McDowell v. Pennington, 52421

• Decision Date: 25 February 1981
• Docket Number: No. 52421,52421
• Citation: 394 So.2d 323
• Parties: Linda Pennington McDOWELL et al. v. Audie PENNINGTON et al.
• Court: Mississippi Supreme Court

Page 323

394 So.2d 323

Linda Pennington McDOWELL et al. v. Audie PENNINGTON et al.

No. 52421.

Supreme Court of Mississippi.

Feb. 25, 1981.

J. Joshua Stevens, Jr., Tubb, Stevens & Morrison, West Point, for appellants.

Gary L. Geeslin, Robin Weaver, W. H. Jolly, Jr., Threadgill, Smith, Sanders & Jolly, Columbus, for appellees.

Before SMITH, P. J., and LEE and BOWLING, JJ.

LEE, Justice, for the Court:

Linda Pennington McDowell, Freddie L. Pennington, Billy Pennington and Jeannine Pennington Presnall filed a bill of complaint in the Chancery Court of Lowndes County, Honorable Lenore Prather, presiding, against Audie Pennington, James W. Wilder, Jewel Sobley, Dr. Percy Sullivan and John R. Sullivan, Jr., contesting the last will and testament of Hunter L. Ellis. The case was tried before a jury, the verdict and judgment were for the proponents of the will, and the contestants have appealed to this Court.

The appellants assign the following errors in the trial below:

(1) The lower court erred in failing to sustain the motion of contestants for a directed verdict and for a judgment notwithstanding the verdict.

(2) The verdict of the jury was against the overwhelming weight of the evidence.

(3) The court erred in submitting the issue of heirship to the jury since there was no factual issue on same.

(4) The lower court held that the presumption of undue influence arose as a matter of law, but erred in submitting what proof was required to overcome the presumption.

Hunter L. Ellis died November 30, 1976, leaving a last will and testament executed on May 28, 1976. He was approximately fifty (50) years old, and was unmarried at the time of his death. Previously, Ellis inherited a substantial estate from his mother, Stella Carney, in the form of a testamentary trust valued at about five hundred thousand dollars ($500,000), consisting of land and personal property. Audie Pennington was designated trustee and had almost unlimited discretion in the administration of the trust funds for the benefit of Hunter L. Ellis. His powers included management of all land holdings, determination of funds and support for Ellis, and the right to invade the corpus of the trust should he deem same advisable. The trust was to terminate at Ellis' death and the residue and remainder were devised to other beneficiaries. The separate estate of Ellis amounted to between ninety thousand dollars ($90,000) and one hundred thousand dollars ($100,000), in excess of the trust.

The will executed by Ellis designated Audie Pennington executor and James W. Wilder, Pennington's son-in-law, alternate executor. Among other things, the will provided that specific items of personalty be bequeathed to Ellis' girlfriend, Jewel Sobley, for life, with the remainder to Audie Pennington. The bulk of the estate, which included both real property and personalty, was to be held by Audie Pennington in trust for Jewel Sobley, with broad powers to be exercised by him and with the right to invade the corpus of the trust for the support of Miss Sobley. Upon her death, the trust would terminate and the corpus would pass to Audie Pennington, if living, and, if deceased, to his issue.

The will was admitted to probate in December, 1976, and in July, 1977, the contestants/appellants, claiming to be the legal heirs of Hunter L. Ellis, filed the will contest.

The proof is substantial that Hunter L. Ellis was physically and mentally ill about the time the will was executed, and for a long period prior thereto, as a result of excessive indulgence in alcoholic beverages. He underwent an operation for partial removal of his liver in 1970 and the secondary cause of his death was cirrhosis of the liver. The proof indicated that Pennington was the manager of Carney Real Estate Company, which was owned by Mrs. Stella Carney during her lifetime and which constituted the trust holdings of her estate property and funds. As such manager, Pennington wrote all checks for the support of Ellis, made the determination as to what Ellis should have, did all things toward caring for him, and, in addition, paid Ellis three hundred dollars ($300.00) per month from the trust estate. Pennington drew four thousand dollars ($4,000) per year from the trust for such services. Thus, without contradiction, a confidential relationship existed between Pennington and Ellis.

Prior to the execution of the will involved here, Mr. Robin Weaver, attorney, had drawn and redrawn will instruments for Ellis. Also, he had been the private attorney of Pennington and Wilder for a number of years. Prior to drafting the will, Wilder came to Attorney Weaver's office and told him that Ellis desired to change his last will and testament and Wilder supplied him the information to be used for that purpose. After drawing the instrument, Attorney Weaver gave same to Wilder, who delivered it to Ellis, for examination and determination of its accuracy. Wilder brought the...