GLENN HARRISON, ADMINISTRATOR OF THE ESTATE OF AVO HARRISON v. JAMES E. WHITAKER AND MARY ANN WHITAKER
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RENDERED: April 16, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-000891-MR
GLENN HARRISON, ADMINISTRATOR
OF THE ESTATE OF AVO HARRISON
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 96-CI-000510
v.
JAMES E. WHITAKER AND
MARY ANN WHITAKER
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, HUDDLESTON AND KNOX, JUDGES.
GUIDUGLI, JUDGE.
Appellant, Glenn Harrison, as administrator of
the estate of his mother, Avo Harrison, appeals from a judgment
of the Warren Circuit Court holding that Avo’s conveyance of the
Harrison family farm to her daughter and son-in-law, appellees
Mary Ann and James Whitaker, was fair, equitable, and without
fraud or undue influence.
We affirm.
The trial of this matter revealed the following
history.
In 1946, five (5) years after her husband died, Avo
Harrison (Avo) acquired approximately sixty-five (65) acres of
farmland in Warrent County, where she raised her seven (7)
children.
Throughout the years, she conveyed small parcels of
her land to several children and grandchildren, including the
Whitakers, who claim they paid Avo for their two-acre tract.
By
mid-1995, when she was ninety-six (96) years old, Avo retained
approximately fifty (50) acres.
At that time, it was determined
by her children that she could no longer care for herself and
should no longer live alone.
Six (6) of Avo’s seven (7) children
were living, and ranged in age from fifty-six (56) to seventyseven (77).
It appears the only child either willing or
physically able to care for Avo was her youngest daughter, Mary
Ann Whitaker (Mary Ann).
Thus, in June 1995, Avo moved into Mary Ann’s mobile
home.
At this time, Avo was receiving $450 per month in social
security payments.
For her services, and upon the advice of the
social security office, Mary Ann charged her mother one-third
(1/3) of all household expenses.
At some point after Avo moved
into Mary Ann’s home, Avo executed a power of attorney naming
Mary Ann as her attorney-in-fact.
Additionally, Mary Ann became
the payee of Avo’s social security benefits.
In March 1996, Mary Ann hired attorney Glenn Parrish to
draft a deed conveying Avo’s land to Mary Ann and her husband,
sating it was Avo’s desire to give them her 50-acre farm.
Pursuant to Mary Ann’s instructions, Parrish drafted a deed
conveying fee simple title to the Whitakers.
While in the
Whitakers’ home and in their presence, Mary Ann read the deed to
Avo, after which Avo executed.
The following day, however, Mary
Ann asked attorney Parrish to destroy the deed, which apparently,
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had not yet been recorded, and to prepare a second deed in which
Avo reserved for herself a life estate.
On March 14, 1996, this
revised deed was delivered to the Whitakers’ home, where Avo
executed it.
The following month, in April 1996, two (2) Avo’s four
(4) sons, appellant Glenn Harrison (Glenn) and his brother,
Larry, discovered the transfer of their mother’s property to Mary
Ann and James, and apparently spoke with Avo about the matter.
Glenn and Larry then hired attorney Douglas Robertson
(Robertson), who filed a complaint on Avo’s behalf against the
Whitakers, alleging fraud and undue influence, and asked the
court to set aside the deed as void.
Additionally, the complaint
alleged Mary Ann’s home to be a hostile environment, claiming Avo
feared for her safety and well-being.
verify the complaint.
Avo, however, did not
Rather, Robertson verified it, stating
that Avo was “illegally detained and for this reason unable to
verify this document in her own proper person.”
The trial court scheduled a preliminary hearing in the
matter for May 9, 1996, to determine Avo’s intentions concerning
her place of residence and choice of custodian, and further
ordered the sheriff to take custody of Avo and transport her to
the hearing.
The Whitakers were not present to testify, although
it was discovered later they had not received notice of the
proceeding.
Nonetheless, given the testimony of other witnesses,
the court issued an order naming Glenn as Avo’s legal custodian
and terminating Mary Ann’s power of attorney.
Avo lived with
Glenn and his wife for approximately one (1) week, after which
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Glenn put Avo in a local nursing home on May 14, 1996.
one (1) month later, on June 13, 1996.
Avo died
Glenn, as administrator
of Avo’s estate, was substituted as plaintiff in this litigation.
