Moses' Will, In re, 45282

• Decision Date: 03 November 1969
• Docket Number: No. 45282,45282
• Parties: In the Matter of the Last Will and Testament of Fannie Traylor MOSES, Deceased. Clarence H. HOLLAND v. Nettie Ree TRAYLOR et al.
• Court: Mississippi Supreme Court

Page 829

227 So.2d 829

In the Matter of the Last Will and Testament of Fannie Traylor MOSES, Deceased Clarence H. HOLLAND v. Nettie Ree TRAYLOR et al.

No. 45282.

Supreme Court of Mississippi.

Nov. 3, 1969.

Satterfield, Shell, Williams & Buford, Jackson, for appellant.

Watkins, Pyle, Edwards, Ludlam, Winter & Stennis, William A. Pyle, Bob Ray, Jackson, for appellees.

ON PETITION FOR REHEARING

SMITH, Justice:

Mrs. Fannie Traylor Moses died on February 6, 1967. An instrument, dated December 23, 1957 and purporting to be her last will and testament, was duly admitted to probate in common form in the Chancery Court of the First Judicial District of Hinds County. Thereafter, on February 14, 1967, appellant, Clarence H. Holland, an attorney at law, not related to Mrs. Moses, filed a petition in that court tendering for probate in solemn form, as the true last will and testament of Mrs. Moses, a document dated May 26, 1964, under the terms of which he would take virtually her entire estate. This document contained a clause revoking former wills and Holland's petition prayed that the earlier probate of the 1957 will be set aside.

The beneficiaries under the 1957 will (the principal beneficiary was an elder sister of Mrs. Moses) responded to Holland's petition, denied that the document tendered by him was Mrs. Moses' will, and asserted, among other things, that it was (1) the product of Holland's undue influence upon her, (2) that at the time of its signing, Mrs. Moses lacked testamentary capacity, and, (3) that the 1957 will was Mrs. Moses' true last will and testament and its probate should be confirmed. By cross bill, respondents prayed that Holland's apparent ownership of an interest in certain real estate had been procured by undue influence and that it should be cancelled as a cloud upon the title of Mrs. Moses, the true owner.

By agreement, the case was heard by the chancellor without a jury.

After hearing and considering a great deal of evidence, oral and documentary, together with briefs of counsel, the chancellor, in a carefully considered opinion, found that (1) the 1964 document, tendered for probate by Holland, was the product of undue influence and was not entitled to be admitted to probate, (2) the earlier probate of the 1957 will should be confirmed and, (3) Mrs. Moses had been the true owner of the interest claimed by Holland in the real estate and his claim of ownership should be cancelled as a cloud upon the title of Mrs. Moses.

Holland's appeal is from the decree entered denying probate to the 1964 document and cancelling his claim to an undivided one-half interest in the real estate.

A number of grounds are assigned for reversal. However, appellant's chief argument is addressed to the proposition that even if Holland, as Mrs. Moses' attorney, occupied a continuing fiduciary relationship with respect to her on May 26, 1964, the date of the execution of the document under which he claimed her estate, the presumption of undue influence was overcome because, in making the will, Mrs. Moses had the independent advice and counsel of one entirely devoted to her interests. It is argued that, for this reason, a decree should be entered here reversing the chancellor and admitting the 1964 will to probate. The question as to the land would then become moot as Holland would take it under the residuary clause of the 1964 will.

A brief summary of facts found by the chancellor and upon which he based his conclusion that he presumption was not overcome, follows:

Mrs. Moses died at the age of 57 years, leaving an estate valued at $125,000. She had lost three husbands in less than 20 years. Throughout the latter years of her life her health became seriously impaired. She suffered from serious heart trouble and cancer had required the surgical removal of one of her breasts. For 6 or 7 years preceding her death she was an alcoholic.

On several occasions Mrs. Moses had declared her intention of making an elder sister her testamentary beneficiary. She had once lived with this sister and was grateful for the many kindnesses shown her. Mrs. Moses' will of December 23, 1957 did, in fact, bequeath the bulk of her estate to this sister.

