PATTERSON, PRATHER AND ROBERTSON
PRATHER, JUSTICE, FOR THE COURT:
This appeal challenges the cancellation of a deed in a suit brought by six siblings against their brother, Fred R. Murray, Sr. on the ground of the fraud and undue influence exerted by their brother upon their deceased father, Eli Murray. The deed reserved a life estate in the father with remainder interest to the appellant Fred Murray, Sr. in an eighty acre tract of land. The Chancery Court of Franklin County found that Fred Murray, Sr. occupied a close confidential relationship with his father, and that the proof failed to overcome the presumption of undue influence arising from that relationship. From the cancellation of the deed by the chancery court, this appeal is sought by Fred R. Murray, Sr., assigning as error:
(1) That the trial court erred in finding that the presumption of undue influence existed under these facts; and
(2) That, assuming that the court was correct in applying the presumption of undue influence, then the trial court erred in finding that the appellant had not overcome the presumption by clear and convincing evidence. We affirm the chancery court.
To the marriage of Eli Murray and Lizzie Murray were born eight children: Laura M. Laird, Helen M. Delaney, Lizzie M. Arnold, Vertie M. Cothren, Nell M. Pickett, Ike Murray, Fred Murray, and Darlene M. Beck. Lizzie Murray died in 1951, and Eli Murray continued to live at the homeplace for
some twenty-five years until he went to a nursing home at age 87.
In December, 1976 a trust agreement was signed by Eli Murray designating Ike Murray as trustee. Ike Murray transferred funds of his father into the trust account by a check signed by the "mark" of Eli Murray with attesting witnesses. However, upon learning that there was some disagreement from his siblings about the trust, Ike asked to be removed as trustee in January, 1977.
After the trust was terminated, Eli Murray was hospitalized. Fred Murray began using Eli's money for Eli's expenses with the assistance of his sister Helen until a dispute arose. Thereafter, the business and financial management of Eli's monies were controlled by Fred Murray upon whom Eli was dependent. Fred Murray also handled mineral leasing on the real estate.
The transaction that gave rise to this lawsuit was not the financial management by Fred, but was the inter vivos deed transfer by Eli Murray to Fred covering the land.
In this regard on October 20, 1978, Fred Murray signed his father out of the nursing home and carried him to the law office of Maxwell Graves with whom Fred Murray had previously spoken. Mr. Graves advised Fred that he would not prepare the deed until Eli's competency to sign the deed was discussed with Eli's doctor. The doctor did not see or talk with Eli on that date but stated that if Eli could hear, he could understand. Eli Murray told the attorney to prepare a deed to Fred with the reservation of a life estate in himself. The deed was read and explained to Eli Murray before he signed it by the attorney and his secretary.
The record shows that the grantor was 89 years old, a resident of a nursing home, with poor eyesight and hearing, unable to read or write, and had health problems that required surgery in recent years.
A significant fact was that the attorney did not know whether he represented the father or son, but the fee for preparation of the deed was paid by Fred Murray from his own funds. Fred testified that the transfer was his father's desire. The testimony is somewhat confused as to Fred's presence in the room at the time of the execution. The attorney testified ...