71 So. 316 | Miss. | 1916
delivered the opinion of the court.
This case is here for the second time, it having been reversed in Wherry et al. v. Latimer, 103 Miss. 524, 60 So. 563, 642; this court deciding that there was no fraud or undue influence used, or mental incapacity shown as .to Mr. Samuel Wherry, the insured in the insurance policies about which this controversy arose. When the cause went back to the lower court the appellees amended their bill of complaint and alleged in substance that the appellant exercised undue influence over her father, the deceased Wherry, and that, while he was feeble in mind and body and a mental weakling, she unduly and corruptly induced her father to change the insurance policy to her, and in order to get him to more readily consent promised that, if he would make her the sole beneficiary of this insurance, she would keep the premiums and assessments paid up, pay his debts- out of the proceeds, “and divide what was left between the children, her sisters and brother;” that he readily assented
The appellant here invokes the doctrine of "the law of the case,” urging that this appeal should be controlled and settled by the opinion in Wherry et al. v. Latimer et al., supra. The decree of the3 chancellor in the case before us now reads in part as follows:
"And now having fully considered said cause, and all of the questions of law and fact at issue therein, and being of the opinion after a due consideration of all of the material facts and circumstances proven, and it so appearing to the satisfaction of the court, that defendant Miss M. J. Wherry, now Mrs. M. J. Cochran, had and possessed undue influence and control over the will, actions, and conduct of her father, Samuel Wherry, at the time of. the change of beneficiaries in the policies or relief fund certificates described in the pleadings, and that said undue influence was then exercised by her, and that in order to induce her father to yield more readily to her suggestion and request she said to him in effect that, if he would make her the sole beneficiary in the two policies, she would keep the premiums and assessments paid up and would pay his debts out of the money she,received thereon, and divide what was left equally between all of the children and herself, and that, yielding to such undue influence and promise and in consideration of said promise, said change was made as sought by said defendant.”
It is very evident 'to us that the chancellor was persuaded for the second time to believe, and he so decreed, that the change of the beneficiary in these insurance policies was brought about by undue influence, and that such undue influence, which is tantamount to corruption
Furthermore we.do not think from the whole testimony in this case that the proof is sufficient to lawfully divert the insurance money from appellant, the beneficiary written in the face of the policies, to the appellees. The testimony in the record does not clearly show that there was a parol trust established in favor of the appellees by fraud, or by agreement with appellant. The competent evidence in the case overwhelmingly refutes this idea; the proof sustaining the contention is so slight that we feel it would be unsafe to rely upon it as. establishing a parol trust. And the correctness of this conclusion becomes more apparent to us when we consider the fact that the appellees, their' attorneys, and the chancellor, throughout the records in both cases,, have clung tenaciously to the charge of undue influence,, mental incapacity, fraud, arid corruption in connection;
Reversed, and decree here.
Reversed.