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ROSETTA MINER v. A. BERTASI

AUGUST 10, 1988

ROSETTA MINER
v.
A. BERTASI, JR. and ANTHONY P. BERTASI, SR.



BEFORE ROY NOBLE LEE, C.J.; ANDERSON and GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

This case, involving undue influence, comes to the Court from the Chancery Court of Marshall County, which dismissed the suit after a trial. We affirm.

On February 7, 1980, Rosa Bertasi, age 91, fell at home, breaking her hip. She was hospitalized, and later taken to a nursing home. Her husband, Adelino Bertasi, Sr., age 92, went to stay with his daughter, Rosetta Miner. Although he had recently suffered a stroke, the witnesses all agreed that Bertasi, Sr. was "very sharp" and "mentally alert to the last."

 After a month, Bertasi, Sr. moved in with his son, Anthony, who had offered to see about him. Upon arrival, Bertasi, Sr. seemed "upset," telling Anthony that "Rosetta wanted me to give her a piece of my farm." According to Anthony, Bertasi, Sr. asked him to contact John Masserano, Anthony's son-in-law and an attorney. Masserano then spent approximately fifteen to twenty minutes with Bertasi, Sr. discussing the farm. At trial, Masserano testified that although Adelino, Sr. "wasn't positive" about the farm's disposition during this meeting, it was clear that he would not give it to all four children. Afterwards, Adelino, Sr. commented that he would speak to his other son, Adelino, Jr.

 That evening, Anthony, Adelino, Jr., their wives, and Adelino, Sr. spoke about the farm. According to Adelino, Jr., Adelino, Sr. announced that he wanted his two sons to have the farm. Adelino, Jr. asked his dad to sell the farm instead, remarking, "[Y]ou know we'll take care of you anyway." Adelino, Sr. replied, "Oh, that's the way I want it."

 Soon afterwards, Anthony or his wife called Masserano, telling him to prepare a deed. Upon his arrival, Masserano read the deed to Adelino, Sr., who responded, "Where do you want me to sign?" Anthony, who was also present, then gave Adelino, Sr. ten dollars, five dollars from Anthony and five dollars from Adelino, Jr., who was not present.

 On December 29, 1982, Adelino Bertasi, Sr. died. After the funeral, Miner was "shocked" to learn that her dad had conveyed the farm to her brothers. Previously, Adelino, Sr. had divided real estate holdings in Memphis equally, though Adelino, Jr. received the more valuable acreage on which his business stood. Also, under Bertasi, Sr.'s will, executed on August 21, 1962, he gave his property to his four children "in equal parts." Parenthetically, Elna Bell, Bertasi, Sr.'s fourth child, is not a party to the suit.

 I.

 Since 1953, when Adelino, Sr. retired, Adelino, Jr. and Anthony had paid their parents' bills. Anthony had purchased their television, stove, and refrigerator, "whatever they needed," and took Adelino, Sr. to the doctor. At the time of the conveyance, Adelino, Sr. also lived with Anthony.

 Moreover, Anthony actively participated in the discussions, leading to the conveyance. At Adelino, Sr.'s request, Anthony called Masserano to talk about the farm and later to draft the deed. When Adelino, Sr. wanted to speak with his other son about the farm, Anthony called him. Anthony was also present when Masserano and his dad met to talk about the farm, when Adelino, Jr. and his dad met to talk about the farm, and later when his dad executed the deed. Afterwards, Anthony's accountant prepared a gift tax return, which Anthony presented to Adelino, Sr. for his signature.

 Based on this evidence, the chancellor found no confidential or fiduciary relationship between Adelino, Sr. and Anthony, since such a relationship involves the "transaction of some business," characterized as "attorney-client, guardian-ward, trustee-beneficiary, executor, and so on," not present here.

 In Wofford v. Wofford, 244 Miss. 442, 456, 142 So.2d 188, 194 (1962), the Court defined a fiduciary relationship as a "relation in which confidence was reposed by one, and the influence which naturally grows out of such confidence

 was possessed by the other." See also, Glover v. Glover, 367 So.2d 167, 176 (Miss. 1979); Ham v. Ham, 146 Miss. 161, 173, 110 So. 583, 584 (1926). Consequently, fiduciary or confidential relationships may arise in a legal, moral, domestic, or personal context, where there appears "on the one side an overmastering influence or, on the other, weakness, dependence, or trust, justifiably reposed." Estate of Haney, 516 So.2d 1359, 1361 (Miss. 1987); Mullins v. Ratcliff, 515 So.2d 1183, 1191 (Miss. 1987); In re Estate of Bilello, 317 So.2d 916, 917 (1975). See also, Norris v. Norris, 498 So.2d 809, 812-13 (Miss. ...


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