A trial on the matter was held on February 26, 1997.
The
following month, the trial court entered judgment in favor of the
Whitakers.
At trial, conflicting testimony was elicited as to
whether or not the deed at issue was procured free of undue
influence.
Although a detailed recitation of the evidence
presented at trial may be unnecessary, we set forth the following
summary of the witnesses’ testimony to show the conflict that
existed among the family members and to show the trial court’s
judgment is supported by probative evidence and thus not be
disturbed.
Both Glenn and Larry testified that when they
approached their mother about her conveyance of the farm to Mary
Ann and James, Avo acknowledged having signed some papers, but
told them she did not know what she had signed.
From her
comments, Glenn testified, Avo apparently thought the papers
would prevent the state from taking her farm in the event she
became ill and had to be hospitalized.
She told Glenn that Mary
Ann explained to her the papers would prevent her from “losing”
the farm.
Both Glenn and Larry testified that Avo could not
possibly have read the deed, considering she was nearly blind and
could see only movement around her.
They testified that,
initially, Mary Ann had allowed them to visit Avo at their
convenience, and had kept the door of her home unlocked to enable
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them to do so.
However, they further testified, when Mary Ann
discovered they knew about the transfer of the farm, she locked
them out of her house, denying them access to their mother.
Glenn testified that when he attempted to talk to Mary
Ann about the conveyance of the family farm to her and her
husband, Mary Ann told him “she’d see him dead and in hell”
before he would “get the property.”
He testified that his mother
had always treated her children equally and fairly, and did not
intend that only one (1) of them acquire title to the farm.
Rather, he testified, Avo intended that the property be divided
equally upon her death.
Finally, Glenn testified that Avo told
him she was afraid of Mary Ann.
Likewise, Larry testified that he understood from his
mother the farm was to be sold upon her death and the proceeds
divided equally among her children.
He noted that Avo was very
close to several of her grandchildren, having raised three (3) of
them herself, and that she would not have taken any action which
might exclude them from sharing in her estate.
Larry testified
that from July through December of 1995, he and his wife, Lily,
came to Mary Ann’s home each morning to fix Avo her breakfast.
However, just three (3) months prior to Avo’s conveyance of her
farm, Mary Ann told them they were not to come to her home and
fix Avo’s breakfast anymore.
She informed them she had found
someone else to assist Avo.
Finally, Larry noted that Mary Ann
did not contact attorney Parrish concerning acquiring title to
Avo’s farm until Larry had been admitted to the hospital for
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emergency surgery on March 1, 1996, which kept him in bed for
over a month.
Lily Harrison, Larry’s wife, testified that after Avo
had been removed from Mary Ann’s home pursuant to court order,
she told Lily the Whitakers had “forced” her to sign some papers,
and that she now had no home and no money.
Larry’s daughter,
Judy Keown, testified that after Avo was removed from Mary Ann’s
house, Avo told Judy she wanted to go home but that Mary Ann had
made her sign some papers and had taken her home away from her.
Judy further testified that Avo said she was afraid of Mary Ann.
Ivan Harrison, a retired police officer and one of
Avo’s grandsons, testified that he did not believe it was Avo’s
desire to convey her farm to Whitakers.
In any event, he
testified, Avo would not have given her farm to any one (1) child
unless she did so openly, not in an “underhanded and sneaky”
manner.
He lived with Avo for a ten-year period (from age two to
age twelve), and knew her to be a “fair and honest type” person.
Wanda Wilson, a longtime friend of Avo’s, testified
that Avo once told her she did not really care what happened to
her land after her death as long as Ryan Harrison, a grandson
whom she raised (son of James Earl Harrison, another of Avo’s
sons) got a piece of her land on which to build a house if he so
desired.
Wanda described Avo as “strongwilled” and added that
she did not believe Avo could be “forced” to do anything she did
not want to do.
Finally, Wanda testified that when she visited
Avo in December 1995, Avo did not appear to be mistreated or
abused, nor did she appear to be held against her will.
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Avo’s ophthalmologist, Dr. Gerald Sullivan, testified
by way of deposition.
After being shown the deed which Avo
signed, he testified that in March 1996, at the time Avo signed
the deed, she may have been able to read the wording in the deed,
but only if she had used visual aids which magnified the
lettering many times.
