IN THE MATTER OF THE ESTATE OF ROSELLE TURNER ROGERS, DECEASED: FREDERICK M. ROGERS, JR. APPELLANT
WALTER T. ROGERS, EXECUTOR, WALTER T. ROGERS, INDIVIDUALLY, AND WILLIAM T. ROGERS APPELLEES
OF JUDGMENT: 04/15/2016
LAUDERDALE COUNTY CHANCERY COURT, HON. ROBERT L. LANCASTER
ATTORNEYS FOR APPELLANT: EDDIE JACOB ABDEEN SAM STARNES
THOMAS BENJAMIN ADAMS DUNCAN
ATTORNEYS FOR APPELLEES: ROBERT H. COMPTON GRACE WATTS MITTS
JOHN G. COMPTON
IRVING, P.J., WILSON AND TINDELL, JJ.
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
AND PROCEDURAL HISTORY
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.
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. 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.
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, prepared the partnership
agreement and the power of attorney. Fred's former
accountant, Bob Rea, provided Walter with a template for the
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.
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.
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
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."
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
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
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.
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."
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
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.
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. 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.
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 ...