        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CA-00387-COA

DELORIS JACKSON                                                         APPELLANT

v.

GLENDORA MILLS                                                            APPELLEE


DATE OF JUDGMENT:                         02/19/2014
TRIAL JUDGE:                              HON. JANACE H. GOREE
COURT FROM WHICH APPEALED:                MADISON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                   J.M. RITCHEY
ATTORNEY FOR APPELLEE:                    WESLEY THOMAS EVANS
NATURE OF THE CASE:                       CIVIL - OTHER
TRIAL COURT DISPOSITION:                  ORDERED THE APPELLEE TO PAY THE
                                          APPELLANT HALF THE FUNDS IN THE
                                          DECEDENT’S JOINT ACCOUNT AT THE
                                          TIME OF THE DECEDENT’S DEATH BUT
                                          DENIED ALL THE APPELLANT’S OTHER
                                          REQUESTED RELIEF
DISPOSITION:                              AFFIRMED - 01/12/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., CARLTON AND FAIR, JJ.

      CARLTON, J., FOR THE COURT:

¶1.   On February 13, 2009, Deloris Jackson filed a complaint in Madison County Chancery

Court against Glendora Mills individually and in her capacity as the executor of Elease

Harris’s estate. Jackson asserted that Mills had exerted undue influence on Harris to

appropriate Harris’s property and money for her own personal use and benefit. Jackson

further claimed that Mills breached her fiduciary duty to Harris by mismanaging Harris’s

assets and property and by improperly administering Harris’s estate.
¶2.    Jackson’s complaint requested that the chancellor provide the following relief: (1)

establish and enforce a constructive trust in Jackson’s favor as to two certificates of deposit

(CDs); (2) find that Jackson was entitled to half of the principal of a $50,000 CD, along with

all the accrued interest; (3) find that Jackson was entitled to all the principal and the accrued

interest on a $47,000 CD; (4) find that Jackson was entitled to half of the funds in a joint

account at the time of Harris’s death; and (5) remove Mills as the executor of Harris’s estate.

¶3.    At the hearing on Jackson’s complaint, Jackson and Mills were the only two witnesses

to testify. After considering the parties’ evidence and testimony, the chancellor granted

Jackson relief on only one issue. The chancellor found that Mills converted the balance of

the funds in Harris’s joint account for her personal use, and the chancellor therefore ordered

Mills to pay Jackson her half of the balance remaining in the joint account at the time of

Harris’s death.

¶4.    Aggrieved by the chancellor’s judgment, Jackson appeals to this Court and raises the

following issues: (1) the chancellor erred by finding that Jackson did not seek to set aside

the general power of attorney Harris executed and the gifts Mills made to herself under the

power of attorney; (2) the chancellor erred by failing to apply a presumption of invalidity to

Mills’s gifts to herself and to require Mills to overcome the presumption by clear and

convincing evidence; (3) the chancellor erred by relying on dicta from McNeil v. Hester, 753

So. 2d 1057 (Miss. 2000); (4) the chancellor erred by failing to establish and impose

constructive trusts in Jackson’s favor as to the financial gifts Mills received while acting as


                                               2
Harris’s attorney-in-fact; (5) the chancellor erred by finding that Harris authorized the

withdrawals Mills made for her own personal benefit and for the transfer of money to two

CDs; (6) the chancellor erred by finding that Mills’s conduct failed to breach her fiduciary

duty to Harris; and (7) the chancellor erred by finding an ademption occurred as to the devise

made to Jackson by Harris’s will.

¶5.    Upon review, we find the record reflects substantial credible evidence to support the

chancellor’s findings. Id. at 1064 (¶26). We therefore affirm the chancellor’s judgment.

                                           FACTS

¶6.    Harris was born in 1906, and she died in 2006 at age 100. Following Harris’s death

and the probate of her will, Jackson filed a complaint against Mills in chancery court.

Jackson alleged that Mills abused her power as Harris’s attorney-in-fact and misappropriated

Harris’s property for her own personal benefit. As a result of these alleged wrongful acts,

Jackson sought several types of relief from the chancellor.

¶7.    At the hearing on her complaint, Jackson testified that she was Harris’s second cousin

and that Harris had known Jackson all Jackson’s life. Along with her husband and three

sons, Jackson moved into a mobile home on Harris’s property in 1974 and began paying

Harris rent. Jackson testified that she and Harris visited each other on a regular basis after

the family moved onto Harris’s property. Even after Harris moved from her home to a care

facility, Jackson testified that she continued to visit Harris on a regular basis.

¶8.    Mills also testified that she was Harris’s second cousin. However, Mills did not meet


                                               3
Harris until a family member introduced them around 1986. At the time of the introduction,

Harris was about eighty years old. After their initial meeting, Mills began to visit Harris on

a regular basis. In fact, Mills stated that she drove to Harris’s home at least once a week to

visit Harris. Over the course of their relationship, Harris and Mills became good friends, and

Mills even came to regard Harris as a mother-like figure.