Further, he testified, Avo most likely
would have abandoned the effort even then, given the difficulty
of the process:
Q: I now show you what has been marked as
Exhibit A, which is a deed dated March 14,
1996, recorded in Deed Book 722, Page 153, in
the Warren County Clerk’s Office. Would Mrs.
Harrison have been able to have read the
wording in that deed?
A: It would be possible with special visual
aids that might magnify this many times and
put it on a screen to read it a letter at a
time, but in the ordinary sense of what we
think of as reading, picking it up and
examining it, no.
Q: So the only way that she would have been
able to have read that would have been with
very specialized visual aids?
A: And it would be an abeyance process and
probably would be abandoned before the end
was reached.
Avo’s otolaryngologist (ear doctor), Dr. William Moore,
testified by deposition that Avo could not understand normal
conversation.
Although Avo was wearing a hearing aid on her
right ear at the time he examined her, in June 1995, he
determined that the right ear was so severely impaired, a hearing
aid would no longer be of any benefit.
He did not consider the
left ear to be particularly “aidable” either, but recommended an
above-the-ear hearing aid which might give Avo some ability to
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understand conversation in that ear.
His records, however, did
not indicate any purchase made of such a hearing aid on behalf of
Avo.
Dr. Moore further testified:
Q: What method would someone need to employ
to effectively communicate with Mrs.
Harrison?
A: they would have had to concentrate on her
left ear and spoken slowly and distinctly
near her left ear in order for her to
understand, in my opinion.
Q: Did you observe anything else remarkable
about Mrs. Harrison’s medical condition?
A: Well, of course, she was 96 years old.
She was very frail. I think she only weighed
around 80 pounds or in that area. Very
apprehensive as I recall because of her lack
of being able to communicate, possibly a
little bit depressed. I’d hesitate to make
that as a direct comment, but that’s not an
unusual accompaniment of this type of hearing
loss. But mainly a lady that was very
concerned about her inability to communicate
and the withdrawal feeling that they have
because of this.
Q: So she wasn’t totally deaf?
A: She wasn’t totally deaf, but from average
communication, she was extremely limited.
She had extreme difficulty understanding
anything I asked her in the office. We had
to really-in fact, we were not able to
communicate.
Attorney Glenn Parrish testified that it was Mary Ann
who first contacted him concerning preparation of a deed
conveying Avo’s property to Mary Ann and her husband.
He further
stated he neither visited Avo nor spoke with her at all after
being hired by the Whitakers.
When asked why he did not
independently visit Avo, he explained he had no reason to suspect
undue influence on the Whitakers’ part.
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While he was aware that
Avo was “old” and “hard-of-hearing,” he testified that Mary Ann
had not informed him of Avo’s specific age, her bad eyesight, the
number of children she had, nor the fact that she was in the care
and custody of Mary Ann and her husband.
Parrish’s assistant, Kathy Bell (Bell), who delivered
the second deed to Avo, testified she asked Avo for
identification and then handed the deed to Avo to read.
persons present were Bell, Mary Ann, and Avo.
The only
Bell asked Avo
whether she was are the document transferred her property to the
Whitakers, reserving a life estate for herself, to which Avo
responded, “yes.”
Bell informed Avo she was under no obligation
to sign the document is she did not want to, and testified that
Avo appeared to sign the deed of her own free will and did not
appear to be under any duress.
Bell testified that she had not
been made aware of Avo’s visual and hearing impairments.
She
further stated she had not observed any visual aids which would
have assisted Avo in reading the deed, nor did she speak directly
into Avo’s left ear.
Nonetheless, she testified, she was seated
to the left of Avo as she spoke with her.
Although Mary Ann
claimed that Kathy Bell read the deed to Avo, this testimony was
contradicted by Bell, who specifically denied reading the deed
aloud.
Mary Ann Whitaker testified she spoke with her mother
about drawing up a will but that Avo was “adamant” about not
wanting to do so.
Mary Ann apparently asked Avo what she wanted
to do with her farm, and stated that Avo responded by telling
Mary Ann that Glenn and Larry had all they were going to get from
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her, Percy (another son) did not need anything, Earl had houses
all over town, and her daughter, Marie, was never coming back
home.
Allegedly, Mary Ann then told her mother, That just leaves
me,” to which Avo responded, “Well, you don’t want it anyway.”
