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GAYLE O. KELLY AND IRIS KELLY v. DAVID SHOEMAKE

NOVEMBER 21, 1984

GAYLE O. KELLY AND IRIS KELLY
v.
DAVID SHOEMAKE, ADMR., C.T.A., ESTATE OF ZETTA K. WINDHAM, et al. GAYLE O. KELLY v. DAVID SHOEMAKE, ADMR., C.T.A., ESTATE OF ZETTA K. WINDHAM, et al.



BEFORE ROY NOBLE LEE, HAWKINS AND SULLIVAN

SULLIVAN, JUSTICE, FOR THE COURT:

I. A.

This appeal arises from decrees of the Chancery Court of Covington County removing Gayle Kelly as administrator of the estate of Mrs. Zetta K. Windham, setting aside various deeds, codicils, and transfers of funds on the ground that Kelly exercised undue influence over Mrs. Windham, and rendering a judgment in favor of the estate for $1,194,972.39 against Kelly for failure to satisfactorily account for and return funds belonging to Mrs. Windham's estate. From these decrees, appeal is taken with the following errors alleged to have been committed by the chancellor:

 1. Failure to credit the overwhelming weight of the evidence that an express oral contract existed between Kelly and the Windhams whereby they would transfer all they owned to him in return for his rendering personal services to them in their old age.

 2. Misapplying the law of undue influence to subsequent transactions between the Windhams and Kelly rather than to the time of the abovementioned agreement.

 3. Abusing its discretion in refusing to reopen the case to hear testimony that would have fully and fairly presented Kelly's case.

 4. Misapplying the law of estoppel to bar Kelly from claiming any right to the proceeds from the sale of Windham properties to which he held an unrecorded deed.

 5. Removing Kelly as administrator of the estate and rendering a judgment against him for any sum whatever.

 We have carefully reviewed the voluminous evidence in this case and the arguments by both sides and we conclude that none of the errors assigned by Kelly has merit. We affirm the chancellor's decrees in all respects.

 B.

 We summarize the basic facts of the fourteen year relationship between the Windhams and Gayle Kelly below; additional facts will be developed as needed in the discussion of law.

 R. L. and Zetta Windham were a childless, elderly and wealthy couple living in Collins, Mississippi. In 1964, they executed mutual wills providing for equal division of their wealth between their respective families. In 1966, their nephew, Gayle Kelly, came with his family to live on the Windham property and from that date forward he and his wife were at the disposal of the Windhams to perform whatever tasks were required. In 1974, R. L. Windham sold his considerable oil and gas holdings to Wiley Fairchild for approximately $2,180,000. After Mr. Windham's death in 1975, Kelly continued to render the usual services but also began to manage Mrs. Windham's business affairs.

 From 1975 until her death in 1978, Mrs. Windham executed codicils appointing Kelly as executor and disinheriting anyone who contested the will, with the forfeited share passing to Kelly. Mrs. Windham's checking and savings accounts were changed to make Kelly a joint tenant, as were her certificates of deposit. Kelly withdrew large sums of money, and changed a million dollar certificate of deposit to his own name, while she was hospitalized. After her death, appellant recorded four deeds conveying to him all interests in the Windhams' properties. He produced two and three million dollar checks signed by Mr. Windham to prove the existence of an express oral

 agreement in 1965 between the Windhams and himself whereby he would receive all of their fortune in return for coming to live and care for them in their declining years. Kelly was cited to produce the will and codicils of Mrs. Windham in 1979, and after a three-year discovery process and oft-delayed trial, the chancellor entered the decrees rejecting his claims and ordering repayment of Windham estate funds to be distributed according to the terms of the 1964 will. II.

 WAS THE CHANCELLOR'S REFUSAL TO REOPEN THE CASE REVERSIBLE ERROR?

 The chancellor refused to reopen the case to hear testimony of three witnesses overlooked by Kelly's trial counsel but granted leave to take their depositions which are included in the record on appeal.

 It is well settled that a chancery court has the authority to reopen a case for additional proof. Hamilton v. McGill, 352 So.2d 825, 830 (Miss. 1977). In Griffith, Mississippi Chancery Practice, 595, pp. 631-32 (2d Ed. 1950), cited in Hamilton, it is said:

 . . . it has long been the settled rule in our courts of equity that where on a final hearing or even after submission it is clearly perceived that some material point is either left unproved or the explanation of it is insufficient the chancellor has the discretion in the interest of justice and merits to remand it to the docket for further proof.

