249 S.E.2d 530 (Ga. 1978), 33569, Fletcher v. Fletcher

• Citation: 242 Ga. 158,249 S.E.2d 530
• Docket Number: 33569.
• Date: 05 September 1978
• Parties: FLETCHER v. FLETCHER.
• Court: Georgia Supreme Court

Page 530

249 S.E.2d 530 (Ga. 1978)

242 Ga. 158

FLETCHER

v.

FLETCHER.

No. 33569.

Supreme Court of Georgia.

September 5, 1978

Argued May 9, 1978.

Rehearing Denied Sept. 26, 1978.

Page 531

[242 Ga. 163] Harry Mixon, Ocilla, Reinhardt, Whitley & Sims, Glenn Whitley, Ray P. Rogers, Tifton, for appellant.

Jay, Garden, Sherrell & Smith, Robert E. Sherrell, John E. Smith, III, Fitzgerald, Walters, Davis, Ellis & Smith, W. Emory Walters, Ocilla, for appellee.

Page 532

HILL, Justice.

In 1970, Henry Fletcher executed a deed conveying his only asset, 1127 acres of land in Irwin County, to his brother, Jehue Fletcher. Both brothers are now deceased. This is a suit by the administratrix of the estate of Henry Fletcher to set aside the deed on the grounds of mental incapacity of Henry and undue influence by Jehue. The defendant, the widow of Jehue Fletcher, appeals from the judgment entered upon the jury's verdict setting aside the conveyance.

The two brothers lived and farmed together all of their lives. Henry, born in 1896, never married. He died in 1976 at age 80. Jehue married the defendant in 1930 and she moved into the family homeplace in 1936. Although Henry had record ownership of the property in question from 1917 when he inherited it from his father until 1970 when he deeded it to his brother, Henry never returned the property for taxes. All taxes were paid and all business transactions concerning the property were [242 Ga. 159] negotiated by Jehue. There was testimony that Jehue negotiated loans to be secured by the property, that Jehue later brought Henry to sign the notes and security deeds without reading them, and that the proceeds of these loans were deposited into Jehue's bank account. There was also testimony that sales of all crops from the property were conducted by Jehue and the proceeds were deposited into his bank account.

It was uncontradicted that Henry could neither read nor write, except his name. Henry attended school for only a year. Witnesses testified that Henry could not understand the simplest business transaction, that he at all times appeared retarded and that he had always been dependent on his brother, Jehue. Henry had no bank account. At his death he was without assets.

The deed was executed October 13, 1970, at the office of an Ocilla physician, now deceased, and witnessed by the physician and the clerk of the superior court. The deed recited as consideration "Five Dollars and other valuable consideration" and was filed for record two days later. This property had been Henry's only asset. It had a value over $350,000. Jehue died in June, 1972, and his will left everything he owned to his widow. As executrix, she took charge of the estate, sold equipment and livestock, filed an estate tax return, and executed and recorded a deed of assent from the estate to herself as beneficiary of all Jehue's real property, including the property now in question. The widow and Henry continued to live at the homeplace until Henry's death in January, 1976. This present suit was filed shortly thereafter, in March, 1976, by the administratrix of Henry Fletcher's estate.

1. The defendant contends the trial court erred in overruling her motions for directed verdict. As to count I seeking to set aside the deed upon the grounds of mental incompetency, defendant argues that her direct testimony and that of the subscribing witness was unimpeached and demanded the conclusion that the grantor had sufficient mental capacity at the time of execution.

Witnesses for the plaintiff testified as to their opinions based upon their knowledge, observations and contacts with Henry throughout his life that he suffered [242 Ga. 160] from habitual insanity, that he did not have a sane and natural mind and that he could not have understood the nature and circumstances of making a deed. This testimony was probative. Hubbard v. Rutherford, 148 Ga. 238(1), 96 S.E. 327 (1918). The trial court did not err in overruling the defendant's motion for directed verdict on the issue of mental capacity. Pantone v. Pantone, 206 Ga. 305(1, 2), 57 S.E.2d 77 (1950).

2. Evidence was presented by plaintiff's witnesses that Jehue had managed Henry's property for Jehue's benefit as well as Henry's; i. e., there was evidence of a confidential relationship between the two brothers, as well as great mental disparity between them. Code § 37-707. Testimony showed the value of the property transferred in this deed to be between $366,000 and $394,000. Where evidence is

Page 533

presented of a confidential relationship, the grantor...