227 So. 2d 829
Mrs. Fannie Traylor Moses died on February 6, 1967.1 An instrument dated December 23, 1957 and purporting to be her last will and testament was duly admitted to probate in common form in the Chancery Court of the First Judicial District of Hinds County.2 On February 14, 1967, Clarence H. Holland filed a petition tendering for probate in solemn form a document dated May 26, 1964 under which he would take virtually her entire estate and seeking to set aside the earlier probate of the 1957 will.3
The beneficiaries under the 1957 will responded to the petition.4 They denied that the 1964 document was Mrs. Moses' will. They asserted that it was the product of Holland's undue influence upon her and that at the time of its signing Mrs. Moses lacked testamentary capacity.5 By cross bill the respondents prayed that Holland's apparent ownership of an interest in certain real estate had been procured by undue influence.6 They asked that it should be cancelled as a cloud upon the title of Mrs. Moses. By agreement the case was heard by the chancellor without a jury.7
Mrs. Moses died at the age of 57 years leaving an estate valued at $125,000.8 She had lost three husbands in less than 20 years.9 Throughout the latter years of her life her health became seriously impaired.10 She suffered from serious heart trouble and cancer had required the surgical removal of one of her breasts.11 For 6 or 7 years preceding her death she was an alcoholic.12 On several occasions Mrs. Moses had declared her intention of making an elder sister her testamentary beneficiary.13 Her will of December 23, 1957 did bequeath the bulk of her estate to this sister.14
The exact date on which Holland entered Mrs. Moses' life is unclear.15 Their personal relationship became one of intimacy with Holland attending her almost daily after the death of her last husband.16 On August 22, 1961, Mrs. Moses executed a document purporting to be her will.17 It was drawn by an attorney with whom Holland was then associated.18 The document bequeathed to Holland her wedding ring, diamond solitaire ring and three gold bracelets.19 In May 1962 Holland and the husband of Holland's first cousin contracted to buy 480 acres of land for $36,000.20 Mrs. Moses obtained $31,341.11 from annuity contracts which was used to close the deal.21 The deed conveyed the land to Holland and Mrs. Moses in equal shares as tenants in common.22
In March 1964 Mrs. Moses telephoned attorney Dan H. Shell for an appointment and came alone to his office.23 After that meeting he prepared a will that was revised and mailed to her.24 On May 26, 1964 she executed the will in the presence of two secretaries without Shell being present.25 After hearing a great deal of evidence the chancellor found that the 1964 document was the product of undue influence and was not entitled to be admitted to probate.26 The chancellor also found that the earlier probate of the 1957 will should be confirmed.27 He further found that Mrs. Moses had been the true owner of the interest claimed by Holland in the real estate.28 Holland appealed from the decree denying probate to the 1964 document and cancelling his claim to an undivided one-half interest in the real estate.29
Whether the document dated May 26, 1964, was the product of undue influence by Clarence H. Holland?30
Where a beneficiary under a will occupies a fiduciary relationship with the testator, a presumption of undue influence arises if the beneficiary has been actively concerned in some way with the preparation or execution of the will.31 The presumption also arises where the relationship is coupled with suspicious circumstances such as mental infirmity of the testator.32 The presumption must be overcome by the clearest proof that the testator acted upon independent advice and counsel of one entirely devoted to her interest.33
Yes. The established facts establish that Holland occupied a continuing fiduciary relationship with Mrs. Moses as her attorney.34 That relationship began before the 1961 will and persisted until her death.35 Holland attended her almost daily on terms of utmost intimacy.36 Mrs. Moses was fifty-seven years old at death.37 She was in seriously impaired health from heart trouble and cancer surgery.38 She was an alcoholic for six or seven years.39 Holland was fifteen years her junior and the object of her infatuation.40 These facts, together with the land transaction in which Holland received an equal share without contributing consideration, constitute suspicious circumstances that triggered the presumption.41
The chancellor correctly held that the presumption was not overcome because attorney Shell performed only the limited role of scrivener without any discussion of the preference for Holland over blood relatives or of the fiduciary relationship itself.42
The document dated May 26, 1964, was the product of undue influence by Clarence H. Holland.43
Related opinions on this issue
Joined by Brady, Patterson And Inzer, Jj.
