Caudill v. Smith

• Decision Date: 15 November 1994
• Docket Number: No. 934SC1293,934SC1293
• Citation: 117 N.C.App. 64,450 S.E.2d 8
• Parties: Peggy Joyce Smith CAUDILL, Individually, and Harold J. Smith, Jr., as Executor of the Estate of Kitty Smith Noecker, Plaintiffs, v. Gladys Kinsey SMITH, Individually, and as the Administratrix of the Estate of Thomas K. Smith, Defendants.
• Court: North Carolina Court of Appeals

Page 8

450 S.E.2d 8

117 N.C.App. 64

Peggy Joyce Smith CAUDILL, Individually, and Harold J Smith, Jr., as Executor of the Estate of Kitty Smith Noecker, Plaintiffs, v. Gladys Kinsey SMITH, Individually, and as the Administratrix of the Estate of Thomas K. Smith, Defendants.

No. 934SC1293.

Court of Appeals of North Carolina.

Nov. 15, 1994.

Burrows & Hall by Fredric C. Hall, Wallace, for plaintiffs-appellees.

White & Allen, P.A. by David J. Fillippeli, Jr. and John R. Hooten, Kinston, for defendant-appellee.

LEWIS, Judge.

Kitty Smith Noecker commenced this action to have declared void a deed in which she transferred real property to her brother, Thomas K. Smith. After the filing of the complaint, but before trial, both parties died and the substitutions named above were made. For purposes of this opinion, Kitty Smith Noecker will be referred to as "plaintiff," and Thomas K. Smith will be referred to as "defendant." The jury found that the deed was executed as a result of the undue influence of defendant, and judgment was entered for plaintiff. From the judgment, defendant appeals.

I.

Defendant's first contention on appeal is that the trial court erred in denying his motions for directed verdict and judgment notwithstanding the verdict, because there was insufficient evidence of undue influence to go to the jury.

To prove undue influence in the execution of a document, a party must show that something operated upon the mind of the person allegedly unduly influenced which had a

controlling effect sufficient to destroy the person's free agency and to render the instrument not properly an expression of the person's wishes, but rather the expression of the wishes of another or others. "It is the substitution of the mind of the person exercising the influence for the mind of the [person executing the instrument], causing him to make [the instrument] which he otherwise would not have made."

Hardee v. Hardee, 309 N.C. 753, 756, 309 S.E.2d 243, 245 (1983) (quoting In re Will of Turnage, 208 N.C. 130, 131, 179 S.E. 332, 333 (1935)). While there is no test by which the sufficiency of the evidence of undue influence can be measured with mathematical certainty, several factors have been identified as bearing on the question, including:

1. Old age and physical and mental weakness of the person executing the instrument.

2. That the person signing the paper is in the home of the beneficiary and subject to his constant association and supervision.

3. That others have little or no opportunity to see him.

4. That the instrument is different and revokes a prior instrument.

5. That it is made in favor of one with whom there are no ties of blood.

6. That it disinherits the natural objects of his bounty.

7. That the beneficiary has procured its execution.

Id. 309 N.C. at 756-57, 309 S.E.2d at 245. Finally, we note that " '[u]ndue influence is generally proved by a number of facts, each one of which standing alone may be of little weight, but taken collectively may satisfy a rational mind of its existence.' " Id. at 757, 309 S.E.2d at 246 (quoting In re Will of Everett, 153 N.C. 83, 87, 68 S.E. 924, 925 (1910)).

In the present case, the evidence supporting plaintiff's claim tended to show that on 5 November 1990 plaintiff, then aged 90, conveyed to defendant by gift deed a remainder interest in three tracts of real property located in Duplin County, reserving a life estate for herself. In the absence of the deed, the property would have been disposed of pursuant to plaintiff's will, which was executed on 11 June 1986. Under the will, the property would have gone to defendant for life, with the remainder in fee to Peggy Caudill, plaintiff's niece.

