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ESTATE OF GERTRUDE McRAE, DECEASED: DOROTHY ROCKWELL & MARY SPIKES, CO-EXECUTRICES; ET AL. v. J.W. WATKINS

JANUARY 13, 1988

ESTATE OF GERTRUDE McRAE, DECEASED: DOROTHY ROCKWELL & MARY SPIKES, CO-EXECUTRICES; ET AL.
v.
J.W. WATKINS, SARAH W. WATKINS McLAIN AND DAVID J. WATKINS



BEFORE HAWKINS, P.J., ANDERSON AND GRIFFIN, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

On April 28, 1978, 78-year-old Gertrude McRae conveyed 365 acres and her home to her physician, reserving a life estate, and leaving four siblings with no interest in any of her real property. On the same day, Dr. Watkins signed an agreement obligating himself to render his medical services to Miss Gertrude (so called by those who knew her) free of charge for the rest of her life. Five months later, Dr. Watkins' tax attorney warned the doctor that the deed might be deemed payment for services rendered and result in income tax. On September 22, 1978, Dr. Watkins conveyed the property back to Miss Gertrude by quitclaim deed, and both signed an agreement rescinding the prior agreement to provide medical care. The next day, Miss Gertrude conveyed the same property to Sarah McLain and David Watkins, children of Dr. Watkins, by general warranty deed. The only consideration was the $10 recited by the deed. After Miss Gertrude's death on June 26, 1983, her heirs petitioned to have the deed set aside. The chancellor found that the deeds were gifts needing no consideration, that Miss Gertrude's mental incapacity was only intermittent, and that Miss Gertrude had the benefit of the advice of meaningful, independent counsel and, therefore, Dr. Watkins had successfully rebutted the presumption of undue influence that arose from the confidential relationship between him and his patient. Miss Gertrude's four siblings appealed the chancellor's failure to set aside the deed.

For the reasons herein stated, we find that meaningful independent advice was not given to Miss McRae, and therefore Dr. Watkins failed to rebut the presumption of undue influence arising from these conveyances. We accordingly reverse and render judgment for the appellants.

 FACTS

 Gertrude McRae was born August 11, 1900. Since age 19 she had lived in a log cabin house built around 1845 located on approximately 360 acres that had been in her family longer than the house had been standing. The land was located near Quitman in Clarke County.

 Miss Gertrude never married. As she grew old, Miss Gertrude, an obese woman, started suffering from diabetes, arteriosclerosis or hardening of the arteries, arthritis in her knee and spine, and congestive heart failure. From February 26, 1975, to the date of execution of the first deed to Dr. Watkins, Miss Gertrude was hospitalized five times.

 From February 26 to March 11, 1975, Miss Gertrude was in the hospital because of severe diabetes, thrombophlebitis and arthritis. She was hospitalized from July 12 to July 22, 1975, for a urinary tract infection as well as for ailments that continued to plague her after her stay in February and March. She was hospitalized for one month during September and October, 1975, and was diagnosed as having a diabetic coma, heart failure, and pulmonary embolies. In April, 1976, she was hospitalized for three days to be treated for gastroenteritis and dehydration. The fifth hospitalization occurred from June 10 to June 28, 1977, when she was again diagnosed with diabetes and arteriosclerosis.

 During each of these hospitalizations, Dr. Watkins was Miss Gertrude's attending physician. *fn1 Dr. Watkins admitted her to the hospital in June, 1977, because, in his own words, she was" having hallucination "and was" very much mentally disturbed. "Interspersed among these hospitalizations were a number of deeds, leases and other contracts executed by Miss Gertrude. The last of these transactions was her deed of all her real property to Dr. Watkins, her rescission of his agreement to provide free medical services, and her deed to Dr. Watkins' two children. The deed executed by Miss Gertrude to Dr. Watkins was unlike all the deeds and leases she had executed theretofore. The deed to Dr. Watkins reserved to Miss Gertrude only a life estate in the oil, gas and mineral rights. In every deed and lease prior to that deed, Miss Gertrude had reserved a fee simple to the oil, gas and mineral rights.

 In February, 1978, two months before the first deed was executed, an attorney, Walter Rogers, visited Miss Gertrude to talk with her about someone stealing her timber. While they were talking, Miss Gertrude pointed to a truck crossing her property, to houses being built on her property, and to a thief sitting in the top of an old tree. Rogers was unable to see any of these phenomena and after going outside to look, he realized that they were a" figment of her imagination. "Based on his 30-minute visit with Miss Gertrude, Rogers was of the opinion that she was not competent to execute the deeds of April and September.