¶9.    Both Jackson and Mills agreed that Harris’s health began to decline around 2000. As

a result, Harris hired full-time sitters to provide at-home care. Mills also testified that she

began to visit Harris more frequently and would stay with Harris on the weekends. Mills

further testified that she began to cook and clean for Harris, drive Harris to her doctors’

appointments, supervise Harris’s doctors’ visits and medical treatments, administer Harris’s

medication, and manage Harris’s financial affairs.

¶10.   Prior to her death in 2006, Harris opened a joint checking account at Trustmark

National Bank. Harris named herself and Jackson as the account’s joint owners with the

right of survivorship. On November 21, 2000, Harris and Jackson signed a change-of-

account form to authorize the addition of Mills’s name to the joint account. Neither Mills

nor Jackson ever deposited any personal funds into the joint account. However, acting in her

capacity as Harris’s attorney-in-fact, Mills regularly withdrew funds from the joint account

to pay for Harris’s expenses. In addition, Mills made a number of withdrawals to pay for her

own personal expenses and for expenses incurred by several of her relatives, including her

son and daughter. Mills testified, though, that she always made these personal withdrawals


                                              4
with Harris’s knowledge and consent.

¶11.   In 2003, due to Harris’s continued health decline and the expense of maintaining full-

time sitters, Mills moved Harris to the Myles Retreat Center in Tougaloo, Mississippi.

According to Jackson’s testimony, between 2000 and 2006, Harris’s physical health

continued to decline, and her mental health worsened. Jackson stated that, on the bad days,

Harris often stared into space and had trouble carrying on a conversation or comprehending

the questions Jackson asked her. By contrast, although Mills admitted that Harris’s physical

strength continued to decline, she denied that Harris’s mental health had also begun to

deteriorate while Harris lived at the Myles Retreat Center.

¶12.   On August 25, 2003, while hospitalized at Baptist Hospital, Harris executed a general

durable power of attorney. The document designated Mills as Harris’s attorney-in-fact and

authorized Mills to perform a broad range of acts on Harris’s behalf. Mills testified the

power of attorney was prepared after hospital staff suggested that Harris needed a person

who could sign medical-treatment forms on her behalf. Harris had spent the night in the

emergency room, and at one point, her doctors thought she might not survive. The following

morning Mills encountered an attorney in the hospital lobby. Mills stated that she had never

previously met the attorney but that he was standing in the hospital lobby asking whether

anyone required legal services. Mills asked the attorney to accompany her to Harris’s room

to discuss preparing a power of attorney. Even though Mills admitted that Harris was in poor

physical condition and on medication at the time she discussed the power of attorney with


                                             5
the attorney, Mills insisted that Harris was still mentally alert.

¶13.   On September 14, 2003, Mills signed a deed on Harris’s behalf, which conveyed a

fifty-nine-acre tract of Harris’s land (Tract III) to Percy Nichols for $140,000. As the record

reflects, Harris’s will devised Tract III to Mills as the residual beneficiary of her estate. Mills

testified that Harris negotiated the sale of Tract III herself but then asked Mills to attend the

closing and sign the deed on Harris’s behalf as her attorney-in-fact.

¶14.   Two months later, on November 28, 2003, Mills withdrew $50,000 from Harris’s joint

account and purchased a CD. The CD was titled jointly in the names of Harris, Mills, and

Mills’s daughter, with the right of survivorship. Although Harris was not present when the

transaction occurred, Mills testified that Harris instructed Mills, as her attorney-in-fact, to

complete the transaction and place the three names on the CD.

¶15.   On February 14, 2006, Mills, again acting in her capacity as Harris’s attorney-in-fact,

signed another deed to authorize the sale of Harris’s residence and the surrounding 2.3 acres

of land (Tract II). Nichols, who purchased Tract III in 2003, also purchased Tract II for

$47,000. Under Harris’s will, her residence, along with the property on which it sat, was to

be left to Jackson. As with the earlier real-estate transaction, Mills testified that she had no

part in the negotiations to sell the land because Harris made the arrangements herself.

Following the sale of Tract II, Mills testified that Harris instructed her to use the sale

proceeds to purchase another CD worth $47,000. As with the prior CD, Mills jointly titled

this second CD in the names of Harris, Mills, and Mills’s daughter, with the right of


                                                6
survivorship.

¶16.   On April 26, 2006, just over two months after the sale of Tract II and the purchase of

the second CD, Harris died at the age of 100. The bank statements for Harris’s joint account

indicated that the account contained $26,071.46 at the time of her death. Mills admitted

during cross-examination that she never paid Jackson her half of the funds in the joint

account. Instead, Mills admitted that, after paying Harris’s funeral expenses totaling

$6,556.39, she closed the joint account and spent the remaining funds for her personal use.

