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MARION L. COSTELLO, EXECUTOR OF THE ESTATE OF LINNIE HALL, DECEASED v. W. C. HALL

APRIL 29, 1987

MARION L. COSTELLO, EXECUTOR OF THE ESTATE OF LINNIE HALL, DECEASED
v.
W. C. HALL, JR.



BEFORE ROY NOBLE LEE, P.J., DAN M. LEE AND SULLIVAN, JJ

DAN M. LEE, JUSTICE FOR THE COURT:

Linnie B. Hall, the testatrix whose will is at issue in this case, died at Vicksburg Medical Center on September 30, 1982. Her Last Will and Testament, written during her final illness on September 15, 1982, was filed with the Chancery Court of Warren County on October 1, 1982, by Marion Costello, Mrs. Hall's brother and executor. On October 8, 1982, Mrs. Hall's husband, W. C. Hall, filed a Petition for Contest of Will, alleging lack of mental capacity and undue influence.

The chancery court ordered a bifurcated hearing to determine: 1) whether the will should be upheld; and 2) whether Mr. Hall had the right to renounce the will. The chancellor ultimately found that Mrs. Hall had the requisite mental capacity to make a will, but held that the proponents of the will had failed to overcome the presumption of undue influence; but, of course, did not reach the renunciation hearing. The will contest was sustained and the will removed from probate. This appeal followed, with Mr. Costello assigning as error:

 I.

 The lower court erred in finding that there was an applicable confidential relationship existing which gave rise to a presumption of undue influence.

 II.

 The lower court erred in concluding that Appellant had failed to overcome that presumption, even if one did exist, by clear and convincing evidence.

 III.

 The lower court erred in not upholding the Last Will and Testament of decedent dated September 15, 1982, as probated.

 Additionally, Mr. Hall has cross-appealed, assigning as error that the lower court erred in refusing to remove Marion Costello as executor of the estate of Linnie B. Hall, deceased.

 We conclude that the contentions of the appellant have merit, and, thus, reverse and render as to undue influence and remand this case for the renunciation hearing not yet held. We affirm on cross-appeal.

 At issue in this case is whether Marion Costello improperly influenced his sister, Linnie Hall, to write a will leaving the bulk of her property to him and leaving her husband only $10.00. To resolve this issue, the parties presented evidence to the chancellor regarding Mrs. Hall's relationship with her husband and her family. A summary of that testimony follows:

 W. C. and Linnie Hall married on April 4, 1970, when Mrs. Hall was about 54 years old, and Mr. Hall about 47. Prior to the parties' marriage, Mrs. Hall apparently had some small amount of money and property. She was also working, although she quit her job sometime after their marriage. Mr. Hall worked as a tool and die maker.

 Mrs. Hall was an alcoholic, and the medical records submitted reveal that she had been diagnosed as having cirrhosis of the liver several years before her final illness. Mr. Hall was also a heavy drinker, and Mrs. Hall's medical records indicate that her failure to quit drinking might be partly attributable to him.

 Mr. and Mrs. Hall had no children, although Mr. Hall had children and grandchildren by a previous marriage. Mrs. Hall had two sisters and two brothers, all of whom appear to live out of state.

 On May 26, 1981, attorney J. Stanford Terry prepared a will for Mrs. Hall, in which she left Mr. Hall only a 1/4 interest in her real estate. She also left several individual bequests, and the remainder to her brother, Marion Costello. At the same time, Mrs. Hall executed a power of attorney in favor of Marion Costello.

 A few months later, on September 25, 1981, Mrs.

 Hall executed another will leaving W. C. Hall a legacy of only $10.00, making several legacies and bequests to family members, and leaving the remainder of her estate, again, to Marion Costello. Among the individual gifts she left were legacies of $1,000.00 each to her two step-grandchildren. Mr. Terry, who also drafted this will, testified later that he carefully explained to Mrs. Hall the possible ramifications of attempting to exclude her husband, which was the reason for the $10.00 legacy.

 On May 9, 1982, Mrs. Hall was admitted to the emergency room at Vicksburg Medical Center with septicemia. Hospital records reveal that she arrived by ambulance, clad in only a urine and feces-stained sheet. According to testimony that Mrs. Hall gave at a later deposition, Mr. Hall refused to help her dress after she collapsed on the floor of their bedroom, and merely called an ambulance for her. A friend, Mrs. Corbin, is shown on the hospital records as having given Mrs. Hall's history to the medical attendants, although Mr. Hall's signature is purportedly on the admission documents. The records indicate that Hall visited his wife on some occasions during this stay at the hospital; however, his visits were ultimately forbidden by Dr. Karl Hatten, Mrs. Hall's physician, because he was upsetting Mrs. Hall. Mrs. Hall was successfully treated for this illness and she was discharged from the hospital on June 11, 1982. Upon discharge from the hospital, she stayed at the Corbin home.

 On June 3, 1982, Mrs. Hall filed for divorce, on grounds of cruel and unhuman treatment and habitual drunkenness. She later stated that she had been put out of her house by her husband, and that he had moved another woman into it.

 On September 4, 1982, Mrs. Hall was again admitted to the Vicksburg Medical Center. The diagnosis was impending hepatic coma - a common end result of cirrhosis of the liver. She ultimately did become comatose, responding only to painful stimuli by September 8. This ...


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