However, Mary Ann informed Avo she would, in fact, like to have
the farm.
Apparently, Avo expressed some concern about
“displeasing” her sons.
Nonetheless, Mary Ann insisted that Avo
wanted to give her and her husband, James, the farm.
She
conceded that she had told Douglas Robertson, the attorney hired
by Glenn and Larry to represent Avo, that she would “deed the
property back” to Avo but that she had agreed to do so only
because attorney Robertson was “screaming and hollering” at her
and threatening to sue if she did not reconvey the farm to her
mother.
When asked why she believed she deserved the farm, Mary
Ann stated her brothers had promised to help her care for Avo but
that they later refused to do so, placing “undue responsibility”
on her.
She stated her opinion that her brothers “never treated
me very nice,” and that she did to like they “very well.”
Further, Mary Ann voided her concern that she might not get her
share of the farm “because of her brothers.”
Specifically, she
said, “I deserve my part...I knew I would not get.”
Mary Ann
noted that since 1980, she had done her mother’s grocery shopping
and had helped her keep her bills current.
She further noted
that when her mother first came to live with her, she worked from
6 a.m. until 2 p.m. each day, but eventually began working from 4
a.m. until noon in order to spend more time with her mother.
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Mary Ann testified she did not inform her brothers
about the transfer of property because she knew “they’d raise the
devil.”
In fact, she stated, Larry did enter her home and
proceeded to berate their mother after he learned of the
transfer, an allegation which Larry denied during his testimony.
Finally, Mary Ann testified she read the first deed to her mother
“practically word-for-word” and her mother knew what she was
signing.
Mary Ann denied placing any pressure on her other to
sign the deed and insisted her mother was well aware that she was
conveying her property to the Whitakers.
James E. Whitaker testified that he and Mary Ann
contacted, instructed, and paid attorney Parrish to draft the
deeds Avo eventually signed.
He stated that after Avo signed the
first deed conveying fee simple title to the Whitakers, Avo
commented to him, I guess you’ll kick me out now, won’t you?”
James testified he responded, “You’ve got a home as long as you
want it.”
Nonetheless, the Whitakers instructed attorney Parrish
to destroy the first deed, and prepare a second deed in wich Avo
reserved a life estate.
After Avo’s sons discovered the
transfer, he testified, he told Avo he would “sign this place
back over” to her, not on the “sayso” of the boys but rather,
based upon what Avo wanted to do.
James testified that Avo told
him, “It’s alright.”
Melissa Cooper, the Whitakers’ daughter, testified she
was the family member who initially suggested to her grandmother
that “she couldn’t stay there [in her home] forever, and that
Avo’s family “would have to find someplace else for her.”
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She
testified that even though her mother, Mary Ann, went to Avo’s
home everyday to help with housework, Avo’s home was no longer
sanitary nor was Avo able to keep herself or her clothing clean.
Melissa testified that when Avo voiced her preference to live
with Larry, she informed Avo that Larry’s wife, Lily, “had said
there was no way in hell Avo could live with them.”
She
testified that in response to her question concerning what Avo
intended to do with the farm, Avo, replied, “I’ll give it to who
takes care of me.”
Melissa was present when Avo signed the first
deed, and testified that Avo understood what she was doing and
signed the deed of her own free will.
Further, she testified,
several days after Avo executed the second deed, she asked Avo,
“Are there any changes you want done on these papers?”
Allegedly, Avo replied, “No, they’re the way I want them to be.”
Shelia Embry, a home healthcare worker hired by Mary
Ann to assist Avo for several hours each day, testified that Avo
was well cared for by the Whitakers and that she saw no signs of
neglect or abuse.
She stated that one morning, Avo told her
Larry was very angry with her but that she thought she had done
the “right thing.”
Shelia testified she asked Avo whether she
wanted the Whitakers to have the farm, to which Avo responded she
did, although she added she was afraid Larry would never come to
see her again.
Shelia further testified that she visited Avo in
Glenn’s home, following Avo’s removal from Mary Ann’s house, Avo
wondered aloud whether her sons would allow her to return to the
Whitakers’ house if she were to “let [them] have the farm.”
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Finally, attorney Douglas Robertson, retained by Glenn
and Larry, went to Mary Ann’s house to visit Avo and discuss with
her the matter of the conveyance of her farm.
