168 So. 2d 801 | Miss. | 1964
G. J. Houser, appellant, filed his bill of complaint against Mrs. Bonnie M. Plouser, individually and as administratrix of the estate of her deceased husband, Ben Ellis Plouser, appellant’s son, seeking the cancellation of a deed dated August 17, 1960, from the appellant to his son.
An answer was filed denying all the material allegations of the hill of complaint, and after a hearing the chancellor dismissed the hill. We think he was justified in so doing.
At the time of the execution of the deed on August 17, 1960, appellant was eighty-seven years of age. His wife had died in 1953 and shortly thereafter his son and daughter-in-law moved to the home of appellant, where they remained until about 1957. They then returned to their own home, whence Mr. Houser accompanied them, and with the exception hereinafter mentioned, they lived together until the death of Ben Ellis Houser in January, 1962. The reason for the move was there were more conveniences in the home that appellee and her husband constructed, and since she was working, it was necessary that they utilize these conveniences to see after her family.
Sometime in 1954 or the early part of 1955, the son, Ben Ellis Houser, became ill. From about 1950 until the time of his illness, a dairy had been operated on the land of appellant by the son, Ben Ellis Houser, who had surrendered his job with the Highway Department to return and operate the said dairy. It was shown that the dairy was operated on a fifty-fifty basis. When the
In January, 1960, the appellant became ill. He went to the hospital for a short while and thereafter to the home of his daughter, Mrs. Grady Martin, where he stayed for several weeks and then returned to the home of his deceased son. There was a dispute as to why he left the home of Mrs. Martin, it being’ claimed on the one hand that he returned to his son’s home because he loved his grandchildren, and to be with them; and on the other hand, it was claimed that the Martins wanted to put him in an old men’s home.
There were many witnesses introduced, those for the appellant testifying as to his failing health, and also as to his mental incapacity, although some of them admitted that at times he was all right. They knew nothing about the circumstances surrounding actual execution of the deed.
This testimony was met by witnesses who knew the appellant and testified that his mental condition was good, so there was an issue of fact as to his soundness of mind.
It was shown that the appellant and his deceased son were very close and that the son went with him in the car wherever Mr. Houser wanted to go.
On the day, August 17, 1960, when the deed was executed, the appellant and his son went to the office of Honorable H. B. Abernathy, an attorney. The attorney testified that the son left, after which he, the attorney, conferred with appellant and then prepared the deed. An objection was sustained to any testimony that the attorney might give as to a conversation with appellant on the ground that it was privileged. However, the court, in deciding the case, did consider that the attorney talked to appellant and prepared the deed. The deed was witnessed by four friends of the appellant, to wit:
Mr. S. A. Farr testified that appellant and his son came to the office where Mr. Farr worked; that after Mr. Houser entered the office, the son left and appellant stayed some thirty to forty minutes. During this time Mr. C. D. Lowery appeared and talked with Mr. Houser. Mr. Eddie D. Farr, who witnessed the deed, for some reason did not testify on either side. Mr. Lowery stated that in his opinion Mr. Houser knew what he was doing and that he was mentally competent to sign the deed. Mr. S. A. Farr testified that Mr. Houser’s mind would come and go, but that he, the appellant, did tell him, Mr. Farr, what he was going to do with his property. Dr. Thomas M. Gore was introduced and when objection to his testimony was made, the ruling was reserved. Appellant had seen the doctor on the day of the deed for the purpose of letting him ascertain whether he was mentally competent to sign. Dr. Gore testified that he signed the instrument as a witness, but did not have any idea what was in the paper. In his opinion Mr. Houser was mentally competent to sign.
