Gilbreath v. Gilbreath
| Citation | 177 So.2d 915,278 Ala. 289 |
| Decision Date | 11 March 1965 |
| Docket Number | 6 Div. 867 |
| Parties | James C. GILBREATH v. Alvin L. GILBREATH, a Non Compos Mentis, etc. |
| Court | Alabama Supreme Court |
Dempsey Pennington, Birmingham, for appellant.
Rogers, Howard, Redden & Mills, Birmingham, for appellee.
This is an appeal from a final decree of the Circuit Court of the Tenth Judicial Circuit of Alabama, in Equity, setting aside a warranty deed conveying certain described real estate executed on May 29, 1959. On that date, Alvin L. Gilbreath conveyed to himself and James C. Gilbreath, his nephew, jointly with the right of survivorship, certain real estate which is the subject matter of this suit.
On May 24, 1961, on a petition filed by McKinley Gilbreath, a brother, Alvin L. Gilbreath was declared a non compos mentis by the Probate Court of Jefferson County, Alabama, and Hon Ben A. Engel, the county guardian, was appointed his legal guardian.
From a bill in equity, filed in the name of the said guardian to set aside the aforementioned deed, the trial judge entered a final decree declaring the said deed null and void, and divesting James C. Gilbreath, appellant, of all right, title and interest in the lands conveyed. From the decree, James C. Gilbreath appealed.
The evidence discloses the following: Mr. Alvin L. Gilbreath, the appellee, is a retired railroad trainman. He had been afflicted for several years with diabetes and high blood pressure. For a period of three weeks in 1957, his illness required hospitalization. After the death of his wife in 1957, Mr. Gilbreath lived alone in his Birmingham, Alabama, home, which he owned, and in which he had lived for most of his life. He had a personal savings account which amounted to approximately $11,000. He had no surviving children and no descendants of deceased children. He had no relatives within the city, but he did have one living brother, McKinley Gilbreath, and several nieces and nephews, among them the appellant, James C. Gilbreath. James C. Gilbreath lived in Gadsden, a distance of some 60 miles from Birmingham. McKinley Gilbreath lived in Guntersville, Alabama, some 100 miles from Birmingham.
In the latter part of May, 1959, the appellee telephoned his nephew, James C. Gilbreath, at his home in Gadsden and requested that his nephew visit him. The appellant, James C. Gilbreath, came to Birmingham on May 29, 1959, and together, he and Alvin L. Gilbreath went to downtown Birmingham, where Alvin L. Gilbreath, after attending to some personal business, went to his bank and converted his personal savings account into a joint account, which gave to James C. Gilbreath the right of withdrawal. Thereafter, they went to the office of a local attorney, who, at the request of Alvin L. Gilbreath, prepared the deed which is the subject matter of this litigation.
The deed conveyed Alvin L. Gilbreath's real estate to himself and to James C. Gilbreath jointly, with the right of survivorship. They then proceeded to the Probate Court of Jefferson County where the deed was recorded by Alvin Gilbreath. The next day, James C. Gilbreath returned to his home in Gadsden, Alabama.
In February, 1961, the appellee became ill and was carried to the hospital for treatment of an infected foot, hardening of the arteries, diabetes and dietary deficiency. He was discharged about six weeks later.
Shortly after his entry to the hospital in February, 1961, possibly a day or two, appellee's brother, McKinley Gilbreath, came from his home in Guntersville to the hospital where appellee was a patient, and actively assumed control of his brother's affairs. During this period, he learned of the transactions which had occurred on May 29, 1959, and, in particular, he learned of the deed which is the subject matter of this suit.
On February 24, 1961, an attorney employed by McKinley Gilbreath, petitioned the Jefferson County Probate Court, asserting that appellee was mentally incompetent, and praying that the court appoint a guardian for him, which resulted in Hon. Ben A. Engel being named his legal guardian.
On August 18, 1961, the present litigation was commenced by Hon. Ben A. Engel, as guardian of Alvin L. Gilbreath. The bill of complaint alleged that the appellee, Alvin L. Gilbreath, was mentally incapable of executing the deed, the subject matter of this suit, and that the same was a product of undue influence exerted by appellant upon appellee, and that there was no delivery, or an ineffective delivery, of the deed.
Evidence was heard ore tenus by the trial court, and he rendered a final decree granting the relief prayed for in the bill of complaint based on a finding of mental incapacity. The trial court found it unnecessary to reach any conclusion concerning the charge of undue influence and the failure of delivery. James C. Gilbreath appealed.
The first question is whether or not this action should be brought by the guardian. In other words, was the guardian charged with the duty of only managing the ward's estate as it was delivered to him, or was he under a positive duty to actively exploit every transaction and collect every 'possible' debt owed to the estate of the ward?
In Abrams v. Abrams, 225 Ala. 622, 144 So. 828, it was said:
'In cases like the one now under consideration, the courts cannot overlook or be forgetful of the fact that a person of sound mind may dispose of his property as he sees fit, and it is the solemn duty of the court to uphold a conveyance, where understandingly made, by persons of sound mind, although the grantee may be a relative, and the conveyance is wholly voluntary, in the absence of any evidence of undue influence in fact, or the presumption of such arising from the relation of the parties. * * *'
All transactions before derangement or during a lucid period must be upheld and enforced by a guardian. Essentially, the duty of a guardian is the performance of a personal service for the ward, management of his estate. Davis v. State, 237 Ala. 143, 185 So. 774.
If, however, the person disposing of the property is declared to be, subsequent to the disposition, non compos mentis, and there is, at least, a reasonable question as to his sanity at the moment of disposition, '[i]t is the positive duty of the guardian to collect the assets of his ward, to reduce to possession choses in action, and to collect debts due the estate of his ward.' Cox v....
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