text:
    Succession of Vernie Lee WHITE.
    No. 13769.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.
    Gamm, Greenberg & Kaplan by Jack H. Kaplan, Shreveport, for appellant.
    Luther S. Montgomery, Shreveport, for Ben Serman, Jr.
    Nelson, Hammons & Johnson, Walter F. Johnson, III, Shreveport, for Maxie Lee Whitaker.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

The legatee named in a purported olo-graphic will dated “November 15” sought to probate the will. Probate was opposed by alleged legal heirs of the decedent. The district court held that the date, with no year or suggested year in the testator’s handwriting, was no date at all, as distinguished from an ambiguous date, and did not conform to the requirements of form for an olographic will. The district court ruled there was no need to go further with evidence and denied probate, from which judgment the applicant appealed.

We reverse and remand.

The Louisiana Supreme Court in Succession of Boyd, 306 So.2d 687 (La.1975), held that “extrinsic evidence is admissible to establish the certainty of an ambiguous date on an olographic will.” The ambiguous date in that case was “2-8-72”. The Boyd case was followed by this court in Succes sion of Greer, 315 So.2d 46 (La.App. 2nd Cir. 1975), where the ambiguous date was “April 49, 1943”.

The document presented for probate in this case has a date, albeit an incomplete one. The incomplete date as written is uncertain and ambiguous, but, as stated in Boyd, there is no reason why any legal evidence calculated to convince the court and establish the certainty of the date should not be considered. Extrinsic evidence of the certainty of the date should be allowed in this case.

Since appellant was not afforded the opportunity to offer evidence to establish the certainty of the date, the judgment of the district court denying probate is reversed and set aside, and the case is remanded for further proceedings consistent with the views expressed in this opinion. Costs of the appeal are assessed to appellees.

Reversed and remanded.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Homer Leon HALL, Plaintiff-Relator, v. Marcie Thomas HALL, Defendant-Respondent.
    No. 13816.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.

      Rankin, Yeldell, Herring & Katz by Charles E. Herring, Jr., Bastrop, for plaintiff-relator.
    Love, Rigby, Dehan, Love & McDaniel by Truly W. McDaniel, Shreveport, for defendant-respondent.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

In this child custody contest between the mother and father, the lower court awarded permanent custody of a nine-year-old and three-year-old to the maternal grandfather and step-grandmother, in whom custody was not prayed for by either parent and who were not themselves parties to the suit. We granted writs and reverse and remand.

In Stuckey v. Stuckey, 276 So.2d 408 (La. App. 2d Cir. 1974), we awarded permanent custody to grandparents who were not parties, but in whom the father had originally prayed for custody. Temporary custody has been awarded to grandparents who were willing to accept such custody pending determination of permanent custody even though not parties and apparently even though their being awarded custody had not been prayed for by either parent. Brocato v. Brocato, 364 So.2d 152 (La.App. 1st Cir. 1978).

In Wade v. Wade, 362 So.2d 1151 (La. App. 2d Cir. 1978), the trial judge ordered a custody contest converted to a juvenile proceeding under LRS 13:1561 et seq. although the evidence did not show that the child was a neglected child within the meaning of the juvenile statutes. Temporary custody was there awarded to a great-uncle and aunt. We reversed on the grounds that the statutory prerequisites for invoking the juvenile laws had not been met under the circumstances and awarded permanent custody to the mother notwithstanding that it was shown that she had lived in open adultery before the child. See also Lulich v. Lulich, 361 So.2d 451 (La.App. 4th Cir. 1978); Mertens v. Mertens, 308 So.2d 508 (La.App. 3d Cir. 1975).

The leading case of Wood v. Beard, 290 So.2d 675 (La.1974) recognized as paramount, the right of a parent to custody of his or her children as against a third person and that parents nonetheless may forfeit this right when they are found to be unfit, unable or unwilling, as in the case of abandonment, to provide a home for the children. Absent a forfeiture for these reasons, permanent custody cannot be awarded a third person, especially one in whom custody has not been prayed for by either parent or who is not a party to the contest. See Bryan v. Bryan, 311 So.2d 32 (La.App. 2d Cir. 1975). Wood stressed that it is not proper merely to compare the parent’s situation with that of a third person and award custody on the basis of what would be in the best interest of the child. CC Art. 157, as amended, contemplates that the best interest comparison shall be made between the situation of the mother and that of the father.

Neal v. White, 362 So.2d 1148 (La.App. 2d Cir. 1978), expressly found a forfeiture of parental right by the mother and is not authority for awarding custody to a third person over a parent solely on the best interest premise.

Here the lower court granted the divorce on the grounds of “mutual adultery” but did not expressly find that each parent had forfeited his or her parental right as contemplated in Wood and its progeny. The finding of a forfeiture by unfitness or other reason cannot be presumed but must be supported by evidence and expressly determined. The factual circumstances of the record thus far will not support a finding of forfeiture of parental rights by reason of both parents being unable (or incapable) of maintaining custody.

While we have the authority to make the determination under CCP 2164, we consider the determination of permanent custody can best be made by the trial judge either on the basis of the evidence previously taken or on such additional evidence as the trial judge may direct in view of the passage of time since this record was compiled. Temporary custody of the children, pending determination of their permanent custody, shall remain with the grandparents and subject to the further orders of the lower court.

The appeal, or appeals, of the judgment relating to custody upon which relator’s application is made, shall be dismissed by us as moot on these questions at the appropriate time.

Judgment below is reversed insofar as it awards permanent custody and this cause is remanded for further proceedings. Costs here shall be assessed in the judgment below eventually awarding permanent custody-

      . Paragraph A of Article 157 reads, in part: “In all cases of . divorce, permanent custody . . shall be granted to the husband or the wife, in accordance with the best interest of the child ...”


author: PATTERSON, Chief Justice,

text:
    T. Z. BRAGG, and Mrs. Rosetter Bragg, Complainants Appellants, v. Roy CARTER, Tom Rives, Milton Singletary, Hilton Richardson, Kenneth Bridges, Ralph Moore, United States Fidelity & Guaranty Company, Employers Mutual Casualty Company, Hartford Accident and Indemnity Corporation, Defendants-Appellees.
    No. 50570.
    Supreme Court of Mississippi.
    Dec. 20, 1978.
    Rehearing Denied Feb. 21, 1979.
    Charles H. Ramberg, Brandon, for complainants-appellants.
    McLaurin, Kelly & McLaurin, John C. McLaurin, McIntyre & McIntyre, W. E. McIntyre, Jr., Brandon, for defendants-ap-pellees.
    Before PATTERSON, C. J., and SUGG and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

This taxpayers’ appeal arises from the Chancery Court of Rankin County. The taxpayer complainants there sought an adjudication that the Rankin County Board of Supervisors had leased 320 acres of sixteenth section land for an inadequate consideration which was the equivalent of a donation. They prayed that the leaseholder, Roy Carter, the members of the board of supervisors and their corporate sureties be directed to pay the county school district the difference between a reasonable rental and the rent actually charged.

Previously, a demurrer to the bill of complaint was sustained by the trial court, but that order was reversed by this Court. Upon remand the defendants answered and pled a previous final decree of the chancery court as having adjudicated the present issue. This plea of res judicata was sustained in bar of the action. The taxpayers appeal and present the issue of whether a confirmation decree in compliance with Mississippi Code Annotated sections 29-3-103 and 29-3-105 (1972) bars a taxpayers suit which charges a violation of Mississippi Constitution, Article 4, Section 95 (1890), prohibiting the donation of state lands to private corporations, individuals or railroad companies.

The confirmation suit concerned the same lease as the present and complied with Sections 29-3-103 and 29-3-105, supra. In it Roy Carter, a defendant in this suit, sued Tom Rives, president of the board of supervisors, also a defendant in this suit, to confirm his lease. In the bill of complaint Carter alleged he applied for a lease on the 320-acre tract of land for a 25-year term on January 15,1973. He also alleged the tract was appraised and a recommendation made for a 25-year lease at an annual rental of $170. The bill then sets forth the supervisors authorized the lease as recommended and that it was executed in accord therewith. There followed a prayer for confirmation.

The complainants sought and received a vacation setting on April 13, 1973, at the courthouse in Scott County, Mississippi, and process was served upon Tom Rives to that end. Rives did not answer nor is there any indication in the record that he entered his appearance.

On April 13, 1973, a final decree was entered on Carter’s bill of complaint. It recites that the court “heard both oral and documentary proof” and that it had jurisdiction of the subject matter. It then went on to confirm the lease of 320 acres for ground rental of $170 per year for 25 years.

We are of the opinion the trial court erred in sustaining the plea in bar although the statutory procedure for confirmation of sixteenth section lands was followed by the lessee. This procedure does not, and indeed could not, override the mandates of the constitution. A brief review of some of the numerous cases concerning sixteenth section school lands is thought to be in order, hopefully to clarify their status.

In State ex rel. Kyle v. Dear, 209 Miss. 268, 46 So.2d 100 (1950), a suit about the sale of timber from sixteenth section lands for a grossly inadequate consideration, this Court stated:

The defendant Cooperage Corporation is presumed under the law to have known that the Board of Supervisors was selling this timber as agent of the State which held it as trustee for the educable children of the township, and was in duty bound not to sell the same for a grossly inadequate consideration, virtually amounting to a donation, in violation of Section 95 of the State Constitution. .

(209 Miss. at 276, 46 So.2d at 103)

Similarly, the present leaseholder knew he was leasing these lands from an agency of the state who held as a trustee because he necessarily dealt with them in obtaining the lease and could in no wise be an innocent purchaser.