¶17.   Following Harris’s death, the chancery court admitted her last will and testament to

probate. The will, which Harris had executed in 1997, designated Mills the executor of her

estate and waived any requirement for Mills to file an accounting of her actions as executor.

Harris’s will also directed the following three bequests and devises: (1) Isadore Brown Sr.

was to receive a one-acre tract of Harris’s land (Tract I); (2) Jackson was to receive Harris’s

residence, situated on about one acre of land (Tract II), and all the residence’s furniture,

furnishings, and fixtures, with the exception of all the personal property and furnishings in

the residence’s front bedroom, which Harris left to Mills; and (3) Mills was to receive the

residue of Harris’s estate, including an approximately fifty-nine-acre tract of land (Tract III).

As the record reflects, Mills, acting as Harris’s attorney-in-fact, sold two of the tracts

mentioned in Harris’s will prior to Harris’s death. In 2003, Nichols purchased Tract III,

which the will devised to Mills, and in 2006, he purchased Tract II, which the will devised

to Jackson.


                                               7
¶18.   In February 2009, Jackson filed her complaint against Mills and requested that the

chancellor grant the following relief: (1) establish and enforce a constructive trust as to the

$50,000 Mills withdrew from the joint account and invested in a CD and hold that Jackson

was entitled to one-half of the $50,000, together with all accrued interest; (2) find that the

sale of Tract II failed to cause an ademption of the land devised to Jackson in Harris’s will,

establish and enforce a constructive trust as to the $47,000 in sale proceeds that Mills

transferred to a CD, and hold that Jackson was entitled to the entire $47,000, plus all accrued

interest; (3) find that Mills owed Jackson half of the funds remaining in the joint account at

the time of Harris’s death; and (4) determine that Mills possessed a conflict of interest and

failed to properly administer Harris’s estate and, as a result, remove Mills as the executor of

Harris’s estate.

¶19.   In her final judgment, the chancellor found that a confidential relationship existed

between Mills and Harris at the time Harris executed her general power of attorney. Because

Mills and Jackson served as the only witnesses at the hearing and provided self-serving

testimony, the chancellor stated that she must “look at the surrounding circumstances [of the

transactions] to determine if Mills abused her relationship with . . . Harris.”

¶20.   The chancellor first considered the sale of Tract III and whether a constructive trust

should be imposed as to the $50,000 in sale proceeds transferred to the CD. In 2003, Mills

sold Tract III for $140,000. As previously stated, Tract III encompassed a fifty-nine-acre

tract of land that Harris’s will devised to Mills. The chancellor found that Jackson never


                                              8
asked the chancellor to set aside the conveyance, nor did Jackson claim that the transaction

involved an abuse of Mills’s confidential relationship with Harris. The chancellor therefore

found that no abuse of a confidential relationship occurred as to the conveyance of Tract III.

¶21.   The chancellor found, however, that Jackson challenged Mills’s transfer of $50,000

of the sale proceeds to the CD titled in Mills’s name, her daughter’s name, and Harris’s

name. Jackson argued that Harris intended for Jackson and Mills to equally share all the cash

and liquid assets Harris owned at the time of her death. Jackson further asserted that Mills

circumvented Harris’s intent when she transferred the $50,000 to the CD.

¶22.   After considering the evidence and testimony, the chancellor found Jackson’s

allegations of abuse as to the $50,000 CD lacked merit. Although Harris’s will devised Tract

III to Mills, Tract III was the first property sold when Harris needed more money for her

care. The chancellor found that the sale resulted in an ademption of the property devised to

Mills by Harris’s will and “primarily disinherited Mills at the expense of caring for [Harris’s]

needs[.]” The chancellor further found that Harris never intended Jackson to derive any

benefit from Tract III and that Mills never removed the proceeds from the sale of Tract III

beyond Harris’s reach. Thus, the chancellor concluded that no abuse of a confidential

relationship occurred, and she declined to impose a constructive trust as to the $50,000 in

sale proceeds transferred to the CD.

¶23.   The chancellor next considered Jackson’s assertion that Mills abused her confidential

relationship with Harris by spending about $17,581.25 from the joint account for the benefit


                                               9
of herself and others. The chancellor found that the $17,581.25 constituted a portion of the

sale proceeds from Tract III. The chancellor noted Mills’s uncontroverted testimony that the

expenditures were made with Harris’s knowledge and consent. The chancellor also stated

that, but for the fact that Harris needed the sale proceeds for her living expenses, Mills would

have received Tract III under Harris’s will. Based on her findings, the chancellor concluded

that Mills’s personal withdrawals, which amounted to $17,581.25, failed to constitute an

abuse of her confidential relationship with Harris.

¶24.   The chancellor next considered whether a constructive trust should be imposed in

Jackson’s favor over the $47,000 Mills transferred into a second CD titled in the names of

Harris, Mills, and Mills’s daughter. As previously stated, Harris received the $47,000 after

selling Tract II. Because Harris’s will devised Tract II to Jackson, the chancellor also

considered whether the sale of the land caused an ademption of the devise to Jackson.

