Hardee v. Hardee

Chief Judge VAUGHN

dissenting.

The following evidence may be helpful to an understanding of why I must dissent.

Odell Hardee testified that in 1973 his father, Walton Hardee, who is now ninety years old, divided his land into four parcels. He gave each of his four children a remainder interest in a parcel of the farmland, and he retained a life estate. Walton’s children were Verna, Lavelle (the decedent), Elmer, and Odell. The conveyance in dispute is the deed Lavelle executed conveying the property back to his father. After Lavelle’s death, Walton conveyed that property to Odell and Verna. Odell and Verna sold timber that was on the property.

The plaintiff, Johnnie Hardee, is Lavelle’s only child. He testified on cross-examination that he and his mother left his father’s house when he was one year old. He lived with his mater*329nal grandparents until he was fourteen, then he lived with an uncle for two years and with his mother for two years. Lavelle remarried, and his second wife, Betty, died in March of 1980. Johnnie did not attend the funeral. Johnnie, who is now twenty-five years old, said he had been completely estranged from his family until two months before Lavelle went into the hospital. When Johnnie visited Lavelle at that time, it was the first time he had visited him in two and one-half years. Johnnie lived about twenty-five miles from Lavelle. In the absence of the jury, Johnnie was asked: “Prior to that time [March 1980] hadn’t your relationship with the Hardee family been about nil?” Johnnie answered, “Yes sir, that is true.”

Plaintiff introduced testimony through several other witnesses which tended to show that Lavelle was without sufficient mental capacity to execute the deed to Walton.

At the close of plaintiffs evidence, defendants moved for an “involuntary dismissal,” which should have been a motion for directed verdict, on the ground that there was no evidence of either mental incapacity or undue influence. The motion was denied.

Defendants introduced evidence through five witnesses that tended to show that Lavelle had sufficient mental capacity to execute the deed. The parties stipulated that on 9 June 1980, Lavelle attempted to deliver a power of attorney to appoint David Stroud as his attorney in fact. The power of attorney was filed on 10 June 1980. David Stroud, Lavelle’s employer, testified that he and Lavelle were friends, and he visited Lavelle every day in the hospital. He said that while Lavelle was in the hospital, except for his drowsy periods, he was competent and capable of doing whatever he wanted to do.

William Parrish, Lavelle’s brother-in-law, said he was present when Lavelle executed the deed to Walton and his wife, Lura, on 13 June 1980. He described the event as follows:

We returned the day that the deed was executed, and I was present on that occasion in the hospital. At that time, my wife, Verna, Mr. Hardee, Ms. Castlebury, the notary public, and Lavelle Hardee were there. Mr. Walton Hardee was there too. Mr. Odell Hardee and his wife were not there; *330Mr. Walton Hardee took the deed. At that time, Mr. Walton Hardee was very weak. I understand Mr. Walton Hardee had been up to see Lavelle before this time. We got to the hospital between 11 & 12 o’clock.
Before we went to the hospital, we went by Mr. Penny’s office in Lillington and Mr. Walton Hardee went in and got some legal papers. When we got the deed, we went to Wake Memorial Hospital, and got there between 11 and 12 o’clock, and went up to Lavelle Hardee’s room. Mr. W. E. Hardee, Verna, and I went up to Lavelle’s room. When we got there, we talked and inquired of his welfare. When we got there, Lavelle Hardee was reading the paper, and was in bed with his head propped up. We had a conversation with him at that time.
We stayed in Lavelle’s room about 30 to 45 minutes before the deed was mentioned. During this period of time, I saw and observed his condition. He seemed very alert and knew what he was talking about. . . .
During the signing of the deed, the hospital attendant came in. At this time, Mr. Walton Hardee was sitting in a wheelchair and the hospital attendant started to remove his shoes and put him in the vacant bed. Mr. Lavelle Hardee, like the rest of us, laughed about it.
After that transpired, Mr. Lavelle Hardee asked his father, Mr. W. E. Hardee, if he had the papers, and his father told him he did. Mr. W. E. Hardee took the papers out of the envelope and handed them to Lavelle, unfolded them and handed them to Lavelle, and this was the deed. Nobody else other than Verna, Mr. Hardee, Lavelle and I were in the hospital room at the time. Subsequently, the notary came in the room.
At that time, Lavelle said that he had some papers he wanted her to notarize. She asked him if he knew what the papers were, had he read the papers. He said he had. She asked him what his room number was, and he told her what *331the room number was. She asked him what his telephone number was and he told her the telephone extension number. She reminded him that this was serious and did he know what he was doing and he said yes, and again she asked him if that’s what he wanted to do and he said yes and he reached for papers.

At the close of all the evidence, defendants moved for a directed verdict on the issues of mental incapacity and undue influence. The motion was denied. The jury found that Lavelle had sufficient mental capacity, but was induced to execute the deed by the undue influence of the defendants. Defendants’ motions for judgment notwithstanding the verdict, and for a new trial, were denied.

