Hawthorne v. Jenkins

• Decision Date: 15 May 1913
• Citation: 62 So. 505,182 Ala. 255
• Parties: HAWTHORNE et al. v. JENKINS et al.
• Court: Alabama Supreme Court

62 So. 505

182 Ala. 255

HAWTHORNE et al. v. JENKINS et al.

Supreme Court of Alabama

May 15, 1913

Rehearing Denied June 19, 1913

Appeal from Chancery Court, Wilcox County; Thomas H. Smith Chancellor.

Suit by Leila Hawthorne and others against J.D. Jenkins and others. From a decree for defendants, complainants appeal. Affirmed.

W.A Gunter, of Montgomery, and A.D. Pitts, of Selma, for appellants.

W.W Quarles, of Selma, and E.N. & P.E. Jones, of Camden, for appellees.

SOMERVILLE J.

It is conclusively shown by the evidence, without serious conflict, that at the time he executed the two deeds here sought to be annulled Dr. Jenkins was not only sound of mind, but was alert and vigorous in the use of his mental faculties. It also very clearly appears that he himself conceived the plan of saving his farm from the incubus of his accumulated debts by turning the property over to his sons and son-in-law on their undertaking to pay off the debts, and that he was not in fact unduly influenced in the transaction by any of the grantees named in the deeds, nor by any one collaterally interested therein. The testimony of complainants themselves does not seem to controvert that theory; their point of contention being, as we read the record, that the principal deed was not intended as a grant in fee to the three grantees, but as a grant in trust for all of the grantor's heirs, who were to take by inheritance as soon as the alleged trustees had freed the property of the debts with which it was incumbered.

It is argued in the brief for complainants that the grantor did not intend to make an absolute deed to his sons, and that he executed the deed to them without knowing or understanding its contents or its effect. This contention is not supported by the evidence, and the conclusion cannot be escaped that a man of the grantor's education and intelligence, in the full exercise of his faculties, who directed the scrivener in the framing of the deed, and who took it in his hands, and apparently read it over, and declared it was "just what he wanted," understood, approved, and adopted the deed as executed.

The only plausible theory upon which complainants' case can be rested is that fiduciary relations existed between the grantor and the grantees, or some of them, that the grantees dominated in the transaction, and that the grantor did not have the benefit of competent independent advice. The relation of parent and child is per se a confidential relation, but it is always presumed, prima facie, that in all transactions between them the parent is the dominant party, and that they are free from undue influence. McLeod v. McLeod, 145 Ala. 269, 40 So. 414, 117 Am.St.Rep. 41; Dolberry v. Dolberry, 153 Ala. 434, 44 So. 1018; Stanfill v. Johnson, 159 Ala. 546, 49 So. 223; Neal v. Neal, 155 Ala. 604, 47 So. 66; Bain v. Bain, 150 Ala. 453, 43 So. 562; Couch v. Couch, 148 Ala. 332, 42 So. 624; Sanders v. Gurley, 153 Ala. 459, 44 So. 1022. In such cases the burden is upon the complainant to overcome this presumption, and to reasonably satisfy the court that time and circumstances have reversed the order of nature, so that the dominion of the parent has not merely ceased, but has been displaced, by subservience to the child.

"Where evidence is introduced showing that the parent has reached the state of senility and is dominated by the child, it would then be incumbent upon the child to show the fairness of the transaction, and that the parent acted upon free and independent advice." Dolberry v. Dolberry, supra.

And "where a deed is made by a parent to a child, whether natural or adopted, the burden rests upon the party assailing it to prove incapacity or undue influence." Stanfill v. Johnson, supra.

Mr. Pomeroy, writing on this particular subject, says: "Where the positions of the two parties are reversed, where the parent is aged, infirm, or otherwise in a condition of dependence upon his own child, and the child occupies a corresponding relation of authority, conveyances conferring benefits upon the child may be set aside. Cases of this kind plainly turn upon the exercise of actual undue influence, and not upon any presumption of invalidity; a gift from parent to child is certainly not presumed to be invalid." 2 Pom.Eq.Jur. (3d Ed.) § 962. The authorities cited by Mr. Pomeroy are numerous, and amply support the text. They justly distinguish the relation of parent and child, in so far as gifts or grants from the parent to the child are concerned, from other classes of confidential relations, and they revoke such benefits only where the exercise of actual undue influence is shown, and not merely because of a confidential relation and the absence of competent independent advice to the grantor. The fundamental reason for this distinction is that gifts and benefits flow naturally from parent to child, and are in accordance with the social instincts and the common practice of all mankind. Hence, even where the dominance of the parent has presumptively ceased, the inquiry is not solely whether the parent had competent independent advice, but whether on all the evidence it reasonably appears that the beneficial act proceeded from the free volition of the parent without imposition or coercion on the part of the beneficiary. See especially Burton v. Burton, 82 Vt. 12, 71 A. 812, 17 Ann.Cas. 984, and note collecting all the authorities; Burwell v. Burwell, 103 Va. 314, 49 S.E. 68; Clark v. Clark, 174 Pa. 309, 34 A. 610, 619; Haynes v. Harriman, 117 Wis. 132, 92 N.W. 1100; Wessell v. Rathjohn, 89 N.C. 377, 45 Am.Rep. 696; Mackall v. Mackall, 135 U.S. 167, 10 Sup.Ct. 705, 34 L.Ed. 84; Sawyer v. White, 122 F. 223, 58 C.C.A. 587. This doctrine is not in conflict with the principles declared in Noble's Adm v. Moses, 81 Ala. 530, 1 So. 217, 60 Am.Rep. 175, for the case there was one of benefit proceeding from the child to the parent. Nor is it in conflict with the principles stated in McQueen v. Wilson, 131 Ala. 606, 31 So. 94. In that case a testamentary act was involved, and not a transaction inter vivos, and in discussing the general subject of undue influence the rules governing confidential relations in general, as declared in Noble's Adm'r v. Moses, were stated obiter in the opinion, but the application was made to the intimate relation of "rector and parishoner, priest and penitent," coupled with sickness of the one, and great confidence reposed in the other.

Appellants' contention is that in the present case they have overcome...