¶25.   According to Mills, Harris herself arranged to sell Tract II, along with the residence,

and Mills simply followed Harris’s instructions. The chancellor found that the residence

remained vacant for about three years prior to the sale of Tract II. During those three years,

Mills paid for the home’s upkeep from Harris’s joint account. The chancellor found that, by

the time Harris sold Tract II, a substantial portion of the proceeds from the earlier sale of

Tract III had already been spent. In addition, the chancellor found that neither Harris nor

Mills had any way to know how much longer Harris would live and require financial support.

As a result of these findings, the chancellor concluded that no abuse of a confidential


                                              10
relationship resulted from the sale of Tract II and the transfer of the proceeds to the CD.

¶26.   The chancellor next considered whether the sale of Tract II caused an ademption of

the devise made to Jackson by Harris’s will. Although Nichols purchased Tract II during

Harris’s lifetime, Jackson contended that no ademption occurred because Mills, rather than

Harris, disposed of the property. Jackson further argued that the disposition of the land was

not an intentional act by Harris and instead contradicted her testamentary intent. Despite

Jackson’s claims, the chancellor found that Mills, acting as Harris’s attorney-in-fact and with

Harris’s knowledge and consent, sold Tract II to Nichols. Because the conveyance occurred

during Harris’s lifetime, Tract II no longer remained in Harris’s possession at the time of her

death. As a result, the chancellor concluded that an ademption occurred as to the devise

made to Jackson in Harris’s will. The chancellor also concluded that Jackson was not

entitled to any of the principal and accrued interest from the $47,000 CD.

¶27.   The chancellor next considered Jackson’s claim that Mills owed her half of the funds

remaining in the joint account at the time of Harris’s death. The chancellor found that

neither Mills nor Jackson possessed any ownership interest in the joint account while Harris

lived. Thus, any funds—such as the proceeds from the sale of Tracts II and III—that were

transferred from the account prior to Harris’s death, were not subject to the right of

survivorship. At the time of Harris’s death, however, the joint account contained $26,071.46.

Mills then withdrew $6,556.39 to pay Harris’s funeral expenses, leaving an account balance

of $19,515.07. The chancellor found that Jackson was entitled to half of the $19,515.07 and


                                              11
that Mills had converted the funds for her personal use. The chancellor therefore ordered

Mills to pay Jackson $9,757.54 as her half of the funds from the joint account.

¶28.   On the final issue of whether Mills should be removed as the executor of Harris’s

estate, the chancellor found that Jackson failed to prove that Mills improperly administered

the estate or possessed a conflict of interest. The chancellor thus concluded that the issue

lacked merit, and she denied the requested relief.

¶29.   Aggrieved by the chancellor’s judgment, Jackson now appeals to this Court.

                                STANDARD OF REVIEW

¶30.   This Court employs a limited standard of review when reviewing a chancellor’s

decisions. McNeil, 753 So. 2d at 1063 (¶21). “[O]ur standard of review of findings of fact,

including those regarding a constructive trust, is limited in that we must not set aside a

chancellor’s findings of fact so long as they are supported by substantial credible evidence.”

Davidson v. Davidson, 667 So. 2d 616, 620 (Miss. 1995) (citation omitted). We only disturb

the chancellor’s findings if they are manifestly wrong or clearly erroneous or if the chancellor

applied an incorrect legal standard. Ainsworth v. Ainsworth, 139 So. 3d 761, 762 (¶3) (Miss.

Ct. App. 2014). However, we review a chancellor’s conclusions of law de novo. Lowrey v.

Lowrey, 25 So. 3d 274, 285 (¶26) (Miss. 2009). “Whether a constructive trust exists is a

question of law, which [the appellate court] reviews de novo.” Barriffe v. Estate of Nelson,

153 So. 3d 613, 618 (¶26) (Miss. 2014).

                                       DISCUSSION


                                              12
       I.       Whether the chancellor erred by finding that Jackson did not seek
                to set aside the general power of attorney Harris executed and the
                gifts Mills made to herself under the power of attorney.

       II.      Whether the chancellor erred by failing to apply a presumption of
                invalidity to Mills’s gifts to herself and to require Mills to overcome
                the presumption by clear and convincing evidence.

       III.     Whether the chancellor erred by relying on dicta from McNeil, 753
                So. 2d at 1057.

       IV.      Whether the chancellor erred by failing to establish and impose
                constructive trusts in Jackson’s favor as to the financial gifts Mills
                received while acting as Harris’s attorney-in-fact.

       V.       Whether the chancellor erred by finding that Harris authorized the
                withdrawals Mills made for her own personal benefit and for the
                transfer of money to two CDs.

       VI.      Whether the chancellor erred by finding that Mills’s conduct failed
                to breach her fiduciary duty to Harris.