Although he was
accompanied by Glenn and Larry, Mary Ann refused entry to her two
brothers, allowing only attorney Robertson to enter, and only
after she had initially denied him entry.
Robertson testified he
was alone in the room with Avo, and spoke to her within eight (8)
to ten (10) inches of her ear.
He asked Avo whether she wanted
to say with her daughter, to which Avo responded she did not.
Allegedly, she told Robertson she was afraid of the Whitakers.
Robertson testified that while Avo said she had signed
something, she insisted she had not deeded her form to the
Whitakers and had no intention of doing so.
He stated it
appeared Avo thought she had signed a will leaving her property
equally to her children which, she said, was her intent.
He
testified that although Mary Ann had agreed to reconvey the
property to her mother, Mary Ann’s husband, James, called
Robertson and told him Mary Ann “would do nothing of the sort,”
that Mary Ann “would be paid for everything she’d done for that
old woman,” and that Mary Ann “was entitled to that property and
wasn’t going to give it back.”
Robertson testified that Avo understood he was filing a
lawsuit on her behalf, but that he did not believe she could sign
the complaint with any understanding of precisely what she was
signing.
He admitted he did not read the complaint to her.
Finally, he testified that when he visited Avo in the nursing
home, just prior to her death, Avo told her that her daughter and
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granddaughter, during their visits with her, had tried to
convince her not to go forward with the lawsuit.
The trial court entered judgment in favor of the
Whitakers on March 11, 1997.
The court found Avo to be of sound
mind and in relatively good health, considering her age.
While
the court noted it could not set aside a conveyance except in a
“clear case based on convincing evidence,” it found a
confidential relationship to exist between Avo and the Whitakers
and as such, shifted the burden to the Whitakers to show that
procurement of the deed was free from fraud or undue influence.
The court found the allegations in the complaint, i.e. that the
Whitakers’ home was a hostile environment, that Avo was held
against her will, and that Avo was abused, were unsubstantiated.
Focusing on the testimony of Kathy Bell and Shelia
Embry, as well as Mary Ann’s testimony that she read the first
deed to Avo and Melissa’s testimony that she was at her parents’
home when the deed was read to Avo, the court concluded the
Whitakers met their burden of proof:
The Court concludes the Defendants have
met their burden of proving the deed was not
procured by fraud or undue influence. The
fact of two deeds being signed with the
second one reserving the life estate, coupled
with Ms. Bell’s testimony, makes it clear she
knew and understood the nature of the
document. The testimony of Ms. Embry, while
hearsay, is admissible as Ms. Embry is a
disinterested witness and the statement of
Avo Harrison is against her interest as a
named Party to this suit.
The Court concludes the conveyance to be
fair and equitable under the circumstances
described herein.
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On appeal, Glenn argues the trial court’s conclusion
that the transfer of property was free from undue influence is
not supported by the evidence.
Specifically, he asks this Court
to consider the following evidence to constitute proof of undue
influence: (1) institution by Avo herself of the lawsuit
requesting that the deed be set aside as void; (2) the many steps
the Whitakers took to conceal the transaction; (3) the Whitakers;
isolation of Avo once the conveyance was discovered by other
family members; (4) the Whitakers’ demand that Larry and Lily
stop coming to their home to fix breakfast for Avo; (5) the
Whitakers’ engagement of an attorney’s services immediately after
Larry became indisposed due to emergency surgery; (6) the
Whitakers’ failure to inform Kathy Bell of Avo’s visual and
hearing impairments; (7) the failure to read the second deed to
Avo; and, (8) the absence of any magnifying devices which would
have assisted Avo in reading the second deed prior to signing it.
When a physically infirm individual such as Avo (who
was effectively blind, nearly deaf, and needed assistance with
daily chores) conveys property to her custodian and, in this
case, her attorney-in-fact, the burden is placed upon the
custodian to establish “that any influence acquired or confidence
reposed was not abused.”
(1954).
Riddell v. Pace, Ky., 271 S.W.2d 31, 33
As noted in Riddell, not all influence is “undue.”
Rather, “[t]he influence acquired and exerted must be of
sufficient force to destroy the free agency of the grantor and to
constrain him to do, against his will, that which he would
otherwise have refused to do and this pressure may be applied
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either directly or indirectly.”
omitted).
Id. at 33-34.
