Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Poff, Senior Justice
ARLEAN INEZ BROOKS HILL
OPINION BY
v. Record No. 961095 CHIEF JUSTICE HARRY L. CARRICO
February 28, 1997
ARTHUR BROOKS
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas J. Middleton, Judge Designate
On May 10, 1994, Arthur Brooks (Brooks) filed in the court
below a bill of complaint against his daughter, Arlean Inez
Brooks Hill (Hill). In the bill, Brooks sought to have the trial
court set aside a deed of gift dated November 23, 1984, whereby
Brooks conveyed to himself and Hill as joint tenants with the
common law right of survivorship a sixteen-acre tract of land in
Loudoun County (the Property).
Brooks and his first wife, Inez Harris Brooks, acquired the
Property in 1949 as joint tenants with the right of survivorship.
Inez died in 1964. At the time he executed the deed of gift to
himself and Hill, Brooks was seventy-seven years of age. The day
after he executed the deed, he remarried, and he and his new
wife, Pecolia, resided in a home he owned in Arlington County.
In addition to Hill, Brooks had four daughters, Iris Anne
Adams, Elaine Brooks Foster, Jewel Blondell Gravette, and Sylvia
Jean Cowans. He also had a son, Arthur Dalvin Brooks, who died
in 1987, leaving eleven children.
Brooks alleged in his bill of complaint that at the time the
deed of gift was purportedly executed he was "infirm and of
enfeebled mind [and] ignorant of the meaning of the Deed." It
was always his intention, he alleged, to share the Property with
all his children, and he thought the deed would protect their
interest in the Property should he die or remarry; he did not
understand that, under the deed, Hill alone would receive the
Property should he die first. Brooks alleged further that he had
no recollection of having executed the deed of gift but that, "if
he did in fact sign the . . . instrument," Hill "fraudulently
procured his signature."
The evidence was presented to the trial court partly by way
of deposition and partly by way of live testimony. In a letter
opinion and a final order, the court stated that it found Hill's
testimony "not to be credible." The court also said the "facts
indicate . . . Mr. Brooks believed that he was leaving his
property to all of his children [in the deed of gift of November
23, 1984,]" and that "by creating a gift of joint tenancy with
[Hill], he was accomplishing his intent."
The court awarded judgment in favor of Brooks and enjoined
Hill from selling or mortgaging the Property. The court also
declared that upon Brooks' death, "the property should be held in
a constructive trust by Arlean Hill for equal distribution among
all the children of Arthur Brooks, per stirpes." We awarded Hill
this appeal.
In addition to several exhibits, the record consists of
transcripts of the deposition testimony introduced below and a
written statement of facts containing the live testimony
introduced. The record shows that for several years prior to the
execution of the deed of gift, Brooks had been represented by
Donald L. Bowman, an attorney practicing in Loudoun County.
Bowman gave a deposition below, which was introduced into
evidence at trial, and he also testified in person before the
trial court "in substantial conformity with his deposition
testimony." A summary of Bowman's testimony follows.
In September 1984, Bowman received from Iris Adams, one of
Brooks' daughters, a draft will with a note from Adams stating
that the draft described "how [Brooks] wants to distribute his
estate." Bowman prepared a draft will and sent it to Brooks on
October 10, 1984, with the request that Brooks call Bowman after
he had had "an opportunity to study the will." The draft would
have devised the Property to four of Brooks' five daughters,
including Hill, and it would have devised to the fifth daughter,
1
Sylvia Jean Cowans, Brooks' residence in Arlington County.
Some time prior to November 19, 1984, Brooks visited
Bowman's office and requested the preparation of a deed of gift
"from [Brooks] to himself and Arlean Hill jointly with right of
survivorship." Brooks told Bowman "he was planning on getting
married [and] didn't want any of the interest of the wife to
attach to the Deed as a result of the marriage." Brooks turned
over to Bowman the deed by which Brooks and his first wife, Inez,
had acquired title to the Property in 1949 as joint tenants with
right of survivorship. Brooks told Bowman he wanted the deed of
gift to establish a joint tenancy with right of survivorship
between himself and Hill in "exactly the way" his earlier deed
1
The draft will Bowman prepared at the request of Iris Adams
was never executed. Iris testified that after forwarding to
Bowman the draft she prepared, she "never pursued the matter
further."
had established such a tenancy with Inez.