 In Griffith, supra, 632, p. 690, it is stated:

 It is the earnest desire of courts, and especially of courts of equity, to render decision only upon a full and fair exposition of all the pertinent material facts, and the court will always be interested in any presentation that discloses any material fact not theretofore brought into the case. Nevertheless the law requires diligence from suitors, and when a trial has been had the question is not always whether justice has been done but whether the party complaining

 could, by the exercise of proper diligence, have produced a different result.

 The right of a litigant to have a case reopened for additional testimony must necessarily be left largely to the sound judicial discretion of the chancellor. Euclid-Mississippi v. Western Casualty and Surety Company, 249 Miss. 779, 163 So.2d 904, 908 (1964). The chancellor's decision should reflect a proper balance between administering full justice in an individual case and maintaining a prompt, efficient and orderly administration of justice, free from inexcusable negligence by the parties. See Griffith, supra, 632 at 691.

 In this case, appellants had over three years to complete the discovery and the trial lasted for five days during two court terms. Kelly called fifteen witnesses to substantiate his claim. His motion to reopen the case came three weeks after the court rendered a bench decree adverse to him but before entry of the final decree. The question is whether the chancellor abused his discretion in denying appellant's motion to reopen the case.

 When the litigation in a will contest is so protracted as in the case at bar, considerable deference should be given to a chancellor's exercise of discretion not to reopen the case. Having had three years of discovery and a five-day trial, it would appear that the equities favor enforcing a prompt, efficient and orderly administration of justice. Moreover, the testimony of the three witnesses that Mr. and Mrs. Windham expressed their desire to have Kelly inherit their estate conforms to testimony already offered by other witnesses for Kelly during the trial. A motion to reopen the case to receive newly discovered evidence may be denied when the new evidence is merely cumulative. Allman v. Gulf and S.I.R. Co., 149 Miss. 489, 506, 115 So. 594 (1928).

 We, therefore, conclude that the chancellor reasonably exercised his discretion in refusing to re-open the case to hear the witnesses' testimony because the lengthy discovery and trial period point in favor of a prompt, orderly, and efficient administration of justice. Moreover, we find that no reversible error resulted from excluding their testimony because it was cumulative.

 III.

 WAS THE CHANCELLOR'S REFUSAL TO FIND AS A MATTER OF FACT THAT AN EXPRESS

 ORAL AGREEMENT EXISTED BETWEEN THE WINDHAMS AND KELLY IN 1965, AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

 A.

 The chancellor's findings of fact reflected that the 1964 mutual wills of R. L. and Zetta Windham accurately reflected that each of them and both of them intended to divide their property equally between the two families. Having made this finding, the chancellor by inference had to have found that there was no agreement between the Windhams and Gayle Kelly in which he alone would receive all of the substantial Windham estate. Kelly challenges this implied finding of fact as against the overwhelming weight of the evidence. Kelly faces a difficult task on appeal. Not only must he show that at trial he introduced clear, definite, and certain evidence to prove the existence and terms of the alleged oral contract, he must show that the chancellor's failure to credit his proof is not supported by substantial evidence and is manifestly wrong.

 To enforce an oral agreement to devise property, Kelly has the burden to establish the existence and terms of the agreement by evidence which is "clear, definite and certain." Shaw v. Ladner, 447 So.2d 1272, 1274 (Miss. 1984); Voss v. Stewart, 420 So.2d 461, 464 (Miss. 1982); Kalavros v. Deposit Guaranty Bank and Trust Co., 248 Miss. 107, 114, 158 So.2d 740, 743 (1963); In Re Boyd's Estate, 228 Miss. 526, 532, 87 So.2d 902, 904 (1956); In Re Reinecke's Estate, 225 Miss. 376, 381-82, 83 So.2d 438, 440 (1955). Clear, definite and certain evidence must establish both components of the alleged contract, its existence and its terms or scope.

 Sound policy reasons were enunciated in In Re Boyd's Estate, supra, for requiring a high burden of proof to ...


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