At the time the gift deed was executed, plaintiff had suffered three strokes and was confined to a wheelchair. Her eyesight was poor, and she needed help from her live-in attendant, Magdalene Smith (hereinafter "Smith"), in order to read her mail and other papers. In 1987, plaintiff had begun having episodes of hallucinations and confusion. In September and October 1990, plaintiff was confused and at times did not recognize family members. During October 1990, defendant visited with plaintiff at her house about two or three times a week.

On 30 October, Smith drove plaintiff to Attorney William Allen's office at the direction of defendant. There, plaintiff executed a power of attorney, naming defendant as her sole attorney-in-fact. Smith testified that at Allen's office, defendant told her that anybody could talk plaintiff into anything and he was tired of it and wanted it changed. Smith also testified that defendant had been upset with a previous power of attorney which had named him and another individual as attorneys-in-fact. Christine Williams, a friend of plaintiff, testified that on 5 October she and plaintiff discussed defendant's authority as attorney-in-fact, and that plaintiff expressed her displeasure with the arrangement. Plaintiff told her that defendant was making her sign five blank checks at a time and that "some of them were coming through her bank statement that she didn't know anything about." Plaintiff told Williams that she did not want anyone "messing with [her] checks," that defendant could not "keep his fingers out of [her] business," and that defendant was "worrying a four letter word out of [her]."

Regarding plaintiff's will, Smith testified that she overheard a conversation between plaintiff and defendant in October of 1990. Defendant told plaintiff that "he knew about her will and he didn't like it the way it was, ... and he didn't have nothing to even show he was going to get anything." He stated, "I want something--I want you to sign something showing I do have that." On 4 November, defendant told Smith to drive plaintiff to Attorney Allen's office the next day to sign some papers, and on 5 November plaintiff executed the deed in question at Allen's office. Sometime after 5 November, plaintiff received the deed in the mail from Allen. After Smith had read the deed to plaintiff about three times, plaintiff responded, "Do you mean to tell me that's all that's in there and Peggy is not in there at all?" Plaintiff then instructed Smith to telephone Allen for her. On the phone, plaintiff told Allen that she wanted the deed to be just like her will with respect to the property. That is, defendant would have a life estate, and plaintiff's niece, Peggy, would have the remainder interest.

From the foregoing evidence, the jury could have found several of the badges of undue influence. The evidence showed that plaintiff was old and physically and mentally weak; the deed was different from and effectively revoked a portion of plaintiff's will; and defendant procured the deed's execution. We conclude that, taken together, the facts and circumstances were sufficient to permit the jury reasonably to infer that defendant procured the 5 November 1990 deed by means of undue influence.

II.

Defendant's next contention is that the trial court erred in allowing plaintiff's witnesses to testify to statements made by plaintiff, who was deceased at the time of trial, because the statements were inadmissible hearsay. First, defendant argues that certain testimony by Janie Turner, a friend of plaintiff, should have been excluded. Specifically, Turner testified that plaintiff told her that she did not like the power of attorney that she had granted and that she did not want anyone writing checks on her account.

The testimony of Christine Williams, another friend of plaintiff, included statements of plaintiff similar to those testified to by Turner. In addition, Williams testified that plaintiff told her that she thought the power of attorney she had signed was just another one of the deeds she had been signing, as plaintiff had recently been selling some of the land she owned.

Magdalene Smith, plaintiff's attendant, testified that plaintiff told her that she wanted to leave her property to her brother for life, and then to her niece, Peggy. Plaintiff told Smith not to tell defendant about the terms of plaintiff's will, because if he found out, he would not leave plaintiff alone until he got everything she had. Smith also testified to a conversation between plaintiff and defendant where plaintiff told defendant she was not going to leave her property to him and that she was not responsible for educating his children. Finally, Smith testified that, upon hearing her read the deed to plaintiff, plaintiff stated that the terms of the deed were not what she intended and that she wanted the property to go to her niece, Peggy.

We believe that the rule announced in In re Will of Ball, 225 N.C. 91, 33 S.E.2d 619 (1945), is applicable to the case at hand. There the Court held: "Evidence of declarations of the testator which disclose his state of mind at the time of the execution of the...