The Court went on in Dear to state:

The foregoing announcement of the Court is contrary to the contention made in the brief of the defendant Cooperage Corporation, wherein the Dears have joined, to the effect that the fixing of a price on Sixteenth Section timber by the Board of Supervisors is conclusive and cannot be inquired into in the absence of fraud. It is beyond the power of the Board to make a sale of Sixteenth Section timber under the authority conferred upon the Boards by Section 6599, Code of 1942, for such a grossly inadequate price as to virtually amount to a donation thereof since Section 95 of our Constitution expressly prohibits this from being done. The Constitution is paramount to any authority conferred by a statute when the action taken under the statute is in conflict with the Constitution.
(209 Miss. 279, 46 So.2d at 104)

And see Koonce v. Board of Supervisors of Grenada County, 202 Miss. 473, 32 So.2d 264 (1947), wherein it is stated in a reformation suit between a purchaser of timber on sixteenth section land and the board of supervisors that the board had no right to sell the timber absent a fair consideration, their duties being:

. It was their duty to contest the reformation suit upon being fully advised as to the gross inadequacy of the agreed sale price and the true value of the timber; .
(202 Miss, at 478, 32 So.2d at 265)

These quotations are set forth to emphasize that sixteenth section lands are held in trust for the benefit of school children and these trusts with the attendant responsibilities of the trustees must be considered as other trusts are considered.

In the second ease of State ex rel. Coleman v. Dear, 212 Miss. 620, 55 So.2d 370 (1951), the following pertinent statement is made:

. The State cannot abdicate its duty as trustee of property in which the whole people are interested, such as sixteenth section land held by the State as trustee for schools, any more than the State can surrender its police power in the administration of government and in the preservation of peace and order.
(212 Miss. at 630, 55 So.2d at 373-74)

Assuming, as we do, that Mississippi Constitution, Article 4, Section 95 (1890) has meaning and that the duties of the trustee cannot be abdicated because of the overriding public policy expressed through the constitution, there remains to be decided whether the principle of res judicata is so inflexible that the merits of this case cannot be reached.

In the recent cases of Edwards v. Harper, 321 So.2d 301 (Miss.1975), and Keys v. Carter, 318 So.2d 862 (Miss.1975), we held that sixteenth section school lands are the proper subject of taxpayers suits. Moving to the question of res judicata, we observe the confirmation proceedings did not give notice to the public and neither was an answer filed by the defendant, which leads to the inescapable conclusion that tacit consent was given by the defendants to the decree confirming the lease. Although the doctrine of res judicata is based upon the public policy of putting an end to litigation [C.I.T. Corporation v. Turner, 248 Miss. 517, 157 So.2d 648 (1963)], we nevertheless think the doctrine is not inflexible and incapable of yielding to a superior policy, and particularly so since the confirmation decree has every attribute of tacit consent. See generally 2 A.L.R.2d 514, Public Policy, § 6, p. 532 (1948). The doctrine of res judicata must yield to the constitution. Therefore, the cause is reversed and remanded for a hearing upon the merits.

REVERSED AND REMANDED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.

      . Keys v. Carter, 318 So.2d 862 (Miss.1975).

      . Amended July 1978.


author: COFER, Justice,

text:
    Donald G. GLOVER, E. E. Glover, Elizabeth Glover, Donald G. Glover, Jr., D. Suzanne Glover, by their guardian ad litem v. B. R. GLOVER.
    No. 50930.
    Supreme Court of Mississippi.
    Jan. 24, 1979.
    Rehearing Denied Feb. 21, 1979.

      Self, Jordan & Jones, Robert D. Jones, Meridian, for appellant.
    Stewart, Burks & Pace, Delos H. Burks, Picayune, for appellee.
    Before SMITH, LEE and COFER, JJ.
   COFER, Justice,

for the Court:

Appellee sued appellants in the Chancery Court of Pearl River County for the cancellation of a deed he made to certain of appellants and to require all of appellants to return to him certain monies which he had allegedly caused to be invested in their names plus lawful interest earned on the invested funds. From a decree granting appellee all relief prayed by him other than solicitor’s fee, appellants have taken this appeal.

The suit is founded upon confidential relations allegedly existing between the adult parties with appellee being the subservient party, and the use of undue influence upon appellee in procuring the money sued for, described as appellee’s “life savings” and in the execution of the warranty deed by him.

Background information will tend to put the parties and the subject matter of the suit in proper perspective. Appellee B. R. (Richard or Rich) Glover was seventy-nine years of age on the dates crucial in this cause. Appellant, E. E. Glover, approximately seventy-seven years old then, and appellee are brothers. Mrs. Elizabeth Glover, one of the appellants, is the wife of appellant E. E. Glover. Appellant Donald G. Glover, forty-five years old at the time, is the son of E. E. Glover and stepson of Elizabeth Glover, appellants, and nephew of appellee. Appellants D. Suzanne Glover and Donald G. Glover, Jr., minor appellants (who have a guardian ad litem) are children of appellant Donald G. Glover and, of course, are blood grandchildren of appellant E. E. Glover, step-grandchildren of Elizabeth Glover, appellant, and are great niece and nephew of appellee.

Appellee and appellant E. E. Glover married sisters. Appellee’s wife became deceased in 1969 and appellee in 1970 was married to Mrs. Charity Miller, who departed this life on June 15,1976. Appellant and his first wife, to whom appellant Donald G. Glover was born, were divorced and Donald lived mostly with his mother and with ap-pellee and his wife, and for some long period of time had but slight association with his father, appellant E. E. Glover.

The close association of Donald with ap-pellee was described as being very much as a father-son relationship and Donald, on the witness stand, testified that the love between them was such as to lead to the conclusion that they felt toward each other as father and son.

In the early twenties, the brothers appel-lee and appellant Glover bought land and owned it together for a period of time, at the end of which, through no friction or disagreement on their part, they divided the property between them. At all times since this agreed .division, they have lived close together, much of the time about a quarter of a mile apart. This land of appellee, 200 acres in amount, is involved in this suit.

Of six children in these brothers’ family, one sister survives, a patient in a rest home at Meridian. One of the deceased sisters, Mrs. Elizabeth Glover McClendon, left surviving her several children of whom, one, Paul, appears prominently in this suit.

Through the years, as long as they were physically able, these appellee and appellant brothers worked together, “through and through” in a sense, helping each other with the farming and livestock, and splitting income from construction contracts. Appel-lee is described as a carpenter and a farmer.

In the middle 1960’s appellant E. E. Glover became disabled and cooperative undertaking could not continue. For years these brothers and their wives visited back and forth with each other, and, if the visit was near a meal time, they ate together. After appellant Glover’s disability, the visiting was mostly by appellee, because of the difficulty of appellant Glover in getting about. This visitation continued until appellee went to the hospital as hereinafter to be noticed.

Appellee Glover developed a sight difficulty and had to undergo surgery in 1969 and appellant, Glover, his brother, with the help of another, fed appellee’s cattle the winter before the surgery. In addition to the sight difficulty, appellee had difficulty hearing.

Appellee was described as being a conservative man, inclined to be miserly with his money, and also was inclined to keep his confidence, to the extent of telling others at times to tend to their own business when he would be questioned about matters personal to him.

Appellee’s last wife, as related above, became deceased on June 15, 1976. Prior to that time, she underwent surgery and was a hospital patient. During this time, appellee was continuously concerned that he had sufficient funds to defray her expenses. Appellee and his last wife had a bank account in a bank in Bogalusa, Louisiana. For some reason not appearing in the record, she executed a power of attorney in favor of one Helen Buras under which power the said Helen Buras was undertaking to cash a time certificate which appellee and his wife had in a lock box and a dispute arose between appellee and her about her actions. Paul McClendon and two other nephews (not including appellant Donald) went with appellee to attorney E. B. Williams, Jr., at Poplarville, who worked out, with Mrs. Buras’ attorney, an understanding that the deposit would be removed to a bank in Poplarville, and she, with attorney Williams’ countersignature, would issue checks on it for the medical bills of the sick lady. The transfer of this money was effected June 9, 1976.

Appellee and these nephews discussed together disposition of appellee’s property and what the future had for him, his wife having then died. This was discussed by them with attorney Williams who abandoned the notion of a guardianship, feeling that appellee knew what he was doing and could handle his affairs.

While the altercation with Mrs. Buras was being worked out, appellee wanted attorney Williams to draw a will; thereafter he said he would like to make a deed, and, with the nephews outside his office, appel-lee told the attorney he would like to make a deed to two nieces in Texas and one of the nephews in Louisiana.

There is testimony, not disputed, in the record, that appellee refused to execute a will and Paul McClendon threw some keys in his lap and said to the effect that he was through with him.

Shortly after the death of appellee’s wife, appellant Donald Glover took him to Meridian where he remained with Donald for a matter of a few days.

Contrary to the testimony as to appellee’s expressed desires in Mr. Williams’ office, there is strong testimony that appellee desired that his land remain in the Glover name.

Appellee attended the three-day hearing until his restlessness and apparent discomfort caused the court to permit his attendant to roll him from the courtroom in the wheel chair which he occupied. Appellant E. E. Glover came to court in a wheel chair, also, and the court was constrained to remove the hearing to another room more accessible to him for his testimony.

With review of pertinent background having been made, the two occurrences on which relief is here sought will now be noticed.