Bowman prepared the deed the way Brooks requested and mailed
it to Brooks on November 19, 1984. On November 23, Brooks
returned to Bowman's office, accompanied by Hill. Bowman read
the deed to Brooks, and Brooks read the document himself. Bowman
explained to Brooks the meaning of "rights of survivorship."
Brooks understood the "import of the legal terms" and did not
"exhibit any characteristics . . . suggestive of being mentally
incapacitated at the time." Brooks executed the deed in Bowman's
office and, after it was recorded, Bowman mailed it to Brooks at
his Arlington residence.
About a year later, on October 30, 1985, Brooks visited
Bowman's office to discuss making a will. Pursuant to this
discussion, Bowman prepared a draft will and mailed it to Brooks
on November 1. A letter enclosed with the draft will stated that
it referred only "to the Arlington property which is actually the
only real estate you own in Virginia in your name only."
Accompanied by Hill, Brooks returned to Bowman's office on
November 12, 1985. Bowman read the draft will to Brooks and
explained its meaning at "quite some length." Bowman pointed out
to Brooks that the will "did not contain any references to or
provisions regarding the Property." With Hill in attendance,
Brooks executed the will in the presence of two witnesses. The
will devised to Brooks' wife, Pecolia, a life estate in one third
of his Arlington County residence and devised and bequeathed the
residue of his estate equally to his son and five daughters.
Brooks also gave a deposition below, which was introduced
into evidence, but he did not testify in person at trial. In the
deposition, Brooks said that Bowman was his lawyer for his
business in Loudoun County at the time the deed of gift was
executed and that Bowman explained matters to him when he had
questions. He "thought" the signature on the deed was his, but
he did not recall that he instructed Bowman to prepare the deed
or that Bowman or Hill explained the instrument to him. He said
it had always been his intention that the Property "would be
split up among the children," and he understood the deed would
"leave" the Property "to all of them."
The "four daughters who were excluded from the Deed [of
Gift]," Iris Adams, Elaine Foster, Jewel Gravette, and Sylvia
Cowans, testified at trial. A composite of their testimony is
contained in the written statement of facts, as follows.
They had no personal knowledge of the circumstances
surrounding the execution of the deed of gift and had not become
aware of its existence until almost ten years after its
execution. They, not Brooks, then consulted Brooks' present
attorney about their rights and later about Brooks' rights
concerning the Property. Because Brooks had only a third-grade
education, he could not have understood the terms of the deed of
gift. Although Brooks presently "suffers from memory loss, is
infirm, is under the care of a doctor, and is, at least
occasionally, incapacitated," he was "lucid and competent in
1984," the year in which the deed of gift was executed. Brooks
had "another name placed on the Deed so that on his marriage the
next day his new wife would not receive the Property on his
death." "[O]n several occasions . . . in the past," Brooks had
"declared an intention . . . to leave the Property to all of his
daughters." 2 Also "on occasion . . . in the past," Hill had
stated that "she was holding the Property in trust for her
sisters."
Hill gave a deposition which was introduced into evidence,
and she also testified in person at trial "in substantial
conformity with her deposition testimony." She stated that from
the time her mother passed away in 1964 until approximately 1993,
she and her two sons regularly and extensively assisted Brooks
with the operation of the Property as a farm and later as a
recreational park. Occasionally, her sister, Sylvia Cowans,
"helped out."
Hill denied ever stating that she was holding the Property
in trust for the benefit of her sisters, and she denied having
been aware, prior to the execution of the deed of gift, of the
unexecuted draft will, prepared by Iris Adams, containing
provisions inconsistent with the deed. Hill stated that, prior
to the institution of the present proceeding, Brooks "had never
expressed a desire that the Property was to be left to all of his
children."
Hill stated that Bowman sent to Brooks in her care a signed
2
The written statement of facts shows that, at trial, Iris
Adams offered a copy of the unexecuted will she drafted in 1984
to support the proposition that Brooks "had on several occasions
declared an intention in the past to leave the Property to all of
his daughters." However, the written statement of facts also
shows that the trial court was "unable to recall testimony that
the unexecuted will was prepared pursuant to [Brooks'] request."
copy of the will Brooks executed in 1985 and that, at Brooks'
request, she placed the copy in her safe deposit box. Hill also
stated that at some time in 1986 Brooks gave her the original of
the deed of gift, and that she also placed that instrument in her
safe deposit box. She did not give a copy of either document to
her father or sisters and the sisters did not learn about the
deed of gift until October of 1993, when they secured a copy and
confronted Hill with it. They "wanted [her] to sign [the
Property] over to . . . all [five] of [the sisters], so it could
be sold." Hill responded: "[N]o, that was not my father's
wishes that was expressed to me. And as far as I was concerned,
it wasn't open for discussion."