 One of Miss Gertrude's sisters, Dorothy Rockwell (Dot),

 came from Alabama to stay with Miss Gertrude during her hospitalization of June 10 to June 28, 1977. Dot testified that while Miss Gertrude was in the hospital, she would see people stealing her things and saw things up in the ceilings. Dot stayed with Miss Gertrude for three weeks, both at the hospital and at home. Miss Gertrude spoke to her of seeing trucks in her fields, people stealing peanuts, and people building houses up in the trees and building roads through her fields. Miss Gertrude was not growing peanuts at the time. Dot said that Miss Gertrude exhibited similar behavior during Dot's visit from August 13 to September 5, 1977.

 Miss Gertrude maintained constant phone contact with Dot, calling her sister two or three times a day when Dot was not visiting in person. Miss Gertrude always reported that people had been stealing her things. On March 10, 1978, Miss Gertrude called to say it was snowing there every night. Dot visited Miss Gertrude from August 10 to August 31, 1978. Dot's son, Joseph Rockwell, had to drive his mother from Alabama to Quitman, Mississippi, when she visited her sister. During this visit, Miss Gertrude was not eating right, not sleeping, she was reading at 3:00 a.m. and would step outside at night whenever she thought she heard someone. Dot noticed holes in the screen that enclosed the porch. These holes were made by Miss Gertrude firing her gun from her porch.

 Rita Bailey and her mother rented a house from Miss Gertrude not far away from Miss Gertrude's residence. Her mother, Mrs. Mary Spikes, was Miss Gertrude's sister. In July, 1977, Miss Gertrude saw things that Rita could not see. Miss Gertrude vehemently accused Rita of being wilfully blind. In June of the same year, Rita went to Miss Gertrude's house with the constable at his request. Miss Gertrude was standing on the front porch holding her .22 rifle. Handfuls of empty shells were on the front porch and lying in the yard. While the constable walked Miss Gertrude back into the house, Rita took the gun and cartridges and locked them in the trunk of her car. When Rita called Dr. Watkins to report the incident, he made a housecall. Dr. Watkins persuaded Miss Gertrude to ride with him to the hospital.

 At the hospital, Dr. Watkins told Mary Spikes and Edwina Hansen, another of Miss Gertrude's sisters, and Rita that he was not surprised at Miss Gertrude's condition. In fact, he was surprised that it had not happened sooner and expected that she would steadily get worse. He offered to commit her if they wanted him to sign the papers. The ladies rejected

 the offer. This conversation occurred in June, 1977.

 In September, 1977, Rita and the constable found Miss Gertrude behind the washhouse and outhouse swinging her walking stick over her head" fighting off devils. "Rita and the constable disarmed her. During June and September, 1977, Rita observed pock marks in the floor and in the walls around Miss Gertrude's window in the back bedroom. Miss Gertrude said she had been beating the devils away with her walking stick.

 Rita had been an accountant for 45 years. Early in 1976, Miss Gertrude became agitated because keeping books had become too much for her to handle. Miss Gertrude asked Rita to help keep her bank account balance and to write checks and to keep a ledger of income and expenses. Rita also assisted Miss Gertrude in physically depositing income.

 Mrs. Mary Spikes lived within walking distance of her sister. In June, 1977, Mrs. Spikes also accompanied the constable to Miss Gertrude's house to find Miss Gertrude holding a gun and the ground littered with shells. That same month, Miss Gertrude told Mrs. Spikes that 28 Indians had held a wedding on top of her canned fruit house one night. The Indians also had a sick baby, left it on her doorstep, and Miss Gertrude tried to feed it.

 Mrs. Spikes and Rita Bailey moved inside the Quitman city limits in February, 1978. Between the shooting incident and the time they moved, Miss Gertrude talked of seeing mules and trucks in the trees and she burned her fence railings. After they moved, Mrs. Spikes and Rita constantly visited and talked by phone with Miss Gertrude. Through her almost daily contact with Miss Gertrude, Mrs. Spikes learned that Indians were hauling off Miss Gertrude's timber and that old folks had dammed up the river, causing water to back up to Miss Gertrude's house. Mrs. Spikes' opinion was that Miss Gertrude was not competent; Miss Gertrude was a different person.

 Miss Gertrude's sisters did not portray her as constantly out of her mind and incapable of coherent conversation. Dot Rockwell said that her sister sometimes told her things that were true.

 Curtis Kennedy was a long-time tenant farmer who rented from Miss Gertrude up to December 31, 1977. Miss Gertrude frequently called him to come down and run Indians off the place. This happened in August, 1977. In May, 1977, ...


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