Defendants’ first assignment of error is that the trial judge violated the Dead Man’s Statute, G.S. 8-51, when he permitted Johnnie Hardee to testify as to personal transactions and communications with Lavelle. The testimony excepted to by defendants is set out in the majority opinion. G.S. 8-51 prohibits an interested party from testifying on his own behalf as to personal transactions or communications between the witness and the decedent when the testimony is against a person deriving his title or interest from the decedent. See Peek v. Shook, 233 N.C. 259, 63 S.E. 2d 542 (1951). Notwithstanding G.S. 8-51, in an action to set aside a deed it has long been the rule that an interested party may testify to communications with the deceased to show the basis upon which the witness has formed an opinion as to the decedent’s lack of mental capacity. McLeary v. Norment, 84 N.C. 235 (1881). Accord, In re Will of Ricks, 292 N.C. 28, 231 S.E. 2d 856 (1977); Goins v. McLoud, 231 N.C. 655, 58 S.E. 2d 634 (1950). In Ricks, the Supreme Court explained the above exception to G.S. 8-51, and enlarged it to include evidence of undue influence. The Court said

Thus it seems an oversimplification of the rules to say that an interested witness may testify to transactions and communications with a deceased only if such testimony is considered on the mental capacity issue but not if it bears on the question of undue influence. The real distinction in the cases is whether the testimony is offered mostly to show the basis for the witnesses’ opinion as to the deceased’s mental condi*332tion or whether it is offered mostly to prove some other fact in issue. In the former instance the probative value of the testimony rests simply on the fact that the transactions or communications occurred. In the latter it rests on the truth of whatever assertions are contained in the transactions or communications related. In the former instance there is no hearsay involved and the testimony is generally admissible, while in the latter the hearsay nature of the testimony renders it inadmissible.

In re Will of Ricks, 292 N.C. at 38, 231 S.E. 2d at 863-864.

Johnnie testified, over objection, that Lavelle “stated that he would like to walk over the property lines with me so I would know where the points were.” The question is whether the probative value of this statement rests on the fact it was made or on the truth of what is asserted. I believe that the testimony was offered to show Lavelle’s dispositive intent. The statement has little bearing on Lavelle’s mental capacity because there was no evidence as to whether the boundaries were correct. The statement, however, is the only evidence in the record which tends to show that Lavelle had any intention of giving his property to Johnnie. Obviously, the statement’s real significance was that it tended to show Lavelle’s alleged dispositive intent, and thus was inadmissible hearsay and in violation of G.S. 8-51. I conclude, therefore, that, at the very least, this error would entitle defendants to a new trial.

Appellants’ second argument is that their motion for directed verdict on the issue of undue influence should have been granted. Defendants’ motion for directed verdict may be granted only if the evidence, considered in the light most favorable to the plaintiff, is insufficient to justify a verdict for plaintiff. Dickinson v. Fake, 284 N.C. 576, 201 S.E. 2d 897 (1974). So viewed, plaintiff’s evidence tends to show that Lavelle’s mental condition in March and April 1980 was normal, but in June he was, at times, incoherent, had poor memory, was often drowsy, and had little interest in what was going on around him.

Undue influence is the exercise of an improper influence over the mind of another so that his professed act is, in reality the act of the third person who procured the result. Lee v. Ledbetter, 229 N.C. 330, 49 S.E. 2d 634 (1948). See also In re Andrews, 299

*333N.C. 52, 261 S.E. 2d 198 (1980). In Andrews, the Supreme Court listed the following seven factors which are relevant on the issue of undue influence:

“1. Old age and physical and mental weakness.
2. That the person signing the paper is in the home of the beneficiary and subject to his constant association and supervision.
3. That others have little or no opportunity to see him.
4. That the will is different from and revokes a prior will.
5. That it is made in favor of one with whom there are no ties of blood.
6. That it disinherits the natural objects of his bounty.
7. That the beneficiary has procured its execution.”

In re Andrews, 299 N.C. at 55, 261 S.E. 2d at 200, quoting In re Will of Mueller, 170 N.C. 28, 30, 86 S.E. 719, 720 (1915). See also In re Coley, 53 N.C. App. 318, 280 S.E. 2d 770 (1981).

In the instant case, none of these factors were both present and probative of undue influence. The first factor, old age and physical and mental weakness, although present, was not relevant because Walton Hardee, the grantee, was ninety years old and in a wheelchair. Obviously, Walton was in no position to take advantage of Lavelle’s age and weakness. The fourth factor, prior dispository intent, was shown only in Johnnie’s inadmissible testimony. The sixth factor was not present because, although Johnnie is the biological son of the grantor, all the evidence shows that there was no parent-child relationship and thus the deed did not disinherit the natural object of the grantor’s bounty. The grantor merely returned the gift his father had made to him seven years earlier. None of the other factors are present.

In short, the testimony, viewed in the light most favorable to plaintiff, does not tend to show any evidence of influence over the mind of Lavelle by the defendants. Consequently, I believe defendants’ motion for directed verdict on the issue of undue influence should have been granted.

For the foregoing reasons, I would reverse and remand for entry of judgment in favor of defendants.