert’s self-employment allowed him greater flexibility and more time with Kaitlin.

¶ 47. The chancellor’s reasoning on this factor is supported by several cases. In Woodham v. Woodham, 17 So.3d 153, 157 (¶ 12) (Miss.Ct.App.2009), this factor favored the mother because the father worked twelve-hour days and was sometimes on-call, while the mother worked fewer hours and had more time to spend with the child. In Ivy v. Ivy, 863 So.2d 1010, 1014 (¶ 11) (Miss. Ct.App.2004), this factor favored the mother because the “father worked extended hours that would prevent him from devoting time to the children.” See also Brock v. Brock, 906 So.2d 879, 884 (¶¶ 28-29) (Miss.Ct.App. 2005).

¶48. The chancellor also cited Bobbie Sue’s adultery as evidence that Robert had greater willingness and capacity to provide primary childcare. The chancellor stated that Bobbie Sue’s adultery “could be devastatingly harmful to [Kaitlin].” Bobbie Sue contests that finding. The relevancy of Bobbie Sue’s adultery will be considered under the moral-fitness factor below.

e. Physical and Mental Health and Age of Parents

¶ 49. The chancellor found this factor favored Robert. At the time of the divorce, Bobbie Sue was taking prescription medications for anxiety and depression. The chancellor stated: “[T]he physical and mental health of Bobbie Sue ... are questionable because of her continued use of prescription drugs ... and her engaging in dangerous extramarital relationships.”

¶ 50. Bobbie Sue argues that her use of anti-depressant and anti-anxiety medications should not have counted against her because there was no evidence that they impaired her ability to care for Kaitlin. Bobbie Sue also reiterates her objection on the adultery issue, which, as stated, will be discussed under the moral-fitness factor below.

¶ 51. The issue here is whether a parent’s use of prescription medications for depression and anxiety should count against that parent in a custody proceeding when there is no evidence that the medications impair the parent’s ability to care for the child. In Beasley v. Scott, 900 So.2d 1217, 1221 (¶ 11) (Miss.Ct.App.2005), the chancellor refused to count the mother’s use of anti-depressants to combat post-partum depression against her, and this Court found no error. In Passmore v. Passmore, 820 So.2d 747, 751 (¶¶ 12-13) (Miss.Ct.App.2002), the chancellor awarded custody to a mother who was taking medications for depression and migraine headaches, and this Court found no error. Professor Bell states: “[T]he fact that a parent has experienced mental or emotional problems is not a bar to custody without a showing that the parent’s present ability to care for the child is affected.” Bell on Mississippi Family Law § 5.03[6][b]. On the other hand, in Woodham, the chancellor awarded custody -to the father, in part, because the mother had mixed anti-depressants with alcohol, which reflected “poor judgment,” and this Court found no error. Woodham, 17 So.3d at 158 (¶¶ 18-19).

¶ 52. Here, there was no evidence that Bobbie Sue exercised poor judgment in her use of the medications. Rather, it appears that she was taking the medications as prescribed, and there was nothing to suggest that they impaired her ability to care for Kaitlin. Under these circumstances, we find the chancellor might have erred in his consideration of this factor.

f.Emotional Ties of the Parent and Child

¶ 53. The chancellor found this factor favored neither parent. Bobbie Sue does not contest that finding on appeal.

g.Moral Fitness

¶ 54. The chancellor found this factor favored Robert. Bobbie Sue had affairs with two different men following her separation from Robert. She carried Kaitlin on outings with her boyfriends numerous times. However, there was no evidence that Kaitlin was aware that these men were boyfriends or that she was exposed to anything indecent.

¶ 55. Bobbie Sue argues the chancellor erred when he counted these affairs against her, since there was no showing of adverse impact on Kaitlin. We agree that a post-separation affair should not receive undue weight in a custody decision. Adultery is just one aspect of the moral-fitness factor, which is just one factor in a multi-factor test aimed at answering one question-what is in the child’s best interest? “Adultery of a parent may be an unwholesome influence and an impairment to the child’s best interest, but on the other hand, may have no effect. The trial court should consider this factor along with all others when making original custody determinations.” Carr v. Carr, 480 So.2d 1120, 1123 (Miss.1985).

