Thompson v. Thompson

• Decision Date: 17 May 1940
• Docket Number: No. 13195.,13195.
• Citation: 9 S.E.2d 80
• Parties: THOMPSON. v. THOMPSON et al.
• Court: Georgia Supreme Court

9 S.E.2d 80

THOMPSON.

v.THOMPSON et al.

No. 13195.

Supreme Court of Georgia.

May 17, 1940.

Error from Superior Court, Cobb County; J. H. Hawkins, Judge.

Suit by Ida H. Thompson, by next friend, against Frank Thompson and another to cancel a power of attorney, which plaintiff had executed to Zuett Thompson and two deeds, which Zuett Thompson, as attorney in fact, had executed to Frank Thompson. To review a judgment for defendants, the plaintiff brings error.

Reversed.

Ida Hammond Thompson, seventy-two years of age, by next friend, filed a petition against Zuett Thompson, her brother-in-law, and Frank Thompson, also a brother-in-law, brother of Zuett Thompson, to cancel a power of attorney, which she had executed to Zuett Thompson, and two deeds, which the latter as attorney in fact had executed to Frank Thompson, conveying the remainder interest of the plaintiff, after her death, in two city lots and in eighty acres of farm property. The petition alleged that, on account of a previous stroke of paralysis and impairment of her faculties, the plaintiff could not read and was unable to understand the nature and consequence of her act in signing the power of attorney; that Zuett Thompson represented to her that it was merely a paper to enable him to borrow money for her at the bank in order to pay off a paving debt on the property, which she would lose unless paid; that this defendant and Frank Thompson colluded to obtain title to her property by the execution of the deeds for a purported consideration of $125 for each deed, whereas the value of the remainder interest was $1,500 for each of the two groups of property conveyed by the instruments; that Frank Thompson knew as to the plaintiff's condition and as to the alleged fraud when he took the deeds; that there existed an understanding between the two brothers that Frank Thompson should hold the legal title until the death of the plaintiff, and the defendants would then divide the property; and that the power of attorney was insufficient to authorize the sale or the execution of the deeds in question. Both defendants in their answers denied all averments of fraud. Frank Thompson set up an absolute purchase of the remainder interest in the property in good faith and for an adequate consideration of $250, which he had "expended for purchase-price, " and he prayed a recovery of that sum with seven per cent, interest, "if the jury * * * should see fit to cancel said deed." Zuett Thompson set up that he had paid out $115.62 for paving assessments and $114.-62 for groceries, for which he also prayed a recovery, if the jury should find in favor of a cancellation of the deeds. The material parts of the power of attorney from the plaintiff were as follows: "That I, Ida Hammond Thompson, have constituted, made, and appointed * * * Zuett Thompson * * * my true and lawful attorney in fact, for me and in my name, place, and stead to represent me generally in my business affairs, giving and granting unto my said attorney full and complete power in and about the premises. * * * This is intended as a general power of attorney to handle all of my property and to do any and all things necessary in connection therewith, including the right and authority to make any and all deeds and conveyances should any of my property be disposed of."

The jury found for the defendants on the issues submitted by the court's charge, as to whether the plaintiff had sufficient mental capacity to execute the power of attorney, and as to whether that instrument and the deeds were executed as the result of fraud practiced upon her.

On the question of mental capacity the plaintiff testified in the trial, the record indicating that she was unable to talk intelligibly, and that her answers to questions were given by nodding or shaking her head. She denied her understanding or ability to understand the power of attorney, or that she had any intention thereby to give a power to sell her lands. As to her mentality, a physician testifiedthat she had a stroke of apoplexy, paralyzing her throat and preventing her from talking, about a year before the transaction, and another stroke just before the transaction, rendering her "emotionally unstable, " unable to move or talk, retarding her mental faculties and ability to reason; and gave his opinion that she would not have had the mental ability to understand the paper. Another physician testified to similar effect. Other non-expert witnesses, who had seen the plaintiff, gave their opinions as to her lack of mental capacity to understand the transaction or execute the instrument. Oh the other hand, there was testimony for the defendants, going to show the intelligence of the plaintiff and her mental capacity to execute the power of attorney, and as to the reading of it, to her several times and her understanding of the contents before it was signed. On the question of fraud, the plaintiff testified that she was unable to read the power of attorney and did not know and could not understand its contents, and did not understand that she was giving to Zuett Thompson authority to sell her lands. One of the defendants' attorneys testified that he had discussed with the plaintiff what she desired done with reference to her property; that she wanted some one to look after her business, take charge of her property, and be given full authority, but he did not "remember that she said anything about selling her property, " and he "did not discuss with her at all the selling of the property, " but he told her that under a general power of attorney the attorney in fact could "do anything that she could do." There was testimony for the plaintiff as to the value of the properties covered by the two deeds, the consideration stated in each of which was $125, that the eighty acres of farm property, in which the plaintiff owned one third or larger interest, conveyed by one of the deeds, was worth about $5,000; and that the two houses and lots in Marietta, which were conveyed by the other deed, were worth $1,250 to $1,500.

Zuett Thompson testified, without objection, that when the plaintiff sent for him she told him "she thought the best thing to do was to dispose of all of her property and turn it back to the Thompsons, and I says, 'What do you mean by the Thompsons?' and she says, 'You and Frank, ' and I says, 'Well, Ida, there will have to be something done before you can turn it back to the Thompsons; and she says, 'What do you mean by that, ' and I says, 'You have got to give me written authority, ' " that her finances were bad, paving assessments were due and had to...