Longtin v. Witcher, 49741
| Decision Date | 30 November 1977 |
| Docket Number | No. 49741,49741 |
| Citation | 352 So.2d 808 |
| Court | Mississippi Supreme Court |
| Parties | Paula Johnson LONGTIN, T. B. Ray, Administrator of Estate of Robert Paul Johnson v. Miss Nannie WITCHER. |
Parsons & Matthews, Thomas M. Matthews, Jr., Wiggins, for appellant.
Thornton & Dorrill, George L. Dorrill, Kosciusko, for appellee.
Before SMITH, LEE and BOWLING, JJ.
LEE, Justice, for the Court:
The Chancery Court of Choctaw County entered a decree adjudging Miss Nannie Witcher to be the owner of certain real and personal property and Paula Johnson Longtin and T. B. Ray, Administrator of the Estate of Robert Paul Johnson, appeal.
Appellants assign the following errors in the trial below:
(1) The court erred in finding that a gift of the municipal bonds was made to Nannie Witcher by Robert Paul Johnson during his lifetime.
(2) The court erred in finding that the transfer by Robert Paul Johnson to Nannie Witcher of the store and washeteria, the travel trailer, and the Chevrolet vehicle was not the result of Nannie Witcher's abuse by undue influence of her confidential and fiduciary relationship with Robert Paul Johnson.
(3) The court erred in failing to sustain appellants' motion to exclude the evidence and direct a verdict for them after appellee rested her case.
(4) The court erred in allowing introduction into evidence of a bill of complaint for divorce filed in Hinds County on October 1, 1968, by Robert Paul Johnson against Bennie Jean Johnson, his wife, and in allowing introduction into evidence of the decree granting the divorce entered December 6, 1968.
The property involved in this case is (1) a twenty-foot house trailer, (2) a 1962 Chevrolet truck, (3) savings account in Jackson Savings & Loan Association, (4) a 1971 Chrysler automobile, and (5) one hundred nineteen thousand dollars ($119,000) in municipal bonds. Robert Paul Johnson, age sixty-one (61) at the time of his death, operated a mercantile business near Weir, Mississippi. His living quarters were located in the store building. In 1949, Nannie Witcher, aged nineteen (19) years, moved from French Camp, where she had finished high school, to the Johnson place and began to work for him in the store. For the first year she lived in a trailer, belonging to Johnson, situated at the rear of the store. After the first year, she moved into the living quarters of the store building where she occupied one bedroom and Johnson occupied another. She had full and complete charge of everything pertaining to the operation of the store and the gasoline business. In addition, she cooked for Johnson, performed the household chores, and took care of him during the years of his failing health from 1969 until his death in 1974.
On June 19, 1970, Johnson executed a general warranty deed to Nannie Witcher conveying unto her the store building and property. The instrument was duly recorded in the Chancery Clerk's office of Choctaw County. At the same time, Johnson conveyed the house trailer to her by a properly executed bill of sale. On the 11th day of February, 1971, he transferred the Chevrolet half-ton pickup truck to her and, subsequently, on November 17, 1972, he purchased for her and placed in her name, a 1971 Chrysler automobile. The store business was operated by Miss Witcher in her own name, the county privilege license, firearms license (from Department of Treasury's Bureau of Alcohol, Tobacco and Firearms), and Mississippi State Permit to Engage in Business, were all issued in her name and all checks drawn in the operation of the business had her name printed thereon and were signed by her.
Mr. Johnson was divorced from his wife on December 6, 1968. The only child born of the marriage was Paula Johnson Longtin, one of the appellants. She was twelve (12) years old when the divorce was granted. From that time until Johnson's death, there were strained feelings and friction between his daughter and him, she visited him infrequently and she declined to live with him, although he had requested her to do so. In the late summer of 1974, Johnson's nephew, Jacob Lamar Adcock, convinced Johnson that he should go to Albuquerque, New Mexico, where Adcock lived, and submit to heart surgery. Adcock came to Mississippi by airplane for the purpose of driving Johnson and Miss Witcher to Albuquerque. On August 8, 1974, in the presence of Adcock, Johnson placed the municipal bonds in a paper sack while at the store (they had previously been kept by Miss Witcher in her own lock box) with the statement that they were her bonds and that she should place them in her lock box. Johnson, Adcock and Miss Witcher went to her bank in Ackerman, Adcock waited on the inside of the bank, and Johnson and Miss Witcher went to her lock box and returned without the bonds. During this time, appellant Longtin was at the store and had spent the previous night there accompanied by her sister-in-law. Johnson had the windows and doors of the store building nailed up with boards and he, Adcock and Miss Witcher started for Albuquerque in her Chrysler automobile. Appellant Longtin and her sister-in-law were left outside the building where they waited approximately an hour for a friend to take them home.
Johnson was in Albuquerque several days and died before entering the hospital. He was buried in Albuquerque at his request. After the funeral, Adcock and Miss Witcher came to Mississippi by airplane, she entered her lock box, got the bonds, and they flew back to Albuquerque where an inventory of the bonds was made by Adcock.
I.
Did the trial court err in finding that a gift of the municipal bonds was made to Nannie Witcher by Robert Paul Johnson during his lifetime?
II.
Did the court err in finding that the transfer by Robert Paul Johnson to Nannie Witcher of the store and washeteria, the travel trailer, and the Chevrolet vehicle was not the result of Nannie Witcher's abuse by undue influence, or her confidential and fiduciary relationship with Robert Paul Johnson?
III.
Did the court err in failing to sustain appellants' motion to exclude the evidence and direct a verdict for them after appellee rested her case?
Appellants contend that a valid inter vivos gift of the municipal bonds was not made to Miss Witcher and that the bonds and conveyances of real and personal property were obtained by undue influence. They further contend that a confidential relationship existed between Miss Witcher and Johnson, and that, therefore, the gifts and transfers are presumed to be obtained through undue influence because of that relationship. It...
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...real property in this state. Anderson v. Burt, 507 So.2d at 36; Matter of Collier, 381 So.2d 1338, 1341 (Miss.1980); Longtin v. Witcher, 352 So.2d 808, 810-11 (Miss.1977). The burden of establishing the existence of a fiduciary relationship is upon the party asserting it. Norris v. Norris, ......
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