Nelms v. Nelms

• Decision Date: 18 November 1988
• Docket Number: No. 850575,850575
• Citation: 236 Va. 281,374 S.E.2d 4
• Parties: Barbara B. NELMS, etc. v. Joseph Hunter NELMS, et al. Record
• Court: Virginia Supreme Court

Page 4

374 S.E.2d 4

236 Va. 281

Barbara B. NELMS, etc. v. Joseph Hunter NELMS, et al.

Record No. 850575.

Supreme Court of Virginia.

Nov. 18, 1988.

Robert E. Gillette, Suffolk, for appellant.

Richard D. Mattox, Portsmouth, for appellee Eugene Nelms, Jr.

No brief or argument for appellees Joseph Hunter Nelms and Joseph Eugene Nelms, Sr., Deceased.

Present: CARRICO, C.J., POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ., and GORDON, Retired Justice.

POFF, Justice.

In a "Bill of Complaint for Declaratory Judgment" expressly invoking the chancery jurisdiction of the trial court, Herbert C. Nelms (Herbert) asked the chancellor to declare that Joseph Eugene Nelms, Sr. (Mr. Nelms), was competent to execute a deed conveying his homeplace to his son, Herbert. Herbert named his two brothers, Joseph Eugene Nelms, Jr. (Eugene), and Joseph Hunter Nelms (Hunter), and their father as respondents. Mr. Nelms died before trial and later, when Herbert died, his widow, Barbara Nelms, was substituted as complainant. A guardian ad litem, appointed to defend the interests of Hunter, and counsel for Eugene filed an answer and a cross-bill praying that the deed "be decreed null and void" on the grounds that Mr. Nelms was incompetent to execute the instrument and that the deed was "a result of undue influence".

Eugene moved for an issue out of chancery on the question of mental competency raised by his cross-bill. Denying complainant's motion to refer the cause to a commissioner in chancery, the chancellor ruled from the bench that he would submit the competency question to the jury by an interrogatory. The chancellor did not state the ground upon which he rested his ruling.

The chancellor seated a jury of seven to hear the evidence. The record shows that Mr. Nelms, although illiterate, had been the owner and operator of three successful business enterprises. He suffered from diabetes, and in 1978 he sustained a serious heart attack. As a consequence, his doctors instructed him to follow a strict diet and to take medicine daily. Mr. Nelms did neither on a regular basis.

In his will, dated April 11, 1980, Mr. Nelms devised his homeplace in equal shares to his three sons. On January 12, 1981, he executed a deed of gift conveying the same property to his son Herbert. After his mark had been made and witnessed, Mr. Nelms learned that the deed did not contain a provision reserving a life estate. He instructed the attorney, Mrs. Ann Jones, to add such a clause to the document and send him a copy of the deed as revised. Mrs. Jones followed his instructions, but she did not record the instrument. Prompted by the results of legal research, she decided that the deed should be re-executed in a second and formal ceremony.

Because Herbert had told her that Eugene might contest the conveyance, she arranged for the ceremony to be held in the presence of a medical witness. With Mr. Nelms' consent, she made an appointment for Dr. Desmond J. Longford to administer a blood-sugar test and cardiac examination. Dr. Longford conducted the physical examinations and a mental examination in his office on February 2, 1981. Concerning the need for the physical tests, he explained that "when blood sugar of a diabetic is grossly out of control, it can affect ... behavior and ... state of mind ... such that one can be absolutely confused not knowing what one was doing". He said that a person's mental capacity also would be impaired "[i]f the heart is not beating properly ... [because] the oxygenation of the blood going through the lungs is affected, so you would get a relative anoxia or shortness of oxygen supply to the brain."

The clinical tests revealed that Mr. Nelms' "blood sugar at that time was well controlled", that he had "no sugar in his urine", and that his heartbeat, pulse, and blood pressure were "in good shape." Evaluating the results of the mental examination, Dr. Longford said that Mr. Nelms "was in full possession of ... all his mental faculties." Dr. Longford witnessed Mr. Nelms' mark, and Mrs. Jones' clerk notarized the deed. "I'm quite categorically sure he knew what he was doing," Dr. Longford added, "and if I had had any doubt I wouldn't have signed it."

