217 Miss. 250 | Miss. | 1953
Appellants broug'ht suit to set aside and cancel a deed executed by H. M. Lawrence to J. W. Lawrence on January 20, 1950. The gist of the bill is that appellants and appellees are children and sole heirs at law of the said H. M. Lawrence who died intestate on April 12, 1950, that at the time of the execution of said deed H. M. Lawrence was mentally incompetent, and further that a confidential and fiduciary relationship existed between the father and son which renders the deed presumptively invalid. The chancellor found against appellants and dismissed the bill, from which action they appeal.
The evidence was overwhelmingly in favor of appel-lees on the issue of the mental capacity of H. M. Lawrence and the appellants do not here contend otherwise, but they do argue that the evidence is overwhelmingly in their favor on the issue of the existence of a confidential and fiduciary relationship between the father and son, H. M. Lawrence was between 76 and 77 years of
Some two or three weeks before execution of the deed H. M. Lawrence consulted an attorney at law and requested the drawing of a will whereby the land would go to his son at his death. The attorney advised against execution of a will and told Mr. Lawrence that he thought it would be better to make a deed to the son. Mr. Lawrence advised the attorney that he would think it over and let him know later. He did return to the attorney’s office and had the deed prepared and executed it there. There was ample evidence to support a finding that TI. M. Lawrence attended to his own business affairs and did not seek or obtain the advice of his son with reference thereto. The evidence shows that H. M. Lawrence
In Ross v. Biggs, 206 Miss. 542, 557, 40 So. 2d 293, we had this same question before ns and approved the following rules which had been previously enunciated in Creswell v. Creswell, 164 Miss. 871, 141 So. 41, and in Wall v. Wall, 177 Miss. 743, 171 So. 675, viz: That one claiming a deed to be invalid because of confidential or fiduciary relations must establish such relations and that a presumption of fraud or undue influence does not arise because of blood relationship accompanied by affection between parties to a deed. From a review of the whole record we are satisfied that appellants did not meet the burden which rested upon them and that the chancellor was justified in so holding.
Appellants further assign for error that some of the numbered paragraphs of their bill of complaint were answered only by a general averment of denial and that these paragraphs were therefore admitted and that the chancellor should have so held. We have carefully examined the bill and answer and we find that every essential allegation of fact contained in the bill was answered and denied by the appellees. In Griffith’s Mississippi Chancery Practice, Second Edition, Section 357, it is said: “Nor is it necessary in order to comply with the rule as to responsiveness that the defendant shall strictly adhere to the practice of formally admitting or denying seriatim the several allegations of the bill, if in point of fact or facts the terms of the answer, in actual substance, constitute a full and direct reply to the essential aver-
Affirmed.