As pointed out above, appellee had money in a Bogalusa, Louisiana, bank. On a day prior to July 1,1976, appellant E. E. Glover called appellant Donald Glover, and on July 1, 1976, Donald went to his father E. E. Glover’s home, where appellee was, and out of appellee’s presence, E. E. Glover told Donald details as to appellee’s desires concerning the Bogalusa funds and some funds he had in a Poplarville bank. Donald took appellee in Donald’s car to Bogalusa and, as spokesman for appellee, caused withdrawal of the money on deposit there, which they carried back to the bank patronized by ap-pellee in Poplarville. There, with Donald continuing as spokesman for appellee, a sum of money was transferred on appellee’s signature, and put with the money from Bogalusa, and one-half the total of these sums was put in a six-year certificate of deposit in that bank, in the names of Donald G. Glover, Jr., and Mr. or Mrs. E. E. Glover, (the principal therein being $13,-498), and Donald and appellee took that bank’s cashier’s check in the amount of $13,497.97, the other half, and deposited it in a similar certificate in another Poplar-ville bank, in the names of D. Suzanne Glover and Mr. or Mrs. E. E. Glover. There is ample proof to the effect that appellee would have the interest on these deposits during his life.

On August 30, 1976, appellant Donald took appellee to attorney Williams’ office where administration proceedings were being prepared and Donald became a surety on appellee’s bond as administrator of the estate of appellee’s recently deceased wife. While there, appellee sent Donald to appel-lee’s home for the purpose of bringing a deed or deeds to him, which he brought.

On August 31, 1976, attorney Williams prepared and superintended the execution by appellee of a deed to the 200 acres of land of appellee hereinabove mentioned.

Near the end of November 1976, appellee filed suit to cancel that land deed and on February 12, 1977, he filed suit to recover the money involved in the first of these two transactions noticed above. On July 15, 1977, he filed an amended bill of complaint to recover the money and to set aside the deed.

In this last mentioned pleading appellee, as complainant, alleged that he had accumulated the realty and various other assets including, but not limited to, money, goods and chattels; that he has no children, that he had been in poor health during approximately the last two years; that, shortly after the death of his wife, appellants E. E. Glover and Donald G. Glover began to show special attention to him, although they had never done so before, this being at a time when he was in a weakened physical and emotional state, and through the exercise of undue influence, coercion, unconscionable advantage and persuasion, overreaching, infidelity, fraudulent conduct, gross abuse of confidence in a fiduciary capacity, and other acts, unduly pressured him, at a time when he was without his free will, to sign the deed complained of, the said conveyance being without consideration, no money exchanging hands, the named defendants making assertions and promises to him that they did not keep and have not kept and that without the undue influence over him he would not have executed the deeds to defendants.

He further alleged that the defendants took from him his life savings of $19,969.72 and $7,026.25 and deposited them as herein-above set out.

He further alleged that under the circumstances then and there existing in connection with the deed, it should be set aside for the reasons that it was without consideration and was the product of undue influence, it having been signed when he was of advanced age, sick, and in a weakened condition.

He averred that the deed and the money transaction were part of a total plan and scheme of the adult defendants to strip him of all his assets, and that they have failed, after demand and request, to reconvey the land and restore the money to him, after he had recovered his physical and mental health to such extent that he realized defendants had wrongfully taken his property by various contrivances, and primarily Donald whose education, experience, and age gave him unequal and inequitable position in the swindle.

He also charged that the defendants waited until his bereavement and weakened condition deprived him of his free will, and brought undue influence upon him to take all of value he owned, and then promptly abandoned him to survive the best he could with the help of other friends and relatives.

At the end of the hearing, the chancellor made findings of fact and entered decree in favor of appellee. He found appellee to be presently non compos mentis; having had the land, the money, a car, truck, cattle and timber, appellee had been reduced to the status of a pauper with nothing but a life estate in the land conveyed; he was deaf, could see with difficulty, was asthmatic, unable to communicate, a condition in progress for a number of years; had lost his wife a few days prior to the first transaction and was grief-stricken; on the dates in question, (July 1 and August 31, 1976), defendants were advising and instructing him in his business; that there had then existed a fiduciary relationship wherein complainant-appellee placed trust in defendants-appellants, the appellants not only advising and instructing him, but transporting him in achieving the results sought; that the two transactions were part of the same design, and that complainant’s divesting himself of these properties without consideration and becoming a pauper would, in itself, indicate some abnormality, especially in view of complainant’s past history of conservatism.

He further held that complainant was, during the occurrences complained of, mentally and physically incompetent due to advanced age, hardening of arteries, deafness, near blindness, grief-stricken condition and was unduly influenced by defendants who stood in a fiduciary relation, and were thus prohibited by law from depriving complainant of his property as complained of. Early in his opinion the chancellor stated, “I’m inclined to believe that the struggle between his nephews about this property is more or less between themselves and the complainant is unfortunately in the middle.”

The decree, consistent with the chancellor’s opinion, restored the monies to complainant’s guardian, whom the court appointed for him, and set aside the deed. The banks where the money was invested were parties to the suit and were ordered to pay to the guardian all sums received in the transaction and all other sums deposited in complainant’s name.

On their appeal, appellants assigned as error, among other things, not to be reached herein, the chancellor’s action (1) in allowing the testimony of two medical doctors, Rennick and Stringer, “since their testimonies did not touch the dates of the execution of the document in question” and in permitting them to testify as to appel-lee’s mental condition; and (2) in holding the deed invalid for lack of consideration; and (3) the chancellor’s decision is against the overwhelming weight of the facts and applicable law.

We agree with the able chancellor in his conclusion that appellee was the innocent victim of a contest between his relatives. We find ourselves in disagreement with his finding both that there was a fiduciary, dominant, subservient relationship between appellee and the appellants, and in finding there was undue influence which resulted in the money transfer and the deed.

Taking up now these transactions, the record reveals that appellee was a party to arranging authority for appellant Mrs. Elizabeth Glover to write checks for a part of his maintenance which she did. A few weeks after the deed transaction, appellee was driving on the grounds of appellants E. E. Glover and Mrs. Elizabeth Glover and, blinded by the sun, ran into a tree causing discomfort to his right chest wall. On October 8,1976, he was seen by Dr. Rennick and on October 11, 1976, appellant Mrs. Elizabeth Glover admitted him to the hospital. While the apparent main concern of the physician was a respiratory infection in the form of bronchitis, the doctor also found he had a chronic organic brain syndrome, a term used for people suffering from certain mental entities or abnormalities which fit together as a syndrome, in the case of elderly people frequently related to degeneration of metabolic processes in the brain and associated hardening of the arteries. He was found to be senile which indicates specific impairments of mental functions. The doctor said that, while the collision injury did not appear to be of any really important nature, it certainly might have some effect on his mental capacity, might have brought him down.

Dr. Stringer was appellee’s regular physician from April 1963 and last saw him professionally on September 27, 1977. In 1976 he observed deterioration in appellee’s mental functioning, resulting from arteriosclerosis, which affected his capacity to understand directions, and to communicate with others, caused some problem about relating to his environment. It is a gradual degeneration of cerebral tissue and appellee was observed as experiencing a gradual slipping in his mental capacity. Dr. Stringer saw him professionally on June 23, July 6, and August 9, all in 1976, and the doctor failed to testify about his mental faculties on those occasions, except what has above been shown in his general degeneration.

In addition to appellant Mrs. Elizabeth Glover’s admitting appellee to the hospital, appellant Donald and his wife visited him at least for a time in the hospital.

Somewhere during appellee’s stay in the hospital, or at least by November 19, 1976, Paul McClendon was again communicating with appellee and on that day appellee executed a document giving to him a general power of attorney, irrevocable for ten years from its date. On December 1,1976, appel-lee executed another power of attorney appointing Paul McClendon and his wife as attorneys-in-fact to administer all his affairs, and handle all his property, so long as they were willing, during appellee’s life and after his death. In the meantime, appellee and Paul McClendon, as his attorney-in-fact, entered into a timber contract on November 22, 1976, in which they were paid a cash consideration of $1,000 and the contract providing for a graduated pay scale for timber cut by the grantee. The timber cut and removed under this contract was estimated to run into about $20,000. Neither appellee (understandably) nor Paul McClendon testified in the case, and before a finding of pauperism might properly be made, it would seem some showing would have been in order as to what happened to these timber sale proceeds.

When appellee went home from the hospitalization discussed above, appellants were by their uncontradicted testimony prevented and barred from going to see him, and once, although it was known appellee was in the house, found a lock on his door. It is also uncontradicted that Paul McClen-don instituted prosecution proceedings against appellant Donald Glover on a charge of embezzlement. Disposition of these proceedings is not revealed in the record. It is our view that the allegations that appellants deprived appellee of all of his property and then abandoned him does not find support in this record.

Appellants never saw appellee again, before the trial, in December 1977, except on Christmas eve, 1976, when he came to the E. E. Glovers’ home and the uncontradicted proof is that he did not recognize appellant Mrs. Elizabeth Glover, his sister-in-law. The record reflects that appellee showed a marked mental decline during his second week in the hospital, and that he could not carry on a conversation. On the Christmas eve 1976 visit, he said he had seen appellant Elizabeth Glover but that he did not know her. At this time he wanted the money and land back which desire he had already expressed to them. They gave him no response, and the suit was brought.