On appeal, citing Cooper v. Cooper, 249 Va. 511, 518, 457
S.E.2d 88, 92 (1995), Brooks maintains that the trial court's
decision is entitled to a presumption of correctness and that
unless the decision is plainly wrong or not supported by
evidence, the court's findings must be affirmed on appeal.
Furthermore, Brooks argues, it was the province of the trial
court to assess the credibility of witnesses and the probative
value to be given their testimony, and, exercising its authority,
the court found Hill's testimony unworthy of belief and gave full
credit to the other testimony of record. Brooks asserts that the
court's finding concerning his intent and belief that he was
giving the Property to all his children is not plainly wrong and,
pursuant to Langman v. Alumni Ass'n of the University of
Virginia, 247 Va. 491, 504, 442 S.E.2d 669, 677 (1994), the
finding defeats any theory that he had a different intent or
belief.
Brooks submits that since the trial court found that his
intent in executing the deed of gift was to "leave" the Property
to all his children, the court properly found that the Property
should be held by Hill in a constructive trust. Brooks cites
Cooper, supra, for the proposition that "[w]hen persons agree
that the proceeds of a venture are to be joint property and one
acquires an interest in the subject matter adverse to the other,
'equity will regard him as a constructive trustee and compel him
to convey to his associate a proper interest in the property or
to account to him for the profits derived therefrom.'" 249 Va.
at 517, 457 S.E.2d at 91-92 (quoting Horne v. Holley, 167 Va.
234, 240, 188 S.E. 169, 172 (1936)). Brooks also cites Cooper
for the proposition that a "constructive trust is appropriately
imposed to avoid unjust enrichment of a party." 249 Va. at 517,
457 S.E.2d at 92. 3
Brooks acknowledges that he had the burden of establishing
the grounds for the imposition of a constructive trust by clear
and convincing evidence. He says, however, that he carried his
burden with his own testimony and the testimony of four of his
daughters, including their avowal that Hill "had on occasion
stated in the past that she was holding the Property in trust for
3
Brooks says that the present case is "four square" with
Cooper because there a constructive trust was imposed on the
basis of the finding of a joint venture between the parties and
here the trial court "found that the Deed [of Gift] was a joint
venture between Brooks and Hill." However, one cannot read the
trial court's letter opinion or its final order and find the term
"joint venture" mentioned anywhere in either writing.
her sisters." 4
We disagree with Brooks. There is a fatal flaw in his
argument and, indeed, in the trial court's findings concerning
Brooks' intent in executing the deed of gift and his belief with
respect to the effect of the deed's provisions. Both Brooks'
argument and the trial court's findings fail to give any weight
to the testimony of Brooks' attorney, Donald Bowman, and to the
rules applicable when, as here, an issue arises concerning the
competency of a party to execute a legal instrument and his
5
ability to understand the instrument's provisions.
In Brown v. Resort Developments, 238 Va. 527, 385 S.E.2d 575
(1989), the guardian of a 72-year-old grantor in a deed sought to
have the instrument set aside on the ground the grantor "'because
of her advanced age and impaired health was not mentally able to
understand the nature of the deed she signed.'" Id. at 528-29,
385 S.E.2d at 576. Affirming a decree upholding the validity of
the deed, we stated:
Every person is presumed to be of sound mind, and the
burden is upon the party who alleges to the contrary to
establish such charge. The test for determining
whether one lacks sufficient capacity to become bound
absolutely by deed or contract is whether, at the time
the instrument was executed, the grantor possessed
sufficient mental capacity to understand the nature of
4
Brooks also stresses the importance of the draft will that
Iris Adams sent to Brooks' attorney, Donald Bowman, in September
1984. But, because no will containing the draft's provisions was
ever executed by Brooks and it was not established that the draft
was prepared pursuant to his request, it is not entitled to any
consideration in the decision of this case.
5
As noted supra, Brooks alleged in his bill of complaint
that at the time he purportedly executed the deed of gift to
Hill, he was "infirm and of enfeebled mind [and] ignorant of the
meaning of the Deed."
the transaction and to agree to its provisions. Mental
ability varies from one individual to another;
therefore, no specific degree of mental acuteness is
to be prescribed as the measure of one's capacity to
execute a deed. And, when mental capacity is in issue,
the outcome of every case must depend mainly on the
facts surrounding the execution of the deed in
question. Hence, the testimony of witnesses who were
present when the instrument was executed is entitled to
greater weight than the testimony of those witnesses
not present.
