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A. DEE LEWIS MULLINS, ET AL. v. MARY RATCLIFF

NOVEMBER 25, 1987

A. DEE LEWIS MULLINS, ET AL.
v.
MARY RATCLIFF, FOR THE COURT:



BEFORE DAN M. LEE, P.J.; PRATHER AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Today's appeal presents the all too familiar story of family members charging siblings with use of undue influence to obtain a larger than fair share of the family property. Inevitably such cases turn on their facts.

 On the totality of the circumstances presented in the present record, the grantee sister convinced the trier of fact by clear and convincing evidence that she had not employed undue influence to obtain the disputed deeds. Because we find those findings beyond our authority to disturb and for the other reasons set forth below, we affirm.

 II.

 A.

 At issue are three conveyances from the late James Madison (Matt) Lewis to his youngest sister, Mary Lewis Ratcliff, transferring in the aggregate one hundred acres of land in Franklin County. The first two conveyances were in 1946 and 1950, respectively, and each conveyed twenty acres. The last conveyance, reflected by two deeds - one in 1966 and another in 1967 - conveyed the remaining sixty acres. Two of Matt's sisters, A.Dee Lewis Mullins and Sarah Lewis Smith, challenge Mary Ratcliff's right and title to the property.

 The story's skeleton is a series of transactions involving Matt Lewis and other family members, taking place beginning on December 26, 1942, and ending on April 2, 1968. Prior to 1942 George Washington (G.W.) and Mary Jane Lewis owned 970 acres in Franklin County. On December 26, 1942, the Lewises divided and conveyed all but eighty acres to their weight children, in these amounts:

 Matt Lewis 100 acres Holmes Lewis 140 acres Iva Lewis Murray 120 acres Sarah Smith 100 acres Julia Flowers 120 acres A.Dee Mullins 100 acres George Harrison Lewis 120 acres Mary Ratcliff 90 acres

 On April 30, 1946, without consideration, Matt Lewis executed and delivered a warranty deed to his sister, Mary, giving her twenty of his one hundred acres. Mary and her husband, Lenoir, immediately built their home on that land. On February 14, 1950, Matt conveyed to Mary, also by warranty deed and without consideration, another twenty acres adjacent to the first twenty. Matt was living at home with his parents when each of these deeds was executed. His mother, Mary Jane, died in January, 1956, and his father died two years later in January, 1958. In May, 1958, Matt went to live with Mary and Lenoir.

 Approximately seven months later, on February 5, 1959, Matt filed a petition in Chancery Court of Franklin County requesting that a guardianship of his estate be established. Matt cited as reasons physical handicaps, not mental ones. He was joined in the petition by, among others, the Appellants, A.Dee and Sarah, and the Appellee, Mary. The petition stated in pertinent part:

 Petitioner and Co-Petitioners would show that Petitioner, James M. Lewis, is physically handicapped having been stricken in early childhood with a disease which renders him physically incapable of walking and that he is in actuality a complete invalid. That he is mentally alert and aware of events and occurrences but physically he is unable to attend to himself or his business affairs.

 The petition went on to state that those who had joined in the petition had, on January 30, 1959, executed an oil, gas and mineral lease covering their interest in minerals on the 970 acres, that Matt was also interested in executing such a lease but was physically unable to do so or to handle the proceeds, and that Mary, with whom he was living, would be a "fit and suitable" guardian. The petition was signed and sworn to under oath by Matt, A.Dee, Sarah and Mary, among others. The guardianship was established on February 5, 1959, and was not formally closed until May 6, 1968. As soon as she was appointed and qualified, Mary was granted authority as Matt's guardian to execute an oil, gas and mineral lease. Mary made regular accountings of assets received in connection with the lease and expenditures made for and on behalf of Matt throughout the guardianship period.

 On May 16, 1966, eight years after Matt moved in with Mary and two years before the guardianship was closed, the last sixty acres of Matt's 100 acres, upon which the old

 family home was situated, were conveyed by warranty deed to Mary. That deed is signed "Mary Lewis Ratcliff GDN." Approximately one year later, on March 29, 1967, Matt again conveyed the same sixty acres to his sister Mary. This time the deed was signed by Matt's mark. In both the 1966 and 1967 deeds Matt reserved a life estate. The deed of 1967 is the operative deed and supersedes the 1966 deed.

