Leggett v. Graham, 45201

• Decision Date: 17 February 1969
• Docket Number: No. 45201,45201
• Citation: 218 So.2d 892
• Parties: Mrs. Ethel LEGGETT, Mrs. Jean Hartford, R. C. Atkinson, Jr., Mrs. Mary Davidson, Mrs. Vera Clark and Mrs. Clifford Barnett, Complainants/Appellants, v. Mrs. Iva GRAHAM, Mrs. Estelle Shortsleeve Ivy and Mrs. Helen Stanley, Defendants/Appellees.
• Court: Mississippi Supreme Court

Page 892

218 So.2d 892

Mrs. Ethel LEGGETT, Mrs. Jean Hartford, R. C. Atkinson, Jr. Mrs. Mary Davidson, Mrs. Vera Clark and Mrs Clifford Barnett, Complainants/Appellants, v. Mrs. Iva GRAHAM, Mrs. Estelle Shortsleeve Ivy and Mrs. Helen Stanley, Defendants/Appellees.

No. 45201.

Supreme Court of Mississippi.

Feb. 17, 1969.

James M. Cain, Canton, Stanford Young, Waynesboro, P. O. Gibson, Jr., Jackson, for appellants.

Riddell & Dabbs, Quitman, for appellees.

PATTERSON, Justice.

This is an appeal from the Chancery Court of Wayne County wherein complaints sought to set aside certain deeds executed by their father, R. C. Atkinson, Sr. Three of Atkinson's children, grantees in these deeds, were named as defendants. From a decree which dismissed their cause, complainants appeal to this Court.

This cause actually relates to an earlier action which began on January 28, 1963, when R. C. Atkinson, Sr., while living with his daughter, Mrs. Helen Stanley, executed a deed conveying certain real property to her and two other daughters Mrs. Graham, and Mrs. Ivy. Shortly thereafter, several of Atkinson's other children, Mrs. Leggett, Mrs. Hartford, Mrs. Davidson, Mrs. Clark, Mrs. Barnett, and Mr. R. C. Atkinson, Jr., filed a petition in the Chancery Court of Wayne County seeking to have their father placed under a guardianship. The cause was defended by Atkinson and the three daughters who were grantees under the deed. The case was heard on February 28, 1963, and was dismissed at the conclusion of the testimony on motion of the defendants. A request for a finding of fact as to Atkinson's competency on that date was refused; however, the chancellor did state in his opinion that:

There is no doubt that he has evidenced by his actions many irrational moments and many, many points of idiosyncrasies, but there has been no proof that would stand the test that he has dissipated his assets in the past to the extent that the Court might feel that he (w)as a person of such unsound mind that he did (not) know and understand at this moment the acts that he has done or what his desires are at this moment.

On February 28, 1963, immediately after this hearing, Atkinson executed a confirmation deed to the appellees on the same property he had previously conveyed to them on January 28, 1963. An appeal was taken from that decision to the Mississippi Supreme Court; however, Atkinson died on March 7, 1963, before the case could be heard. The appeal was thereafter dismissed on motion of the appellees.

In August 1966 the five children who had sought to have Atkinson placed under a guardianship brought this action by filing a bill of complaint to cancel the deeds executed by their father on January 28, 1963, and February 28, 1963. Mrs. Graham, Mrs. Ivy, and Mrs. Stanley, the grantees under the two instruments, were named as defendants and are appellees here. The bill alleged that a confidential relationship had existed between Atkinson and the appellees; that Atkinson had not been capable of executing the deeds in question, and that the appellees had procured said deeds through fraud and undue influence. By amended bill it was further alleged that appellees, particularly Mrs. Stanley, had undertaken to manage Atkinson's business affairs; that a confidential relationship existed between the two, and through undue influence while he was in poor mental and physical condition, she had induced him to execute the deeds.

Both sides offered testimony as to the competence of R. C. Atkinson, Sr. at the time he conveyed the land in question. Evidence for appellants tended to show that Atkinson was in very poor health during the last months of his life, required a nurse a large part of the time, and acted in an odd manner at times. A psychiatrist, offered by appellants, testified in response to hypothetical questions that in his opinion Atkinson was suffering from senile dementia. Another physician, who had treated Atkinson, testified that he had suffered from senility. Both physicians testified on cross-examination that they had not examined Atkinson on the days he executed the two deeds and therefore could not specify his mental condition on those dates.

R. C. Atkinson, Jr., one of the complaints, was called as a witness in his own behalf. After a few introductory questions had been posed, an objection to his competence as a witness under Mississippi Code 1942 Annotated section 1690 (1956), commonly known as the 'Dead Man's Statute,' was sustained.

The defendants introduced credible testimony that although the deceased Atkinson had been in poor physical health and was aged, his mental capacity was normal for a man of his age. Among those testifying were Edwin Stanley, in whose home Atkinson had spent the last months of his life; one of Atkinson's personal physicians; the chancellor who had refused to place Atkinson under a guardianship; a friend who had transacted business with Atkinson shortly before his death; and an attorney who had helped prepare the deeds involved in this suit. All of these witnesses were of the opinion that R. C. Atkinson, Sr. was lucid, capable of transacting business during the period of time when he made the two conveyances, and had been a strong-willed person who was not easily influenced.

The chancellor was of the opinion that complainants failed to meet the burden of proof required in a case of this type and entered a decree which dismissed the cause with prejudice. From that decree they appeal to this Court and assign the following points as error:

1. The action of the trial court in sustaining appellees' objection to R. C. Atkinson, Jr.'s competence as a witness under Section 1690.

2. The admission of two deeds into evidence over objection of appellants' counsel.

3. The finding by the court that appellants did not meet the burden of proof.

4. Failure of the court to find that there was a confidential and fiduciary relationship between Atkinson and the appellees.

5. Failure of the court to find that appellees were dominant parties.

In regard to appellants' first assignment of error, Section 1690, supra, states in part:

A person shall not testify as a witness to establish his own claim or defense against the estate of a deceased person which originated during the lifetime of such deceased person * * *.

Appellants contend that the action of the chancellor in sustaining an objection to the testimony of R. C. Atkinson, Jr. under the above-mentioned statute was erroneous for two reasons. First, they argue that since they were forced to reply under oath to the affirmative matter raised in the defendants' answer, any objection to their further testimony was waived in accord with the principles set forth in Stuckey v. Sallis, 221 Miss. 698, 74 So.2d 749 (1954). Second, they assert that Section 1690 is not applicable to them since the suit did not attempt to establish a claim against the estate of the deceased. They maintain that this was a case between the heirs of R. C. Atkinson, Sr., and was in behalf...