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In re Estate of James Andrew

February 11, 1998

IN RE: THE ESTATE OF JAMES ANDREW, APPELLANT MORRIS: DONNA MARIE MORRIS DREWERY
v.
TALMAGE HERSHEL MORRIS, EXECUTOR, APPELLEE IN RE: THE ESTATE OF JAMES ANDREW, APPELLANT MORRIS: DONNA MARIE MORRIS DREWERY
v.
TALMAGE HERSHEL MORRIS, EXECUTOR, APPELLEE IN RE: THE ESTATE OF JAMES ANDREW, APPELLANT MORRIS: DONNA MARIE MORRIS DREWERY
v.
TALMAGE HERSHEL MORRIS, EXECUTOR, APPELLEES



TRIAL COURT DISPOSITION: EXECUTOR RECOVERED 14,000 FOR ALLEGED MISMANAGEMENT OF TESTATORS' FUNDS DISPOSITION AFFIRMED - 2/10/98 MOTION FOR REHEARING FILED: 12/12/97

Before Bridges, C.j., Herring, And Payne, JJ.

The opinion of the court was delivered by: Herring, J., For The Court

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

NATURE OF THE CASE: CIVIL - WILLS, TRUSTS AND ESTATES

This matter is before this Court on Appellant's petition for rehearing. The motion for rehearing is denied and the original dated December 2, 1997, is withdrawn, and this opinion is substituted in its place.

This action essentially involves a claim by the estate of James Andrew Morris, deceased, against one of the decedent's children, Donna Marie Morris Drewery. Talmadge H. Morris, in his capacity as the executor of his father's estate, filed an action against Mrs. Donna Marie Morris Drewery on February 6, 1989, charging that she maintained a confidential or fiduciary relationship with the decedent and through undue influence, diverted funds of her father for her own use and benefit and for the benefit of her husband during a period when Mr. Morris lived with them in Memphis, Tennessee. After a number of delays, a hearing was conducted on the merits of the complaint on January 11, 1995, in the Chancery Court of Alcorn County, Mississippi. In its written opinion dated August 15, 1995, the trial court concluded that (1) Mrs. Drewery did, in fact, maintain a fiduciary and confidential relationship with the decedent prior to his death, and (2) that during the decedent's lifetime, Mrs. Drewery improperly obtained loans and otherwise diverted her father's funds for her benefit and for the benefit of her husband in the sum of $14,100, all in violation of Drewery's fiduciary relationship with her father. Thus, the chancellor granted judgment in favor of the decedent's estate against Mrs. Drewery for the sum of $14,100 plus interest at the rate of six percent from and after February 17, 1988. Mrs. Drewery now appeals from the chancellor's adverse decision to this Court.

A. THE FACTS

James Andrew Morris, a resident of Alcorn County, Mississippi, died at age eighty-three on August 23, 1984. His wife, Mary Seaton Morris, preceded him in death on December 23, 1980. During their marriage, they had eleven children. In August, 1978, Mr. and Mrs. Morris moved to Memphis, Tennessee, to live with their daughter, Donna Marie Morris Drewery, and her husband, Jimmy D. Drewery. *fn1 After Mrs. Morris died, Mrs. Drewery and her father traveled to Corinth, Mississippi, where the decedent had his bank accounts and changed one or more of the decedent's accounts to reflect both Mr. Morris and Mrs. Drewery as joint owners of the accounts, with right of survivorship. On June 29, 1982, the decedent signed and delivered a check to his son-in-law, Jimmy Drewery, in the sum of $5,000. According to Mrs. Drewery's testimony, she and her husband asked her father to loan this money to Mr. Drewery, who said he needed the money to pay bills. Mrs. Drewery testified that her father wanted the money to be a gift, but her husband insisted that the check reflect the money to be a loan. Thus, the Mrs. Drewery prepared the check for her father's signature, which he signed, and delivered the check to Mr. Drewery on June 29, 1982. It is apparently undisputed that this loan was never repaid.

Thereafter, beginning on March 23, 1983, Mrs. Drewery prepared and executed a series of checks on the joint account created by her father at the National Bank of Commerce in Corinth, Mississippi, as follows:

Date Payable To Amount Total

1. March 21, 1983 Cash $100 $100

2. June 27, 1983 Cash $300 $400

3. August 29, 1983 Cash $1000 $1400

4. September 23, 1983 Cash $500 $1900

5. November 28, 1983 Cash $500 $2400

6. January 16, 1984 Cash $600 $3000

7. February 16, 1984 Cash $600 $3600

8. March 14, 1984 Cash $600 $4200

9. April 16, 1984 Cash $600 $4800

10. April 16, 1984 Jimmy D. Drewery $2500 $7300

11. June 25, 1984 Cash $1200 $8500

12. July 15, 1984 Cash $600 $9100

Grand Total $9100

It is undisputed that all of these checks were drawn from funds exclusively owned by Mrs. Drewery's father from an account which he later named Mrs. Drewery as a joint owner with right of survivorship. According to Mrs. Drewery, the check to Jimmy D. Drewery in the sum of $2,500 was made to enable Mr. Drewery and Mrs. Drewery to have money to pay income taxes for the taxable year. According to her, the money from the other checks was used by her each month to help defray the expenses incurred as a result of her father living in her home. She stated that she did not charge rent to ...


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