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In re Estate of Rogers

Court of Appeals of Mississippi

July 17, 2018


          DATE OF JUDGMENT: 04/15/2016





          WILSON, J.

         ¶1. This appeal follows a jury trial in a will contest. The contestant, Frederick Rogers, alleges that his mother's will was the product of his brother's undue influence. However, the jury found that the will was valid, and the chancellor entered judgment on the verdict. On appeal, Frederick argues (1) that the chancellor should have given a peremptory instruction that there was a presumption of undue influence; and (2) that there is no substantial evidence to support the jury's verdict. However, we find no error and affirm.


         ¶2. Roselle "Boots" Turner Rogers and her husband, Fred, were longtime residents of Meridian. Fred was an attorney and a member of the Mississippi Senate. Fred also raised cattle and had extensive holdings of timberland. Fred and Boots had three sons: Frederick, born in 1946; Walter, born in 1949; and William, born in 1952.

         ¶3. Fred and Boots made wills in 1975. Each left his/her entire estate to the other spouse and to their three sons in equal shares if the other spouse was already deceased. Prior to his death, Fred deeded to his three sons, in equal shares, his one-half interests in 799-acre and 160-acre tracts of timberland in Alabama.[1] He also deeded four tracts in Mississippi to his sons: two 60-acre tracts to Frederick, one 60-acre tract to Walter, and one 60-acre tract to William. The Mississippi tracts were part of a 320-acre tract known as the "Smith-Rhyne Tract." Fred died in June 1996, leaving Boots his entire estate, including 838 acres of timberland in Lauderdale County and a two-thirds interest in a total of 798 acres in Kemper County. Fred's will also provided that Boots could designate assets of a specified value as a life estate in her, which would pass to her sons upon her death. Boots subsequently made such a designation. See infra ¶22.

         ¶4. On December 26, 1996, the family established The Fred M. Rogers Family Limited Partnership to hold timberland then owned by Boots. The partnership's primary purpose was as an estate planning device. The partnership agreement named Boots the "General Partner" and "Managing General Partner" and provided that initially she would have a 97% interest in the partnership, consisting of a 1% general partner interest and a 96% limited partner interest. The agreement named Frederick, Walter, and William as "Limited Partners" and "successor Managing General Partners" and granted each of them a 1% limited partner interest. The same day, Frederick's wife and three children, Walter's wife and three children, and William's wife and four children were all added to the partnership as limited partners. Thus, there were a total of sixteen limited partners. Boots also signed a power of attorney designating Frederick, Walter, and William as her attorneys-in-fact. Walter, an attorney, [2]prepared the partnership agreement and the power of attorney. Fred's former accountant, Bob Rea, provided Walter with a template for the partnership agreement.

         ¶5. Boots planned to make lifetime gifts of her partnership interest to reduce the value of her estate and future estate tax liability. Specifically, she planned to make annual gifts of $10, 000 of partnership equity to each of the limited partners (i.e., $160, 000 total per year). She made gifts to all sixteen limited partners in December 1996 and again in January 1997. Walter and William testified that Bob Rea recommended this estate planning strategy at a 1996 meeting with Boots and all three brothers. However, Frederick denied that he attended such a meeting. He claimed that he first learned about the partnership from Walter.

         ¶6. When the partnership was established, Boots conveyed 200 acres of timberland, known as the "Tom Lyle Tract," to the partnership, and the timber on the tract was sold. Boots used proceeds from timber sales to make $10, 000 annual cash gifts to her children and their spouses and children. These gifts, which were in addition to the equity gifts, began in December 1996 and continued each year at Christmas for eleven years.

         ¶7. In July 1997, Boots conveyed her interests in three additional tracts of timberland to the partnership. On the same day, Boots also conveyed the remaining 80 acres of the Smith-Rhyne Trace (see supra ¶3) and a separate 88-acre tract to Frederick, Walter, and William as tenants in common. Additional tracts were transferred to or acquired by the partnership in later years. Walter prepared all relevant deeds.

         ¶8. In 1997, Walter called a meeting at his law office to discuss management of the partnership's timberland. Frederick, Walter, and William met with Ricky Goforth, a registered forester who had appraised the timberland included in Fred's estate. According to Frederick, Goforth recommended planting 300 to 350 trees per acre on the partnership's timberland. Frederick testified that he "took exception to" this because Fred had always planted 700 to 750 trees per acre. However, William and Walter agreed with Goforth. Frederick testified, "I kind of took the position, right then, that it was going to be like a two to one vote on anything that happened, and I just kept that to myself and left."

         ¶9. On December 16, 1997, Frederick informed Walter by letter that he "desire[d] to dissolve [his] interest in the partnership by having his future interest bought out." Frederick testified that he sent the letter because he felt that Walter and William would always outvote him, that he would "be wasting [his] time trying to be involved," and that "anything [he] would say would not be taken into consideration." Frederick's letter stated:

         Dear Walter:

After careful review and consideration, I would like to opt for an option afforded to me in [the partnership agreement]. I desire to dissolve my interest in the partnership by having my future interest bought out by an agreed upon amount that can be paid either by lump sum, or over a period not to exceed 10 years. I believe my interest, if any, has to be offered to the partnership for purchase before any other action can be taken. I would also like to offer for sale to you, William, the both of you, or the partnership, my full interest in the [two 60-acre tracts that were part of the Smith-Rhyne Tract]. I believe per the partnership agreement, you as the partnership's agent for service of process, are to be notified of a request such as I am making. I also believe per [the partnership agreement] that the offer for sale of the [two 60-acre tracts] must first be made to the partnership, and I am to give the partnership a 60 day period of time in which to act on my request. I am not setting a price for the [two 60-acre tracts], but will leave it up to you to tender me a fair offer based on a per acre cost for 4 year old planted pine plantation land, planted at 750 trees per acre, with an 85% survivability rate. This can be determined by you or a registered forester. This tendered offer will then be considered and accepted, rejected, or negotiated.

As for my future worth in the partnership, if any, at 51 years old I believe my interest can be invested in mutual funds, money market accounts, etc. such as I have done with my Bell South pension, and draw a higher rate of return than new planted pine plantation land or timber which may be growing at a 10% growth rate.

         ¶10. Walter testified that Frederick's letter "shocked" him because their mother wanted to keep the land together in the family. Moreover, as Walter saw it, Frederick was essentially asking their mother to pay him in advance for future gifts and his eventual inheritance. Walter took the letter to Boots, since she was the managing general partner-and the then-owner of the "future interest" that Frederick wanted "bought out."

         ¶11. Walter testified after Boots read the letter, she said that she would "need to change [her] will." Walter told Boots that he could not help her make a new will. Walter said that she could make an appointment with the Wilbourn law firm, since Boots knew Richard Wilbourn. Because Wilbourn was no longer actively practicing law, Walter suggested that she could talk to Wilbourn's law partner, Don Rogers.[3] However, Boots did not tell Walter what she intended to do about her will, and Walter testified that he did not know until sometime later whether she contacted or met with Rogers or executed a new will.

         ¶12. Walter did call Don Rogers "as a courtesy" to tell him that Boots "might call and she might not." Walter and Rogers knew one another professionally, but they were not close friends and did not socialize.[4] Both Walter and Rogers testified that their conversation lasted less than a minute, they did not discuss any matters of substance, and they did not discuss Boots's will again until several years later.

         ¶13. On January 6, 1998, Walter sent a response to Frederick's letter. Walter asked whether Frederick's wife, Barbara, and children also wanted out of the partnership. He also asked whether Frederick wanted to sell his interest in certain other family land. Finally, Walter stated that he could not make an offer on ...

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