Coleman v. Kierbow

• Decision Date: 12 November 1951
• Docket Number: No. 38077,38077
• Citation: 212 Miss. 541,54 So.2d 915
• Parties: COLEMAN et al. v. KIERBOW.
• Court: Mississippi Supreme Court

Page 915

54 So.2d 915

212 Miss. 541

COLEMAN et al. v. KIERBOW.

No. 38077.

Supreme Court of Mississippi, Division B.

Nov. 12, 1951.

Creekmore & Creekmore, Jackson, for appellants.

Howie, Howie & Montgomery, Jackson, for appellee.

ROBERDS, Presiding Judge.

On November 25, 1947, Mrs. Sallie Lillian Herren made a will by which she devised to her five children, Roy LaFayette Coleman, James Floyd Coleman, Clarence Monroe Coleman, Bessie Jewell Covington and Ibye Lillian Kierbow, in equal parts the real property described as 502 South President Street in the City of Jackson, Hinds County, Mississippi.

On March 27, 1948, she executed a deed conveying this property to Mrs. Kierbow alone.

On October 12, 1949, Mrs. Herren departed this life, leaving as her only heirs at law said five children.

On March 2, 1950, the four first named children filed the bill herein against Mrs. Kierbow seeking (1) to set aside said deed on the ground it was procured through fraud and undue influence on the part of the grantee therein, or, if not, (2) to hold Mrs. Kierbow as trustee of the title to the property for the four-fifth interest of the complainants. The will had not been probated when this cause was heard, nor was it produced or accounted for at such hearing. The chancellor dismissed the bill, thereby adjudicating against complainants both contentions as to the effect of the deed. Complainants appeal.

The lawsuit divides itself into two parts, one is that the deed is null and void; the other is that the deed is valid but the grantee holds title to the property as a constructive trustee.

We now deal with the contention that the deed is void. Two questions arise as to that, first, it is contended that the holding of the chancellor is against the great weight of the evidence and we should reverse him on the facts; and, second, that the refusal of the chancellor to permit three of the complainants to testify to the alleged acts of fraud and undue influence is reversible error.

Should we reverse the chancellor on his findings of fact? We will not try to detail all of the testimony. We shall set out only sufficient thereof to justify our conclusion. Most of the testimony is directed to the physical and mental condition of Mrs. Herren. That is incidental to the issue. It is relevant only as showing that her condition was such as that she might be susceptible to fraud and undue influence. It is nowhere charged, and no witness testified, that her mental condition, at the time she executed the deed, was such that she could not legally do that. It is shown that in October 1947, while she was operating a boarding house upon the property in question, she had a stroke and was carried to the Baptist Hospital in Jackson, where she remained some seven or eight days. From there she went to the home of Mrs. Covington, one of the complainants, located in Jackson. She remained there until January 11, 1948, some two months. It is in evidence that, at some intervals during that period, she had hallucinations. Most of the time she was perfectly rational. But on November 25, 1947, she executed the will referred to herein, and complainants do not assert she was incapable of making that will. Indeed, they claim through it if it is produced and probated. Also, on January 8, 1948, she executed a trust deed on the property in controversy to secure a note for $2,500 to a local bank, which loan had been negotiated by Mr. Floyd Coleman, and Mr. J. L. Covington, husband of one of complainants. Complainants do not contend Mrs. Herren was mentally incapable of executing these papers. A bank officer testified he was present when the trust deed and note were executed to the bank and she appeared to him to be perfectly normal, and that she thoroughly understood the nature and effect of that transaction. Indeed, she requested the opportunity to read the note and trust deed, which she did very carefully, before she signed them. Both of these important business transactions occurred while she was at the residence of Mrs. Covington. Mrs. Herren moved to the home of Mrs. Kierbow in Jackson on January 11, 1948. It is in evidence that she gradually improved in health. She was seventy-seven years of age and her memory was not as good as in her younger days. As stated, the testimony as to her health and mental vigor was incidental to the issue to be decided. There is little, if any, proof of fraud on the part of Mrs. Kierbow. The bill states, as one ground of fraud and undue influence, that appellee, knowing her mother wished to move back to her old home, told her mother she and her husband would move there and take care of her if she would deed the property to appellee; that Mrs. Herren did not want to make the deed but was induced to do so by that promise. The proof is vague as to whether that promise was made, but, even so, it is shown that it was Mrs. Herren's supreme desire to go home again, and it is undisputed that Mrs. Kierbow and her husband did leave their own home and move to the conveyed property, and there cared for Mrs. Herren until her death. It is difficult to predicate fraud upon that. Again, the bill states, but it is only an inference from the proof, that Mrs. Kierbow told her mother it was necessary for the deed to be made in order that the grantee might look after the property. The other specific act of fraud, alleged in the bill as ground for nullifying the deed, is the statement that Mrs. Kierbow told her mother that by deeding the property to her the estate would be relieved of paying inheritance tax thereon after the passing of Mrs. Herren. We have not detected in the record any proof that such a statement was made, but, if so, we are not prepared to say the statement might not be correct. Indeed, the case is argued here by appellants, not so much on specific representations or misrepresentations, induring the execution of the deed, as upon the assumption of lack of consideration for the deed and that a confidential relation existed between Mrs. Herren and Mrs. Kierbow. It is urged that the law presumes the deed to be void for those two reasons and the burden is upon Mrs. Kierbow to rebut them and that the testimony does not do that. As to the consideration, Mr. Covington, husband of one of the complainants, gave it as his opinion that the property was worth from twenty-five to thirty thousand dollars. That was the only proof as to its value. Mrs. Herren paid $5,500 for it in 1923. The proof does not show the exact amount of the indebtedness against the property when the deed was made, but apparently it was slightly less than $2,500. That debt was assumed by the grantee. While the deed does not so recite, all of the proof proceeds upon the theory that Mrs. Kierbow and her husband agreed to leave their own home and move to the deeded property and thereafter care for and furnish a home to Mrs. Herren until her death, the time of which event being, of course, uncertain. And it is not disputed that they did do just that. As to the confidential relation, we may assume, for purpose of discussion, that such did exist when the deed was executed, nevertheless we think the proof of appellee fully justified the chancellor in concluding that she had met any burden the law cast upon her in defense of the claim that the deed should be set aside.