¶ 56. The chancellor considered Bobbie Sue’s adulterous relationships as just one factor among others. If this had been his sole basis for granting Robert custody, we might have considered this to be error. See Brekeen v. Brekeen, 880 So.2d 280, 286-87 (¶¶ 19-21) (Miss.2004) (reversing chancellor’s custody award to father where chancellor placed too much weight on mother’s adultery). Because it was not the sole basis, we cannot find it to be reversible error. See Bradley v. Jones, 949 So.2d 802, 805 (¶ 11) (Miss.Ct.App.2006).

h.Home, School, and Community Record of the Child

¶ 57. The chancellor found this factor favored neither party. Bobbie Sue does not contest that finding on appeal. i Preference of a Child Twelve or Older

¶ 58. Kaitlin was only five years old at the time of the divorce. This factor does not apply.

j. Stability of the Home Environment

¶ 59. The chancellor found this factor favored Robert. After the separation, Robert remained in the marital home, which was very close to Kaitlin’s school, while Bobbie Sue moved in with her mother, who smoked cigarettes inside the house.

¶ 60. Bobbie Sue takes issue with a peculiar aspect of the chancellor’s findings under this factor. The chancellor found that, prior to the separation, Bobbie Sue had contributed to instability in the marital home by engaging in constructive desertion and habitual cruel and inhuman treatment in not fulfilling her “marital duties.” There was testimony that Bobbie Sue and Robert had not been intimate for eight months prior to the separation. Also, during their last night together in the marital home, he attempted to be intimate with her, but she declined the offer.

¶ 61. Whether Bobbie Sue was an eager sexual partner or not would seem to have no relation to the stability of the home environment or the best interest of Kaitlin. Furthermore, it is well established that “marital fault should not be used as a sanction in custody awards.” Brekeen, 880 So.2d at 287 (¶ 20). We find the chancellor’s reasoning here to be erroneous. However, there was substantial evidence to support the finding that Robert’s home environment was more stable.

k Stability of the Work Environment

¶ 62. The chancellor found this factor favored Bobbie Sue. She had a stable, salaried position at Mac’s Tires.

1. Other Relevant Factors

¶ 63. Bobbie Sue argues the chancellor erred when he separated Kaitlin from her half-brother, Drew. Drew was Bobbie Sue’s eleven-year-old son from a previous relationship. He had lived with Kaitlin her entire life. The testimony was that they had a typical brother-sister relationship. It was usually loving, but there was the occasional argument. Since Drew was going to stay with his mother, the effect of granting Robert custody of Kaitlin was to split the children apart.

¶ 64. There is no rule that requires chancellors to keep siblings together. There is a preference for keeping siblings together, but the paramount concern is the best interest of the child. Wells, 35 So.3d at 1257 (¶ 28) (affirming the chancellor’s custody award to father even though it would separate siblings). The chancellor applied the Albright factors, in light of the preference to keep siblings together, and he arrived at the conclusion that it was in Kaitlin’s best interest for Robert to receive custody.

¶ 65. Our review of the record indicates that there was substantial evidence to support the chancellor’s determination of the Albright factors. Indeed, we might have interpreted the factors differently than the chancellor. However, our role is to determine whether there was an evidentiary basis to support the chancellor’s findings. Having done so, we cannot find the chancellor erred in his Albright analysis.

¶ 66. Finding no reversible error, we affirm the judgment of the chancery court.

¶ 67. THE JUDGMENT OF THE CHANCERY COURT OF LEE COUNTY IS AFFIRMED ON DIRECT AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT/CROSS-APPELLEE AND THE APPELLEE/CROSS-APPELLANT.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.

MYERS, J., NOT PARTICIPATING.