Id. at 529, 385 S.E.2d at 576 (emphasis added) (citations
omitted). See also Nelms v. Nelms, 236 Va. 281, 287, 374 S.E.2d
4, 8 (1988) (testimony of those present at deed signing entitled
to great weight); Price v. Barham, 147 Va. 478, 481, 137 S.E.
511, 512 (1927) (testimony of those present at execution of
documents entitled to peculiar weight).
Here, other than a notary public, only three persons were
present when the deed of gift was executed, namely, Bowman,
Brooks, and Hill. Because the trial court found Hill's testimony
not credible and she has not assigned error to that finding, we
will not consider anything in her testimony favorable to her
position.
Brooks' deposition testimony, given ten years after he
executed the deed of gift, was anything but clear and convincing.
Rather, it was confused, vague, and contradictory. Although he
"thought" the signature on the deed was his, he denied ever
having seen the instrument before and he testified that he had no
knowledge of the circumstances surrounding its execution. At
first, he could not recall having executed the 1985 will, but
later admitted that it bore his signature and that its provisions
were consistent with the deed of gift. He could name only four
of his daughters, when he had five. He did not remember whether
his only son was alive, when the son had been dead for
approximately seven years. Brooks said his first wife, Inez, had
died only a year before, when she had been dead for thirty years.
He said he was not married, that his present wife, Pecolia, was
only a "lady friend," when he had been married to Pecolia since
November 24, 1984. And he could not remember that in 1992, he
was missing for three days until he was "picked up" by the police
after he became lost returning home from a grocery store only six
blocks away.
Significantly, Brooks did not testify that he told Bowman it
was his intent in executing the deed of gift to "leave" the
Property to all his children. More important, contrary to
assertions in Brooks' appellate brief, there is not one word in
Brooks' testimony indicating that, if he harbored such an intent,
he ever told Hill about it.
In sharp contrast, Bowman's testimony was clear, and it
stands undisputed. Bowman, who had represented Brooks for
several years, testified that Brooks came to his office and asked
him to prepare a deed of gift from Brooks to himself and Hill
jointly with right of survivorship. Brooks insisted that the
deed should establish a joint tenancy with right of survivorship
in "exactly the [same] way" as the deed by which Brooks and his
first wife had taken title to the Property as joint tenants with
right of survivorship in 1949. Meaningfully, Brooks turned the
1949 deed over to Bowman as evidence of the way he wanted the
deed of gift to read.
Bowman mailed the draft deed to Brooks on November 19, 1984,
with an enclosed letter asking Brooks to "review [the deed]
carefully and let [Bowman] know if there [were] any corrections
to be made." Brooks returned to Bowman's office on November 23,
at which time Bowman read the deed to Brooks and explained what
"rights of survivorship meant." Brooks then read the deed
himself. He understood the import of the legal terms and
exhibited no characteristics of mental incapacity.
With respect to Brooks' testimony that he intended something
other than the creation of a joint tenancy with Hill, testimony
that was given years later when he obviously had become forgetful
and confused, we paraphrase a passage from Malbon v. Davis, 185
Va. 748, 40 S.E.2d 183 (1946): "It may be charitably said that
[Brooks'] admitted forgetfulness explains his present views and
the value to be given to his testimony. The reasons which moved
him to make the deed [of gift to Hill] were apparently
satisfactory until [October 1993,] when . . . his other children
became disturbed over what he had done." 185 Va. at 755, 40
S.E.2d at 186-87.
We do not overlook the testimony of Brooks' other daughters.
However, they were not present when the deed of gift was
executed. They had no personal knowledge of the circumstances
surrounding the deed's execution and did not learn of its
existence until some nine years after the fact. Even they
conceded that in 1984, the year the deed was executed, Brooks was
lucid and competent. They did opine that, because of his
deficient education, Brooks lacked the ability to understand the
deed's provisions. But that opinion was overcome by the evidence
of Brooks' experience in taking title to the Property with his
first wife as joint tenants with right of survivorship and, after
her death, enjoying sole ownership of the Property for twenty
years until he executed the deed of gift. Furthermore, again
paraphrasing something we said in Malbon, supra: "[Although
Brooks was not well-informed] in the sense that he had little
education . . . there is nothing to indicate that [when he
executed the deed of gift,] he lacked a degree of sagacity which
is often possessed by the unlearned." Id. at 755, 40 S.E.2d at
186.
