Lohman v. Sherwood

• Decision Date: 14 June 1943
• Citation: 181 Va. 594,26 S.E.2d 74
• Court: Virginia Supreme Court
• Parties: LOHMAN. v. SHERWOOD.

26 S.E.2d 74

181 Va. 594

LOHMAN.

v.SHERWOOD.

Supreme Court of Appeals of Virginia.

June 14, 1943.

Appeal from Circuit Court of City of Norfolk; Allan R. Hanckel, Judge.

Suit by John H. Lohman, Jr. as executor, etc., against Lucille S. Sherwood to set aside deeds and a bill of sale, and for alleged conversion of funds of plaintiff's testator. From an adverse decree, complainants appeal.

Reversed and remanded with direction.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

James G. Martin & Son, of Norfolk, for appellants.

W. R. Ashburn, of Norfolk, for appellee.

HUDGINS, Justice.

John H. Lohman, a lieutenant in the United States Navy, retired in 1922. While he was living in Portsmouth with his wife and two children, John H. Lohman, Jr. and Mary Lohman, he became estranged from his family. In an uncontested suit instituted in 1925, his wife obtained a divorce a mensa. In the same suit the court approved a voluntary settlement of the property rights of the parties and eliminated the marital rights of each in the property of the other. Neither party sought to enlarge the decree a mensa into an absolute divorce. Some time after the decree was entered, the wife was adjudicated to be non compos mentis and was committed to the care of her daughter, with whom she now resides.

After the divorce decree was entered, Lohman lived alone in Portsmouth until 1926 or 1927, when he and Lucille S. Sherwood began to live together. They continued to so live until November, 1939, when Lohman's two children had him removed to the Naval hospital in Portsmouth. Later his daughter took him to her home, where he died testate in March, 1940.

Lohman seems to have been frugal, living on his retired officer's pay and making substantial profits on investments. At the time of his death, he had accumulated a considerable estate, the exact amount of which is not disclosed in the record.

Lohman and Mrs. Sherwood seem to have been happy and contented during the thirteen years that they lived together. She kept the house, did the marketing, and was a close personal companion in his social affairs. Different witnesses, who were frequent visitors in the home, stated that Loh man was considerate, devoted and affectionate in his attitude toward Mrs. Sherwood and that she responded in kind. During the last years of his life she acted as his chauffeuse and nurse. She was kind to and considerate of Lohman's children, who were frequent visitors in the home, although they knew of the relations existing between Mrs. Sherwood and their father.

Lohman, in his last will, named his son as executor and divided all of his property between his two children, John H. Lohman, Jr., and Mary Lohman Perrot.

The executor and beneficiaries filed the bill in this cause, alleging that in 1939 their father was 67 years of age, physically weak and mentally incompetent; and that Mrs. Sherwood was an intelligent woman twenty years his junior, who, while "living in adultery with him, " "by undue influence, and without consideration, stripped him of his property, " described in the following instruments: (1) A deed bearing date March 24, 1939, conveying to Mrs. Sherwood three lots in the Bay View Beach section of Norfolk; (2) a deed bearing date July 31, 1939, conveying to Mrs. Sherwood the Sherwood Apartments on Ocean View avenue in Ocean View; (3) a bill of sale bearing date of February 6, 1939, conveying to Mrs. Sherwood certain notes executed by Bessie G. Hanks, payable to Lohman, with payment secured by a deed of trust on real estate, which bill of sale was executed and acknowledged on August 1, 1939; (4) a general power of attorney dated July 6, 1939, authorizing Mrs. Sherwood to sell and convey Lohman's property, check on his bank account and conduct any and all other business for him.

The bill also alleged that Mrs. Sherwood had converted to her own use more than $7,000, from the Seaboard Citizens Bank, and other funds owned by Lohman.

To this bill Mrs. Sherwood filed an answer admitting the execution of the instruments but emphatically denying that she had fraudulently, or by the exercise of undue influence, and, while Lohman was physically and mentally incompetent, illegally stripped him of property of any kind or description.

The case was referred to Richard W. Ruffin, one of the commissioners in chancery of the Circuit Court of the city of Norfolk, who was directed "to take evidence, inquire and report to the court" on each of the issues raised by the pleadings.

