Coleman v. Kierbow

• Decision Date: 07 December 1953
• Docket Number: No. 38979,38979
• Citation: 68 So.2d 102,219 Miss. 116
• Parties: COLEMAN et al. v. KIERBOW.
• Court: Mississippi Supreme Court

Page 102

68 So.2d 102

219 Miss. 116

COLEMAN et al. v. KIERBOW.

No. 38979.

Supreme Court of Mississippi.

Dec. 7, 1953.

Creekmore & Beacham, Jackson, for appellants.

Howie, Howie & Montgomery, Jackson, for appellee.

McGEHEE, Chief Justice.

On a former appeal of this case, Coleman v. Kierbow, 212 Miss. 541, 54 So.2d 915, the Court affirmed the decision of the chancellor in holding that the evidence was insufficient to show that the deed of conveyance in question was obtained by fraud or undue influence; such is the law of the case for the purposes of the present appeal. The case was reversed and remanded for a new trial because of the refusal of the former chancellor, who presided at the previous trial, to permit three of the complainants to testify as to whether or not in the alternative the deed was executed by Mrs. Sallie Lillian Herren, now deceased, in favor of her daughter, the appellee Mrs. Ibye Lillian Kierbow, under such circumstances as to render the grantee a constructive trustee of the property in question for the benefit of herself and on behalf of all of the complainants, as children of the said grantor.

On the second trial there were three out of the four complainants present and were permitted to testify to statements made by the grantor, in the presence of the grantee in some instances, as to the agreement and understanding under which she made the deed of conveyance to the appellee Mrs. Kierbow, and as to the admission made to them by said grantee in regard to such understanding and agreement between the grantor and grantee, and which was to the effect that the grantee was to take charge of and manage the property, take care of the grantor during the remainder of her short life expectancy, and that after deducting a reasonable compensation for her trouble in the premises she was to sell the property, estimated to be worth approximately $30,000, and divide the remainder of the proceeds among the four complainants and the grantee in equal shares.

The appellee, as grantee in the deed of conveyance, also testified on the second trial and categorically denied that the deed of conveyance was executed to her by her mother under any understanding and agreement that after her mother's death the grantee was to deduct all of the expenses in connection with her mother's last illness, etc., and a reasonable charge for her services for caring for her mother and then sell the property and divide the proceeds among the five children; denied all of the conversations that her sister and two brothers had testified to having had with the appellee in regard thereto; and denied that her mother had made the statements attributed to her by the said complainants and their uncle L. L. Holt, some of which statements were alleged to have been made by the mother in the presence of her grantee daughter, who is alleged to have then acquiesced therein by her silence and also to have confirmed by her own account on other occasions as to what the understanding was between herself and the grantor.

Since the cause must be reversed for a finding of fact on the conflict in the testimony, and particularly the conflict between the testimony of the three complainants on the one hand and the appellee Mrs. Kierbow on the other as to the statements of the grantor and the admissions of the grantee as to the agreement and understanding under which the deed was executed, we deem it unnecessary that we review that testimony at this time or make any further comment on the details thereof.

The chancellor in his written opinion recognized the fact that a close and confidential relation existed between the grantor and grantee, which was...