(Citation
Riddell further instructs:
[P]roof of undue influence must amount to
more than a bare showing that the opportunity
for its imposition existed.
Equally intrenched in the law of this
jurisdiction is the idea that one may dispose
of his estate in whatever manner he chooses
if it be the result of his unconstrained
choice, with the corollary thought that it is
not within the province of the court to make
a disposition different than that made by the
grantor or testator, as the case may be,
notwithstanding the fact that the court might
not agree with the person’s conception of
right or wrong or even fair play. . . . [A]ll
acts of kindness are not stimulated by
motives of greed and . . . often the
recipients of such acts desire to compensate
those who had aided and administered to their
needs in time of distress and suffering. All
influence is not undue.
Id. at 34.
(Citations omitted).
Generally, direct proof of undue influence is difficult
to establish.
Thus, Kentucky courts have typically allowed
parties to prove undue influence by way of circumstantial
evidence.
See Sublett v. Sublett, 31 Ky. 23, 226 S.W.2d 324
(1950), which enumerates those circumstances which may properly
be considered:
In Walls v. Walls, 30 Ky. {l. Rptr.], 949,
99 S.W. 969, 970, we said: “Direct proof of
undue influence can seldom be had. Like
fraud, it must be proved ordinarily by
circumstances, and, though each circumstance
standing alone might be quite inconclusive,
yet the effect of all the circumstances when
taken together may be more convincing.”
Among the circumstances that may be
considered are mental incapacity,
confidential relations, active participation
by the beneficiary or his agent in the
preparation of the deed or other instrument,
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the exclusion of near relatives, the result
accomplished, false statements and recitals
as t consideration in the conveyance,
inadequacy of consideration under such
circumstances, and concealment of or failure
to record the conveyance.
Id. at 327.
Given the parties’ close relationship, the burden was
upon the Whitakers to show, by clear and convincing evidence,
that Avo transferred her farm to them freely and voluntarily,
with an understanding of the consequences thereof.
[W]here the circumstances are such as to
raise a suspicion of fraud or undue
influence, as where one of the parties is
enfeebled by sickness or old age, and the
relation between the parties is one of
special trust and confidence, the burden is
upon the donee to show, by clear, convincing,
and satisfactory evidence, that the gift was
the voluntary and intelligent act of the
donor.
Kimmel v. Berresheim, 173 Ky. 734, 191 S.W.2d 456 (1917) (quoting
the trial court’s opinion).
See also, Gay v. Gay, 308 Ky. 545,
215 S.W.2d 96, 98 (1948) (“[t]o be valid, a deed must be made
freely and voluntarily by one having mental capacity to
understand its consequences.”).
As previously mentioned, Sublett
calls for a totality of the circumstances test, noting that
“though each circumstance standing alone might be quite
inclusive, yet the effect of all the circumstances when taken
together may be more convincing.”
Sublett, 226 S.W.2d at 327
(quoting Walls v. Walls, 30 Ky. L. Rptr. 949, 99 S.W. 969, 970
(1907)).
On appeal, the question is not whether we, the
reviewing court would have decided the issue differently, but
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whether the findings of fact are clearly erroneous, the opposite
result is compelled, or the trial court abused its discretion.
See Cherry v. Cherry, Ky., 634 S.W.2d 423 (1982).
Given that
over twenty (20) witnesses testified at trial, half of whom were
members of the Harrison family, there was, inevitably,
conflicting evidence presented to the court.
We are not to
disturb the judgment of the trial court “on conflicting evidence
unless we have something more than a doubt as to the correctness
of his findings.”
(1947).
Jones v. Jones, 305 Ky. 5, 202 S.W.2d 746, 749
The trial court was entitled to accept as true the
appellees’ evidence and reject all other evidence to the
contrary.
Findings of fact made by a trial court may not be set
aside unless “clearly erroneous.”
Ky. R. Civ. Proc. (CR) 52.01.
When there is probative evidence to support the trial court’s
findings, they must not be disturbed.
We believe the trial
court’s finding that the Whitakers carried their burden of proof
is not clearly erroneous, considering the totality of the
evidence in the record.
As part of this appeal, appellant, Glenn Harrison, asks
this Court to review the issue of whether the Whitakers converted
Avo’s funds to their own use.
Apparently, shortly after Avo
moved in with the Whitakers, they purchased a new dryer for $290.
