Peacock v. Du Bois

• Decision Date: 20 July 1925
• Parties: PEACOCK v. DU BOIS et al.
• Court: Florida Supreme Court

105 So. 321

90 Fla. 162

PEACOCK v. DU BOIS et al.

Florida Supreme Court

July 20, 1925

En Banc.

Suit by Kenneth H. Du Bois and others against George L. Peacock to cancel and set aside a deed. Decree for complainants, and defendant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Sufficiency of bill of complaint cannot ordinarily be raised for first time in appellate court. The sufficiency of a bill of complaint must be tested by demurrer or other appropriate pleading in the lower court, and cannot ordinarily be raised for the first in the appellate court.

Decree based largely or solely on questions of fact will not be disturbed on appeal unless clearly erroneous. In equity as in law every presumption is in favor of the correctness of the ruling of the trial court, and a decree based largely or solely on questions of fact will not be disturbed unless clearly erroneous.

Conditions necessary to constitute 'undue influence' stated. To constitute 'undue influence,' the mind must be so controlled or affected by persuasion or pressure, artful or fraudulent contrivances, or by the insidious influences of persons in close confidential relations with him, that he is not left to act intelligently, understandingly, and voluntarily, but subject to the will or purpose of another.

'Undue influence,' justifying setting aside of will, deed, or other contract must be such as to dethrone free agency of person making it, and rendering his act product of will of another instead of his own. 'Undue influence,' justifying the setting aside of a will, deed, or other contract must be such as to dethrone the free agency of the person making it and rendering his act the product of the will of another instead of his own. The character of the transaction, the mental condition of the person whose act is in question, and the relationship of the parties concerned to each other, are all elements that may be taken in consideration in applying the rule.

Grantee in deed by aged woman who disinherited her children in favor of grantee who had no claims on her, has duty to show that deed was bona fide, and not seeured by fraud or undue influence. Where a woman in her late 50's deeds practically all the property she has for a nominal consideration to a man in his late 20's, who is almost a stranger to her, and who has no claims whatever on her bounty, thereby disinheriting her own children, and there being questionable circumstances connected with the transaction, the duty is imposed on the grantee to show that the deed was bona fide, and not secured by fraud or undue influence.

At common law gift causa mortis was restricted to personal property; common law restricting gifts causa mortis to personal property has not been extended in this state. Under the common law, a gift causa mortis was restricted to personal property, and in the nature of things could not extend to real estate. The common law has not been extended in this state.

Appeal from Circuit Court, Broward County; C. E Chillingworth, judge.

COUNSEL

Bart A Riley and Fred W. Pine, both of Miami, for appellant.

C. L Chancey, C. E. Farrington, and Maxwell Baxter, all of Ft. Lauderdale, for appellees.

OPINION

TERRELL J.

Some time in 1921 Anna Du Bois Robie, aged 57, moved from Albany, N. Y., to Ft. Lauderdale, Fla., where she purchased certain real estate on which she resided as her home. She left surviving her in the state of New York one son, Kenneth H. Du Bois, and one daughter, Grace Du Bois Whitcomb, and Le Roy Whitcomb, husband of said Grace Du Bois Whitcomb, all of whom are appellees here.

Anna Du Bois Robie died intestate in a hospital at Miami September 13, 1922. On May 31, 1922, George L. Peacock, aged 28, appellant in this case, took board and lodging with Mrs. Robie and remained in her home up to the time of her death. It appears that Peacock was very attentive to Mrs. Robie these three months or more he roomed and boarded with her, and about four weeks prior to her death she executed a deed to him covering her home place; the same being lots 5 and 6 of block 6 of Rio Vista subdivision as the same appears of record in the public records of Broward county, Fla. She also made him a bill of sale to her automobile.

This suit was brought by appellees in the court below to cancel and set aside the deed from Mrs. Robie to Peacock on the ground of fraud and undue influence. Issue was made on the answer and cross-bill to the amended bill of complaint. Testimony was taken by a special master, and on final hearing the chancellor entered his decree in favor of appellees. Appeal is taken from this decree.

Counsel for appellant devote considerable space in their brief discussing the sufficiency of the allegation of the amended bill of complaint to support fraud and undue influence on the part of appellant. The sufficiency of the amended bill was not tested by demurrer or other appropriate pleading in the court below, so the question cannot be considered at this time. Thomas Bros. Co. v. Price, 56 Fla. 854, 48 So. 262; Vaughan's Seed Store v. Stringfellow, 56 Fla. 708, 48 So. 410; Hancock v. State Exchange Bank, 70 Fla. 243, 70 So. 211; Hartford Fire Ins. Co. v. Brown, 60 Fla. 83, 53 So. 838.

It is conceded by all counsel engaged in this case that the sole question presented for review here is the sufficiency of the testimony to sustain the decree of the chancellor. This court has repeatedly held that in equity as in law every presumption is in favor of the correctness of the ruling of the trial court and a decree based largely or solely on questions of fact will not be disturbed unless clearly erroneous. Viser v. Willard, 60 Fla. 395, 53 So. 501; Powell v. Powell, 77 Fla. 181, 81 So. 105; Whidden v. Rogers, 78 Fla. 93, 82 So. 611; Sandlin v. Hunter Co., 70 Fla. 514, 70 So. 553.

Does the testimony show fraud and undue influence? Fraud and undue influence are not, strictly speaking, synonymous, though undue influence has been classified as either a species of fraud or a kind of duress, and in either instance is treated as fraud in general. Heath v. Capital Savings Bank & Trust Co., 79 Vt. 301, 64 A. 1127; Cooper v. Harlow, 163 Mich. 210, 128 N.W. 259; Grove v. Spiker, 72 Md. 300, 20 A. 144; Frush v. Green, 86 Md. 494, 39 A. 863, 866.

In Howard v. Farr, 115 Minn. 86, 131 N.W. 1071, the court said:

'To constitute 'undue influence,' the mind * * * must be so controlled or affected by persuasion or pressure, artful or fraudulent contrivances, or by the insidious influences of persons in close confidential relations with him, that he is not left to act intelligently, understandingly, and voluntarily, but * * * subject to the will or purposes of another.'

In Myatt v. Myatt, 149 N.C. 137, 62 S.E. 887, the court said that, to constitute 'undue influence,' it is unnecessary that moral turpitude or improper motive should exist, and if one, from the best of motives, having obtained a dominant influence over a grantor's mind, induces him to execute a deed or other instrument materially affecting his rights, which he would not have otherwise executed, so exercising the influence obtained that the grantor's will is effaced or supplanted, the instrument is fraudulent.

In Prescott v. Johnson, 91 Minn. 273, 97 N.W. 891, the court held that:

'Undue influence which will invalidate a gift must be something which...