The commissioner found that early in the summer of 1939 John H. Lohman became mentally incompetent, and that all instruments executed or acknowledged after July 1, 1939, were invalid and all instruments executed prior to that time were valid. While the commissioner stated that the power of attorney dated July 6, 1939, was invalid, he found that Mrs. Sherwood had not illegally used the power of attorney for her own benefit. To this report each side filed exceptions. The trial court overruled the exceptions of the complainants to the report, sustained the exceptions of Mrs. Sherwood, and entered a decree declaring that Mrs. Sherwood was the legal owner of all property given or conveyed to her in the lifetime of the testator. From that decree this appeal was allowed.

The record thus presents a case in which a commissioner, who had the advantage of noting the demeanor of the witnesses on the stand and their manner of testifying, reached one conclusion, and the trial court, who did not have this advantage, reached an opposite conclusion on the same evidence.

The rule by which this court is guided in such cases was restated by Mr. Justice Gregory in Roark v. Shelton, 169 Va. 542, 194 S.E. 681, in which it was held that the report of a commissioner is not as binding upon the court as a verdict of a jury, and that, when exceptions are filed, it is the duty of the court to examine the evidence, review the conclusions of the commissioner and determine whether or not the conclusions are supported by the evidence. If the testimony is conflicting and the commissioner's conclusions are supported by competent and unimpeached witnesses, the court should not set aside or disturb the report unless the weight of the testimony and the nature of the evidence is such as to make it clear that the commissioner erred.

[2, 3] Judge Prentis, in Clevinger v. County School Board, 139 Va. 444, 124 S.E. 440, 441, said: "It is fundamental, however, that notwithstanding the weight due to a commissioner's report and the respect which is accorded his findings, neither the trial court nor this court should avoid the duty of weighing the evidence when its sufficiency is fairly challenged. Neither in the trial court, nor here upon appeal, should any judgment stand if the record shows that it is unsupported by the testi mony." The converse of this proposition is equally true; namely, if the findings of the commissioner arc supported by credible testimony, then his findings should be sustained.

With these principles in mind we re-examine the record to ascertain whether there is sufficient substantial evidence to support the findings of the commissioner.

While Lohman lived in Portsmouth, he formed a close friendship with A. A. Ban-gel, an attorney, who, from 1925 to 1939, was his legal adviser. In 1932, at Lohman's request, Bangel prepared a will in which certain small specific devises and bequests were made to his daughter, Mary Lohman Perrot, and Mrs. Sherwood, and the residue of his estate was devised to Mrs. Sherwood for life and, at her death, to be equally divided between his two children, John H. Lohman, Jr., and Mary Lohman Perrot. Between 1932 and 1936, Lohman executed several other wills, in each of which he revoked the former will and limited his gifts to Mrs. Sherwood to $3,000. Bangel kept no copies of these wills but two were found and filed as exhibits. In 1936 Lohman executed another will, in which he devised to Mrs. Sherwood her own note for $3,000, secured by a deed of trust on property that had been conveyed to her by her parents. In the same will he devised to his daughter a house and lot in Portsmouth, cancelled all indebtedness due him by Robert Perrot, the husband of his daughter, and named his son as executor. The residue of the property was not mentioned or described in this will. In March, 1939, at Lohman's request, Bangel prepared another will, in which all previous wills were revoked and in which he directed that his entire estate be divided equally between his children. His son was named as executor. This will was admitted to probate. John H. Lohman, Jr., qualified as executor and proceeded to administer on the estate of his father.

On October 23, 1939, Lohman and Mrs. Sherwood saw Bangel in his office. During this interview Bangel observed the physical and mental condition of Lohman and, on account of his mental condition, refused, as trustee, to execute a release to a deed of trust which was held by Lohman to secure the payment of certain notes. In the controversy which later developed over Ban-gel's refusal to execute a release, he ascertained that Lohman had executed a general power of attorney authorizing Mrs. Sherwood to transact all business matters forand in behalf of Lohman. When Lohman's children were informed of this fact, they instituted proceedings in the Corporation Court of the city of Norfolk in which Lohman was declared to be non compos mentis. Bangel was appointed his guardian.

Bangel, as guardian, with the aid of his attorney, James G. Martin, ascertained that, between December 27, 1938, and August 12, 1939, Lohman, for no valuable consideration, had transferred to Mrs. Sherwood real estate and personal property valued at approximately $40,000, and that, by a general power of attorney, she had been authorized to sell and convey any and all property owned by Lohman, to collect the rents and to draw at will on his bank account. Bangel, as guardian, entered a...