Appellee, prior to the two transactions, had discussed with appellants E. E. Glover and Mrs. Elizabeth Glover many times how he wanted his money and land handled. At a time before the arrival of appellant Donald Glover on July 1, 1976, by some means E. E. Glover knew appellee’s plan for handling the deposits and Donald transported appellee to Bogalusa and to the two banks in Poplarville on that day, and expressed to the bank officials as appellee’s spokesman what was desired at the three banks. Of these three banks only President Hack Smith, of the Bank of Commerce, was brought as a witness and testified as appel-lee’s witness. Donald and appellee sat at President Smith’s desk, and Donald told him what appellee wanted in handling the money brought from Bogalusa and the money in Smith’s bank. When Donald had finished detailing these desires, Smith turned to appellee and asked if he wanted the transactions Donald had explained, and repeated the inquiry more loudly to make sure he understood, and he indicated his approval by shaking his head. Smith was concerned because he knew appellee was a conservative man. Smith was satisfied that appellee knew what was happening to the extent that he, Smith, followed through with the request. Appellee signed a withdrawal slip and endorsed the cashier’s check from the Bogalusa bank.

Later he came alone to the bank and asked Mr. Smith where his money was, and later he came again, someone, Smith believed it was Paul McClendon, helping him in, and asked about his money.

We now consider the land transaction, after which proof touching both transactions will be noticed.

The record shows that Donald and appel-lee were in attorney Williams’ office on August- 30, 1976, in connection with the opening of an administration proceeding on the estate of appellee’s late wife; about that date, appellant E. E. Glover had called attorney Williams and expressed a desire for Williams to prepare for appellee a conveyance to E. E. Glover and Donald Glover as tenants by the entirety with right of survivorship with Richard Glover to reserve a life estate in the land being conveyed. On August 31, 1976, appellee went to attorney Williams’ office. There is a conflict as to whether Donald went with him, Williams saying that he did and sat on the outside, while Donald testified that he did not come from Meridian on that day and was not with appellee at Williams’ office. Nevertheless, with only Williams and appellee in Williams’ office and the door closed, Williams testified:

. and so Donald brought Richard Glover to the office and sat on the outside and he walked — Richard Glover walked in and he repeated almost word for word what Mr. E. E. Glover had told me over the telephone. He told me how he wanted the deed drawn. He was lucid and he described it and exactly well, he even mentioned what lands he wanted to go, exactly, — how he wanted the deed drawn and the fact that he wanted to reserve a life estate in the property. So, I wondered about the situation, and questioned him at length about the deed. And he seemed to understand it and I drew the deed so that he reserved a life estate in the oil, gas and minerals and the timber, trees, with the right to cut and remove and reserved a right of way to go on the land during his lifetime and cut and remove the timber. (Emphasis added).

When the deed was prepared, Williams, who knew and had represented all members of the family, and still entertaining some doubt, said further:

. so there wouldn’t be any taint or question about what I had done, I brought him up to the courthouse and let him talk to Mrs. Jerene Patterson, [deputy chancery clerk]. She questioned him, and I asked him in her presence if he understood what he was doing and he signed the deed before her and she took the acknowledgement. (Emphasis added).

Immediately, after this transaction Williams, back in his office said to appellee, “Mr. Glover, what about your money now? He said, ‘What money?’ So, then I realized — that something was wrong — that he was either suspicious of me or somebody and for that reason he didn’t want anybody to know about the money that he had.” Williams further stated that he “would never have written the deed had I known what had happened.”

Thus, because appellee showed a preference not to discuss other business with attorney Williams, the attorney concluded that appellee was the victim of undue influence.

Later, as appellants’ witness, the deputy chancery clerk, testified that on the day of the execution of the deed, attorney Williams and appellee came to the chancery clerk’s office inquiring for the Chancery Clerk Robbins, who was not in, and Williams asked for her, the witness. They were back in Mr. Robbins’ office, and asked her to take appellee’s acknowledgement to the deed. In doing so, Williams went over the deed with appellee in her presence, and asked him if that was what he wanted to do and receiving an affirmative reply, they asked her to take the acknowledgement which she did, he signed in her presence, and appellee paid her fee for recording it and left it with her.

Lester Sellers, appellants’ witness, had known appellee for some twelve years and visited him at frequent intervals, saying “because we was good buddies.” He saw appellee about every day after appellee’s last wife died. Appellee discussed his finances with the witness, and one day said, “I’ve made up my mind to deed my property and stuff to Lige, my brother, and Donald.” After a few days, he told the witness, “I’ve done it. I got in touch with Donald and he came down and I done it.” In those days, he talked with good sense, “just as bright as I was or anybody else around there.”

Mrs. Oneta Odom Wheat, a witness for appellants, is the daughter of appellee’s first wife’s sister, and had known appellee all her life. She testified to intervisiting with appellee and his wife before her death, that during that time he was driving, had hearing and sight problems and difficulty in breathing. From the last of August 1976 she resided with appellee to October 2,1976, when she broke her foot and could no longer do the things for him she was there to do. He discussed with her his money and land and one day told her, “I have got my money back from Bogalusa and I have got it straightened out.” She asked if it was to his satisfaction, and he said it was. “I put part of it in one bank, part of it in the other bank.” She asked if he fixed it like he wanted it done, and he said, “I did.” Particulars were not told her and she did not ask for explanation. As to the land, she said he wanted it to stay in the Glover name. She asked, “Well, have you made up your mind?” He said, “Yes, I have.” Later he came back and said, “I have got it all settled.” She asked if it was settled the way he wanted it, and he said, “Yes, I did.” At a later time while she was residing with him, he told her that he had left the land to appellants E. E. Glover and Donald Glover. When the discussion took place, she said there was no pressure, there were present just the two of them, just sitting on the porch talking. Donald paid her some money for expenses while she was staying with appellee.

The record reflects in addition to the two suits merged into this one, activities on the part of appellee which are cited by appellants as evidence of appellee’s alertness and business mentality.

About May 1976 he sold a number of cattle and put substantial proceeds therefrom in the Bank of Commerce.

June 9, 1976, he transferred money from the Bogalusa bank to Poplarville, on attorney Williams’ advice.

August 30, 1976, he petitioned for and was granted letters of administration on the estate of his deceased wife, and executed various related documents in doing so, with Mr. Williams as his solicitor.

August 31, 1976, the deed herein was executed by him.

In October 1976 he gave appellant Mrs. Elizabeth Glover authority to write checks on his account.

On November 17, 1976, he executed a power of attorney to Paul McClendon.

On November 19, 1976, he executed power of attorney to Paul McClendon and his wife.

On November 22, 1976, he and Paul McClendon, his attorney in fact, executed a timber deed.

March 18,1977, he executed final account on his deceased wife’s estate.

As earlier noticed, this suit is one based upon confidential relations, asserting appel-lee as the weak subservient party and the adult appellants as the dominant parties in which position they exercised undue influence in pauperizing him.

Various legal principles are involved in these issues.

In Tipton v. Saulsberry, 223 Miss. 763, 78 So.2d 893 (1955), it is said:

Where the relationship of the parties is such as to make a gift a natural act, the courts look with more favor on it where the weight of the evidence is involved than would be necessary to sustain a gift to a stranger. 38 C.J.S. Gifts, pp. 882-883.
(223 Miss. at 769, 78 So.2d at 894).

The relationship of the brothers Glover was one of mutual cooperation, work, and sharing of income until the mid-1960’s when appellant E. E. Glover became disabled to a wheelchair because of rheumatoid arthritis, and thereafter until the October 1976 hospitalization of appellee, they were in each other’s company very frequently sharing meals together and evidencing the close and cordial relationship that should attend the brother status. Appellant Donald was partially reared in ap-pellee’s home and their unquestioned feeling toward each other was as father and son. One is led to inquire as to what status might exist which would make the transactions here complained of more natural. The unchallenged desire of appellee that the land remain in the Glover name adds weight to the land transaction wherein ap-pellee conveyed the property to appellants E. E. Glover and Donald Glover as “joint tenants with full right of survivorship, and not as tenants in common.”

Daren v. Woodward, 204 So.2d 873 (Miss.1967), was a suit for the cancellation of four deeds and three options executed by appellant’s ward. The suit for cancellation was based on a claimed fiduciary or confidential relationship between the ward and the ap-pellees, great weakness of mind of the ward at the time of the transactions, inadequacy of consideration, and other grounds. The time space was begun after April 1, 1964, and extended to August 7,1965. In upholding the chancellor’s finding that confidential or fiduciary relations did not exist, this Court said:

It was not claimed by complainant that Mrs. Drumm was non compos mentis at any time. The sole complaint was that she was weak of mind. The evidence as to this was conflicting, and, as a matter of fact, it was shown that Mrs. Drumm transacted other business affairs and made other sales during this same period of time. No attack was made on these other transactions. Some of the witnesses who had made transactions during this period of time testified that she had a weakness of mind, a tendency toward forgetfulness; but when asked about the state of her mind at the times they dealt with her, which were also during the time of the dealings of the appellees with her, they stated that the mind at those times was perfectly all right. She retained the minerals under the land, had surveys made, had deeds prepared and apparently in each instance selected the officer before whom they were acknowledged. She kept records of each collection and expenditure until just shortly before the end of the year 1965.
(204 So.2d at 874-875).

Two doctors expressed their views in written form in that ease. One, who examined the ward on January 13, 1966, after these transactions, stated that he found “a generalized and cerebral arterial sclerosis,” and expressed opinion that, at that examination, she was incapable of managing her own estate. The other physician stated, in a letter dated January 13, 1966, that “for the past several months, her mental condition had been deteriorating.” (204 So.2d 875).

The record here shows transactions before, during and after the July 1, 1976, funds transaction, and the August 31, 1976, land deed transaction, at which time attorney Williams concluded appellee was lucid.