 On April 2, 1968, one month before the guardianship was terminated, G.W. and Mary Jane's remaining eighty acres were divided among several family members. Because G.W. and Mary Jane died intestate, each of their eight children was entitled to ten acres. In 1968 only seven children were alive. Holmes Lewis had died in 1947 leaving his wife and four children who were entitled to his one-eighth share. Apparently, everyone agreed to deed forty acres to the Appellants, A.Dee and Sarah, and forty acres to Matt. Matt (and others) signed the deed to A.Dee and Sarah. A.Dee, Sarah, and Mary (and others), signed the deed to Matt. These deeds, as well as all of the aforementioned deeds, were duly acknowledged and filed in Chancery Court. On May 6, 1968, the guardianship of Matt's estate was formally closed and Mary was finally discharged as guardian.

 Matt lived with Mary for two more years, (a total of approximately twelve years), until early 1970, when Mary went to live at the hospital with her husband who was dying of lung cancer. Matt spent approximately four months at a nursing home and thereafter lived with another sister, Iva Lewis Murray, one of the Defendants below who disclaimed any interest in the property. Matt lived with Iva for almost thirteen years until his death on February 26, 1983, nine days after his 82nd birthday.

 More about Matt, whose competence to convey is central today. Matt was born to G.W. and Mary Jane Lewis on February 17, 1901. He was the eldest of eight children. Matt was either born with, or, at a young age, was stricken with Hydrocephaly, or Hydrocephalus, a condition characterized by an enlarged cranium. No expert testimony was offered at trial as to the effects of Hydrocephaly generally, or on Matt specifically. Three statements by two doctors, contained in hospital records, were placed in the record by agreement. The first one, dated June 7, 1970, states, in pertinent part, "SOCIAL HISTORY: Elderly white male, reasonably intelligent, Hydrocephalic," and is signed by J. Breeland, M.D. On April 7, 1971, Matt was again admitted to the hospital and the doctor's report states, "SOCIAL HISTORY: Elderly white male somewhat retarded. . . IMPRESSION: Hydrocephaly and arthritis." This report is also signed by J. Breeland, M.D.

 On admittance in 1972, J. B. Becker, M.D., reports, "REVIEW OF SYSTEMS: HEENT - Poor vision, quite an enlarged cranium. Normal speech and apparent good mental ability."

 A.Dee, Sarah, and Sarah's daughter, Georgia Maxine Dunigan (Georgia), were of the opinion that Dr. Breeland was right in 1971. Georgia, who was the only witness called by A.Dee and Sarah, testified that Matt did not initiate conversations and did not join in or comprehend normal conversations, did not have the mental capacity to understand the meaning or value of money, only answered questions directed to him, and showed no interest in or concern for other family members. She said Matt could not read or write, did not have any religious views, did not laugh, but cried from pain and cried when he did not have pain. A.Dee testified that Matt did not have "mind enough" to execute a deed, did not "know he had an acre of land, let alone a hundred" and would simply answer questions with "`uh-uh' and `un-huh" '. Sarah testified that Matt was deformed and mentally incompetent and could not read or write.

 Adding more flesh to the story, everyone agreed that Matt was severely physically handicapped. Throughout his life he was dependent upon others for his care. Matt never had a job, but when he was younger he could draw water from the well and chop wood. He was partially paralyzed and had difficulty moving around and caring for himself. These physical handicaps became progressively worse as he grew older. By 1967 Matt was confined to a wheelchair and not many years later he was confined to his bed.

 Jerry Lewis (Jerry), one of Matt's nephews, testified that it was his understanding that Matt had suffered infantile paralysis as a young child and that this had caused his physical disabilities. Jerry was also aware that Matt had an enlarged cranium but was of the opinion that this did not affect his mental abilities. Jerry is the son of Matt's brother, E. H. (Holmes) Lewis, who died in 1947. After his death, Jerry and his brother, Holmes Ronald, two sisters, LaMarian and Karen, and their mother, Ezelee Allred Lewis, spent essentially every night at G.W. and Mary Jane's home with G.W., Mary Jane and Matt. The children knew Matt then and continued to visit him throughout his life. Jerry, Karen and LaMarian each testified that throughout Matt's life they had normal conversations with him and that his intelligence was normal. Jerry had seen his uncle with books and magazines but did not remember seeing him reading. When asked if he could remember any time when Matt displayed concern for family members, Jerry recounted that Matt had shown him the place where his mother, Mary Jane, had just suffered a stroke.

 Jerry acknowledged that he had never heard Matt inquire about the value of his property or ask for anything except afternoon coffee. Still, it was Jerry's opinion that Matt comprehended the fact that he had wealth in property.

