Smith v. Smith

• Decision Date: 19 December 1990
• Docket Number: No. 89-CA-0382,89-CA-0382
• Citation: 574 So.2d 644
• Parties: Robert Lee SMITH, Executor of the Estate of Henderson Smith, Deceased v. Lorene SMITH.
• Court: Mississippi Supreme Court

Page 644

574 So.2d 644

Robert Lee SMITH, Executor of the Estate of Henderson Smith, Deceased v. Lorene SMITH.

No. 89-CA-0382.

Supreme Court of Mississippi.

Dec. 19, 1990.

Fred T. Rucker, Scales & Scales, Jackson, for appellant.

L. Abraham Rowe, Jr., Brandon, John W. Christopher, George Dewey Hembree, III, Montgomery Smith-Vaniz Firm, Canton, for appellee.

Before HAWKINS, P.J., and ANDERSON and PITTMAN, JJ.

PITTMAN, Justice, for the Court:

STATEMENT OF THE CASE

Robert Smith, executor of the estate of his late father, Henderson Smith, filed suit in Madison County Chancery Court, seeking to set aside a conveyance of real property made by Henderson Smith to Lorene Smith, Henderson Smith's daughter-in-law, on the grounds of incapacity to convey on the part of Henderson Smith, and fraud and undue influence on the part of Lorene Smith. After Robert Smith presented his case, the court granted a motion by Lorene Smith to exclude the evidence presented by Robert Smith and dismiss the complaint. Robert Smith appeals, assigning as error:

I. DID THE LEARNED CHANCELLOR, HONORABLE RAY MONTGOMERY, COMMIT FATAL AND REVERSIBLE ERROR IN UPHOLDING AND GRANTING THE DEFENDANT'S COUNSEL, MR. CHRISTOPHER'S MOTION TO EXCLUDE THE EVIDENCE OF THE PLAINTIFF, ROBERT LEE SMITH, AND TO DIRECT A VERDICT FOR THE DEFENDANT, LORENE SMITH, WITHOUT THE NECESSITY OF THE DEFENDANT HAVING TO PUT ON ANY TESTIMONY IN OPPOSITION TO THE PLAINTIFF'S CASE.

STATEMENT OF THE FACTS

Henderson Smith was apparently a long-time resident of Madison County, Mississippi. Two of his children are mentioned in the record. One is Robert Lee Smith, the executor of his estate, whose residence is unknown but may have lived in Ohio. The other is James P. Smith, who died on April 21, 1983, and left as his widow, Lorene Smith, a resident of Cleveland, Ohio. On May 29, 1987, at the age of 83, Henderson Smith conveyed to Lorene Smith, by quitclaim deed, the following property, approximately 23.5 acres:

TOWNSHIP 8 NORTH, RANGE 2 EAST, Section 36:

From the NE/ corner of the South 15 acres of the NE/4 of the SW/4, above Section 36, run thence west 6.65 chains to the point of beginning; run thence North 5.6 chains; thence West 7.18 chains; thence South 5.6 chains; thence East 7.18 chains to the point of beginning; containing 4 acres, more or less, and being located in the NE/4 of SW/4, above Section 36; and any and all portions of this said NE/4 of SW/4, less the South 15 acres thereof and lying in Section 36, Township 8 North, Range 2 East, Madison County, Mississippi.

Exactly when Henderson Smith died is not in the record. It occurred sometime after he conveyed the land in question to Lorene Smith, and before November 12, 1987, because on that date Robert Smith was appointed executor of Henderson Smith's estate. On November 13, 1987, Robert Smith, as executor of Henderson Smith's estate, filed suit in Madison County Chancery Court, and on December 1 amended the complaint, seeking to set aside the deed in question. Smith alleged incapacity on the part of his father and fraud, deceit and undue influence on the part of Lorene Smith. The amended complaint also alleged that no consideration had been paid by Lorene Smith for the property. On December 9, 1987, Lorene Smith filed her answer, denying the pertinent allegations of the amended complaint. She did admit that she paid no consideration for the property, but affirmatively alleged that Henderson Smith intended to make the property a gift to her, his daughter-in-law.