Mary Ann used Avo’s funds to pay one-third (1/3) the cost of the
dryer.
Additionally, the Whitakers purchased a new mobile home
for $23,000, the monthly mortgage payment for which was $253.39.
Again, Mary Ann used Avo’s funds to satisfy one-third (1/3) of
the monthly payment.
At trial, Glenn maintained that Mary Ann’s
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use of Avo’s funds to satisfy these debts was inappropriate,
arguing that as fiduciary, Mary Ann could not act on behalf of
her mother in matters in which she had a private interest.
The
trial court found that “the accounting submitted regarding Avo
Harrison’s money handled by the Whitaker’s [sic] to be
acceptable.”
We have reviewed the evidence in the record, and
find no error in the court’s decision.
As such, we affirm the
trial court on the issue of conversion.
For the foregoing reasons, we affirm the judgment of
the Warren Circuit Court.
HUDDLESTON, JUDGE, CONCURS.
KNOX, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
KNOX, JUDGE, DISSENTING.
I respectfully dissent.
I believe that under Sublett’s totality of the
circumstances test, the Whitakers failed to carry their burden of
showing that procurement of the deed was free from undue
influence.
Sublett identifies those circumstances which may be
considered in assessing proof of undue influence: mental
incapacity, confidential relations, active participation by the
beneficiary or his agent in the preparation of the deed, the
exclusion of near relatives, the result accomplished, false
statements and recitals as to consideration in the conveyance,
inadequacy of consideration under such circumstances, and
concealment of or failure to record the conveyance.
The trial court found Avo to be of sound mind, which
may very well have been the case.
However, such a finding is not
conclusive of Avo’s capacity to understand a legal transaction,
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or to remain immune to influence or coercion which might make her
do something she would not otherwise do.
The Court in McCarty v.
Conley, 289 Ky. 61, 157 S.W.2d 475 (1941), made a distinction
between the “sound” mind and the “enfeebled” mind:
I have not overlooked the fact that the
only professional witness in the case, Dr.
Hunter, testified that the decedent at the
time he made this deed was of sound mind. I
do not understand the soundness of mind is
conclusive of questions similar to the one
under consideration. The decedent certainly
had an enfeebled mind and one that in all
probability could not withstand the
importunities of the one in whose custody he
was . . . .
Id. at 480.
(Quoting from the trial court’s order).
The factor of mental capacity goes not only to Avo’s
ability to understand the nature and consequences of her actions,
but also to her ability to be controlled by others.
While Avo
seems to have been mentally alert at the time she conveyed her
farm to Mary Ann and James, there is ample evidence she did not
understand the nature of the document she signed.
Avo gave conflicting stories about the type of document
she had signed, telling several people she did not know what she
had signed, yet indicating to Glenn she thought it allowed her to
keep her farm, while indicating to attorney Robertson she thought
it was a will dividing her property equally among her children.
Although Avo told Sheila Embry she thought she had done the
“right thing,” the evidence indicates she was not sure what that
“thing” was.
Further, Avo was ninety-six (96) years old, nearly
blind and deaf, and completely dependent upon Mary Ann for care
and support.
During Avo’s execution of each of the two (2)
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deeds, Mary Ann was present.
Thus, given the circumstances, I do
not believe the evidence establishes Avo fully understood that
the document she signed would prevent her other children, upon
her death, from sharing in the only valuable asset she possessed.
The second factor, confidential relations, is present
in this case, and the trial court so found.
Mary Ann was Avo’s
custodian to whom Avo looked for care and support, and upon whom
Avo was extremely dependent.
The records from Avo’s nursing
home, Rosewood Health Care Center, establish that Avo needed
assistance in nearly all of her daily activities, and even had to
be told what food was on her plate since she could not see it.
The third factor is also present in this case.
Mary
Ann actively participated in the preparation of both deeds,
having hired attorney Parrish, instructed him as to the terms of
the deed, and paid him for his services.
Further, Mary Ann did
not inform Parrish that Avo was ninety-six (96) years old, blind
and nearly deaf, or that Avo had a total of six (6) surviving
children.
Mary Ann did not inform her four (4) brothers and one
(1) sister that she was acquiring title to a farm which,
apparently, her siblings believed would be divided equally among
them, Avo’s never having given them any indication otherwise.