It is to be remembered that appellant E. E. Glover called Mr. Williams about the deed’s contents, and expressed the desire that the deed have the survivorship clause and reserve a life estate in the grantor, and that the deed, written, acknowledged, filed, and recorded, all after private conference with Mr. Williams, had, in addition, reservation of minerals with right of ingress and egress to exploit them, and the right to cut and remove or sell timber, wood, and gravel thereon, and thereunder.

In a long line of decisions from Ham v. Ham, 146 Miss. 161, 110 So. 583 (1926), this Court, in varying phraseology, has defined confidential or fiduciary relation as being one in which confidence is reposed by one and the influence which naturally grows out of such confidence is possessed by the other. See Wofford v. Wofford, 244 Miss. 442, 456, 142 So.2d 188, 194 (1962).

In Farish v. Slaughter, 262 So.2d 182 (Miss.1972), appellants, complainants below, heirs of Eliza Farish Dillard, attacked a deed made by her to her sister the appellee. We said, in part:

The chancellor was likewise correct in finding that the appellee did not exert undue influence upon her sister, the deceased grantor. Since Anna Farish Slaughter was not the dominant force in obtaining the warranty deed and was not in a position of trust and confidence, there is no presumption of undue influence.
(262 So.2d 183).

In Thomas v. Jolly, 251 Miss. 448, 170 So.2d 16 (1964), it was said that:

A deed from a parent to a child alone and of itself raises no presumption of undue influence since, in the absence of evidence to the contrary, the parent is presumably the dominant party. This is true even though the parent is aged, or aged and infirm. Circumstances may show, however, such a confidential relationship in which the child is the dominant party that a presumption of undue influence arises, 16 Am.Jur., Deeds, section 393 (1938).
(251 Miss, at 454, 455, 170 So.2d at 19).

Burnett v. Smith, 93 Miss. 566, 47 So. 117 (1908), involved facts in which the grantor, deceased at the time of the trial, had executed a deed to his youngest child, a daughter, who had remained with him during her life. This deed was attacked on allegations that Mr. Hartzog, the grantor, was mentally incapable of making the deed and was induced by undue influence to make it. In upholding the chancellor’s finding in favor of the validity of the deed, the Supreme Court said:

The procedure of Mr. Hartzog seems to have been with the utmost deliberation. He sent for a gentleman to prepare the deed, and he did prepare it, and Mr. Hart-zog signed the deed; his daughter, Mrs. Smith, who was his youngest child, not being present. He himself went before the officer and acknowledged it. He himself took it to a store where he traded, and caused it to be sent to the office of the chancery clerk to be recorded. After it was recorded he had it returned to him and delivered it to Mrs. Smith.
There could have been no undue influence, unless it was such as to take away the free agency of Mr. Hartzog, and the chancellor found that such was not the case. It must be kept in mind that capacity to make the deed is implied until overthrown by evidence, and we see by reference to 29 Ency. p. 105, that not every influence is undue, and undue influence cannot be predicated of any act unless free agency is destroyed, and that influence exerted “by means of advice, arguments, persuasions, solicitation, suggestion, or entreaty is not undue, unless it be so importunate and persistent, or otherwise so operate, as to subdue and subordinate the will and take away its free agency. Nor is influence ordinarily considered undue which arises out of sympa thy, kindness, attention, attachment or affection, gratitude for past services, desire of gratifying the wishes of another or of relieving distress, claims of kindred and family or other intimate personal relations, love, esteem, social relations, prejudices or flattery.”
We look in vain in this record for any satisfactory evidence of the exercise of undue influence. We refer, also, to 8 Words and Phrases, commencing on page 7166, for definitions of and authorities on “undue influence;” and we find nothing in this record of sufficient moment to authorize a reversal of the chancellor’s conclusions on the facts of this case. A man of sound mind may execute a will or a deed from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even a whim or caprice. Under the circumstances of this case, it occurs to us as quite natural that Mr. Hartzog should prefer his youngest child, a daughter who had always been with him, and the mere fact that there was no recognition in the deed of his other children, who were of middle age and settled in life, could not be held to be a presumption of undue influence or a lack of free agency. No expert testimony as to sanity was offered. All the witnesses knew the man. Wood v. State, 58 Miss. 741; Sheehan v. Kearney, 82 Miss. 688, 21 South. 41, 35 L.R.A. 102. (Emphasis added).
(93 Miss, at 571-572, 47 So. at 118).

See Ward v. Ward, 203 Miss. 32, 33 So.2d 294 (1948), wherein Justice Alexander, with his wonderful authority and use of words, dealt with an issue of lack of testamentary capacity, and said, in part:

However, this testimony fails to establish the fact that at the crucial moment when evidence of testamentary capacity attains its maximum and controlling relevancy, that is, at the time of the will’s execution, there was any lack of capacity to appreciate the nature and effect of his act and the natural objects of his bounty.
(203 Miss. at 38, 33 So.2d at 295).

Although this decision involved testamentary capacity, it is good authority on the issue now being considered.

Jones v. Singley, 242 So.2d 430 (Miss.1970), involved a suit for cancellation of a deed and other relief, on allegations by complainant-appellant that, occupying a position of trust with her, defendant-appellee defrauded her in the activities as to which she sought relief. In affirming the lower court’s decree dismissing the bill of complaint, we said:

The testimony of Mr. Dickerson and the nurse corroborates that of Mangum. There is no evidence whatsoever to indicate the defendant sought or in any way suggested the opening of this joint account. In fact, the evidence reflects that the complainant was the dominant and moving factor in having this instrument prepared. These witnesses were not interested in the bank account. The testimony of Mr. Mangum was responsive to the complainant’s questions and was devoted to carrying out her interests, both as a banker and a friend of many years. Under these circumstances, the chancellor found that the joint ownership account was established as the complainant desired and requested it to be. He noted from her demeanor and testimony that she was a strong-willed person, not easily persuaded, and that this agreement was knowledgeably made after discussion with a disinterested person competent to advise on the subject. We have reached the conclusion that the presumption of invalidity was rebutted by the evidence; Hall v. Clements, 214 Miss. 445, 58 So.2d 925 (1942); and surely we cannot state that the chancellor was manifestly wrong even though he did not mention the confidential relationship.
******
The next assignment of error is that the court erred in not cancelling the deed executed by the complainant to the defendant. Assuming, as we do, that the confidential and fiduciary relationship was in existence at the time of its execution, we are of the opinion that there was ample advice of a competent person disconnected from the grantee and devoted to the interests of the grantor to overcome the presumption of invalidity. At the time of the execution of the deed there was present an able and honorable member of the bar who had prepared the deed pursuant to the complainant’s previous request, as well as a will. There were also present Mr. Mangum, a bank official, and long friend of the family, a doctor who testified as to the grantor’s mental alertness, and a notary public who acknowledged the instrument. Their testimony was that the deed and other instruments were read to the complainant and that she was mentally alert and competent to transact business. As a matter of fact, their testimony was in agreement to the effect that the complainant directed changes to be made in the will as it was not drawn in some particular as she had previously directed. We think this indicative of an understanding mind and memory at the time. Additionally, their testimony was that the complainant directed her attorney to prepare a general power of attorney designating the defendant to be her agent and that the same was then dictated in her presence and with her understanding. The notary who had taken the dictation testified that the power of attorney was typed the following day by her and subsequently executed by the complainant, again indicating, we think, the competency of the complainant. The chancellor found from this evidence that the complainant had the mental capacity to do that which she had done.
* * * He * *
It is our conclusion that an opinion of the chancellor to the contrary would have been the equivalent of stating that once a confidential relationship comes into existence, the resulting presumption of invalidity of business transactions within the relationship cannot be overcome by clear and preponderating evidence with the distinct possibility that justice flowing from truth would thereby be thwarted. We, therefore, affirm the chancellor in his refusal to cancel the deed. (Emphasis added).
(242 So.2d at 436-437).

At first blush, it might be believed that appellants did take advantage of appellee and take from him, by undue influence premised on confidential relationship, his land and his “life’s savings”. On examination, however, it is found and to be borne in mind that nobody testified that, at the time when evidence of these things reached its highest relevancy, on July 1 and August 31, 1976, appellee did not have possession and control of his free agency, but rather the overwhelming weight of the testimony was that he controlled the content and execution of the deed on August 31, 1976, and, in the “life savings”, he expected the returns for his lifetime, and as to his home, gave up nothing except that which would remain at his death. Thus, he was not by conniving relatives, reduced in two months to the status of a pauper.

We experience great reluctance in reversing a trier of fact on factual questions, as evidenced by our many decisions, but do not hesitate to do so when the decision is contrary to the great weight of the evidence, as we find to be true in this instance.

We reverse and enter judgment here for appellants.

REVERSED AND JUDGMENT HERE FOR APPELLANTS.

PATTERSON, C. J., SMITH, ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: WALKER, Justice,

text:
    MISSISSIPPI STATE BAR v. ATTORNEY-RESPONDENT IN DISCIPLINARY PROCEEDINGS.
    Misc. No. 884.
    Supreme Court of Mississippi.
    Jan. 31, 1979.

      Jimmy L. Miller, Jackson, for appellant. No Name of attorney to be reported for the attorney-respondent.

      . The attorney’s name is not used throughout the opinion due to the confidentiality requirement of Mississippi Code Annotated section 73-3-343 (Supp.1978).

   ON MOTION TO QUASH SUMMONS AND SUBPOENA DUCES TECUM

En Banc.

