Hollis v. Thomas

• Decision Date: 30 January 1957
• Citation: 303 S.W.2d 751,42 Tenn.App. 407
• Parties: Frank L. HOLLIS, Administrator, C.T.A. of Estate of Lola Lowry Thomas, v. E. W. THOMAS, Mrs. Elba Carney Francisco, and Mrs. Lola F. Pellettieri. 42 Tenn.App. 407, 303 S.W.2d 751
• Court: Tennessee Court of Appeals

Page 751

303 S.W.2d 751

Frank L. HOLLIS, Administrator, C.T.A. of Estate of Lola Lowry Thomas, v. E. W. THOMAS, Mrs. Elba Carney Francisco, and Mrs. Lola F Pellettieri.

42 Tenn.App. 407, 303 S.W.2d 751

Court of Appeals of Tennessee, Western Section.

Jan. 30, 1957.

Certiorari Denied June 7, 1957.

[42 TENNAPP 408] Bailey, Ewing & Powell, Nashville, for appellants.

Peeler & Hollis, Camden, for Frank L. Hollis, Camden, Administrator, C.T.A.

Billy McElroy, Camden, for E. W. Thomas.

BEJACH, Judge.

This cause involves an appeal by Mrs. Elba Carney Francisco and Mrs. Lola F. Pellettieri from a decree of the Chancery Court of Benton County, Tennessee, invalidating gifts of several bank accounts in Nashville, Tennessee, made by Mrs. Lola Lowry Thomas in her lifetime to Mrs. Elba Carney Francisco and rendering a decree against them for the amounts of same. The suit was brought by Frank L. Hollis, Administrator, C.T.A. of the estate of Mrs. Lola Lowry Thomas. The parties will be styled as in the lower court, complainant and defendants, or by their respective names.

The original bill in this cause was filed February 14, 1955 by complainant, Frank L. Hollis, as administrator with the will annexed of the estate of Mrs. Lola Lowry Thomas. The defendants were E. W. Thomas, Mrs. Elba Carney Francisco, and Mrs. Lola F. Pellettieri. E. W. Thomas is the brother-in-law of Mrs. Lola Lowry Thomas, deceased, having been the brother of her deceased husband, Dorsey B. Thomas. Mrs. Elba Carney [42 TENNAPP 409] Francisco was the foster daughter of Mrs. Lola Lowry Thomas and of her husband Dorsey B. Thomas, having been reared in their home, although she was never formally adopted by them or either of them. Mrs. Lola F Pellettieri is the daugher of Mrs. Francisco.

Complainant's bill alleges that on April 10, 1950, Dorsey B. Thomas, who was then sick with a cancer, executed a will under the terms of which he bequeathed and devised to his wife, Lola Lowry Thomas, all property of every kind of which he died possessed, and that on the same day, Lola Lowry Thomas, his wife, in accordance with an agreement between them, executed a will under which said property, after setting up of a trust fund in the amount of $1,500 for the benefit of Wade Lowry, a brother of Mrs. Thomas, was bequeathed and devised to the defendants, E. W. Thomas and Elba Carney Francisco, each to receive one-half. The bill alleges that the property of said Dorsey B. Thomas thus bequeathed to his said wife consisted of cash, United States bonds, and certain lands in Decatur County, Tennessee, and in Benton County, Tennessee. The bill alleges that Mrs. Lola Lowry Thomas entered Vanderbilt Hospital in Nashville, Tennessee September 25, 1954 and remained there until October 7, 1954, when she went to the home of the defendant, Mrs. Elba Carney Francisco in Nashville, Tennessee, where she remained until October 10, 1954, at which time she reentered Vanderbilt Hospital where she remained until her death, October 22, 1954, at which time she was 79 years of age. Complainant's bill alleges that on September 25, 1954, the day Mrs. Thomas entered the hospital the first time, a bank account in the amount of $1,033.46 in the Nashville Trust Company, standing in the name of Mrs. Lola Lowry Thomas, was transferred [42 TENNAPP 410] from her name to that of 'Mrs. Lola L. Thomas or Mrs. Elba C. Francisco'; and that on October 27, 1954, following the death of Mrs. Thomas on October 22, 1954, said account was transferred by Mrs. Francisco to an account at said bank in the name of 'Mrs. Elba C. Francisco or Mrs. Lola F. Pellettieri'. The bill alleges further that Mrs. Lola Lowry Thomas had a checking account in the First American National Bank of Nashville, Tennessee, in the name of Mrs. D. B. Thomas, which on October 11, 1954 was changed from the name of 'Mrs. D. B. Thomas' to 'Mrs. D. B. Thomas or Mrs. E. C. Francisco'; that on October 22, 1954, the date of Mrs. Thomas' death, said account amounted to $2,622.99, and that on October 25, 1954, following the death of Mrs. Thomas, the said Mrs. Francisco withdrew $2,188.68 from said account and on November 15, 1954, withdrew the remaining $434.31 from said account. The bill alleges further that on October 11, 1954 Mrs. Lola Lowry Thomas had a savings account at the First American National Bank of Nashville, Tennessee, in the sum of $3,582.10 in the name of 'Mrs. D. B. Thomas', and that on that date said account was changed from the name of 'Mrs. D. B. Thomas' to that of 'Mrs. D. B. Thomas or Mrs. E. C. Francisco', and that on October 25, 1954, following the death of Mrs. Thomas, said account was transferred to an account in the name of 'Mrs. E. C. Francisco'. Complainant's bill also alleges that at the time of Mrs. Thomas' death, she had a bedroom suite and certain other personal property at the home of defendant, Elba Carney Francisco; and that complainant had been unable to get possession of said furniture and some of the other personal property.