Justice Robertson dissented on the ground that the presumption of undue influence never arose.44 He reasoned that Holland was not actively concerned in the preparation or execution of the will.45 Robertson further noted that the chancellor's listed suspicious circumstances concerned only the personal relationship and drinking habits rather than the will itself.46
Even assuming the presumption arose, Robertson maintained it was rebutted by uncontradicted evidence that Mrs. Moses received independent consent and advice from Shell.47 Shell confirmed she acted of her own free will after full deliberation.48 Holland had nothing to do with the document.49
Whether the independent advice and counsel provided by attorney Dan H. Shell overcame any presumption of undue influence arising from the fiduciary relationship?50
Independent advice sufficient to overcome the presumption of undue influence must consist of meaningful counsel by one entirely devoted to the testator's interest.51 That counsel must address the very area of the contested disposition rather than merely reducing the testator's instructions to proper legal form as a scrivener.52
No. The established facts show that Mrs. Moses met Shell only once on March 31, 1964.53 He inquired about her property values and marital background solely to address possible tax and renunciation issues.54 After that meeting he prepared and revised the will according to her directions.55 There was no discussion of her relationship with Holland or the exclusion of her blood relatives.56 Shell testified that he had no interest in how she disposed of her property.57 He simply drew the will to suit her purposes.58
This limited service did not touch upon the critical question of the preference given to the fiduciary beneficiary.59 The chancellor correctly determined that the advice was not independent in the required sense and did not rebut the presumption.60
The independent advice and counsel provided by attorney Dan H. Shell did not overcome the presumption of undue influence arising from the fiduciary relationship.61
Related opinions on this issue
Joined by Brady, Patterson And Inzer, Jj.
Justice Robertson maintained that Shell's actions satisfied the requirement of independent advice.62 The experienced attorney ascertained Mrs. Moses's competence.63 He confirmed she was acting voluntarily.64
Shell prepared the instrument exactly as she directed after two months of deliberation, with no participation by Holland at any stage.65 Robertson emphasized that Shell's testimony stood uncontradicted and that the attorney had no interest in the disposition.66 He argued that the majority imposed an unrealistic burden by requiring attorneys to probe personal relationships beyond the client's clear instructions.67
Whether Clarence H. Holland's apparent ownership of an undivided one-half interest in the 480-acre tract should be cancelled as a cloud on title?68
Yes. The established facts demonstrate that Holland attended the closing of the 480-acre purchase solely as Mrs. Moses's attorney, with Mrs. Moses supplying the entire consideration from her annuity proceeds while the deed conveyed an equal one-half interest to Holland without any contribution from him.71 Because the transaction occurred while the fiduciary relationship subsisted and Mrs. Moses had no other counsel, the chancellor properly held that Holland took title as trustee for Mrs. Moses and his claim constituted a cloud that must be removed.72
Clarence H. Holland's apparent ownership of an undivided one-half interest in the 480-acre tract should be cancelled as a cloud on title.73
Whether Clarence H. Holland was competent to testify as a witness after pretrial inspection of documents and the colloquy regarding his written statement?74
Under Mississippi Code 1942 Annotated section 1690, a party is incompetent to testify in an action against the estate of a deceased person.75 Pretrial inspection of documents in the party's possession and a conditional offer to withdraw an objection for cross-examination purposes do not constitute a waiver of that incompetency when the written statement is ultimately excluded.76
No. The established facts show that Holland remained incompetent under the statute.77 Neither the pretrial production of his tax returns and bank statements nor the colloquy in which counsel for the respondents conditioned withdrawal of the objection on admission of the self-serving statement effected a waiver.78 The statement was excluded and the objection was never actually withdrawn.79 The chancellor therefore correctly sustained the objection to Holland's testimony.80
Clarence H. Holland was not competent to testify as a witness after pretrial inspection of documents and the colloquy regarding his written statement.81
Whether the cross bill issues regarding the real estate were properly heard and decided by the chancellor?82
A party may not raise on appeal for the first time the question whether distinct equitable matters were properly joined in one bill when the cross bill specifically sought relief on the real-estate claim, the responsive pleadings joined issue, and the matter was tried without objection.83
Yes. The established facts establish that the respondents' cross bill expressly sought cancellation of Holland's claim to the land.84 Holland's pleadings joined issue on that claim.85 The entire matter was heard and decided without any challenge by Holland at trial.86 The chancellor therefore properly adjudicated the real-estate issue.87 Holland could not raise the joinder question for the first time on appeal.88
The cross bill issues regarding the real estate were properly heard and decided by the chancellor.89