WALKER, Justice,

for the Court:

This is on motion to quash a summons and subpoena duces tecum. The summons and subpoena duces tecum were issued by the complaint counsel of the Mississippi State Bar pursuant to Mississippi Code Annotated section 73-3-307 (Supp.1978). This statute provides:

Each of the disciplinary agencies is hereby given such jurisdiction and lawful powers as are necessary to conduct a proper and speedy disposition of any complaint. The power to summons and examine witnesses under oath and to compel their attendance to take or cause to be taken the deposition of witnesses and to order the production of books, papers, records and other documentary evidence necessary or material to the investigation or complaint shall be coequal to the powers exercisable by the courts of record of this state. All summonses or subpoenas shall be issued by the clerk of the court, and it shall be the duty of any person so summoned to appear and testify as in the writ commanded and to produce the books, papers, records or other documentary evidence required. Summonses and subpoenas issued by the clerk of the court shall be delivered to the sheriff of the county where they are to be executed, and the sheriff shall serve such writs and notices, or cause them to be served, as he is required to do with respect to writs received by him from any other court of record.
Any defiance of any summons or subpoena so issued, or other extrajudicial conduct which shall inhibit, impede or disrupt any of the above disciplinary agencies in the performance of the duties and in the exercise of the powers herein given shall be treated as contempt of the court and punishable accordingly.

The summons and subpoena duces tecum required the respondent-attorney to appear at a hearing before the counsel for the committee on complaints, and to bring with him any written documents concerning his representation of the client who had filed the original complaint.

The attorney filed a motion to quash the summons and subpoena duces tecum. The motion was set for a hearing before a Justice of the Supreme Court. After hearing and careful consideration, we quash the summons and subpoena duces tecum.

A client filed a complaint against the attorney with the complaints committee of the Mississippi State Bar. The complaint which was properly signed and attested, pursuant to Mississippi Code Annotated section 73-3-309 (Supp.1978), stated:

That I went to [the attorney] for a divorce, and Bankrupcy (sic), and he told me to start the divorce off I had to pay $150.00 so I did. $75.00 for my divorce and $75.00 for the Bankrupcy (sic) he had been my attorney once before. So he had me to go to the Court room for a hearing on the eight (sic) of Oct. he didn’t show up neither did my husband. He never recived (sic) a summons from [the attorney] at all, he write a receipt for the hundred and fifty dollars. My sister was with me as my witness. I even showed the receipt to my Rent man. and I need my money back. I am living alone, i borrow (sic) the money from my Rent Man ... to give him.

The committee on complaints referred the complaint to the complaint counsel for further investigation.

Subsequently, counsel sent a letter by registered mail to the attorney (and a copy to complainant) advising him of the complaint, the forthcoming investigation, and other information. The attorney then responded through his retained counsel by letter confirming complaint counsel’s agreement to postpone the scheduled hearing, and waiving the attorney’s right to the timing requirements of Mississippi Code Annotated section 73-3-317 (Supp.1978).

Subsequently, the attorney requested photocopies of all evidence against him including the receipt mentioned in the complaining client’s affidavit pursuant to Mississippi Code Annotated section 73-3-313 (Supp.1978).

Complaint counsel requested the receipt from the complaining client. However, after several weeks he had received no response. He then filed a report with the complaints committee giving the status of the investigation. The attorney responded to this report urging that the complaint be dismissed since there was not reasonable ground to believe that he had been guilty of unprofessional conduct. Alternately, he argued the complaint did not state a cause of action, and that the complaint should be dismissed since the complaining client had not responded to requests for further information, particularly the receipt involved.

Approximately a month later, complaint counsel was notified that the committee had rereferred the matter back to him for further investigation. The referral ordered complaint counsel to determine the following information and to use the subpoena power to do so if necessary.

a. The existence of a receipt given by [the attorney to the client,] representing partial payment of fee;
b. Date of filing of divorce in [the client’s Name] if one was filed;
c. How [the client] was notified to come to court;
d. Any correspondence between [the attorney] and [the client].

Complaint counsel notified the attorney of the rereferral and in the letter requested:

1.A response [by the attorney] to the complaint, attached as Exhibit 1 to Complaint Counsel’s report on this matter.
2. A response by [the attorney] to the questions attached as Exhibit 2 to Complaint Counsel’s report on this matter.
3. Copies of any and all receipts held by [the attorney] regarding funds received by him from [the client].
4. Copies of any and all pleadings, including divorce and bankruptcy, filed by [the attorney] on behalf of [the client].
5. A statement from [the attorney] regarding how [the client] was advised to appear in court at the divorce hearing.

The letter also stated:

If the above mentioned information is not provided within fifteen days of this letter, Complaint Counsel will issue process necessary to procure same.

[The attorney] responded, and in his letter stated:

Under Mississippi Code of 1972, § 73-3-313 (1977) Supplement), [the attorney] is entitled to a copy of the complaint and any evidence supporting it, as the initial step in any such proceedings and before any response is required of him.
Therefore, [the attorney] respectfully requests that he be forwarded copies of any and all receipts which [the client] claims [the attorney] may have signed and copies of any and all pleadings or other papers which [the client] contends [the attorney] to have signed or delivered to her. Upon receipt of these, [the attorney] will prepare and forward to you his response.

Subsequently, the summons and subpoena duces tecum, which are the subject of the motion to quash, issued.

I.

Specifically, the issue presented on the facts is whether under our statutes the complaint counsel has the authority to have issued a summons and subpoena duces te-cum to an accused attorney when the proceedings are in the investigatory stage and prior to the filing of a formal complaint by the complaints committee. We think not.

While Mississippi Code Annotated section 73-3-307 (Supp.1978) authorizes a general power to issue summons and subpoena duces tecum, it does not prescribe with any particularity when or under what circumstances the power arises. However, analysis of that statute in the light of the other statutes governing disciplinary proceedings indicate that the legislature did not contemplate forced cooperation by an attorney in the investigative stages. Rather the more practical interpretation of the statutory wording would appear to be that the legislative intent was merely to insure that the attorney would have notice and the opportunity to be heard, if he desired, during the investigative stage.

The applicable statutory procedures require that any complaints “shall be referred to the committee on complaints for preliminary investigation and such disposition or further action as may be appropriate.” Miss.Code Ann. § 73-3-309 (Supp. 1978). Another section, 73-3-311 providing for action to be taken upon receipt of complaint or charge requires that the committee:

(a) Cause the complaint or charge to be filed and docketed with the executive director of the Mississippi State Bar.
(b) Screen the complaint or charge for merit or the lack thereof, if such determination can be made from the allegations of the complaint and any accompanying documents; and
(c) Dismiss any frivolous or ill-grounded complaint or one obviously without merit; or
(d) Refer the complaint to complaint counsel for further investigation, hearing and report.

Once referred to complaint counsel, the counsel must:

immediately investigate the complaint; and upon completion of his investigation, excluding the investigatory hearing, he shall inform the accused attorney that a complaint has been filed against him and that he is under investigation, advise the accused attorney of the general nature of the charges, furnish him a copy of the complaint and any evidence supporting it, afford the accused attorney a hearing, and advise the attorney of the time and place of such hearing. Communications and notices to the accused attorney shall be transmitted by registered or certified mail, return receipt requested, and marked “Deliver to Addressee Only.” (Miss.Code Ann. § 73-3-313).

This statute rather than speaking in terms of mandatory appearance, says “afford the accused a hearing.” Further the following statute, section 73-3-315 on “Rules Governing Investigatory Hearings” states in part:

(b) The accused attorney has no right to be present at any stage of the investigatory hearing, either in person or by counsel, except complaint counsel shall afford him an opportunity to make a statement, either personally or by counsel, verbally or in writing, refuting or admitting the alleged misconduct and to offer any matter in mitigation or extenuation. The accused attorney may document his statement to include the admission of affidavits but shall not have the right to present other testimony or evidence and shall have no right to confrontation.
(c) The investigatory hearing shall neither be public nor assume the character of an adversary proceeding, and a full evidentiary hearing on the merits is not contemplated.
(d) Formal rules of evidence will not be applied.
(e) Investigation by complaint counsel will not be stayed by settlement, compromise, admission of guilt or restitution.
(f) Any attorney called as a witness shall be informed before he gives evidence as to whether he is under investigation and, if so, the nature of the charges against him.
(g) Testimony will not be elicited or received which is not germane to the charges being investigated by complaint counsel.

Again, the statutory language is in terms of “opportunity” to be heard and the language expressly bars the notion of “adversary proceedings” and by implication would bar any compulsion at this stage.

This construction of the statutory intent is reinforced by the language of the following statutes. Section 73-3-317 provides that after investigation complaint counsel shall file a report to the complaints committee and that the accused attorney shall have ten days to file a written response. The following section 73-3-319 provides that in determining what further action to take the committee should review the complaint counsel’s report and “any written response by the accused attorney.”

Again, the quoted language indicates the reply is voluntary and intended to meet the due process requirement of notice and opportunity to be heard. See In Re Ruffalo, infra, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968).

Thus, based on statutory intent, as opposed to Fifth Amendment privilege grounds, we hold that an attorney may not be compelled to testify at a hearing in the investigatory stages of a bar disciplinary proceeding nor may he be compelled to respond to a subpoena duces tecum prior to the filing of a formal complaint against him by the complaints committee.

II.

Notwithstanding our holding on statutory grounds, in the interest of future understanding of the new disciplinary rules and judicial economy, we now address the issues presented by the briefs.

The attorney argues that the summons and subpoena duces tecum should be quashed because compliance would be an invasion of his privilege against self-incrimination. He relies upon Spevack v. Kline, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967).

Complaint counsel argues the summons and subpoena should be enforced since the privilege against self-incrimination goes to criminal actions and a bar disciplinary proceeding is not a criminal action. He relies primarily on Spevack, supra; In Re Daley, 549 F.2d 469 (7th Cir. 1977); and Segretti v. State Bar, 15 Cal.3d 878, 126 Cal.Rptr. 793, 544 P.2d 929 (1976).

