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JANE C. SACCO, ADMINISTRATRIX OF THE ESTATE OF FANNYE T. GORDON v. JIM CLEVE GORDON

NOVEMBER 12, 1987

JANE C. SACCO, ADMINISTRATRIX OF THE ESTATE OF FANNYE T. GORDON
v.
JIM CLEVE GORDON, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF S. T. GORDON, DECEASED, SARAH GORDON MORRISON, AND JOHN STEVE GORDON



BEFORE HAWKINS, P.J., PRATHER AND ZUCCARO, JJ.

ZUCCARO, JUSTICE, FOR THE COURT:

On March 14, 1983, Jane Sacco, daughter of Fannye Gordon, deceased, filed a complaint in the Chancery Court of Quitman County in her capacity as administratrix of her mother's estate. Named as defendants were Jim Cleve Gordon, Sarah Gordon Morrison and John Steve Gordon, with Jim being sued both individually and in his capacity as executor of the estate of S. T. Gordon, deceased. In that complaint Sacco sought 1) to set aside conveyances of her life estate in certain property to S. T.'s children and to recover the fair market rental on said properties from the date of conveyance of her life estate to her death, and 2) to recover certain money which Fannye had given to the estate. After a trial on the merits, the chancellor entered judgment for the defendants. From that judgment Sacco appeals, arguing that the chancellor erred in failing to find 1) that Fannye Gordon was in a confidential relationship with Jim Cleve Gordon (her step-son and executor of her late husband's estate), and 2) that Fannye Gordon was in a confidential relationship with Walter Dreaden, attorney for the estate of her late husband. We affirm.

FACTS

 In 1971, two years after the death of his first wife, S. T. Gordon married Fannye, the cousin of his late first wife. Although Fannye had lived in West Virginia for many years, she moved, at the time of the marriage, to S. T.'s home in Sledge, Mississippi.

 When she married S. T., Fannye had three grown children from her first marriage. One of them, Jane Sacco of Morgantown, West Virginia, is the plaintiff/appellant in the case at bar. S. T. also had three grown children, who are the defendants/appellees in the instant case: Jim Cleve Gordon, John Gordon, and Sarah Jane Gordon Morrison. Jim

 and John lived in Sledge, where they were partners with their father in a farming operation. Sarah lived in Jackson, Mississippi.

 Fannye and S. T. each brought into the marriage certain individually accumulated assets. Among S. T.'s possessions were approximately 1200 acres of farm land and his residence. Fannye, who had managed a university bookstore in West Virginia, brought into the marriage personal property including an automobile, and funds from the sale of a mobile home she had been purchasing. At trial several witnesses, including Jim Gordon and Fannye's first cousin S. R. Starr, testified that Fannye and S. T. had agreed, at the time of the marriage, that the individual property of each would ultimately go to that partner's children. Upon S. T.'s death, his children would receive the assets he had accumulated. Similarly, upon Fannye's death, her children would receive her individual assets. Apparently, this agreement was oral.

 Fannye and S. T. made their home in Sledge, where S. T. continued the farming operation he had owned for many years. In 1976, he retired, and his two sons, who were also his partners, took over the farming business.

 Over the years, Fannye and S. T. both had health problems. Fannye suffered from emphysema and lung cancer, the latter of which was treated with radiation. S. T.'s primary health problem was alcoholism, for which he was hospitalized several times during the marriage.

 S. T. died testate on May 25, 1982. The pertinent provisions of his will were as follows:

 1) S. T.'s son, Jim Cleve Gordon, was to serve as executor.

 2) Fannye was to own the residence, its furnishings and the farmland for life or until she remarried.

 3) The remainder interest in the residence and farmland was to go to Jim, John and Sarah in equal shares.

 4) During Fannye's lifetime, she was to rent the farmland to Jim and John who were to pay her "a fair, just and equitable [rent] . . . for the ...


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