Whitworth v. Kines, 90-CA-0579

Citation604 So.2d 225
Decision Date27 May 1992
Docket NumberNo. 90-CA-0579,90-CA-0579
PartiesDetroit WHITWORTH, Leroy Whitworth, H.J. Whitworth, Frances Whitworth, Edna Watts and Annie Bell Lovett v. Melveree KINES.
CourtUnited States State Supreme Court of Mississippi

William D. Boerner, Boerner & Breeland, Brookhaven, for appellants.

Robert G. Turnage, Monticello, for appellee.

En Banc.

ROY NOBLE LEE, Chief Justice, for the Court:

Melveree Kines filed a petition to confirm a warranty deed and for damages in the Chancery Court of Lawrence County, Mississippi, seeking to ratify and confirm the execution and delivery of a warranty deed from an Inez W. Wells to and in favor of Melveree Kines, dated August 16, 1988. Respondents were Detroit Whitworth and his siblings, the natural heirs at law of the grantor, Inez W. Wells. They also filed a cross-petition for cancellation of the deed and confirmation of the Wells' title in themselves.

After a full hearing, the lower court entered judgment in favor of the petitioners, upholding the warranty deed and confirming title in her, but denied damages. The respondents and cross-petitioners have appealed to this Court and present two issues for decision:

I. The Chancellor erred in finding that Wells had sufficient capacity to sign a deed, and further erred in finding that the deed was delivered to Kines.

II. The Chancellor erred in failing to find a confidential relationship existed between Wells and Kines, a presumption of undue influence should have been acknowledged by the lower court, and that presumption was not rebutted by clear and convincing evidence.


The facts favorable to the appellee follow.

Mrs. Wells lived in Lawrence County where she owned a home and the land involved in this suit. She also owned land in adjacent Wathall County. Appellee, Kines, is a niece by the half-blood to Mrs. Wells. In the early part of July 1988, Mrs. Wells was suffering from terminal cancer and appellee, who resided in New York State, came to Lawrence County in July of that year to take care of Mrs. Wells. She had been hospitalized three times during the year 1988, the first time being in the spring for chemotherapy treatments, the second time in July at the Monticello Hospital and the third time from August 18 through August 29, 1988, when she succumbed to the cancer. Kines had been coming down to Lawrence County from New York off and on for about three years to look after and care for Mrs. Wells. The last time she was caring for and living with Mrs. Wells was approximately eight weeks before she died. Mrs. Kines looked after Mrs. Wells, cooked for her, fed her, bathed and dressed her.

On August 10, 1988, appellee paid off a mortgage on the house of Mrs. Wells, which mortgage had been executed by Mrs. Wells and her husband during his lifetime. On August 10, 1988, appellee paid the down payment of $800.00 for a roofing job on the house and paid the balance of $410.00 on that job prior to August 16, 1988. These funds were expended by appellee from her own funds and were part of the consideration for the execution of the warranty deed on August 16, 1988. Prior to that time, Mrs. Wells had been able to help see about her own needs and had not gotten "totally down". She would walk some and was on medication, although she was weak. The Home Health Services Nurse had visited the house to assist in her care on several occasions and was at her house before she entered the hospital for the last time before Mrs. Wells died.

On August 16, 1988, Alivus Evans contacted Ralph Hearn, then Justice Court Judge in Lawrence County, to go to the home of Mrs. Wells and take an acknowledgment. Hearn and Evans went to her house and appellee and Reverend Oscar Mikell were present. Mrs. Wells asked him to acknowledge the deed, she signed it and Judge Hearn signed it on the first page for acknowledgement instead of the second page. Hearn testified that he had made a mistake on his part. Mrs. Wells walked over and sat down in a chair when he and Evans arrived. Mrs. Wells appeared conscious of what was going on and was coherent in her speech. All the witnesses present testified that Mr. Hearn gave the deed back to Mrs. Wells and that she in turn, gave it to Kines after it had been signed, except Judge Hearn testified that Mrs. Wells kept the deed in her possession.

According to Alivus Evans, an eighty-nine year old resident of Lawrence County, he had known Mrs. Wells since 1925 and she was an honest and nice person but she had also been strong willed. On August 16, he had gone to tell Judge Hearn that Mrs. Wells wanted him to come to her house and put the "stamp" on the deed because she "sold the land". Judge Hearn went with Evans who testified he saw Mrs. Wells sign the deed that day and then Judge Hearn signed it; that after signing it Mrs. Wells gave the deed to Kines, and that Mrs. Wells had acted "normal" on August 16 and that Kines provided her with her daily care.

Reverend Oscar Mikell was a nearby neighbor of Mrs. Wells and a pastor of the Coleman Chapel Church of God and Christ. According to him, he had been the person to drive her around to take care of her business for quite sometime. On August 16, he had taken Mrs. Wells and Kines home and Mrs. Wells had sent Hearn to get him to notarize a deed. Reverend Mikell testified that he saw Mrs. Wells sign the deed that day, but he did not read it and did not know what it contained. After she signed it, Judge Hearn signed the deed then he saw Mrs. Wells hand the deed to appellee.