¶31.   Jackson raises seven assignments of error. Because we find that Jackson’s first six

assignments of error are integrally related, we address these issues together.

¶32.   As the record reflects, Mills withdrew a total of $17,581.25 from Harris’s joint

account for her own personal use. In addition, while acting as Harris’s attorney-in-fact, Mills

transferred proceeds from the sale of Tracts II and III to two CDs titled in the names of

Harris, Mills, and Mills’s daughter. On appeal, Jackson asserts various claims of abuse

related to these disputed transactions and the chancellor’s rulings on the validity of the

transactions.

¶33.   Specifically, Jackson contends: (1) the chancellor erred by finding that Jackson did


                                              13
not seek to set aside Harris’s power of attorney and the inter vivos gifts Mills made to herself

under the power of attorney; (2) the chancellor erred by failing to apply a presumption of

invalidity to the inter vivos gifts Mills made to herself; (3) the chancellor erred by relying on

dicta from the Mississippi Supreme Court’s holding in McNeil to find that the presumption

of invalidity fails to apply to inter vivos gifts when a party’s only requested relief is a

constructive trust; (4) the chancellor erred by failing to impose a constructive trust over the

$17,581.25 Mills withdrew for her own benefit and the sale proceeds Mills transferred to the

two CDs; (5) the chancellor erred by finding that Harris authorized Mills’s withdrawal of

joint-account funds for these purposes; and (6) the chancellor erred by finding that Mills’s

conduct failed to breach her fiduciary duty to Harris.

¶34.   In addressing Jackson’s allegations against Mills, the chancellor stated in her final

judgment that “Jackson is not seeking to have [Harris’s] power of attorney set aside, nor is

she seeking to have the conveyances that were made pursuant to the power of attorney set

aside.” The chancellor found that Jackson’s allegations of abuse pertained to Mills’s use of

the proceeds from the sale of Tracts II and III and that Jackson did not seek to set aside the

real-estate conveyances. Instead, the chancellor determined that the only relief Jackson

requested was the imposition of a constructive trust in her favor over the sale proceeds.

¶35.   On appeal, Jackson agrees with the chancellor’s finding that she never sought to set

aside the conveyances of Harris’s real property but instead sought a constructive trust as to

the sale proceeds derived from the real-estate transactions. Jackson contends, though, that


                                               14
the chancellor erroneously concluded Jackson’s complaint never sought to set aside Harris’s

power of attorney and the gifts Mills received or made for her own benefit under the power

of attorney.

¶36.   Despite Jackson’s claims to the contrary, the record contains substantial credible

evidence to support the chancellor’s finding that Jackson failed to attack the validity of

Harris’s power of attorney and instead sought only to impose constructive trusts as to the

gifts Mills received while acting as Harris’s attorney-in-fact. The record reflects that

Jackson’s complaint clearly sought the relief of a constructive trust and that the evidence

presented was consistent with that requested relief. Because we find no abuse of discretion

with regard to this finding by the chancellor, we turn to an analysis of Jackson’s remaining

claims. See Davidson, 667 So. 2d at 620.

¶37.   As previously stated, Jackson argues that the chancellor erred by failing to impose

constructive trusts in her favor over the inter vivos gifts Mills received or made for her

benefit, including the $17,581.25 Mills withdrew from Harris’s joint account and the sale

proceeds Mills transferred to the two CDs.           In McNeil, the supreme court defined

constructive trust as follows:

             A constructive trust is a fiction of equity created for the purpose of
       preventing unjust enrichment by one who holds legal title to property which,
       under principles of justice and fairness, rightfully belongs to another. This
       Court has defined a constructive trust as follows:

               A constructive trust is one that arises by operation of law against
               one who, by fraud, actual or constructive, by duress or abuse of
               confidence, by commission of wrong, or by any form of

                                               15
              unconscionable conduct, artifice, concealment, or questionable
              means, or who in any way against equity and good conscience,
              either has obtained or holds the legal right to property which he
              ought not, in equity and good conscience, hold and enjoy.

McNeil, 753 So. 2d at 1064 (¶24) (internal citations omitted).

¶38.   “The burden of proving a constructive trust rests on the party seeking to have the

constructive trust imposed.” Cooper v. Gilder, 156 So. 3d 262, 274 (¶40) (Miss. Ct. App.

2009) (citing McNeil, 753 So. 2d at 1069-70 (¶45)). “The party seeking a constructive trust

must prove by clear and convincing evidence that there existed a confidential relationship

and that there was an abuse of that confidence.” Id. “While a confidential or fiduciary

relationship does not in itself give rise to a constructive trust, an abuse of confidence

rendering the acquisition or retention of property by one person unconscionable against

another suffices[.]” Allred v. Fairchild, 785 So. 2d 1064, 1068 (¶9) (Miss. 2001) (citation

omitted).