After the instrument was signed, Mr. Houser and his son went to the office of the chancery clerk to acknowledge his signature, and Miss Virginia Baker, a deputy clerk, testified about the conversation that she had with the appellant and the events that occurred in the office of the chancery clerk. She stated that the appellant told her that he wanted his son, Ben Ellis, to have the land because he had been taking care of the appellant; that there was nothing about Mr. Houser that was not normal. There was much other testimony. It was shown that the appellant had given his daughter approximately 100 acres of land prior to this time, he having only the two children. It was shown that when he and his deceased son and his son’s family left the house of appellant, the appellant made rental contracts
After the execution of the deed, a welfare representative approached appellant about why he had made the deed, and told him it might adversely affect the social security payments he was receiving. Thereupon the welfare worker was advised by the appellant that it was his, appellant’s, property and he could do what he wanted to with it.
After the death of the son, Ben Ellis Houser, his wife, the defendant here, Mrs. Bonnie Houser, was appointed executrix of his estate, and his will disclosed that he had devised to his wife the property which his father had deeded to him. Thereafter, this suit was filed on November 1, 1962.
While it is not mentioned in the briefs or in the court’s opinion, we are very much impressed with the clarity and steadiness of the signature of the appellant to the deed and to some checks issued by him about the same time, photostatic copies of all of which appear in the record.
The chancellor was amply justified, and certainly we could not hold that he was manifestly wrong, in finding that appellant was mentally sound at the time of the execution of the deed; that there was no undue influence.
However, complaint is made that the court erred in permitting Dr. Thomas Gore to testify. This
It is also assigned that the court erred in holding the deed in question was not obtained by the deceased son by over-reaching or undue influence. It was asserted that there was a fiduciary relationship established between the son and his father and that the burden was on the son to show the validity of the deed. The court held there was no such relationship at the time of the execution of the deed, and stated: “If a contrary opinion were reached, it is the opinion of the court that the defendant has rebutted the presumption of fraud and undue influence by showing the facts and circumstances surrounding the execution of the deed, the consideration for the deed and the relationship that existed between the parties. Mr. Houser had given his daughter some land in the same neighborhood many years before and was trying to do as much for his son. His action in executing the deed was made after free consultation with life-long friends and as far as this record is concerned, represented his independent will and action.”
It is contended that the court erred in permitting the administratrix of the estate of Ben Ellis Houser (Mrs. Bonnie M. Houser) to testify, she being the sole beneficiary of the last will and testament of Ben Ellis Houser. It is sufficient to say that Mrs. Houser was not undertaking to establish any claim against the estate of a deceased person; to the contrary, she was undertaking to establish the claim of the estate
If it be asserted that she should not have been permitted to testify because of the alleged unsound mind of appellant at the time of the deed, we think even this question was decided in Cock, Administrator v. Abernathy, Administrator, 77 Miss. 872, 28 So. 18 (1900). The first syllabus of that case reads: “WITNESSES.
Complaint is made that the court erred in taking into consideration the testimony of Honorable H. B. Abernathy, whose testimony had been excluded by the court. In its opinion, the court said “ — the testimony of the attorney that he talked to complainant and prepared a deed is considered by the court.” We think this statement of the court and the consideration of these facts relative to the attorney was justified under the following colloquy which occurred at the end of Mr. Abernathy’s testimony: “BY MB. TUBB: The Defendant proposes to prove by this witness that Ben Ellis Houser and G. J. Houser together came to his office and one or the other then said in the presence of each other and to this attorney that they wanted a deed to the land drawn, whereupon Ben Ellis Houser retired and G. J. Houser consulted the attorney, and as a result of the consultation, a deed was prepared by him deeding ... or the deed was prepared by him that is Exhibit #1 to the testimony of Mr. C. Doss Lowery. We submit that he hasn’t revealed the first words that Jack Houser said to him as his client. That is a public record, that deed.
BY THE COUBT: The testimony shows affirmatively everything that you propose to prove without objection. I thought you were going further into the matter.
BY MB. TUBB: That is all I wanted to prove.
BY THE COUBT: That he prepared the deed.
BY MB. TUBB: That is all I wanted.
BY MB. McCBAINE: We will admit that.”
The other assignments of error are either not argued or are answered by what we have heretofore said.
Affirmed.