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HERMAN TROTTER v. BILLY JOE TROTTER

MAY 28, 1986

HERMAN TROTTER
v.
BILLY JOE TROTTER, SR., ET AL.



BEFORE WALKER, PRATHER AND SULLIVAN

SULLIVAN, JUSTICE, FOR THE COURT

The Chancery Court of Newton County, Mississippi, set aside two wills of Mrs. Louise Trotter Rooney, Deceased, causing her property to pass by intestacy, subject to various other rulings of the chancery court. Herman Trotter, executor of the first will and sole beneficiary, appeals.

On May 26, 1980, Louise Trotter Rooney executed a holographic will which made Herman Trotter her executor and sole beneficiary. In June of 1980, she contracted not to revoke the will in exchange for Herman Trotter's promise that he would take care of her for the remainder of her life. The 1980 will made no mention of the contract not to revoke.

 On May 7, 1982, Louise Trotter Rooney executed another holographic will, which did not specifically revoke nor refer to the 1980 holographic will, but which did purport to revoke all other wills. In the 1982 will, which appointed no executor, Louise Trotter Rooney left her property to her cousin, Billy Joe Trotter, Sr., his son, Billy Joe Trotter, Jr., four nieces and her nephew, Herman.

 On November 18, 1982, Louise Trotter Rooney died. Herman Trotter then probated the holographic will of May 26, 1980, and this will was admitted to probate in January of 1983.

 On February 18, 1983, Billy Joe Trotter filed to substitute the May 7, 1982, will for the 1980 will and for the appointment of an administrator, c.t.a. On March 9, 1983, Herman Trotter filed a caveat to the 1982 will on the grounds that the 1980 will which he had first probated was the true will, that the 1982 will was executed at a time when Louise Trotter Rooney was of unsound mind and without testamentary capacity and was subject to undue influence, and for the further reason that he was the beneficiary of an oral contract with Mrs. Rooney not to revoke the 1980 will.

 On March 29, 1983, Billy Joe Trotter, Sr. additionally charged that the 1980 will leaving all the property to Herman Trotter was the result of undue influence.

 The case was tried and on November 23, 1983, the trial court issued an opinion which found that at the time Mrs. Rooney executed the 1982 will she was without testamentary capacity and therefore the 1982 will was void.

 The chancellor then found that Mrs. Rooney did not receive from Herman Trotter the type of care that she had contracted for and, therefore, as a matter of law, Herman Trotter had breached his verbal contract with Mrs. Rooney and that this breach rendered the holographic will of May 26, 1980, void and of no effect, thereby causing Louise Trotter Rooney to have died intestate.

 The chancellor found that Herman Trotter, for the services that he rendered, was entitled to reasonable compensation which the court found to be $10,000, plus a 1963 Cadillac of Mrs. Rooney's to which Herman Trotter already held title.

 The chancellor found that Mrs. Rooney was not of sound mind at any time in 1982, and, therefore, when her certificate of deposit in the amount of $46,000.00 was placed in both her name and Herman Trotter's name jointly she was without capacity and the transfer was void. The chancellor also found that many years ago Mrs. Rooney made a gift of her dining room suite to Billy Joe Trotter, Jr., with the stipulation that she would retain possession and use thereof during her lifetime. He, therefore, upheld the inter vivos gift to Billy Joe Trotter, Jr.

 The chancellor appointed a neutral administrator Page 1127

 to administer the intestate estate of Mrs. Rooney.

 DID THE LOWER COURT ERR IN SETTING ASIDE THE HOLOGRAPHIC WILL OF MRS. LOUISE TROTTER ROONEY DATED MAY 26, 1980?

 The chancellor found as fact that in June of 1980 the testatrix sent the appellant her holographic will executed on May 26, 1980, and that she offered to agree not to revoke the will if the appellant promised to take care of her and her property for the rest of her life. The appellant was the sole beneficiary of this will. After deliberation with his wife, the appellant promised to do so. The chancellor found that at this time an oral contract not to revoke the will was entered.

 A contract to devise or bequeath property by will is valid. See Estate of McKellar v. Brown, 404 So. 2d 550, 552 (Miss. 1981).

 The chancellor's holding that the 1980 will was void because of the breach of contract by the appellant was based on Johnston v. Tomme, 199 Miss. 337, 24 So. 2d 730 (1946). The often-quoted relevant holding in Tomme was discussed in Voss v. Stewart, 420 So. 2d 761, 764-65 (Miss. 1982):

 Although this court has acknowledged that an oral promise to devise property is enforceable where services were performed pursuant thereto, it has nevertheless circumscribed the essentials of such contract in addition to ...


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