¶39.   Neither Jackson nor Mills disputes the chancellor’s finding of a confidential

relationship.1 Instead Jackson asserts that, because a confidential relationship existed


       1
       Our caselaw establishes that the following factors should be considered to determine
whether a confidential relationship exists:

       (1) whether one person has to be taken care of by others, (2) whether one
       person maintains a close relationship with another, (3) whether one person is
       provided transportation and has their medical care provided for by another, (4)
       whether one person maintains joint accounts with another, (5) whether one is
       physically or mentally weak, (6) whether one is of advanced age or poor
       health, and (7) whether there exists a power of attorney between the one and
       another.

                                             16
between Harris and Mills, Mississippi precedent presumes the inter vivos gifts Mills made

to herself were invalid as the product of undue influence. Jackson also asserts that the

chancellor erred by finding that the numerous gifts Mills made to herself from Harris’s

property failed to breach the fiduciary duty Mills owed to Harris.

¶40.   According to Jackson, a presumption of undue influence and invalidity attached to the

inter vivos gifts, and the chancellor erred by failing to require Mills to rebut this presumption

by clear and convincing evidence. Jackson contends the chancellor erroneously relied on

dicta from the supreme court’s holding in McNeil to find that the presumption of invalidity

fails to arise for inter vivos gifts when a party’s only requested relief is a constructive trust.

Jackson asserts that all such statements by the McNeil court constituted dicta rather than

binding precedent. As the record reflects, the chancellor found the presumption of invalidity

inapplicable because Jackson failed to attack the transactions themselves.

¶41.   In attacking the sufficiency of the evidence supporting the chancellor’s findings,

Jackson argues that Mills offered nothing other than her own self-serving testimony to show



In re Estate of Dabney, 740 So. 2d 915, 919 (¶12) (Miss. 1999) (citations omitted). The
record here contains clear and convincing evidence to support the chancellor’s finding that
a confidential relationship existed between Harris and Mills. The record reflects that Harris
and Mills met when Harris was eighty and that the two maintained a very close relationship
until Harris’s death at 100 years old. During the hearing, Mills testified that, as Harris’s
health declined, Harris increasingly relied on Mills’s assistance. Mills testified that she took
care of Harris by cooking and cleaning for Harris, driving Harris to her doctors’
appointments, supervising Harris’s doctors’ visits and medical treatments, administering
Harris’s medication, and managing Harris’s financial affairs. In addition, Harris added
Mills’s name to her joint account and executed a power of attorney appointing Mills as her
attorney-in-fact.

                                               17
that Harris authorized each of the disputed transactions. Jackson contends Mills’s testimony

failed to satisfy Mills’s burden of proof, and Jackson asserts that the chancellor erred by

finding Harris authorized Mills’s transactions. In summary, Jackson claims that Mills’s

actions were unauthorized and that Mills breached her fiduciary duty to Harris. Jackson also

argues that the chancellor erred by failing to impose constructive trusts in her favor.

¶42.   In considering whether to impose a constructive trust in Jackson’s favor, the record

reflects that the chancellor stated the following:

       According to McNeil, the [supreme court] stated that it had applied this
       presumption [of invalidity to an inter vivos gift] only in cases where a party
       has challenged the validity of a transaction and is seeking to set aside the
       transaction as invalid. The [supreme] [c]ourt further stated that it has never
       shifted the burden of proof to a grantee in cases where a complainant requests
       a constructive trust. The presumption discussed in Madden [v. Rhodes, 626
       So. 2d 608, 618 (Miss. 1993),] does not apply where a party’s only requested
       relief is the imposition of a constructive trust. In the case at bar, Jackson is not
       seeking to have the transactions set aside. She is only seeking the imposition
       of a constructive trust[.] [T]herefore, the [c]ourt is not required to shift the
       burden to [Mills].

¶43.   In McNeil, the complainant argued that the presumption of invalidity applied to

several CDs, and he requested that the chancellor impose a constructive trust as to the CDs.

McNeil, 753 So. 2d at 1068 (¶¶39-40). The supreme court addressed the complainant’s

argument as follows:

               McNeil lastly argues that because the [CDs] were an inter vivos gift, the
       gift is presumed invalid, shifting the burden to the executors. McNeil cites
       Madden v. Rhodes, 626 So. 2d 608, 618 (Miss. 1993), for the proposition that
       where there exists a confidential relationship between the parties to a
       transaction, there is an automatic presumption that the conveyance of an inter
       vivos gift was the product of undue influence. In such a situation, the gift is

                                               18
       presumptively invalid, and unless the presumption is rebutted by clear and
       convincing evidence offered by the party wishing to uphold the validity of the
       gift, the conveyance must fail. Madden[, 626 So. 2d] at 618-19. See also
       Cooper v. Crabb, 587 So. 2d 236, 243 (Miss. 1991). McNeil argues that the
       chancellor erred in requiring McNeil to present clear and convincing evidence
       of a constructive trust and in not requiring the co-executors to rebut a
       presumption of undue influence.

