Layton v. Pribble, 4831

• Decision Date: 01 December 1958
• Docket Number: No. 4831,4831
• Citation: 200 Va. 405,105 S.E.2d 864
• Parties: DANIEL J. LAYTON, GUARDIAN ETC., ET AL. v. BASCOM S. PRIBBLE, JR., COMMITTEE. Record
• Court: Virginia Supreme Court

Page 864

105 S.E.2d 864

200 Va. 405

DANIEL J. LAYTON, GUARDIAN ETC., ET AL. v. BASCOM S. PRIBBLE, JR., COMMITTEE.

Record No. 4831.

Supreme Court of Appeals of Virginia

December 1, 1958.

Stuart G. Christian and Harry B. F. Franklin (Christian, Marks, Scott & Spicer; Franklin & Rawlings, on brief), for the appellants.

Walter E. Rogers (Williams, Mullen, Pollard & Rogers, on brief), for the appellee.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

This is an appeal from an order denying and dismissing the petition of Daniel J. Layton, the Delaware guardian of Rose Neel Henderson, filed under § 26-60 of the Code for the transfer to him of the personal estate of his ward in the hands of her Virginia committee, Bascom S. Pribble, Jr.

Section 37-140 of the Code provides for the appointment of a committee or guardian of the 'person' or property' of one who has become mentally or physically incapable of taking care of his person or properly handling his estate, such committee or guardian to have the same rights and duties as given to committees appointed for the mentally ill under other sections of the Code. Pursuant to this section and upon the motion of Miss Henderson, then a resident of Stafford county, Virginia, the court by order entered May 19, 1954, appointed Bascom S. Pribble, Jr., as committee of Miss Henderson's estate.

Thereafter the committee filed a petition alleging that Caroline Henderson, sister of Rose, had removed Rose, contrary to the committee's directions, from this State and refused to return her, and praying for an order directing her return. Pursuant thereto the court entered an order on February 7, 1955, directing Caroline to return Rose to her home in Stafford county and directing that the committee continue to have complete control of her property as well as her person. Rose was then living with her sister Caroline in Georgetown, Delaware, and this order was not complied with.

On February 11, 1956, Daniel J. Layton, as Delaware guardian, and Rose Neel Henderson, referred to herein as complainants, filed the petition first mentioned praying that the personal property of Rose be transferred to the Delaware guardian. It alleged that in December 1954 Rose decided to make her home with her sister Caroline in Georgetown, Delaware, and accordingly took up her abode and became legally domiciled there; that because of her advanced age and state of health it would be highly detrimental for her to return to her home on her farm in Stafford county. Exhibited with the petition was a certificate by the State psychiatrist of Delaware that he had examined Miss Henderson on March 25, 1955, and found her rational and mentally competent to decide where and with whom she wished to reside. Also exhibited was a letter written by Dr. Scott, of Fredericksburg, Virginia, to the committee, stating that at the committee's request he had examined Rose in Georgetown, Delaware, on October 12, 1955, found her in excellent physical health for her age of 75 years, and showing every sign of being happy and well cared for; that he found her totally incapable mentally to conduct her business affairs, but sufficiently competent to be able to state her preference for companionship 'and in this she has consistently chosen her sister, Caroline'; that she became confused and made contradictory answers to questions about her present residence and future plans, but 'one thing about which she was consistent was that she is happy and wishes to continue living with her Sister Caroline.'

The petition further alleged that upon a petition duly filed in the Orphans' court of Sussex county, Delaware, said Daniel J. Layton, of Georgetown, Delaware, was appointed guardian of the property of Rose Neel Henderson, and duly authenticated copies showing that proceeding were exhibited with the petition.

The committee filed his answer to this petition on March 1, 1956, stating that Rose Neel Henderson at the time of his appointment resided in Stafford county, Virginia, and there owned a farm of 223.3 acres with farm equipment thereon and a large amount of corporate stock and other intangibles. The corporate stock was some 4800 shares in the Riegel Paper Corporation, upon which the committee had received dividends of $8,491.80 to December 5, 1955. The answer alleged that by undue influence Caroline had obtained from Rose, in August 1952, a deed for the farm and an assignment of the stock, and as a result of a compromise brought about by the committee, Caroline had reconveyed this property to Rose, taking a deed of trust on the farm and 1000 shares of the stock to secure payment of $25,000 by Rose to her; that after his appointment as committee, Caroline had interfered with his management of the estate, had taken Rose out of this State, and that the Delaware court was without jurisdiction to appoint a guardian for Rose.

Afterwards, on the petition of the committee, who had received notice of the purpose of the guardian to take depositions in Delaware, an order was entered on May 11, 1956, requiring Rose to appear and to testify orally before the court at such times as might be fixed and stating that any depositions would be disregarded whether taken in Delaware or elsewhere. That order was not obeyed because Rose was physically and mentally unable to comply with it. There were other proceedings in the matter with which we need not be now concerned.

Thereafter depositions were taken on behalf of the complainants in Georgetown, Delaware, and on behalf of the defendant in Fredericksburg, Virginia, and on September 9, 1957, the court entered the decree appealed from denying and dismissing the complainants' petition for reasons stated in two written opinions. These reasons were that Miss Henderson had no property in Delaware, and, hence, under the Delaware statute the Delaware court had no jurisdiction to appoint a guardian for her or make any other findings; that its order was therefore void and the guardian had no standing before the court in the capacity in which he had sued; further, that Miss Henderson was incapable of joining in the petition in person, and that she had not voluntarily changed her residence from Virginia to Delaware, but such change had been made under the undue influence of her sister Caroline.

The Delaware guardian was appointed under Title 12, § 3954 of the Code of that State, providing for the appointment of a guardian for the property of a resident of that State who by reason of advanced age or mental infirmity or physical incapacity is unable to manage and care for his property. The petition for the appointment was filed by Miss Henderson in January 1956. It alleged, inter alia, that she was born December 21, 1880; that she had surrendered her domicile in Virginia on December 8, 1954, and then became domiciled in and a legal resident of Georgetown, in Sussex county, where she was residing with her sister Caroline, who was her nearest relative. At a hearing on this petition Miss Henderson was examined personally by the court and other witnesses were heard, and the court entered its order finding that she was legally competent to change her domicile and that her legal place of residence was in Georgetown, Sussex county, Delaware; that a guardian of her property should be appointed and Daniel J. Layton was accordingly appointed and required to give bond in the penalty of $500, subject to be increased when...