 LaMarian testified that Matt wrote words and numbers for her when she was a little girl, and that they discussed the people who visited him and how she was doing in her basketball games. They did not discuss his property, but in her opinion Matt was aware of the fact that he owned the land and minerals he had been given. Karen testified that she had never seen him crying or acting mean and contrary, but that he would "get angry occasionally or mad, but who doesn't? We all do." Seven neighbors and friends and a Southern Baptist minister testified that throughout his life Matt had normal conversations with them and was mentally competent.

 B.

 In their complaint, filed in the Chancery Court of Franklin County on January 9, 1984, A.Dee and Sarah alleged that two deeds, dated April 30, 1946, and February 14, 1950, each purporting to convey twenty acres of Matt's land to Mary, were forgeries and the product of Mary's undue influence over Matt. As to the last sixty acres of Matt's land, A.Dee and Sarah charged that Mary deeded it to herself as Matt's guardian on May 16, 1966, and that on March 29, 1967, while still acting as his guardian, she had the same land conveyed to her by a deed purporting to be signed by Matt with an "X" . A.Dee and Sarah further alleged that Matt was born with a physical and mental condition called Hydrocephalus, that he was born deformed, that he could not read or write, and that his mind, throughout his lifetime, was below that of a twelve-year-old child. They prayed that all four deeds be cancelled and that they be awarded punitive damages because of Mary's "diabolical act against her own crippled and deformed brother."

 Mary answered with specific denials of any impropriety on her part or mental incapacity on Matt's part and raised affirmative defenses of adverse possession, laches, equitable and judicial estoppel. The other named defendants, save one sister, Julia Lewis Flowers, answered and disclaimed any interest in the property covered by the deeds. Mary's children, James Wade Ratcliff (James) (and his wife, Lynda V. Ratcliff) and Donis Ratcliff Zumbro (Donis) were allowed to intervene, as they had each built homes on two acres of property deeded to them by their mother, Mary, out of the property deeded to her by Matt. The central characters, therefore, are A.Dee and Sarah, on the one hand, and Mary and

 her children, on the other. Their deceased brother, Matt, is squarely in the middle.

 The case went to trial on September 26, 1985. In the end, the Chancery Court held that:

 (1) Matt's signatures on the three deeds were genuine and not forgeries;

 (2) Matt had the mental capacity to execute the three deeds; and

 (3) That, as to the third deed of March 29, 1967, a fiduciary relationship, growing out of the guardianship, existed between Mary and Matt and there arose a presumption of undue influence which Mary successfully rebutted.

 (4) Even if incorrect on the above rulings, A.Dee and Sarah are barred by judicial estoppel, laches, equitable estoppel and adverse possession.

 On this appeal, A.Dee and Sarah challenge everything except the Chancery Court's determination on the issue of forgery.

 III.

 Scope of Review

 Our standard of review is well known. This Court will not reverse a Chancery Court's findings of fact where they are supported by substantial credible evidence in the record. Anderson v. Burt, 507 So.2d 32, 36 (Miss. 1987); Norris v. Norris, 498 So.2d 809, 814 (Miss. 1986); Gilchrist Machinery Co., Inc. v. Ross, 493 So.2d 1288, 1292 (Miss. 1986); Cotton v. McConnell, 435 So.2d 683, 685 (Miss. 1983): Culbreath v. Johnson, 427 So.2d 705, 707-09 (Miss. 1983); Richardson v. Riley, 355 So.2d 667, 668 (Miss. 1978). This is as true of ultimate facts as of evidentiary facts. Norris, 498 So.2d at 814; Gilchrist, 493 So.2d at 1292; Spain v. Holland, 483 So.2d 318, 320 (Miss. 1986); Carr v. Carr, 480 So.2d 1120, 1122 (Miss. 1985); Cheek v. Ricker, 431 So.2d 1139, 1143 (Miss. 1983).

 Put another way, this Court ought and generally will affirm a trial court sitting without a jury on a question of fact unless, based on substantial evidence, the court be manifestly wrong. UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., ___ So.2d ___, ___ (Miss. No. 56,389, dec. Aug. 26, 1987) (not yet reported): Brown v. Williams, et al., 504 So.2d 1188, 1192 (Miss. 1987); Harkins v. Fletcher, 499

 So.2d 773, 775 (Miss. 1986): Dillon v. Dillon, 498 So.2d 328, 329 (Miss. 1986); Will of Polk, 497 So.2d 815, 818 (Miss. 1986). This Court must examine the entire record and accept

 that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which ...


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