Opinion
August 15, 1952.
Appeal from the Court of Record for Escambia County, Ernest E. Mason, J.
Jones Harrell, Pensacola, for appellant.
Fisher Hepner, Pensacola, for appellee.
This is an appeal from a final decree of the Court of Record of Escambia County setting aside a purported gift inter vivos.
Gussie Hughes was approximately 72 years of age. She had a physical deformity and had never married. She had been an employee of a telephone company for approximately 40 years. She was very frugal and had accumulated an estate of approximately $33,000, $23,000 of which was represented by stock in the telephone company. On or about August 8, 1949, she suffered a cerebral hemorrhage, or stroke, and spent several days in the hospital under the care of Dr. Stebbins. She remained under his care until some time in November, 1949. She stayed in a convalescent home for a while, and in November, 1949, she returned to her home. Gussie Hughes had known Fona H. Whipple for some time and they were friends. After Miss Hughes suffered the cerebral hemorrhage or stroke, her brother, who lived in California, came to Pensacola with his wife and they stayed with her for a while. They made arrangements for her to be placed in a rest home and, without going into the details of the evidence, they left her in what they considered a safe, convenient and pleasant place for her to live. She stayed in the rest home for only about a month. On December 29, 1949, Miss Hughes executed an absolute power of attorney to Fona H. Whipple giving her complete power and authority to take charge of and manage her affairs.
From the testimony it appears that after this power of attorney was executed, the appellant concerned herself considerably about Miss Hughes' affairs and also about her person. She collected dividends of the stock and had someone else collect rents from some real estate. Mrs. Whipple placed Miss Hughes in another rest home where she remained for some length of time before any of her (Miss Hughes') other friends knew where she was. She concerned herself about the execution of a will and having her examined by a physician Miss Hughes had never known before. The will and power of attorney were prepared by an attorney Miss Hughes had never known before. The will is not involved in this suit.
On October 19, 1950, on a petition duly filed alleging the mental and physical incapacity of Miss Hughes to take care of her property, a Curator was appointed. In the order entered by Circuit Judge L.L. Fabisinski, he found and declared Miss Hughes to be incompetent and appointed the appellee Curator of her estate. In this decree the Circuit Judge required the appellant to make a complete accounting of the affairs and estate of Miss Hughes. At the hearing on the incompetency petition, for the first time, it appeared that the appellant herein claimed the transfer of the stock involved as a gift inter vivos. It is unnecessary to go into the details of the testimony with reference to the claims concerning this stock and what the appellant had done with it and the dividends therefrom.
Immediately after the appellee here was appointed Curator, he brought this action in which he claimed that the appellant occupied a confidential relationship with Miss Hughes; that at the time of the purported gift Miss Hughes was mentally incompetent; that the gift was unreasonable; that the appellant used unfair means and exerted undue influence in obtaining the purported gift, and that the same was invalid. He prayed for an appropriate decree declaring Miss Hughes to be the owner of the stock and that the same be re-transferred to her and for other appropriate relief.
After voluminous testimony was taken before the Chancellor and after arguments on final hearing, the Court entered its final decree in which the following findings of fact appear:
"* * * at the time of the gift inter vivos involved in this cause, the Defendant occupied a confidential relationship toward the donor, Gussie Hughes, and that the Defendant has failed to sustain the burden of establishing the requirements for the validity of the gift, in that the Defendant has failed to establish that no fraud or undue influence was exerted upon the donor by the donee, that the gift was fair and reasonable and that the donor was of competent understanding to understand the nature of the transaction; and it further appearing to the Court that at the time of the gift the donor, Gussie Hughes, lacked sufficient mental capacity to make a valid gift: * * *"
The Court thereupon ordered and decreed that the prayer of the appellee be granted.
This appeal is prosecuted from that decree.
The appellant propounds the following question: "Did Miss Gussie Hughes make a valid inter vivos gift of 154 shares of common stock of the American Telephone and Telegraph Company to Mrs. Fona H. Whipple on August 1, 1950?"
The appellee divides the question into two parts: "A. That appellant occupied a confidential relationship with donor and failed to sustain the burden of proof thereby cast on her to establish fairness and reasonableness of purported gift, mental competence of donor an absence of fraud and undue influence, as requisites for validity of purported gift;" and "B. That donor lacked sufficient mental capacity to make a valid gift?" The trial Court answered both questions in the affirmative.
We have carefully reviewed the testimony in this case. Although there were some conflicts, these conflicts were resolved by the Chancellor. There was not only sufficient testimony to support the findings of the Chancellor but the preponderance of the evidence supports such findings. See Johnston v. Thomas, 93 Fla. 67, 111 So. 541, and Wilkins v. Wilkins, 141 Fla. 188, 192 So. 791.
Affirmed.
SEBRING, C.J., and ROBERTS, J., and GORDON, Associate Justice, concur.