This brings us to the testimony from Brooks' other daughters
that Hill "had on occasion stated in the past that she was
holding the Property in trust for her sisters." Brooks argues
that this testimony corroborates his testimony that he understood
the deed of gift would "leave" the Property to all his children.
But the statements attributed to Hill stand alone in the record;
there is no disclosure of the circumstances under which she made
the statements or, more important, what she meant by the remarks.
Standing alone without some elaboration, the testimony
concerning Hill's alleged statements can only be described as
vague and indefinite. And Brooks will not be heard to say that
he has met the clear and convincing standard required to support
the imposition of a constructive trust by using the vague and
indefinite testimony of his other daughters to corroborate his
own confused, vague, and contradictory testimony. Hence, the
evidence is insufficient to support the trial court's imposition
of a constructive trust on the ground the deed of gift did not
carry out Brooks' purported intent to "leave" the Property to all
his children.
Brooks argues, however, that the trial court's imposition of
a constructive trust should be affirmed on the alternative ground
that Hill "committed actual and constructive fraud on Brooks in
the execution of the deed [of gift and misrepresented] a material
fact." Brooks' argument here is difficult to follow, but, if we
fathom it correctly, he says that because Hill knew it was
Brooks' intent when he signed the deed of gift to "leave" the
Property to all his children, she fraudulently misrepresented to
him that the deed would in fact leave the Property to all the
children or remained silent and failed to tell her father that
the deed would not accomplish his wishes.
The trouble with this argument is that it is based upon a
false predicate, viz., that when Brooks signed the deed, Hill
knew it was his intent to "leave" the Property to all his
children. As indicated supra, there is not one word in Brooks'
testimony indicating that if he harbored such an intent, he ever
told Hill about it, and nothing else in the record charges her
with knowledge of that intent. Brooks falls far short,
therefore, of carrying his burden of proving fraud and
misrepresentation by clear and convincing evidence. See
Evaluation Research Corp. v. Alequin, 247 Va. 143, 148, 439
S.E.2d 387, 390 (1994).
Brooks also argues that "the unilateral mistake by Brooks in
[his] understanding of the deed of gift's [e]ffect . . . makes
the deed voidable." The rule, however, is that a unilateral
mistake may provide a ground for relief only when "'there is
mistake on the part of . . . one party,' . . . but it is
accompanied by 'misrepresentation and fraud perpetrated by the
other.'" Ward v. Ward, 239 Va. 1, 5, 387 S.E.2d 460, 462 (1990)
(quoting Larchmont Properties v. Cooperman, 195 Va. 784, 792, 80
S.E.2d 733, 738 (1954)). Even if we assume that there was a
unilateral mistake on the part of Brooks with respect to his
understanding of the deed's effect, the mistake was not
accompanied by misrepresentation and fraud perpetrated by Hill,
as we have just demonstrated.
Finally, Brooks maintains that because Hill failed to
establish consideration for the deed in question, the deed must
be declared null and void for failure of consideration. It
should not be necessary to point out, however, that, by
definition, a deed of gift requires no consideration. As this
Court said in Carter v. Carter, 223 Va. 505, 291 S.E.2d 218
(1982):
"Mere failure of consideration or want of consideration
will not ordinarily invalidate an executed contract.
The owner of the historic estate . . . can give it
away, and he can sell it for a peppercorn. Courts,
though they have long arms, cannot relieve one of the
consequences of a contract merely because it was
unwise."
Id. at 510, 291 S.E.2d at 221 (quoting Planters Nat. Bank v. E.
G. Heflin Co., 166 Va. 166, 173, 184 S.E. 216, 219 (1936)
(emphasis added)).
The deed of gift is clear and unequivocal on its face in
establishing a joint tenancy between Brooks and Hill with right
of survivorship. Bowman's undisputed testimony clearly
established that the deed was drawn "exactly the way" Brooks
wanted, that Brooks understood the meaning of legal terms, and
that he did not suffer from lack of mental capacity. By no
stretch of the evidence can it be said that Hill fraudulently
procured Brooks' signature to the deed of gift. Under these
circumstances, there is no evidentiary basis for the the trial
court's judgment in favor of Brooks or its imposition of a
constructive trust. Accordingly, the judgment will be reversed
and Brooks' bill of complaint dismissed.
Reversed and dismissed.