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In re Estate of Gardner

Court of Appeals of Mississippi

February 21, 2017

IN THE MATTER OF THE ESTATE OF RICHARD L. GARDNER, DECEASED: LINDA GARDNER CALLINGTON, ANDREW GARDNER AND LARRY ROSS APPELLANTS
v.
MAE OTHA GARDNER APPELLEE

          DATE OF JUDGMENT: 08/21/2015

         TALLAHATCHIE COUNTY CHANCERY HON. JON M. BARNWELL JUDGE

          ATTORNEY FOR APPELLANTS: JOSHUA A. TURNER

          ATTORNEYS FOR APPELLEE: WILLIAM R. SANDERS JR. DARRIN JAY WESTFAUL

          BEFORE BARNES, P.J., WILSON AND GREENLEE, JJ.

          WILSON, J.

         ¶1. Richard Gardner died leaving a will that devised his entire estate to his wife, Mae Otha Gardner. An estate was opened and later declared insolvent. However, a fire destroyed a building owned by the estate, and insurance proceeds were sufficient to pay the estate's debts and leave a surplus for Mae Otha. At that point, Richard's children filed a petition to contest the will. A jury returned a verdict for the children, finding both that Richard did not sign the will and that he lacked testamentary capacity. However, the chancellor granted Mae Otha's motion for judgment notwithstanding the verdict. On appeal, Richard's children argue that there was sufficient evidence to sustain the verdict, but we agree with the chancellor that Mae Otha was entitled to judgment as a matter of law. Therefore, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Richard was born in Indianola in 1925 and lived most of his life in Charleston, Mississippi. Richard and his first wife had three children, Linda Gardner Callington, Andrew Gardner, and Sylvia Gardner Moore. Richard had a fourth child, Larry Ross, by another woman. Richard's first wife passed away, and in February 1987 he married Mae Otha. At the time of their marriage, Richard was sixty-one years of age, and Mae Otha was forty-two. No children were born to their marriage.

         ¶3. Linda testified that before Richard married Mae Otha, he told Linda that he wanted her to be the executor of his estate and that he wanted each of his children to receive a child's part. Linda testified that after Richard married Mae Otha, he stated that Mae Otha should also receive a child's part of his estate.

         ¶4. Linda testified that in "the latter part of 2008" her father "started being a little sick, " and in February 2009 he had a "little light stroke." Linda testified that he recovered from the stroke but became "sicker and weaker." Linda testified that Richard was taking Risperdal, Hydrocodone, and Plavix. Linda's husband, Jeff Callington, claimed that the Risperdal "would render [Richard] helpless" and unable to open his eyes or sometimes caused his hands to shake. Linda also testified that Richard had started bouncing checks, so the children encouraged him to execute a power of attorney in favor of Mae Otha.

         ¶5. Mae Otha testified that she and Andrew took Richard to the hospital in February 2009 because she thought he had a stroke. However, the doctors told her that they could not find anything wrong with Richard and that, if anything, he had a "mini-stroke" that did not show up on his MRI or other tests. Richard was released from the hospital on March 1, 2009.

         ¶6. On March 2, 2009, Richard went to see attorney William Sanders of Charleston. According to Sylvia, she and Richard first went to the mayor's office because Richard had decided to withdraw from an election for city commissioner, a position he previously held for approximately twenty years.[1] Sylvia testified that at the mayor's office, Richard "started fumbling with some . . . material that was on [a woman's] desk, " and she had to tell him to stop. Richard and Sylvia then met Mae Otha at Sanders's office. Sylvia testified that all three of them met with Sanders, that they discussed the contents of a power of attorney, and that Richard signed the power of attorney. Sylvia testified that she never left her father's side while at Sanders's office and that a will was never mentioned or discussed. Sylvia testified that Richard's "mental capacity" "was okay, but he wasn't real talkative. . . . [H]e was okay at that particular time. But he was real weak still, kinda like wasn't able to function."

         ¶7. Sylvia's testimony about the visit to Sanders's office conflicted with that of everyone else present. Mae Otha testified that Sylvia told Richard that morning that he needed to get a will and a power of attorney. According to Mae Otha, Sylvia drove her and Richard directly to Sanders's office, and Richard withdrew from the commissioner's race on a different day. Mae Otha testified that she stayed in the waiting room, while Richard and Sylvia went into Sanders's office. She testified that at some point, someone came out and asked her "about an old will or something, " so she went home to look for one, but by the time she returned to Sanders's office, they had finished preparing the power of attorney and will.[2]Mae Otha ...


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