Lamb v. Scott

• Decision Date: 01 July 1994
• Citation: 643 So.2d 972
• Parties: Rita D. LAMB and Judy C. Heliste v. Timothy D. SCOTT. 1930542.
• Court: Alabama Supreme Court

Page 972

643 So.2d 972

Rita D. LAMB and Judy C. Heliste v. Timothy D. SCOTT.

1930542.

Supreme Court of Alabama.

July 1, 1994.

Roy O. McCord of McCord & Martin, Gadsden, for appellants.

William D. Hudson, Gadsden, for appellee.

SHORES, Justice.

The issue in this case is the validity of a deed executed by Rita D. Lamb, the donee of a durable power of attorney, to herself and her sister, Judy C. Heliste.

Timothy D. Scott sued Lamb and Heliste, asking that the deed executed by Rita Lamb to Rita Lamb and Judy Heliste be set aside and held for naught. The complaint also asked that the property described in that deed be sold for a division of the proceeds among joint owners. (Scott claimed to be a joint owner.) Scott moved for a summary judgment. The trial court granted Scott's motion and declared the deed void. Lamb and Heliste appeal.

Dollie Scott executed a durable power of attorney to her daughter, Rita Lamb. Almost a year later, Dollie executed a will leaving all her property, including a farm located in Etowah County, to her two daughters, Rita Lamb and Judy Heliste, and her stepson, Timothy Scott, the three to share equally. About a month after Dollie executed the will, she suffered a stroke and became incapacitated; a month after Dollie suffered the stroke, Rita, as attorney in fact for Dollie, deeded Dollie's farm to herself and her sister, Judy Heliste, with right of survivorship. Dollie subsequently died.

The first issue is whether the deed executed by Rita Lamb, as attorney in fact for Dollie Scott, is valid as to Rita. Our case law is clear that powers of attorney will be construed strictly, restricting the powers to those expressly granted. Sevigny v. New South Federal Savings & Loan Ass'n, 586 So.2d 884, 886-87 (Ala.1991). Because Lamb's power of attorney did not specifically state that Lamb could convey land to herself, she was without the power to do so. Hall v. Cosby, 288 Ala. 191, 193, 258 So.2d 897, 899 (1972).

Lamb and Heliste argue that Ala.Code 1975, § 26-1-2, supersedes the case law regarding durable powers of attorney. We disagree. Lamb and Heliste specifically refer to § 26-1-2(b) as the subsection that supersedes our case law. That section provides:

"(b) All acts done by an attorney in fact pursuant to a durable power of attorney during any period of disability, incompetency or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and his successors in interest as if the principal were competent, not disabled and not incapacitated."

That subsection merely provides that the incapacity of the donor of a durable power of attorney does not change the effect of actions of the donee taken in conformity with the authority conferred by the power of attorney. It does not supersede the common law rules for determining the authority conferred by a power of attorney. Because the common law rule that a power of attorney grants only those powers expressly conferred remains unchanged, the trial court correctly held that the deed was void as to Lamb.

The second issue is the effect of the deed as to Heliste. It is obvious from Dollie's will, executed after she had executed the power of attorney, that Dollie's intention was to leave all her...