The complainant's evidence consisted primarily of the testimony of Dr. Longford, Mrs. Jones, and the notary public, the three persons who witnessed execution of the deed of gift. In summary, their testimony showed that the contents of the deed were explained to Mr. Nelms, "paragraph by paragraph"; that he correctly identified the property involved; that he remembered the date of his birth and the name of the President; that he knew the names of his three sons; that he wanted Herbert to have his homeplace because, he explained, Herbert and his wife had been caring for him; that he inquired what effect the inter vivos conveyance might have on the tax liability of his estate; and that all of Mr. Nelms' replies to questions posed to him by Mrs. Jones and Dr. Longford were not merely affirmative or negative but narrative and responsive as well. The three witnesses were unanimous in their conclusion that Mr. Nelms was mentally competent at the time he executed the deed of gift.

The witnesses called by the respondents testified that, following Mr. Nelms' heart attack in 1978, he began to exhibit symptoms of progressive senility. He was careless in his attire, sometimes appearing in public with mismatched clothes, with garments turned wrong side out, and with one sock missing. His memory for names was faulty. His behavior was abnormal. On several occasions, friends found him wandering in a daze and asking for a glass of water. He attempted to buy sandwiches at a flower shop. He put salt in his coffee. He tried to get a restaurant to refund money he had paid for food he had ordered and not eaten. He called for an ambulance because he liked to see the blinking lights. He sat in a chair in his office and pretended that he was driving a truck. As the transcript reveals and as Eugene's counsel conceded in oral argument, however, all such testimony related to events that occurred at times other than the time the deed was executed.

At the conclusion of the evidence, the chancellor ruled that there was no evidence to support the respondents' allegation of undue influence, instructed the jury on the law of mental competency, and submitted for the jury's determination the following interrogatory:

Did Joseph Eugene Nelms, Sr., possess mental capacity on February 2, 1981, to execute his deed dated January 12, 1981, conveying his home to his son, Herbert C. Nelms, reserving unto himself a life estate in said real estate?

The jury responded in the negative. In a final decree entered May 2, 1985, the chancellor found that "the verdict is amply sustained by the evidence", ruled that the verdict should be "confirmed", declared the deed of gift "null, void and [of] no effect", and dismissed the bill of complaint.

On appeal, the complainant assigns error to several rulings of the chancellor refusing instructions she had tendered. One told the jury that "an unequal disposition of property by a father among his children does not indicate mental incapacity." Another stated that "conveyances of real estate from a parent to a child are not guarded with a jealous eye, but are generally presumed to be free from suspicion." A third instructed the jury that "the fact that a man made a will dividing ... his ... property among all his children and thereafter conveys part of his land to one of his children ... has no tendency to impeach the validity of the deed but simply shows a change of purpose."

We find no merit in these assignments of error. The complainant cites cases reciting each of the propositions stated in these instructions. We have held, however, that such pronouncements, although pertinent to the analysis in a particular case, are not necessarily appropriate as jury instructions in every case. Oak Knolls Realty v. Thomas, 212 Va. 396, 397, 184 S.E.2d 809, 810 (1971). Moreover, when, as here, the evidence relevant to the determination of a factual issue essential to the disposition of the dispute is in conflict, trial courts should not grant instructions that appear to place a judicial imprimatur on selective evidence. "We have repeatedly held that it is reversible error for a trial judge to single out for emphasis a part of the evidence tending to establish a particular fact." Woods v. Commonwealth, 171 Va. 543, 547-48, 199 S.E. 465, 467 (1938); accord LeVasseur v. Commonwealth, 225 Va. 564, 595, 304 S.E.2d 644, 661 (1983); Snyder v. Commonwealth, 220 Va. 792, 797, 263 S.E.2d 55, 58 (1980).

The complainant also charges that the chancellor erred "by deleting from Instruction Number 1 the language 'the time in which a deed is executed is the vital time for mental capacity to exist.' "

We think the language excised from the instruction could have led the jury to believe that the testimony of witnesses present at the execution of the deed was conclusively dispositive. This is not the law in Virginia. All the evidence adduced by the respondents concerning the grantor's abnormal conduct, memory lapses, and other symptoms of episodic psychosis was relevant to the jury's assessment of the probative value of the evidence adduced by the complainant to show that Mr. Nelms was mentally competent when he executed the deed. "[E]vidence of mental incapacity shortly before or after the principal event is admissible because it throws light on the probable mental condition at the time of such event". Price's Executor v. Barham, 147 Va. 478, 481, 137 S.E. 511, 512 (1927).

As amended, the instruction told the jury that "the testimony of those present when the deed in this case was executed is entitled to great weight." This is fully consistent with the rule stated in the case the complainant cites in support of her assignment of error:

[T]he testimony of those who were present at the factum is chiefly...