Fleming v. Fleming

• Decision Date: 21 November 1977
• Docket Number: Nos. CC-7,CC-11,s. CC-7
• Citation: 352 So.2d 895
• Parties: William FLEMING, as administrator of the Estate of Viola DeVaughn, Deceased, Appellant, v. Gene FLEMING, as guardian of Viola DeVaughn, et al., Appellees. William FLEMING, as administrator of the Estate of Viola DeVaughn, Deceased, v. Charles H. DIAMOND and H. H. Stone, Appellees. William FLEMING, as administrator of the Estate of Viola DeVaughn, Deceased, Appellant, v. Norris FLEMING and Santa Rosa County Teachers' Federal Credit Union, Appellees. William FLEMING, as administrator of the Estate of Viola DeVaughn, Deceased, Appellant, v. Walter L. REED, Appellee. William FLEMING, as administrator of the Estate of Viola DeVaughn, Deceased, Appellant, v. Charles D. MUSE and Martha Muse, Appellees. to
• Court: Florida District Court of Appeals

Page 895

352 So.2d 895

William FLEMING, as administrator of the Estate of Viola DeVaughn, Deceased, Appellant, v. Gene FLEMING, as guardian of Viola DeVaughn, et al., Appellees.

William FLEMING, as administrator of the Estate of Viola DeVaughn, Deceased, v. Charles H. DIAMOND and H. H. Stone, Appellees.

William FLEMING, as administrator of the Estate of Viola DeVaughn, Deceased, Appellant, v. Norris FLEMING and Santa Rosa County Teachers' Federal Credit Union, Appellees.

William FLEMING, as administrator of the Estate of Viola DeVaughn, Deceased, Appellant, v. Walter L. REED, Appellee.

William FLEMING, as administrator of the Estate of Viola DeVaughn, Deceased, Appellant, v. Charles D. MUSE and Martha Muse, Appellees.

Nos. CC-7 to CC-11.

District Court of Appeal of Florida, First District.

Nov. 21, 1977.

Rehearing Denied Dec. 29, 1977.

Guyte P. McCord, III and Cynthia S. Tunnicliff of Law Office of Sam Spector, P. A., Marion D. Lamb, Jr., and W. K. Whitfield, Tallahassee, for appellant.

Joe J. Harrell of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellees Gene Fleming, Norris Fleming, and Muse.

John M. Davis of Fitzgerald & Davis, Milton, for appellees Diamond and Stone.

Earl L. Lewis, Milton, for appellee Reed.

PER CURIAM.

In these actions appellant William Fleming, administrator of the estates of Harry and Viola DeVaughn, seeks to set aside four deeds executed by the DeVaughns before their deaths and contests appellee Gene Fleming's ownership of the contents of bank accounts held jointly by him and the DeVaughns. The administrator contends (1) three of the deeds were invalid because Mrs. DeVaughn was incompetent to execute them; (2) another DeVaughn deed to appellee Norris Fleming, executed also by appellee Gene Fleming as Mrs. DeVaughn's guardian, was invalid because he was not yet appointed her guardian; (3) all the deeds were ineffective because they were conditionally delivered, subject to return on demand by the DeVaughns; and (4) Gene Fleming's accession by right of survivorship to bank accounts owned by the DeVaughns should be set aside because he obtained his interest in the accounts through undue influence over the DeVaughns. The trial court ruled in favor of the grantees and Gene Fleming.

The DeVaughns, who were married 40 years but had no children, owned 280 acres of land near Jay and cash in several bank accounts. They wanted to convey this property before their deaths to avoid the need for wills and the necessity of probate. In January or February of 1972 the DeVaughns delivered a deed executed September 20, 1968, to their neighbor and close friend, Walter L. Reed. That deed conveyed 40 acres but reserved a life estate in the grantors. Reed was told not to record it until the death of one of the DeVaughns. At that time the DeVaughns also delivered to Reed three similar deeds conveying other parcels of land to Norris Fleming, Charles Muse, and Charles Diamond and H. H. Stone together. The DeVaughns instructed Reed to deliver those deeds to the named grantees when either of the DeVaughns died, unless they earlier requested him to return the deeds. In March of that year Mr. DeVaughn asked for those three deeds back. Mr. Reed returned them, but kept his own.

Mrs. DeVaughn was adjudicated incompetent on July 28, 1972. An examining committee of two psychiatrists and Mr. Muse reported they found Mrs. DeVaughn incompetent due to organic brain syndrome. The committee also found she suffered from psychosis, disorientation, confusion, and occasional agitation, all complicated by Paralysis Agitans, and was unable to attend to her affairs. County Judge Joe Dan Tortman, however, questioned Mrs. DeVaughn for about fifteen minutes during her hearing and found her physically but not mentally incompetent. No guardian was appointed at that time.

Between January and May 1973, the name of Gene Fleming, a nephew of the DeVaughns, was added to the signature cards of several checking and savings accounts held by the DeVaughns in amounts totaling about $30,000.00. In early June 1973, almost a year after Mrs. DeVaughn's adjudication of physical incompetency, the DeVaughns delivered to Norris Fleming the deed to him which had been retrieved from Mr. Reed. The deed contained an incorrect legal description of the 80 acre property, and a short time later the DeVaughns gave Norris Fleming a corrective deed. On July 16, 1973, the DeVaughns executed and delivered yet another deed to the same property, joined in by Gene Fleming in his capacity as guardian of Viola DeVaughn, to Norris Fleming. Gene Fleming was not appointed guardian of Mrs. DeVaughn until two days later.

Harry DeVaughn died August 30, 1973, survived by his wife. Shortly thereafter several deeds were recorded. Walter Reed recorded his deed on September 4, 1973. A week after Mr. DeVaughn's death, Mrs. J. P. Allen received in the mail a deed, executed by the DeVaughns August 24, 1966, conveying 40 acres to Mrs. Allen's daughter and son-in-law, Martha and Charles Muse. Mrs. Allen recorded that deed on September 7, 1973, and gave it to the Muses. No evidence introduced at trial showed who mailed the deed to Mrs. Allen. Charles Diamond and his wife similarly received a deed executed by the DeVaughns April 18 1968, conveying some 40 acres to them and H. H. Stone, and they recorded it November 14, 1973.

Mrs. DeVaughn died June 24, 1974. Appellant then sued Gene Fleming and the deed grantees, alleging Gene had mismanaged the guardianship assets, breached his fiduciary duties and acquired his interest in the bank accounts through undue influence, and seeking to set aside the Norris Fleming, Reed, Muse, and Diamond and Stone deeds. The trial court found that, although Gene occupied a confidential relationship with Viola DeVaughn, the evidence negated any claim of undue influence. The judge found the overwhelming weight of testimony showed Mrs. DeVaughn had been mentally, if not physically, competent to handle her affairs when the conveyances were made. He also found the deeds were effectively delivered.

Viola DeVaughn's competency; Gene Fleming's influence.

An adjudication of either physical or mental incompetency as defined by Section 744.31, Florida...