HAWKINS, JUSTICE, FOR THE COURT:
Steve Varvaris appeals from a decree of the Chancery Court of the 1st Judicial District of Hinds County rejecting a will he filed for probate. We find no merit to his assignments of error, but reverse and remand because of the erroneous finding by the chancellor in this case that a confidential relationship existed between the testator Emanuel Varvaris and his son Steve.
Emanuel Stavros Varvaris died June 30, 1981, at age 80, or thereabout. He had two children, Jean, Mrs. Mike Kountouris, and Steve, whose wife is Estelle. On November 30, 1966, Emanuel executed a will devising all of his property to Mrs. Mike Kountouris. The will stated the reason for making no provision for his son was that he had already given him considerable realty appraised at more than $86,000, and this was more than fifty per cent of his estate.
Emanuel moved to Jackson, Ms. in 1947, and lived in his own home until 1960, when his wife died, and then he moved into Jean's home in Jackson. Thereafter he made his home with Jean, where he had a private room and kept his belongings.
On August 15, 1978, Emanuel was placed in the Crossgate Manor Nursing Home in Rankin County, where he lived until taken to the Hinds County Hospital shortly before he died. He shared a room with another person there at the nursing home. His personal belongings were kept in his room in his daughter's house.
Percy Stanfield, an attorney in Jackson, was frequently employed by Steve over the years. In transactions between Steve and Emanuel in which Stanfield performed legal services, Steve paid the fee. Emanuel never paid Stanfield any fee.
A few days prior to February 20, 1981, Steve telephoned
Stanfield and said his father wished to see him. Stanfield asked," What for? "and Steve replied he did not know. Stanfield told him to find out. A day or two later, Steve contacted Stanfield again and told him his father wanted to see him about making a will. Stanfield, who explained by saying he did not know the way to the nursing home, asked both Steve and Estelle to go with him. Upon reaching the nursing home, Steve and Estelle went and got Emanuel from his room, and after momentarily talking with all three of them, Stanfield asked Steve and Estelle to leave so that he could talk to Emanuel alone. He talked with Emanuel 20 or 30 minutes, and satisfied himself Emanuel had testamentary capacity.
According to Stanfield they talked generally about Emanuel's likes and dislikes and something about the Greek community and the old country. Stanfield said that he knew Emanuel could see objects but could not read and he treated him as essentially blind. Stanfield made some notes in his own handwriting while talking to Emanuel. He noted that the executor should be Steve or the Chancery Clerk. He noted Emanuel did not like the nursing home and was resentful. Stanfield testified he asked Emanuel if Steve had promised to take him out of the nursing home, and Emanuel" indicated "no promises or threats had been made. Stanfield said Emanuel wanted Steve to sign the will, but he told him Steve could not do it, but Estelle could. He determined from his conversation what Emanuel wanted in his will and returned to Jackson and prepared it.
A day or two later Stanfield telephoned Steve to get Emanuel to his office, and Steve and Estelle brought him.
Stanfield asked Steve to leave his office, and he talked to Emanuel in the presence of Estelle. Stanfield read the entire will, and Emanuel agreed to it, according to Stanfield, and said this was the way he wanted his property to go. Standield called his law partner, David E. Holderfield, into his office, and the two of them witnessed the will, with Estelle signing Emanuel's name.
This will specifically revoked all prior wills. It bequeathed Jean a diamond in her possession worth $38,500," notwithstanding that she had me placed in a nursing home against my wishes and that I have given her primarily in stocks, bonds and cash in excess of $130,000, all of which represents more than a fair share of my estate. "All the rest of Emanuel's property was devised to Steve, in this country or on the Island of
Patmos, Greece. The will suggested that the executor employ Stanfield as attorney.
Steve paid Stanfield for the legal services rendered in connection with this will.
On February 18, 1982, over seven months after Emanuel's death, Jean filed the 1966 will for probate in the Chancery Court of the 1st Judicial District of Hinds County, it was admitted to probate in common form, and letters testamentary were issued unto her.
On March 18, 1982, Steve filed a motion to dismiss the entire proceedings, asserting the Court was without jurisdiction because Emanuel was a resident of Rankin County at the time of his death. A copy of the 1981 will was attached to the motion. On May 20, 1981, the chancellor entered an order denying the motion.
On August 4, 1982, Steve filed a petition to dismiss the executrix, and for probate of the 1981 will. The petition alleged the 1966 will was revoked by execution of the later will. There was attached to the petition an affidavit by Stanfield dated July 26, 1982, that the 1981 will was properly executed and Emanuel was of sound mind when he executed the will. The form of this affidavit complies with the statutes for admitting wills to probate in common form. See: Miss. Code Ann. 91-5-1; 91-7-7; 91-7-9 (1972). There was also attached to the will affidavits of Estelle, Stanfield and Holderfield dated March 11, 1982, to the same effect. Estelle's affidavit also recited that she had signed the will at the testator's request.
On August 31, 1982, Jean filed an answer to the petition, alleging affirmatively that on February 20, 1981, Emanuel lacked testamentary capacity and also that the last will was procured by" fraud and/or undue influence. "The answer then asked that Steve's petition be dismissed.
In this status the matter came on for hearing before the chancellor on March 16, 1983. At the hearing Steve's counsel stated they were not contesting the validity of the 1966 will at this hearing. Counsel for Jean stated that the issue before the court was whether the 1981 will was procured by fraud and undue influence. The 1966 will was then offered and received into evidence as the will of Emanuel.
Steve's counsel then called Stanfield as his first
witness, who testified as above related. At the conclusion of his direct examination, the 1981 will was offered for identification, and was marked as" ...