Pilcher v. Surles

• Decision Date: 01 May 1919
• Docket Number: 4 Div. 756
• Citation: 202 Ala. 643,81 So. 585
• Parties: PILCHER et al. v. SURLES.
• Court: Alabama Supreme Court

81 So. 585

202 Ala. 643

PILCHER et al. v. SURLES.

4 Div. 756

Supreme Court of Alabama

May 1, 1919

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Suit by M.J. Surles against Lula Pilcher and others, for the cancellation of a deed. From a decree for complainant respondents appeal. Affirmed.

In a suit by the grantor to cancel a deed given to her three sisters on the ground of undue influence, evidence that the visit of the grantees to the grantor at the time the deed was executed took the grantor by surprise, and that she executed the deed without due deliberation for an inadequate consideration, is sufficient to justify a decree of cancellation.

Complainant appellee here, filed this bill against her three sisters seeking the cancellation of conveyances of certain real estate executed by her on January 19, 1914, to each of them respectively. The court below rendered a decree granting relief and canceling the deeds, and from this decree respondents prosecute this appeal.

The evidence discloses that complainant, a spinster about 75 years of age, was at the time of the execution of these conveyances living in the town of Madrid, about 14 miles from Dothan, Ala., which town is located on the railroad, and that her sister Mrs. A.A. Varner, about 64 years of age, was then residing with her; that another sister, Mrs. S.L. Varner about 67 years of age, was residing at Slocumb; and the third sister Mrs. Lula Pilcher, 53 years of age, was residing in Dothan with her husband, W.C. Pilcher. It is further shown at the time of the taking of the testimony the two sisters Mrs. A.A. Varner and Mrs. S.L. Varner were living at the home of Mrs. Lula Pilcher. Prior to the execution of the deeds in question complainant and her sister Mrs. A.A. Varner were living with their brother, Walter Surles, who died November 23, 1913.

Complainant owned in her own name the house and lot in Dothan deeded to the respondent Mrs. Lula Pilcher, valued at $3,000, and a half interest in the house and lot at Madrid, valued at about $800; the other half being owned by her brother, Walter Surles.

A few days before his death, the said Walter Surles executed a will, devising practically his entire estate to this complainant, and by which she was given the entire interest in the house and lot at Madrid, just referred to, and also a small farm in Houston county, valued at about $1,000. Complainant had filed petition to have this will admitted to probate, of which due notice had been given; and January 26, 1914, was the day set by the court for hearing said petition. This is all the real estate claimed to be owned by complainant, and in addition thereto she had about $100 in money, together with some personal property of little value.

There was evidence tending to show that she was very fond of her brother, Walter Surles, that she assisted in nursing him during his last illness; that he died of pellagra; and that she at the time of the execution of the deeds in question was suffering from the same disease, but to what extent is not made to appear. There was also evidence offered on complainant's behalf tending to show the effects of pellagra upon the patient, especially upon the nervous system and upon the mind. The medical authority offered in evidence stated, in pellagra there are "marked nervous and general symptoms, insanity, mania, or melancholia being common." The physician who had been treating her since the execution of these deeds testified that she had some of these symptoms. The complainant testified that the respondents knew that she was being treated for pellagra, and that on the day of the execution of the deeds she was in a feeble, nervous condition, and deeply grieved over the death of her brother.

The evidence further shows that on January 19, 1914, complainant's two sisters Mrs. Lula Pilcher and Mrs. S.L. Varner, together with W.C. Pilcher, came to the complainant's home at Madrid and spent the day with her. The two sisters went direct to the house, but W.C. Pilcher, who was interested in a business at Madrid, stopped by the business portion of the town, and did not reach the house until about noon. These three insist that this visit was made for the sole purpose, and with no other intention whatever, of getting the two sisters, complainant and Mrs. A.A. Varner, to move from Madrid and live with Mrs. Lula Pilcher in Dothan, as they (respondents) were fearful of their safety in living alone. Respondents state this subject was discussed after the dinner hour, and that they told complainant they were very uneasy for her safety and that of their sister Mrs. A.A. Varner; that W.C. Pilcher stated he would build two rooms on the house which he then occupied in Dothan, where they could come to do light housekeeping. Complainant demurred, saying she had to look after the farm, and W.C. Pilcher offered to assist her in that respect, and bring her down to Madrid often. Complainant then suggested she would sell her property, but said W.C. Pilcher strongly advised against this, making the suggestion that she keep the property and "deed it to the ones she wanted to have it at her death, and not to sell any more; that the rents and income were ample for her to live on; and it would be much better for her." Mrs. Pilcher, in testifying as to this conversation between her husband and complainant, said:

"She said she would have to sell out her stuff, and he said, 'No; I would not do that; you have lost a heap of money; but let out your property. You will have all the income you will need to support you with from now on until your death, and if you want anybody to have your property, just deed it to them, and there will be no trouble about it.' And she agreed to it." That complainant within half an hour's time acquiesced in this suggestion, and, upon being asked to whom she wished her property to go at her death, stated to her three sisters, who were there with her, and that the deeds could be made.

W.C. Pilcher testified that he told them to get together and divide the property as she wanted it to go, and that he left immediately, was gone about an hour; that during his absence he obtained blank deeds from the bank, and upon returning to the house wrote out the deeds and explained to her (complainant) that she could not afterwards sell the property; that he also told her that she should pay the taxes and keep up the repairs, and that she signed the deeds; and he took them to the bank and had the cashier go out later in the afternoon and take her acknowledgment. Such is the version of the transactions from respondents' standpoint.

The deed to Mrs. Lula Pilcher was in the usual form, with covenants of warranty, and conveyed the house and lot in Dothan in which Mrs. Pilcher and her husband were then living. The deed to Mrs. S.L. Varner conveyed the property at Madrid, and that to Mrs. A.A. Varner the farm, each of the deeds being the same with the exception of the change of name, and each containing a reservation to the grantor of all rents and income arising from the property during her life, and reciting a consideration of "love and affection and one dollar."

Complainant had a sister who married one Gregory, and who died, leaving several children. The children of this deceased sister lived but a short distance from the complainant and she knew them quite well, and there was evidence tending to show they had a place in her affections. Some of these children, particularly two nephews, with whom she is now living, were young men of little means, while the evidence tends to show that the respondents were not in need of financial aid.

The evidence further shows that shortly after the execution of the deeds, either the next day or a few days thereafter, complainant stated to W.C. Pilcher she wanted the deeds returned, and this request was refused, and the deeds were thereupon filed for record.

Complainant's version of what transpired on the day of the execution of the deeds is at variance with that of the testimony of respondents. She states that about 3 o'clock in the afternoon, with her three sisters present, W.C. Pilcher began a conversation in which was introduced the subject of the execution of the deeds; that she stated several times she did not want to make the deeds, and that he persistently insisted; that he stated, if she did not execute the deeds, he would break the will of Walter Surles, which, as previously shown, was to be probated just one week from that date; that the will would be broken, and the property divided among the heirs; that when they told her their intentions, it shocked her, as she had had no previous warning whatever, and she was weak and nervous. Her testimony further shows that after considerable persuasion and threats, as above indicated, on the part of W.C. Pilcher--the conversation continuing from 3 o'clock in the afternoon until after sundown--she signed the deeds which he had then and there prepared; that respondents with W.C. Pilcher made the division to suit themselves. Complainant states they insisted on the execution of the deeds that afternoon, as they wanted to catch the train and return home; that W.C. Pilcher did the talking, all of which was in the presence of her sisters, the respondents, and complainant had no one to advise or counsel her.

There is no insistence there existed any ground for a contest of the will of Walter Surles.

Complainant further insists that when she asked W.C. Pilcher for the return of the deeds he declined, saying that he had seen lawyers to find out how to get the property, had showed them the deeds, and they had told him that the deeds were as good as could be made. All of this W.C. Pilcher denies. Complainant made a like request of Mrs. Pilcher, who stated:

"It is best

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