The threshold question presented is whether the Fifth Amendment privilege is applicable to disciplinary proceedings. Pri- or to the decision in Spevack, it was generally agreed, albeit for different reasons, that testimony of an attorney in professional disciplinary proceedings could be compelled. Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156 (1961) held that the Federal Fifth Amendment privilege was not applicable to the states for the purposes of disciplinary proceedings and the state constitutional privilege was construed not to apply; People ex rel. Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487 (1928) holding disciplinary proceedings are administrative in the nature of a grand jury hearing and testimony may be compelled; Rubin v. State, 194 Wis. 207, 216 N.W. 513 (1927) holding proceedings were not criminal, and the court has inherent power to police the profession. See also Petition for Disbarment of J. R. Poole, 222 Miss. 678, 76 So.2d 850 (1955) holding the practice of law is not a constitutional right but a revocable privilege.

In 1966, the Supreme Court in Spevack overruled the Cohen decision and arguably held that the Fifth Amendment privilege against self-incrimination was applicable to attorney disciplinary proceedings.

However, the precise holding of Spevack was that an attorney could not be disbarred solely for relying on his privilege against self-incrimination and refusing to honor a subpoena duces tecum.

The rationale upon which the case was based is that to disbar an attorney for claiming his privilege would place the attorney in the position of either being disbarred or necessarily waiving the privilege.

Some subsequent cases have assumed without in depth analysis that Spevack is authority for the proposition that a disciplinary proceeding is primarily a criminal proceeding. See Erdman v. Stevans, 458 F.2d 1205 (2nd Cir. 1972). This result apparently comes from dictum in Spevack stating “ ‘penalty’ is not restricted to fine or imprisonment,” 385 U.S. at 515, 87 S.Ct. at 628, and language in In Re Ruff alo, supra, characterizing attorney disciplinary proceedings as “adversary proceedings of a quasi-criminal nature” for the purpose of due process rights. (390 U.S. at 551, 88 S.Ct. at 1226). From this, respondent apparently argues that by analogy to a defendant in a criminal trial an attorney may not be compelled to testify at a disciplinary hearing.

On the other hand, most courts, both state and federal, have not gone so far as to characterize a disciplinary hearing as “criminal” with the full panoply of constitutional rights applicable.

Some courts, since Spevack, have expressly determined disciplinary hearings are not criminal in nature. In Re March, 71 Ill.2d 382, 17 Ill.Dec. 214, 376 N.E.2d 213 (1978) holding the Fifth Amendment is inapplicable to disciplinary proceedings since they are remedial rather than criminal in nature; In Re Daley, 549 F.2d 469 (7th Cir. 1977) cert. denied, 434 U.S. 829, 98 S.Ct. 110, 54 L.Ed.2d 89 (1977) holding that testimony given under immunity in a grand jury hearing may be utilized in a disciplinary proceeding since such is not a criminal proceeding. One court has held attorney disciplinary proceedings to be civil in nature. Zuckerman v. Greason, 20 N.Y.2d 430, 285 N.Y.S.2d 1, 231 N.E.2d 718 (1967), cert. denied, 390 U.S. 925, 88 S.Ct. 856, 19 L.Ed.2d 985, rehearing denied, 390 U.S. 975, 88 S.Ct. 1031, 19 L.Ed.2d 1196.

Other courts, while conceding there are penal aspects which give the hearing a quasi-criminal nature, have refused to afford an attorney the full constitutional rights that a defendant would have in a criminal trial. Comm, on Legal Ethics v. Pence, 240 S.E.2d 668 (W.Va.1977) holding there is no constitutional right to appointed counsel in disciplinary proceedings; In Re Baun, 395 Mich. 28, 232 N.W.2d 621 (1975) holding that while an attorney must be allowed to plead the Fifth to specific questions, he can be compelled to take the witness stand and to answer non-incriminating questions; Sternberg v. State Bar of Michigan, 384 Mich. 588, 185 N.W.2d 395 (1971) holding that the possibility an attorney’s testimony in disciplinary proceeding could be used against him in a pending criminal action did not entitle him to a stay of disciplinary proceedings; Farnham v. State Bar, 17 Cal.3d 605, 131 Cal.Rptr. 661, 552 P.2d 445 (1976) holding it not reversible error for complaint counsel to remark on attorney’s failure to respond to discovery procedures.

Still other courts have analyzed the issue in more depth and have focused on the purpose for the privilege rather than the setting in which the privilege is invoked. In Zuckerman v. Greason, the New York Court of Appeals pointed out that “The constitutional privilege applies only in the case of evidence which might be used against them in a criminal case . . . .” (285 N.Y.S.2d at 6, 231 N.E.2d at 721). See also Kelly v. Greason, 23 N.Y.2d 368, 296 N.Y.S.2d 937, 244 N.E.2d 456 (1968). That court then went on to hold that since the evidence there could only be used in the disciplinary hearings, there was no violation of the Fifth Amendment.

Still other cases have approached the matter by assuming the privilege applies in a disciplinary hearing but holding that testimony may be compelled if the attorney is given immunity from any criminal prosecution based on that testimony. Some courts hold the grant of immunity is automatic. See Fowler v. Vincent, 366 F.Supp. 1224 (S.D.N.Y.1973), while other courts hold the immunity is to be granted on a case-by-case hearing. In Re March, 71 Ill.2d 382, 17 Ill.Dec. 214, 221, 376 N.E.2d 213, 220 (1978).

Careful analysis of Spevack and In Re Ruffalo shows that in neither case was it intended to create the inference that the Fifth Amendment or other constitutional rights were to apply with full force as in a criminal trial.

The issue presented in Spevack was not whether an attorney could be compelled to testify at a disciplinary hearing. Nor was there any issue as to the validity of the assertion of the privilege. The attorney in Spevack was not compelled to testify, rather he was disbarred because he made a valid assertion of the right. The holding in Spe-vack was that an attorney may not be disbarred simply because he made a valid assertion of the privilege. The rationale was that to disbar attorneys if they plead the Fifth Amendment would cause them to involuntarily waive the privilege. From Spe-vack, it is clear that attorneys may not be punished simply for asserting their privilege as other individuals do. The case, however, does not equate a disciplinary hearing with a criminal proceeding.

Similarly in In Re Ruffalo, where the United States Supreme Court classified disciplinary proceedings as quasi-criminal, there was no intent to equate them with criminal trials for all purposes. In Re Ruf-falo was a due process case and the Court simply reiterated what it had held on previous occasions; that in any proceeding where there is the possibility of deprivation of property or liberty, due process demands notice, and the opportunity to be heard.

Thus, neither Spevack nor In Re Ruffalo held that a disciplinary hearing is the equivalent of a criminal trial. Both, however, recognized that due to the severity of possible punishment due process demands that the proceedings be conducted with regard to the attorney’s rights of notice and opportunity to be heard.

We think it is clear that the Fifth Amendment privilege is available in a proper instance, but not on a blanket basis as asserted by respondent. Except for criminal trials, the purpose for the privilege controls its applicability rather than the forum in which it is asserted.

The constitutional language is: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” (United States Constitution, Amendment V).

A disciplinary proceeding held pursuant to a formal complaint filed by the complaints committee, while concededly having penal elements, is not a criminal case. Thus a disciplinary forum does not require blanket immunity as in a criminal case where the defendant may not even be compelled to take the witness stand. In a disciplinary proceeding the respondent attorney may be compelled to appear and take the witness stand.

Nevertheless, given the gravity of the situation and the serious consequences, the attorney, having taken the witness stand, may, on a question-by-question basis, make valid assertion of the Fifth Amendment privilege as to those questions which would tend to incriminate him of a state or federal criminal offense.

We make no comment on the availability of compelled testimony based on a grant of immunity, since that question is not now before this Court. Nor do we decide if the confidentiality of the disciplinary hearing required by statute is in and of itself such protection from use in a criminal trial as to allow for compelled testimony. That issue was not argued to this Court.

Therefore, for the reasons stated in Part I of this opinion, the motion of the attorney to quash the subpoena duces tecum and the summons to appear before the complaint counsel for an investigatory hearing is sustained.

MOTION TO QUASH THE SUBPOENA DUCES TECUM AND SUMMONS SUSTAINED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: WALKER, JUSTICE,

text:
    Jerry W. RAY, John L. Lester and Annie M. Lester v. ACME FINANCE CORPORATION.
    No. 50489.
    Supreme Court of Mississippi.
    Feb. 7, 1979.
    Jimmie H. Fields, Meridian, for appellant.

      Goldman & Goldman, Robert M. Dreyfus, Jr., Meridian, for appellee.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
    WALKER, Justice, for the Court:
   ON PETITION FOR REHEARING EN BANC

WALKER, JUSTICE,

FOR THE COURT:

The petition for rehearing is denied. However, after considering the briefs on the petition for rehearing and those in response, we note that the liability of Acme to Annie Lester under the Truth-in-Lending counterclaim was not argued before this Court. Therefore, the opinion is modified so as to delete all references to Annie Lester in Part IV of the opinion on that issue.

Opinion withdrawn and modified opinion substituted:

Acme sued to collect on a promissory note in default. Defendants Jerry W. Ray, John L. Lester and Annie M. Lester counterclaimed alleging violation of the Truth-in-Lending Act, 15 U.S.C. section 1601 et seq. (1976). The County Court of Lauderdale found the debt to be in default and awarded Acme principal and interest of $897.69 and attorney fees of $200.00. The counterclaim of defendants was dismissed with prejudice. On appeal to the Circuit Court of Lauderdale County, the decision of the County Court was affirmed.

