Lipson v. Lipson, 43810

• Decision Date: 14 March 1966
• Docket Number: No. 43810,43810
• Citation: 183 So.2d 900
• Court: Mississippi Supreme Court
• Parties: Harry M. LIPSON, Individually, and Executor of the Estate of Morris Lipson, Deceased, and Alma S. Lipson, et al. v. David LIPSON.

Page 900

183 So.2d 900

Harry M. LIPSON, Individually, and Executor of the Estate of

Morris Lipson, Deceased, and Alma S. Lipson, et

al. v. David LIPSON.

No. 43810.

Supreme Court of Mississippi.

March 14, 1966.

Lomax B. Lamb, Jr., Marks, Wise, Smith & Carter, Jackson, for appellants.

Ben M. Caldwell, Marks, Holcomb, Curtis & Connell, Clarksdale, for appellee.

INZER, Justice.

Appellee, David Lipson, filed suit in the Chancery Court of Quitman County against Harry M. Lipson, Sr., individually, and as executor of the Estate of Morris Lipson, Deceased, and against Alma Lipson, Miriam Lipson and Harry M. Lipson, Jr., seeking to require the executor to make discovery of the assets of the Estate of Morris Lipson, and to set aside certain transactions between Morris Lipson and the defendants.

The bill of complaint alleged that David Lipson was the oldest child of Morris Lipson, Deceased, and that he was one of the beneficiaries under the will of Morris Lipson, and that the will had been duly probated in the Chancery Court of Quitman County. The defendant, Harry M. Lipson, Sr., was the only other child of Morris Lipson, Deceased, and he was named as executor of the last will and testament of Morris Lipson, to serve without bond and without accounting to the court for his actions. The bill further charged that the will was executed in 1951, and its contents were known to Harry M. Lipson, Sr., and that thereafter he set about to make the bequest to David Lipson ineffective. The bill charged that a confidential and fiduciary relationship existed between the decedent and Harry M. Lipson, Sr. and Harry M. Lipson, Jr., son and grandson of decedent, and by undue influence, domination and control, that the parties so maneuvered Morris Lipson during his lifetime to cause him to pass title to his property in joint tenancy with the right of survivorship to the defendants; that because of undue influence and because of decedent's mental incapacities, the inter vivos gifts to the various defendants were void. The bill of complaint also charged that Harry M. Lipson, Sr. had probated a claim against the estate for $12,000; that his claim was allegedly based upon a promissory note; and that the claim had not been probated in accordance with the statutes. The prayer of the bill was that a temporary injunction be issued restraining the defendants from disposing of any of the property in question; and that the executor be required to post bond and file an inventory of the assets; that the title of the defendants to the property in question be vacated and annulled; and the property be declared to be the property of the estate; further, that the probated claim of Harry M. Lipson, Sr. be disallowed and that complainant be awarded a decree for his interest in the assets of the estate.

The defendants, appellants here, answered and denied the material allegations of the bill relative to the undue influence and mental incapacity. The answer of Harry M. Lipson, Sr. exhibited an inventory of all the gifts made by the decedent in his lifetime and all of the property held in joint tenancy with the right of survivorship. The answers of the various defendants also set up demurrers to the bill of complaint. These demurrers were properly overruled.

After the defendants had answered, appellee propounded interrogatories to the defendant, Harry M. Lipson, Sr. These interrogatories were propounded under the provisions of Mississippi Code Annotated section 1712 (1956). The interrogatories consisted of fifty-seven questions dealing with matters that occurred between Harry M. Lipson, Sr. and Morris Lipson during the lifetime of Morris Lipson. The interrogatories were answered by Harry M. Lipson, Sr. and are a part of the record in this case.

A trial was had upon the issue involved, and after taking the matter under advisement, the chancellor rendered a written opinion which is part of the record in this case. The chancellor found that the decedent was mentally competent during all times material to the issues involved; however, he did find that a confidential and fiduciary relationship existed. His finding in this regard is as follows:

The facts and circumstances in this case clearly make out a fiduciary or At the time of M. Lipson's death, most of his funds were invested in common stocks. Harry Lipson recommended stock purchases to be made, ordered all of them, instructed the broker as to form of registration, and paid for them. Apparently most of the purchases were made from the proceeds of checks payable to Harry Lipson himself. When a store building was purchased in 1959, in the name of M. Lipson and Harry Lipson as joint tenants, Harry Lipson carried on the negotiations and gave all instructions to the attorney for preparation of the deed. Prior to his death, M. Lipson converted both of his bank accounts to joint accounts with Harry M. Lipson, Jr. Harry Lipson looked after the insurance on M. Lipson's building. As early as 1952, Harry Lipson, Jr., handled the rental transaction by which a part of the store of M. Lipson was rented for a jewelry business. The 1951 will was kept in Harry Lipson's safe from a time soon after its execution until the death of M. Lipson; the Answer of Harry M. Lipson, filed September 28, 1962, admits that he knew of the execution of said will and of its contents. Harry Lipson kept all of M. Lipson's stocks and bonds in his safe for at least two years prior to the death of M. Lipson. All of M. Lipson's mail came through Harry Lipson's post office box. Harry Lipson opened and recorded all dividend checks received by M. Lipson, and kept a record of them for income tax purposes.

confidertial relationship, as that relationship is defined in the cases hereinafter referred to. There was a close family relationship, it appearing that M. Lipson had considerable affection for his son Harry and Harry's wife, children and grandchildren. The 1951 will favored Harry, referring the 'love, affection and generosity of my son Harry M. Lipson, Senior.' During the period of time in question, M. Lipson lived on the same lot with his son, in a house provided by his son, and apparently ate most of his meals with the son and his family. Harry M. Lipson was named executor of the 1951 will, without bond or accounting. The alternate executor named was Harry M. Lipson, Jr., also without bond or accounting.

The recorded cases present a wide range of facts and circumstances which have been held to constitute or not constitute fiduciary relations, or confidential relations as they are sometimes called. Each case of course must be decided on its own facts. However, it seems to me that we have facts here which would satisfy any definition of fiduciary relationship. The decedent was substantially dependent upon Harry M. Lipson, and to a lessor degree on Harry M. Lipson, Jr., in his personal life, in his business affairs, and particularly in connection wife the investment of his savings. He apparently had the utmost confidence in both Harry M. Lipson and Harry M. Lipson, Jr. Quoting the Wofford case [Wofford v. Wofford, 244 Miss. 442, 142 So.2d 188], cited below, 'it was a relation in which confidence was reposed, by one, and the influence which naturally grows out of such confidence was possessed by the other.'

Clearly the confidential relationships with Harry M. Lipson and with Harry M. Lipson, Jr. would affect the gifts to other members of their family. Roper v. Lenois , 11 So. (2) 361, (Alabama, 1943); Annotation, 96 A.L.R. 613.

This finding indicates that the chancellor was of the opinion that the evidence established that Harry M. Lipson, Sr. and Harry M. Lipson, Jr. were the dominant parties in their relationship with Morris Lipson; having so found, the chancellor was correct in applying the law announced.

The chancellor then held that since a fiduciary relationship existed that the burden Assuming, as I do, that a showing of independent advice is not absolutely essential, what other 'clear evidence of good faith, full knowledge, and independent consent and action' do we have in this case? I have considered M. Lipson's independent spirit; his unquestioned competency during most of the period in question; his reasons for favoring Harry's family; the possible reasons for David being in disfavor; the long period of time over which these events occurred, during which time the donor was not confined or sheltered from contacts with third persons; his statements to third persons as to stock purchases for the benefit of the grandchildren. All these circumstances tend to support the gifts in question, but after considering them and all of the other evidence offered, I cannot say that the evidence is clear (1) that M. Lipson knew and clearly understoof (sic) the legal effect of the joint tenancies being created; or (2) that he realized and intended that practically all of his property was being converted into such form of ownership, and that the son David was being completely disinherited; or (3) that he formed such intention independently, and not as a result of any influence, suggestion, encouragement or information coming from Harry M. Lipson or Harry M. Lipson, Jr.

of proof was upon the appellants to show that the transactions were free from undue influence. He found that there was no evidence to show that the decedent had the benefit of any independent advice. He then made the following finding relative to the independent consent and action of the decedent:

The chancellor then determined the items in question that were to be included as assets of the estate. His finding is as follows:

The items hereinafter set our (sic) are held to have been owned by M. Lipson at the time of his death, and are a part of the estate passing under the residuary clause of his will:

(a) An undivided one-half interest in the store building purchased in 1959, the other one-half being owned by Harry Lipson. Harry Lipson shall make a complete accounting of...