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In re Last Will and Testament of Mary Saunders Waller Gordon

Supreme Court of Mississippi

June 6, 2019

IN THE MATTER OF THE LAST WILL AND TESTAMENT OF MARY SAUNDERS WALLER: BRENDA GORDON AND CRAIG GORDON
v.
SHERRY WALL, ADMINISTRATRIX C.T.A. OF THE ESTATE OF MARY SAUNDERS

          DATE OF JUDGMENT: 11/08/2017

          LAFAYETTE COUNTY CHANCERY COURT, HON. GLENN ALDERSON JUDGE.

          TRIAL COURT ATTORNEYS: TARA BETH SCRUGGS MICHAEL N. WATTS GEOFFREY FELIX CALDERARO RONALD W. LEWIS.

          ATTORNEYS FOR APPELLANTS: ROBERT QUENTIN WHITWELL, JR. DEREK HEATH-ESSEX MORETON.

          ATTORNEYS FOR APPELLEE: MICHAEL N. WATTS R. BRADLEY BEST GEOFFREY FELIX CALDERARO.

          BEFORE RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.

          ISHEE, JUSTICE.

         ¶1. The Lafayette County Chancery Court set aside an inter vivos gift of about forty acres fronting Highway 6 near Oxford. The grantor was Mary Saunders Waller, a ninety-year-old woman who was hard of hearing and legally blind; the grantees were Waller's daughter and son-in-law, Brenda and Craig Gordon. The Gordons lived near Waller and had been her caretakers for many years. A conservator was appointed shortly before Waller's death, and she filed a petition in the probate action to set aside the deed to the Gordons. The Gordons admitted to a confidential relationship with Waller, and the chancellor found they were unable to rebut the attending presumption of undue influence. On appeal, the Gordons contend the chancery court erred by excluding the testimony of Waller's attorney and physicians because of ex parte contact by the Gordons' attorney.

         ¶2. With regard to the physicians, the Gordons failed to make an offer of proof. Since this Court has no way to know what the physicians would have said had they testified, we cannot find any error in the exclusion of their testimony. See M.R.E. 103. The trial court should not have excluded the attorney's testimony, because the ex parte contact rule does not apply to attorneys; but the Gordons conceded the point at trial. We cannot find an abuse of discretion in denying the Gordons' motion for a new trial based on arguments that could have, and should have, been raised at trial.

         ¶3. We affirm the chancery court's judgment.

         FACTS

         ¶4. Mary Saunders Waller and her husband originally owned about 160 acres of land in Lafayette County, west of Oxford. The Wallers had four daughters, one of whom was Brenda Gordon. Over the years, Waller had sold or given away numerous small parcels to various family members, mostly so they could build houses. The Gordons bought a house on family land that had been deeded to one of Brenda's sisters; the Gordons bought the house and the land from the sister. By the time of the events at issue, Waller had about 136 acres left. The Gordons would later contend the 39.25 acres deeded to Brenda Gordon was intended to be her one-fourth share of the original Waller family land.

         ¶5. At the time the deed was executed, Waller was ninety years of age. She lived by herself but required assistance with some day-to-day activities, including bathing. Brenda Gordon would usually help Waller bathe. Waller was legally blind and could not drive. She was also hard of hearing; even the Gordons acknowledge that one would have to "[speak] into her left ear and talk[] slowly" to be understood. And Waller had had three hip replacements and had difficulty walking. Brenda Gordon and one of her sisters had a joint (but not several) power of attorney for Waller.

         ¶6. For their part, the Gordons testified that Waller was mentally sound and knew what she was doing. On the other hand, Joyce Webb, one of Waller's other daughters, testified that Waller's "mental state had started ...


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