We will refer to the testimony of only two of the witnesses in behalf of the defendant. They are Mr. Bert Crisler, admittedly a competent attorney and a man of uprightedness and integrity, and Mrs. Della McNeil Harrison, secretary to Mr. Crisler and the notary public who took the acknowledgement to the deed. At the time of the trial she was residing in McComb, Mississippi, and was not in the employ of Mr. Crisler. Mr. Crisler testified that he had known the Kierbows some ten years and had done some legal work for them; that he had known Mrs. Herren three or four years. Mr. Kierbow called him over the telephone and asked him to draw a deed from Mrs. Herren to Mrs. Kierbow and bring it to the Kierbow home. He got the description from the trust deed to the bank, and dictated the deed to his secretary, who transcribed it on a typewriter. He and his secretary, who, as stated, was also a notary, went to the Kierbow home right after noon on Saturday. Mrs. Kierbow met them at the door, invited them into the room occupied by Mrs. Herren and Mrs. Kierbow disappeared and he saw her no more. Apparently, he did not see Mr. Kierbow. Mrs. Herren was sitting up in bed dressed. She knew him. In the words of Mr. Crisler, this is what happened: 'When we walked into the room where Mrs. Herren was, Mrs. Kierbow left, and Mrs. Kierbow wasn't there. I explained in detail to Mrs. Herren exactly what I had and explained exactly the purpose of the deed and explained also to her the effect of the deed. I went into detail and explained that to her, that if she executed and signed that deed she had no further interest in the property and it was an absolute conveyance to Mrs. Kierbow and from that time on the property would be absolutely Mrs. Kierbow's'. He read the deed to her and she read it herself. They discussed the conveyance fully. She then signed it. Asked about her mental condition, Mr. Crisler said 'She was perfectly rational. There wasn't anything wrong with Mrs. Herren mentally.' He said he had heard she had not been well and for that reason he took particular note of her physical condition and mental activity. After she signed the deed he remained some twenty to thirty minutes in general conversation with Mrs. Herren. He recalled that she remarked, during the conversation, that he resembled his mother very much. On cross-examination, he said he explained to Mrs. Herren that she need not sign the deed. Mrs. Herren replied that Mrs. Kierbow had taken care of her, had spent a lot of money on her and she felt like Mrs. Kierbow was entitled to the property. Mr. Kierbow paid him for his services.

Mrs. Harrison's...