Appellants assigned numerous grounds of error. Due to the decision of this Court, it is necessary to consider only four:

(1) Was there fraud perpetrated by Acme in the procurement of the loan?

(2) Was the loan usurious?

(3) Was the loan void as to Ray, since he was a minor when the contract was made?

(4) Was there a violation of the Federal Truth-in-Lending Act by Acme?

Jerry Ray, who was twenty years old, attempted to borrow money for the purchase of a car. He was informed by Acme a loan would be granted if his mother and stepfather cosigned the loan with him. The loan agreement was subsequently entered into with the three defendants as comakers of the loan. Six payments were made on the loan by either Jerry or his mother. After the sixth, Jerry wrecked the car and the defendants refused to make further payments allegedly because they had been told there was collision insurance which would cover the loan.

Jerry Ray’s testimony is the only evidence of fraud in the procurement of the loan contract. He testified the loan agent, Tinsley, told him that the automobile collision insurance was included in the loan. In contradiction, the loan documents do not reflect collision insurance and Tinsley testified, “I don’t believe he was led by our corporation or the promissory note or disclosure statement [to believe] that he had any type of automobile insurance.” Moreover, codefendants, John and Annie Lester, who were present at the transaction, testified there was no mention of insurance.

Fraud must be proven by clear and convincing evidence. Hamilton v. McGill, 352 So.2d 825 (Miss.1977); Considering the record as a whole, we cannot say the trial judge was incorrect in his determination that the defendants did not meet the burden of proving fraud.

II.

The appellants’ contention that the indebtedness became usurious upon acceleration is without merit.

HI. .

The contract was made when Jerry Ray was twenty. He subsequently and after achieving majority made several payments, but there is no proof in the record that he ratified the contract in writing after majority. It is clear that he expressly disaffirmed the contract. Mississippi Code Annotated section 15-3-11 (1972) provides that:

An action shall not be maintained whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification after full age of any promise or contract made during infancy, unless such promise or ratification shall be made by some writing, signed by the person to be charged therewith.

Since the requirements of the statute were not met, the judgment as to Jerry Ray must be reversed. See also Edmunds v. Mister, 58 Miss. 765 (1881) and Watson v. Peebles, 102 Miss. 725, 59 So. 881 (1912).

IV.

The Truth-in-Lending Act, 15 U.S.C. section 1639 (1976) as implemented by 12 C.F.R. section 226.4 (1977) requires that premiums for accident and health insurance be included in the finance charge unless (1) “The insurance coverage is not required by the creditor and this fact is clearly and conspicuously disclosed in writing to the customer,” and (2) “Any customer desiring such insurance coverage gives specific dated and separately signed affirmative written indication of such desire after receiving written disclosure to him of the cost of such insurance.” Here, the insurance premium which was for joint accident and health on Ray and John Lester was not included in the finance charge. A form was, however, furnished to and signed by Ray which clearly and conspicuously disclosed that health and accident insurance was not required by the creditor, thus satisfying the exclusion requirements as to Ray. Moreover, Ray signed the form requesting the insurance coverage. On the other hand, John Lester did not sign the disclosure form nor the request for insurance. In fact, he denied knowledge of both.

The question then is whether failure to obtain the Lester’s signature resulted in a violation of the Truth-in-Lending Act, since the cost of insurance was not included in the finance charge. The definition of customer in 12 C.F.R. section 226.2 (1977) [definition] is the “. . . natural person to whom consumer credit is offered or to whom it is or will be extended, and includes a co-maker, endorser, guarantor, or surety for such natural person who is or may be obligated to repay the extension of consumer credit.” (Emphasis added). Since this clearly makes John Lester a “customer” and since section 226.4 requires that the insurance be included in the finance charge unless the “customer” receives disclosure in writing that the insurance is not required and signs a request for the insurance, the requirements of the Act were not met.

Acme contends that the failure to obtain Lester’s signature was unintentional, resulted from a bona fide error, and therefore falls within the defense provided by 15 U.S.C. section 1640(c) which provides:

A creditor may not be held liable in any action brought under this section for a violation of this part if the creditor shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.

The majority of federal courts that have considered the defense have held it to apply only to “clerical errors.” McGowan v. King, Inc., 569 F.2d 845 (5th Cir. 1978); Ives v. W. T. Grant Co., 522 F.2d 749 (2nd Cir. 1975); Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161 (7th Cir. 1974); Palmer v. Wilson, 502 F.2d 860 (9th Cir. 1974).

Clerical error is defined in Black’s Law Dictionary, page 319 (4th ed., 1968) as: “Generally a mistake in writing or copying.” In Ratner v. Chemical Bank New York Trust Company, 329 F.Supp. 270 (S.D.N.Y.1971), the court noted that the original version of the senate bill had no exemption for unintentional or bona fide violations but based on objections in hearings that the complex calculations involved would necessarily generate some unintentional mathematical error, the bill was changed. The error here is not a mathematical error, but one of failure to comply with an affirmative requirement of the Act. While such an error may have been inadvertent, it is not the type of clerical error protected by the defense of 15 U.S.C. section 1640(c). To hold otherwise would put an undue burden upon debtors attempting to enforce the requirements of the Act. Even if the error had been a clerical error, we note there was no procedure set up to screen applications once they are completed to detect such errors as occurred here. In order to invoke the defense there must be proof that the “violation was not intentional and resulted from bona fide error notwithstanding maintenance of procedures reasonably adapted to avoid such error.” (Emphasis added). For these reasons, the defense is not available to Acme.

In summary, the trial court was incorrect in holding the loan contract valid against Ray. We conclude the contract was void as to Ray because he had not ratified the contract in writing after attaining majority. The suit is dismissed as to Ray. The trial court was correct in determining there were no fraudulent representations as to the type of insurance coverage included in the contract. Therefore the judgment of the trial court on the promissory note in favor of Acme against John and Annie Lester is affirmed. The trial court was incorrect in dismissing John Lester’s counterclaim for the statutory penalty and attorney fees under the Truth in Lending Act. We hold that Acme’s failure to obtain John Lester’s signature on the insurance request resulted in a violation of the Act.

For the foregoing reasons, the cause is remanded for award of penalty and attorney fees pursuant to 15 U.S.C. section 1640 (1976) and entry of appropriate judgment in the cause.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.

      . We note that Mississippi Code Annotated section 93-19-13 (Supp.1977) removes the disability of persons eighteen years of age or older, however, the statute was not in effect at the time of this transaction.


text:
    Timothy SNODDY v. STATE of Mississippi.
    No. 51009.
    Supreme Court of Mississippi.
    Feb. 7, 1979.
    Deanna Birdsong, Gulfport, for appellant.
    A. F. Summer, Atty. Gen. by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and COFER, JJ., concur.


text:
    Kenny BROWN v. STATE of Mississippi.
    No. 50933.
    Supreme Court of Mississippi.
    Feb. 7, 1979.
    Curtis H. Austin, Burdine & Austin, Columbus, for appellant.
   Appeal from Circuit Court, Attala County; Clarence E. Morgan, Jr., Judge.

A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    KELLEY BROTHERS CONTRACTING, INC. v. Richard E. LACY et ux.
    No. 50889.
    Supreme Court of Mississippi.
    Feb. 7, 1979.
    Charles M. Leggett, Waynesboro, for appellant.
    Hurt & Dickerson, Darryl A. Hurt, Luce-dale, for appellee.
    Before PATTERSON, C. J. and BROOM and BOWLING, JJ.
   Appeal from Chancery Court, George County; Kenneth B. Robertson, Chancellor.

AFFIRMED.


text:
    Roland Daniel WADE, Jr. v. Mrs. Deborah Slack WADE.
    No. 50838.
    Supreme Court of Mississippi.
    Feb. 7, 1979.
    Harry L. Kelley, Joseph P. Gautier, Jackson, for appellant.
    Barnett, Montgomery, McClintock & Cunningham, Ross Barnett, Jr., Robert C. Gren-fell, Jackson, for appellee.
    Before ROBERTSON, P. J. and WALKER and LEE, JJ.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

AFFIRMED.


text:
    Willie Earl HARPER v. STATE of Mississippi.
    No. 50961.
    Supreme Court of Mississippi.
    Feb. 7, 1979.
    Deanna Birdsong, Gulfport, for appellant.
    A. F. Summer, Atty. Gen., by Marvin L. White, Jr., Special Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

AFFIRMED.


text:
    Sadie Ruth NASH v. Barbara Jean NASH, Individually and as Administratrix of Estate of L. A. Nash, Deceased.
    No. 50872.
    Supreme Court of Mississippi.
    Feb. 7, 1979.
    Jennings & Moyo, Melvin R. Jennings, Jackson, for appellant.
    L. Paul Kossman, Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

AFFIRMED.


text:
    BIG YANK, INC. and The Home Insurance Company v. DEPENDENTS OF Richard H. PERSON, Deceased.
    No. 51209.
    Supreme Court of Mississippi.
    Feb. 7, 1979.
    Mitchell, McNutt, Bush, Lagrone & Sams, Wade H. Lagrone, Tupelo, for appellants.
    No brief filed on behalf of appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Yalobusha County; Andrew C. Bolen, Judge.

JOINT MOTION FOR ADJUSTMENT OF AWARD AND FOR ALLOWANCE OF ATTORNEYS FEES SUSTAINED AND JUDGMENT OF THE TRIAL COURT AFFIRMED, AS MODIFIED.