The exact date on which Holland entered Mrs. Moses' life is unclear. There is a suggestion that she had met him as early as 1951. Their personal relationship became what the chancellor, somewhat inaccurately, characterized, as one of 'dubious' morality. The record, however, leaves no doubt as to its nature. Soon after the death of Mrs. Moses' last husband, Holland, although 15 years her junior, began seeing Mrs. Moses with marked regularity, there having been testimony to the effect that he attended her almost daily. Holland was an attorney and in that capacity represented Mrs. Moses. She declared that he was not only her attorney but her 'boyfriend' as well. On August 22, 1961, a date during the period in which the evidence shows that Holland was Mrs. Moses' attorney, she executed a document purporting to be her will. This instrument was drawn by an attorney with whom Holland was then associated and shared offices, and was typed by a secretary who served them both. It was witnessed by Holland's associate and their secretary. In addition to other testamentary dispositions, this document undertook to bequeath to Holland 'my wedding ring, my diamond solitare ring and my three gold bracelets containing twenty-five (25) pearls each.' In it Holland is referred to as 'my good friend.' The validity of this document is not an issue in the present case.

After Mrs. Moses died, the 1964 will was brought forward by another attorney, also an associate of Holland, who said that it had been entrusted to him by Mrs. Moses, together with other papers, for safekeeping. He distinguished his relation with Holland from that of a partner, saying that he and Holland only occupied offices together and shared facilities and expenses in the practice of law. He also stated that he saw Mrs. Moses on an 'average' of once a week, most often in the company of Holland.

Throughout this period, Mrs. Moses was a frequent visitor at Holland's office, and there is ample evidence to support the chancellor's finding that there existed a continuing fiduciary relationship between Mrs. Moses and Holland, as her attorney.

In May, 1962, Holland and the husband of Holland's first cousin, one Gibson, had contracted to buy 480 acres of land for $36,000. Mrs. Moses was not, it appears, originally a party to the contract. Gibson paid the $5,000 earnest money but testified that he did not know where it had come from and assumed that it came from Mrs. Moses. At the time, Mrs. Moses had annuity contracts with a total maturity value of some $40,000 on which she obtained $31,341.11. This sum was deposited in a bank account called 'Cedar Hills Ranch.' She gave Holland authority to check on this account, as well as upon her personal account. About this time, Gibson disappeared from the land transaction. On June 7, 1962, the deal was closed. At closing, the persons present, in addition to the grantors and their agents and attorney, were Mrs. Moses and Holland, her attorney. Mrs. Moses had no other counsel. Holland issued a check on the Cedar Hills Ranch account (in which only Mrs. Moses had any money) for the $31,000 balance. Although none of the consideration was paid by Holland, the deed from the owners purported to convey the land to Holland and Mrs. Moses in equal shares, as tenants in common. On the day following, Holland issued another check on the Cedar Hills Ranch account (in which he still had deposited no money) for $835.00 purportedly in payment for a tractor. This check was issued by Holland to his brother. Eight days later Holland drew another check on this account for $2,100.00 purportedly for an undisclosed number of cattle. This check was issued to Holland's father.

The evidence supports the chancellor's finding that the confidential or fiduciary relationship which existed between Mrs. Moses and Holland, her attorney, was a subsisting and continuing relationship having begun before the making by Mrs. Moses of the will of August 22, 1961, under the terms of which her jewelry had been bequeathed to Holland, and having ended only with Mrs. Moses' death. Moreover, its effect was enhanced by the fact that throughout this period, Holland was in almost daily attendance upon Mrs. Moses on terms of the utmost intimacy. There was strong evidence that this aging woman, seriously ill, disfigured by surgery, and hopelessly addicted to alcoholic excesses, was completely bemused by the constant and amorous attentions of Holland, a man 15 years her junior. There was testimony too indicating that she entertained the pathetic hope that he might marry her. Although the evidence was not without conflict and was, in some of its aspects, circumstantial, it was sufficient to support the finding that the relationship existed on May 26, 1964, the date of the will tendered for probate by Holland.

The chancellor's factual finding of the existence of this relationship on that date is supported by evidence and is not manifestly wrong. Moreover, he was correct in his conclusion of law that such relationship gave rise to a presumption of undue influence which could be overcome only by evidence that, in making the 1964 will, Mrs. Moses had acted upon the independent advice and counsel of one entirely devoted to her interest.

Appellant takes the position that there was undisputed evidence that Mrs. Moses, in making the 1964 will, did, in fact, have such advice and counsel. He relies upon the testimony of the attorney in whose office that document was prepared to support his assertion.

This attorney was and is a reputable and respected member of the bar, who had no prior connection with Holland and no knowledge of Mrs. Morses' relationship with him. He had never seen nor represented Mrs. Moses previously and never represented her...