              McNeil’s argument is misplaced. As Madden states, where the
       presumption of undue influence arises, a gift is presumed invalid, and unless
       the donee rebuts the presumption, the conveyance must fail. Madden[, 626 So.
       2d] at 618-19. This Court has applied this presumption only in cases where
       a party has challenged the validity of a transaction, seeking to set aside the
       transaction as invalid. McNeil argued before the trial court and before this
       Court that, though the gift to the executors is valid, a constructive trust should
       be imposed under principles of equity. McNeil does not argue that the gift is
       invalid. The presumption discussed in Madden does not apply where a party’s
       only requested relief is the imposition of a constructive trust.

McNeil, 753 So. 2d at 1068 (¶¶39-40) (emphasis added).

¶44.   As previously discussed, Jackson raised no dispute as to the validity of the sale of

Harris’s land, and she never asked the chancellor to set aside the real-estate conveyances.

Instead, Jackson requested that the chancellor uphold the conveyances and impose a

constructive trust as to the sale proceeds transferred to the CDs. While McNeil states that

“[t]he presumption discussed in Madden does not apply where a party’s only requested relief

is the imposition of a constructive trust,” Jackson insists that the chancellor erred by not

treating this language as dicta and by not applying a presumption of invalidity to Mills’s

transfer of the land-sale proceeds to the CDs that included Mills’s name on the titles. See

McNeil, 753 So. 2d at 1068 (¶¶39-40). Jackson also contends that the chancellor erred by

not applying a presumption of invalidity to the withdrawals Mills made totaling $17,581.25,

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which Jackson alleges also constituted improper inter vivos gifts.

¶45.   Despite Jackson’s assertions, we find the supreme court’s language from McNeil

controls as to the issues raised in this case. As the McNeil court explained, the presumption

of invalidity applies when a party challenges the validity of a transaction itself. Id. at (¶40).

However, the presumption fails to apply where a party only requests that the chancellor

impose a constructive trust. Id. In the present case, the record contains substantial credible

evidence to show that Jackson’s only requested relief was that a constructive trust be

imposed in her favor.

¶46.   In analyzing whether Jackson satisfied her burden of proof to show that constructive

trusts should be imposed as a matter of law, the chancellor considered whether Mills abused

her confidential relationship with Harris by obtaining property that she ought not, in equity

and good conscience, hold and enjoy. See id. at 1064 (¶¶24-25). In discussing this issue, the

chancellor noted that Jackson and Mills were the only two witnesses to testify at the hearing.

Having only the parties’ self-serving testimony from which to draw her findings, the

chancellor considered the circumstances surrounding the disputed transactions to determine

Harris’s intent and whether Mills abused her confidential relationship with Harris.

¶47.   As our caselaw acknowledges, “a chancellor, being the only one to hear the testimony

of witnesses and observe their demeanor, is in the best position to judge their credibility.”

In re Estate of Carter, 912 So. 2d 138, 143 (¶18) (Miss. 2005). “Moreover, since the

chancellor is best able to determine the credibility of the witnesses’ testimony, it is not [the


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appellate court’s] province to undermine the chancellor’s authority by replacing the

chancellor’s judgment with our own.” Id.

¶48.   After considering the evidence and the parties’ testimony, the chancellor found that

Mills made each disputed transaction with Harris’s knowledge and consent. Furthermore,

the chancellor found no evidence that Mills abused her confidential relationship with Harris

or that Mills breached her fiduciary duty to Harris. As a result, the chancellor refused to

grant Jackson’s requested relief and, in so doing, refused to establish constructive trusts over

the disputed property.

¶49.   With regard to Tract III of Harris’s land, the chancellor found that Harris never

intended for Jackson to derive any benefit from Tract III. Instead, the chancellor found that

Harris intended for Mills alone to benefit from Tract III. As stated in her will, Harris devised

Tract III to Mills, her residual beneficiary. However, the continued cost of her healthcare

and maintenance forced Harris to sell Tract III. According to Mills’s testimony, though,

Harris negotiated the sale of Tract III herself and then instructed Mills to transfer $50,000

of the proceeds to a CD titled in the names of Harris, Mills, and Mills’s daughter.

¶50.   The chancellor concluded that the transfer of the $50,000 from the sale of Tract III

to the CD gave effect to Harris’s intentions. The chancellor found the transfer allowed

Harris to retain access to the funds while still allowing Mills to receive the benefit of the sale

proceeds after Harris’s death. Therefore, the chancellor concluded that no abuse of a

confidential relationship occurred, and she declined to impose a constructive trust as to the


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$50,000 in sale proceeds transferred to the first CD.