In
fact, despite Mary Ann’s having freely informed the court that it
was Avo’s expressed desire to deed the farm to her, she never
shared this expression of Avo’s wishes with her siblings, either
before or after the conveyance was accomplished.
Further, there
is no evidence indicating that Avo herself informed her other
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children of her desire to convey the farm to Mary Ann.
When Mary
Ann’s brothers discovered the transfer of property, Mary Ann
locked them out of her house and denied them access to their
mother.
Thus, the fourth factor, exclusion of near relatives, is
present in this case.
Avo apparently had adamantly resisted executing a will,
according to Mary Ann’s testimony, which, of course, had
circumstances remained the same, would have resulted in equal
division of Avo’s property among her children.
She had expressed
this position and maintained it throughout her life.
Three (3)
months prior to her death, however, Avo transferred what amounted
to her entire estate to Mary Ann.
Further, according to witness
Wanda Wilson, Avo wanted her grandson, Ryan, to share in her
land.
Conveyance of the farm to Mary Ann, however, was
contradictory to this expressed desire.
I believe the result
accomplished by way of the deed (the fifth factor) raises the
suspicion that Avo’s conduct was, in fact, contrary to her
wishes.
The consideration stated in the deed is “love and
affection.”
However, the testimony of Mary Ann and of those who
testified on her behalf indicates that Mary Ann believed the
consideration to have been the services she rendered to her
mother.
If such were the case, the deed could have more
specifically identified the consideration.
After all, Mary Ann
instructed attorney Parrish as to the terms of the deed.
As it
is, the deed makes no mention of the alleged true consideration
for the transfer of Avo’s farm.
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Finally, although Mary Ann recorded the deed soon after
Avo executed it, and prior to Avo’s death, she nonetheless
concealed the transaction from Avo’s family.
Given the mother-daughter relationship between Avo and
Mary Ann and, considering that Avo was dependent upon Mary Ann
for daily care and support, the transfer of Avo’s farm to Mary
Ann must be closely scrutinized.
See Woods v. Madden’s Adm’x,
294 Ky. 14, 170 S.W.2d 877, 879 (1943) (“transactions of this
kind between near relatives or those occupying a confidential
relation to each other will be closely scrutinized . . . .”).
Further, given the parties’ close relationship, the burden was
upon the Whitakers to show, by clear and convincing evidence,
that Avo transferred her farm to them freely and voluntarily,
with an understanding of the consequences thereof.
[W]here the circumstances are such as to
raise a suspicion of fraud or undue
influence, as where one of the parties is
enfeebled by sickness or old age, and the
relation between the parties is one of
special trust and confidence, the burden is
upon the donee to show, by clear, convincing,
and satisfactory evidence, that the gift was
the voluntary and intelligent act of the
donor.
Kimmel v. Berresheim, 173 Ky. 734, 191 S.W.2d 456 (1917) (quoting
the trial court’s opinion).
See also Gay v. Gay, 308 Ky. 545,
215 S.W.2d 96, 98 (1948) (“[t]o be valid, a deed must be made
freely and voluntarily by one having mental capacity to
understand its consequences.”).
As previously mentioned, Sublett
calls for a totality of the circumstances test, noting that
“though each circumstance standing alone might be quite
inconclusive, yet the effect of all the circumstances when taken
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together may be more convincing.”
Sublett, 226 S.W.2d at 327
(quoting Walls v. Walls, 30 Ky. L. Rptr. 949, 99 S.W. 969, 970
(1907)).
In light of the evidence in the record recounting the
circumstances under which Avo transferred her farm to the
Whitakers, I do not believe the Whitakers carried their burden of
proof.
Given that over twenty (20) witnesses testified at trial,
half of whom were members of the Harrison family, there was,
inevitably, conflicting evidence presented to the court.
I
realize that this Court is not to disturb the judgment of the
trial court “on conflicting evidence unless we have something
more than a doubt as to the correctness of his findings.”
v. Jones, 305 Ky. 5, 202 S.W.2d 746, 749 (1947).
Jones
However, in
this case, I believe the trial court did not consider compelling
evidence in this case, erroneously finding the Whitakers showed
that Avo transferred her property freely and voluntarily, absent
any undue influence.
As such, I would reverse the judgment of
the Warren Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Robert E. Harrison
Bowling Green, KY
John E. Donnelly, Jr.
Bowling Green, KY
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