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11/10/94 EDNA RICHBURG SMITH ET AL. v. FLORENCE

November 10, 1994

EDNA RICHBURG SMITH ET AL.
v.
FLORENCE LOUISE RICHBURG



Appeal from Crenshaw Circuit Court. (CV-93-17). H. Edward McFerrin, TRIAL JUDGE.

Rehearing Overruled December 16, 1994, . Certiorari Denied March 3, 1995. Released for Publication July 5, 1995.

Holmes

The opinion of the court was delivered by: Holmes

HOLMES, Retired Appellate Judge

This is an appeal from the trial court's denial of a petition to set aside a deed executed December 3, 1992.

Our review of the record reveals the following pertinent facts: Willard Richburg and Florence Louise Richburg met in October 1969 and had a relationship which continued for approximately 23 years. The couple lived in the Washington, D.C., area. In May 1992 Willard Richburg was diagnosed with an inoperable brain tumor, and on May 22, 1992, Willard Richburg married Florence Louise Richburg (wife). One of Willard Richburg's sons, Ronald Richburg, testified that after his father was diagnosed with the inoperable brain tumor, Willard Richburg wanted to "get right with God." It would appear that this marriage was one of the steps Willard Richburg took to "get right with God." Willard Richburg (deceased) died on January 8, 1993.

The deceased owned two parcels of land in Crenshaw County, Alabama. One parcel consisted of approximately 80 acres, and the other parcel consisted of approximately 69 3/4 acres. On December 3, 1992, the deceased executed a deed which purported to convey title to these two parcels of land to the deceased and the wife "for and during their joint lives as joint tenants and upon the death of either of them, then to the survivor of them in fee simple, together with every contingent remainder and right of reversion."

In March 1993 Edna Richburg Smith, the sister of the deceased and the executrix of the deceased's estate, and Ronald Richburg and Darryl Richburg, sons of the deceased by a prior marriage (hereinafter collectively referred to as Smith), filed a petition in Crenshaw County, Alabama, to set aside the deed. The petition alleged that "the execution of said deed of conveyance was the product of fraud and undue influence on the part of the [wife] Concurring with the incapacity of the [deceased]." The petition requested that the trial court set aside the deed as void and issue an order restoring the title to the property to the deceased's estate.

A hearing was held. The trial court heard the testimony and reviewed the exhibits and depositions admitted into evidence. Thereafter, the trial court issued an order denying the petition.

Smith filed a motion for a new trial, which was denied.

Smith appeals. This case is before this court pursuant to Ala. Code 1975, § 12-2-7(6).

The dispositive issue is whether the trial court committed reversible error when it denied the petition to set aside the deed executed on December 3, 1992.

In Chandler v. Chandler, 514 So. 2d 1307, 1308 (Ala. 1987), our supreme court stated the following:

"The party seeking to have the deed set aside need only show to the reasonable satisfaction of the court that the grantee was the dominant party in a confidential relationship with the grantor, whereupon the burden shifts to the grantee to show that the transaction was 'fair, just, and equitable ...


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