[42 TENNAPP 411] Complainant's bill also alleges 'Mrs. Thomas was ill for several months prior to her death. During her illness she lived with the defendant, Mrs. Francisco, except when she was in the hospital, and Mrs. Francisco looked after her, nursed her, assisted her with her financial affairs, stood in the place of a child, and occupied a position of special trust and confidence. During this period of illness, she had a fear of becoming physically unable to look after herself and her business and to write checks in payment of bills. To escape these dangers she attempted to fix her bank account so that Mrs. Francisco, who occupied a confidential relationship to her, might see to it that she was taken care of and her bills paid. Mrs. Thomas had no intention of giving her money to Mrs. Francisco. She acted as she did so that Mrs. Francisco might conveniently withdraw from said account such funds as were necessary to pay her (Mrs. Thomas') expenses; and she intended that said money, after her death, be divided in accordance with her and her husband's wishes as expressed in her will.' Complainant's bill also alleges that 'The complainant states that Mrs. Thomas acted in said matters while under the influence, domination and control of and entirely dependent upon defendant, Elba Carney Francisco, and without independent advice and he further states that under the circumstances set out above, these actions of the defendant, Elba Carney Francisco, constituted an abuse of the fiduciary and confidential relationship existing between the parties and constituted undue influence and fraud.'

Complainant's bill seeks a decree against Mrs. Francisco and Mrs. Pellettieri for the amounts of the three bank accounts described above which passed into their hands, respectively, and asked for a lien on the interest [42 TENNAPP 412] of Mrs. Francisco in the lands devised to her by the will of Mrs. Thomas.

The answer of defendant, Mrs. Elba Carney Francisco, admits the execution of the wills of Dorsey B. Thomas and of Mrs. Lola Lowry Thomas, as is alleged in complainant's bill. Her answer admits the allegations of complainants' bill with reference to the bank account in the Nashville Trust Company in the amount of $1,033.46, but avers that same was set up by Mrs. Lola Lowry Thomas as a trust fund for her brother, Wade Lowry, and that same is being administered at this time in accordance with directions and wishes of Mrs. Thomas. Her answer admits a transfer of the checking and savings accounts in the First American National Bank of Nashville. Her answer denies that complainant has made any claim or demand for the furniture in her home, formerly belonging to Mrs. Thomas, and states that the complainant may have possession of said furniture at any time he desires it. The answer specifically and emphatically denies all allegations of the bill with reference to undue influence and fraud and demands and requires strict proof thereof. All allegations of the bill not specifically admitted or denied, are denied.

The answer of Mrs. Lola F. Pellettieri admits the transfer of the bank account in the Nashville Trust Company as is alleged in the bill, but avers that her only interest in this bank account is to carry out the terms of a trust established for the benefit of Wade Lowry, in the event that Mrs. Elba Carney Francisco is by death or disability unable to serve in the future; and avers that said trust is currently being administered by Mrs. Francisco in accord with the wishes of Mrs. Thomas, as same was established during the lifetime of Mrs. Thomas.

[42 TENNAPP 413] The answer of defendant, E. W. Thomas, admits all of the allegations and conclusions of complainant's bill, and in effect, joins in the prayers of same. This is natural, as defendant, E. W. Thomas, would be the principal beneficiary of complainant's successful prosecution of this suit.

The proof in this cause was taken by depositions, after which the cause was tried before the Chancellor; and on July 26, 1956, a decree was entered sustaining complainant's bill. Said decree, omitting the caption of same, is in the words and figures, as follows:

'Decree

'This cause came on to be heard by the Honorable Wayne A. Cox, Chancellor, on this the 25th day of May, 1956, upon the bill, the answer of the defendants, the proof filed in the cause by the parties, the exhibits and argument of counsel.

'Upon consideration of all of which the Court is of the opinion and finds as follows:

'1. That on April 10, 1950, D. B. Thomas, who was then sick, executed a will bequeathing to his wife Lola Lowery Thomas all of his property and that the said Lola Lowery Thomas, at the same time, executed a will in accordance with an agreement with her said husband bequeathing one-half of said property to the defendant E. W. Thomas and bequeathing one-half of said property to the defendant Elba C. Francisco after setting up a trust fund in the amount of Fifteen Hundred Dollars...