¶51.   The chancellor next considered Jackson’s allegations that Mills improperly withdrew

$17,581.25 from Harris’s joint account for Mills’s own personal use and benefit. In

considering whether to impose a constructive trust as to the withdrawals, the chancellor

found that Mills presented uncontroverted testimony that Harris knew about and consented

to each transaction. In addition, the chancellor found that the withdrawn funds constituted

a portion of the proceeds resulting from the sale of Tract III. As previously stated, the

chancellor concluded that, but for the fact that Harris needed the proceeds from the sale of

Tract III for her care and maintenance, Mills would have derived the full benefit of Tract III

under Harris’s will. Thus, the chancellor concluded that the evidence failed to justify the

creation of a constructive trust as to the $17,581.25 Mills withdrew from Harris’s joint

account.

¶52.   Finally, the chancellor determined that no constructive trust should be imposed over

the $47,000 Mills transferred to a second CD titled in the names of Harris, Mills, and Mills’s

daughter. The $47,000 resulted from the sale of Tract II. As stated in her will, Harris

intended for Jackson to receive Tract II. However, prior to Harris’s death, Mills, acting as

Harris’s attorney-in-fact, sold Tract II. According to Mills’s testimony, Harris herself

arranged for the sale of Tract II, and Mills only acted in accordance with Harris’s

instructions.

¶53.   The chancellor found that, by the time Harris sold Tract II, much of the proceeds from


                                             22
the sale of Tract III had been depleted and that neither Harris nor Mills knew how much more

financial support Harris would require during the remainder of her life. Based on her

findings, the chancellor concluded that no abuse of a confidential relationship resulted from

the sale of Tract II and the transfer of the proceeds to the CD. Instead, as with the other

disputed transactions, the chancellor found that Harris authorized the transactions and even

arranged the details of the sale herself.

¶54.   Upon review, we find the record contains substantial credible evidence to support the

chancellor’s findings that Harris authorized the transfer of the sale proceeds to the two CDs

and authorized the withdrawals Mills made for her personal benefit. See Davidson, 667 So.

2d at 620. In addition, although the record establishes that a confidential relationship existed

between Harris and Mills, the evidence fails to demonstrate that Mills abused the confidential

relationship. Therefore, Jackson failed to satisfy her burden to prove by clear and convincing

evidence that equity requires the imposition of constructive trusts in her favor. See McNeil,

753 So. 2d at 1064 (¶25). As a result, we find Jackson’s assignments of error regarding these

issues lack merit.

       VII.   Whether the chancellor erred by finding an ademption occurred as
              to the devise made to Jackson by Harris’s will.

¶55.   In her final assignment of error, Jackson challenges the chancellor’s finding that the

sale of Tract II to Nichols caused an ademption of the devise made to Jackson by Harris’s

will. Jackson argues that Harris never authorized the sale of her residence. Instead, she

contends that Mills, acting for her own personal benefit, disregarded Harris’s testamentary

                                              23
intent and sold the property without Harris’s consent or knowledge. As a result, Jackson

argues that the chancellor erred by finding that the sale of the land caused an ademption of

the devise that Harris’s will made to Jackson.

¶56.   “For purposes of testamentary construction, it is the responsibility of a reviewing court

to determine and respect the intent of a [testator]. [The appellate court] must review the

decision of the chancellor to determine if effect was given to the [testator’s] intent.” Miss.

Baptist Found. Inc. v. Estate of Matthews, 791 So. 2d 213, 219 (¶25) (Miss. 2001) (citations

omitted). “Ademption typically occurs when a testator in his lifetime disposes of a piece of

property he has specifically devised or bequeathed in his [w]ill. The effect is that the gift

fails since the testator at his death did not own the property.” Id. at 218 (¶20) (citation and

quotation marks omitted).

¶57.   In 1997, Harris executed her will. Pursuant to the will, Harris left to Jackson her

residence, situated on about one acre of land. Harris also bequeathed to Jackson all the

residence’s furniture, furnishings, and fixtures, with the exception of all the personal property

and furnishings in the residence’s front bedroom, which Harris left to Mills. In 2006, Mills,

acting as Harris’s attorney-in-fact, sold Tract II, the land upon which Harris’s residence was

located. As a result, Harris no longer owned the land at the time of her death.

¶58.   As previously discussed, we find the record contains substantial credible evidence to

support the chancellor’s findings that Harris arranged the sale of Tract II herself and that

Mills merely acted pursuant to Harris’s instructions. Therefore, we find no merit to


                                               24
Jackson’s contention that Mills disregarded Harris’s testamentary intent and sold the property

without Harris’s consent or knowledge. Furthermore, because the conveyance of Tract II

occurred during Harris’s lifetime, the property no longer remained in Harris’s possession at

the time of her death. As a result, our caselaw clearly establishes that an ademption occurred

as to the devise made to Jackson in Harris’s will. Estate of Matthews, 791 So. 2d at 218

(¶20). We therefore find no merit to Jackson’s argument to the contrary.

¶59. THE JUDGMENT OF THE MADISON COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR AND
WILSON, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.




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