After several delays, the trial in this cause was held on February 15, 1989. Dr. Allen Durfey was the first witness for Robert Smith. Dr. Durfey testified that he had first seen Henderson Smith as a patient in 1972, and had treated him off and on until Smith's death. Smith went to Durfey on April 15, 1985, complaining of confusion and a urinary tract infection. Durfey prescribed Hydergene to try to increase the flow of blood to the brain. Durfey elaborated on the "confusion", describing one who suffers from it as "someone who is not cognizant of all the surroundings that are happening around him." Durfey saw Smith again in November 1985, found that the confusion had increased, and increased the dosage of Hydergene. Durfey saw Smith in January 1986, referring him to a chiropodist for his feet; February 1987, when he referred Smith to an opthalmologist for cataract surgery; and in April 1987, when he treated Smith for a sore throat. Durfey had no reason to believe that Smith had recovered from his confused state, but made no record of Smith's mental state after the November 1985 treatment or during the subsequent visits. Durfey did state that, based on his observations in 1985, he did not think that Smith would have been competent after 1985. Durfey stated that he would not know what Smith's mental condition was after April 1987, the last time he treated him. Durfey acknowledged that Smith was an elderly man, and could not deny that Smith may have had lucid moments amid his confusion.

Christopher Price testified that he had been a neighbor of Henderson Smith's, moved away, and had returned to live in the community for the last twenty years. Price stated that Smith had helped him look after his father during his illness, and Price had reciprocated during Smith's last years. During his last four years, Price would help Smith pay his bills, conduct his business, get groceries, do laundry and take him where he needed to go, such as to the Wilbert Robinson, former Madison County justice court judge, had been acquainted with Henderson Smith for several years, but did not spend enough time around him in his final years to be familiar with his mental condition. Robinson notarized the deed in question, executed on May 29, 1987. According to Robinson, Lorene Smith came into Robinson's store and asked him to notarize the deed. Robinson testified that Smith remained in the car in front of the store, and Robinson witnessed him make his "X" on the deed there. Lorene Smith then wrote Henderson Smith's name on the deed. When asked if he remembered Lorene Smith saying anything to Henderson Smith, Robinson answered: "In essence, and I don't really remember the details, but, ah, ah, I'm practically remembering that she said, 'This is the deed that we was to sign,' or something in that nature." Robinson didn't remember anything more about the transaction, and could not recall any other witnesses. Robinson could not recall anything about Smith's actions which made him believe that Smith didn't know what he was doing. Robinson also notarized another deed for Henderson Smith, one by which Smith conveyed property to Bobby and Doris A. Hunter on August 4, 1987.

                doctor.  Price testified that there was a time when Smith nearly lost some land due to failure to pay taxes, but Price took Smith to the courthouse and got the matter straightened out.  Price mentioned that Smith was illiterate, only able to make an "X" as his mark.  Price remembered seeing Lorene Smith around the Smith home a time or two the last year of Smith's life.  Price testified that during his last two years, Smith was not capable of tending to any of his business, although Price admitted that he didn't have anything to do with Smith's property.  Price stated that Smith had told him, in relation to his property, that "he was leaving it to his boy...."  Price further stated that Smith talked to him all the time about his son, Robert, that "he worried about the boy."   Price thought that Robert lived "[s]omewhere in the North, in Ohio, he lived."   Price denied knowing anything about the deed conveying the property to Lorene Smith, but did say that "I know he didn't know what he was doing if he done it any time during the time I was there."   Price also denied that Lorene Smith had ever talked to him about getting a deed out of Mr. Smith in 1987.  Price felt like Lorene Smith must have been aware of all the services he was performing for Henderson Smith.  Price did not see Smith transact any business during the last two years of his life, and stated that he did not think that Smith was capable of it, saying that Smith's "mind just wasn't right."   Price was the one who found Henderson Smith dead in his home
                

Frank Stimley, an attorney from Jackson, was retained by Henderson Smith and Smith's nephew, the Reverend Bobby Hunter, in July 1985. Stimley said that he "handed a blank sheet of paper to Mr. Smith and told him that this was a deed to his land where he was to sign his land over to me. Mr. Smith made, I believe, his mark on the paper and gave it back to me." Stimley did this to see if Smith could appreciate an earlier action, which Hunter and Smith had come to try and set aside. Stimley testified that at the time he gave Smith this "test", he did not "believe that [Smith] knew the full import of the explanation that I had given and the consequences of his action in signing that blank sheet of paper." As to whether he represented Reverend Hunter as well as Smith, Stimley stated that Reverend Hunter brought Smith to him and paid the legal fees, and it was his understanding that both Hunter and Smith got the benefits of the service. Stimley admitted that Smith expressed himself fairly well, that he could carry on an intelligent conversation, that he could respond to Stimley about the property he had, to the extent of the transaction for which Stimley had been engaged. Stimley felt that Smith could discuss and communicate with him sufficiently so that he could handle a legal matter for him. Stimley saw nothing in Smith's demeanor to make him feel that Smith was insane. In attempting to clarify, Stimley said that he felt one's ability to understand the effect or import of one's actions was different Bentley Conner, a Canton attorney, had known Henderson Smith since 1980. Conner had represented Henderson Smith in getting a deed set aside. In 1983, Conner bought some land from Smith. They also discussed other...