On March 11, 1987, Mrs. Wells executed her last will and testament in which she left her property to her natural heirs at law. During the period of sickness, she decided to revoke that will. It had appointed Detroit Whitworth, one of the appellants, as executor and had left, as stated, the property to her whole-blooded brothers and sisters. A written revocation was executed on July 25, 1988, before she executed the warranty deed was in favor of appellee. Reverend Mikell, Alivus Evans, appellee and Mrs. Wells went to the bank and the revocation was signed there. Mrs. Wells took the will out of her lock box and destroyed it.

According to Detroit Whitworth, other brothers and sisters of Mrs. Wells were not available and he contacted appellee in New York and requested that she come to Mississippi and help care for Mrs. Wells. Detroit had been handling the business affairs of Mrs. Wells and continued to do so until her death. She had business interests, such as a farm, farm equipment, and other assets. Detroit Whitworth and Mrs. Wells had keys to her safety box. There were articles such as money, a will, and other papers in that box. The testimony reflects that approximately $3,000.00 in cash was in the box prior to Mrs. Wells death. Mrs. Wells apparently became disappointed in Detroit's handling of her business. She claimed that he had sold her cattle and had not paid the money to her and had sold her tractor without paying her the sale price. At the time of Mrs. Wells' death, her safety deposit box contained nothing of value or of interest. Detroit Whitworth testified that, while Inez Wells was in the hospital, she requested him to sell her cattle, the tractor and a pick-up truck, which he sold with the exception of the truck, and placed the money in First Bank--Monticello in the name of Detroit Whitworth and wife. Detroit also testified that he did not get any cash out of the safe deposit box.

Mrs. Wells had approximately twenty (20) acres of land in Walthall County, which was sold through Don Rushing Realty for a consideration of $27,000.00 and the transaction was closed August 19, 1988. The appellee was not connected with that transaction.

Proof of the appellants constituted an issue of fact as to the competency of Mrs. Wells to execute the deed of conveyance. Prior to that execution, she was taken to the courthouse where two deputy clerks were called to come to her automobile, see her sign the deed and take her acknowledgment. They declined because they thought she was unable or incapable of doing so. Two days later, Mrs. Wells executed the instrument on August 16, 1988. Detroit Whitworth testified that he sold the cattle and tractor and deposited the proceeds in an account for him and his wife, but all with the consent of Mrs. Wells.


The Chancellor erred in finding that Wells had sufficient capacity to sign a deed, and further erred in finding that the deed was delivered to Kines.

It is an elementary principle of law, well established through the years, that this Court will not reverse a chancery court's factual findings unless the chancellor is manifestly in error or his findings are not supported by substantial evidence. Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987); Norris v. Norris, 498 So.2d 809, 814 (Miss.1986); Gilchrist Machinery Co., Inc. v. Ross, 493 So.2d 1288, 1292 (Miss.1986). The Court said in Mullins:

Put another way, this Court ought and generally will affirm a trial court sitting without a jury on a question of fact unless, based on substantial evidence, the court be manifestly wrong. UHS-Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., [525 So.2d 746, 753-54 (Miss.1987) ]; Brown v. Williams, et al., 504 So.2d 1188, 1192 (Miss.1987); Harkins v. Fletcher, 499 So.2d 773, 775 (Miss.1986); Dillon v. Dillon, 498 So.2d 328, 329 (Miss.1986); Will of Polk, 497 So.2d 815, 818 (Miss.1986).

Mullins, 515 So.2d at 1189.

The same capacity is required to execute a valid deed as is required for making a will. In Young v. Martin, 239 Miss. 861, 125 So.2d 734, 738 (1961), the Court said:

The same rule for testing mental capacity applies alike to wills and deeds. Temporary or intermittent insanity or mental incapacity does not raise a presumption that such disability continued to the date of execution. It is sufficient if the testator understands and appreciates the nature of his act, the natural objects or persons of his bounty and their relation to...

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  • Anderson v. Wiggins
    • United States
    • United States State Supreme Court of Mississippi
    • February 20, 2020
    ...and a person may have lucid moments or intervals when that person possesses necessary capacity to convey property.'" Whitworth v. Kines, 604 So. 2d 225, 229 (Miss. 1992) (quoting Smith, 574 So. 2d at 653). "[T]he testator must be of 'sound and disposing mind' at the time of . . . execution.......
  • Taylor v. Welch, 89-CA-0666
    • United States
    • United States State Supreme Court of Mississippi
    • August 26, 1992
    ...to point out this Court's inconsistency in applying the appropriate standard for reviewing chancery court judgments. In Whitworth v. Kines, 604 So.2d 225 (Miss.1992), this Court voted to affirm a chancellor's decision which went against the overwhelming weight of the evidence. The reason? T......
  • Kennedy v. Kennedy, 92-CA-1168
    • United States
    • United States State Supreme Court of Mississippi
    • February 2, 1995
    ...of this deferential standard of review, the chancellor's findings will only be overturned if they are manifestly wrong. Whitworth v. Kines, 604 So.2d 225 (Miss.1992); Wing v. Wing, 549 So.2d 944 CONTEMPT OF COURT In the case sub judice, Elton argues that the chancellor's decision to hold hi......
  • Anderson v. Wiggins
    • United States
    • United States State Supreme Court of Mississippi
    • February 20, 2020
    ...and a person may have lucid moments or intervals when that person possesses necessary capacity to convey property.’ " Whitworth v. Kines , 604 So. 2d 225, 229 (Miss. 1992) (quoting Smith , 574 So. 2d at 653 ). "[T]he testator must be of ‘sound and disposing mind’ at the time of ... executio......
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