Cochran v. Latimer

• Decision Date: 27 March 1916
• Docket Number: 17471
• Citation: 71 So. 316,111 Miss. 192
• Court: Mississippi Supreme Court
• Parties: COCHRAN v. LATIMER ET AL

71 So. 316

111 Miss. 192

COCHRAN v. LATIMER ET AL

No. 17471

Supreme Court of Mississippi

March 27, 1916

APPEAL from the chancery court of Holmes county, HON. J. F. MCCOOL Chancellor.

Suit by Mrs. Norma W. Latimer and others against Mrs. M. J. Cochran and others. From a judgment for petitioners, defendant appeals.

After the case was reversed and remanded to the lower court appellees, having obtained leave of the court, filed an amended bill, which in substance alleged tat on account of the protracted illness of Samuel Wherry, deceased, he had become a physical and mental weakling, and that he was annoyed and embarrassed by debts, and that his daughter, Miss Mollie Wherry, now Mrs. M. C. Cochran, nursed him during his last illness, and that, having the utmost confidence in her her influence over him became paramount and undue, and that she took advantage of his emaciated condition and passive will, and while he was in this condition of mind and body proposed to him that, if he would make her the sole beneficiary of his insurance policies, she would keep the premiums paid and pay his debts out of the proceeds, and divide what was left among his children, her brother and sisters, and that Mr. Wherry readily consented to this and changed the beneficiary in his insurance policies accordingly, and that after his death she refused to divide with complainants. The bill prays that appellant be declared the trustee for the other children's part of the insurance.

Appellant answered under oath, denying any mental weakness on the part of her father, or that he reposed any special confidence in her, or that she exercised any undue influence over him, or that she made any agreement to pay his debts out of the proceeds and divide the remainder with the other children. She also pleaded that the matters and things set up in the amended bill had been adjudicated. On the hearing the chancellor sustained the allegations of the amended bill and granted an appeal.

Decree reversed.

Elmore & Ruff, for appellant.

Boothe & Pepper, for appellee.

OPINION

HOLDEN, J.

This case is here for the second time, it having been reversed in Wherry et al. v. Latimer, 103 Miss. 524, 60 So. 563 642; this court deciding that there was no fraud or undue influence used, or mental incapacity shown as to Mr. Samuel Wherry, the insured in the insurance policies about which this controversy arose. When the cause went back to the lower court the appellees amended their bill of complaint and alleged in substance that the appellant exercised undue influence over her father, the deceased Wherry, and that, while he was feeble in mind and body and a mental weakling, she unduly and corruptly induced her father to change the insurance policy to her, and in order to get him to more readily consent promised that, if he would make her the sole beneficiary of this insurance, she would keep the premiums and assessments paid up, pay his debts out of the proceeds, "and divide what was left between the children, her sisters and brother;" that he readily assented to this, and in consequence the change of beneficiary was made; and that after the father's death appellant refused to divide the insurance with appellees. No new evidence was taken by the appellees on the hearing of this cause in the court below, but they introduced and relied alone upon the evidence taken in the former hearing.

The appellant here invokes the doctrine of "the law of the case," urging that this appeal should be controlled and settled by the opinion...