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MULLIS et al. v. MULLIS.

MULLIS et al. v. MULLIS.
(245 Ga. App. 845)
(539 SE2d 189)
BARNES, Judge.
Deed; action to set aside. Bleckley Superior Court. Before Judge West.
Mullis sued her brother-in-law and his wife, R. M. and Anna Liza
Mullis, seeking the return of 46.51 acres she deeded to them ten days
after her husband died. After a trial at which neither R. M. nor Anna
Liza Mullis testified, the jury found for Doris Mullis and ordered the
return of the land, along with two vehicles and a riding lawnmower. R.
M. Mullis appeals the judgment entered on the verdict. We affirm.

The evidence showed that Doris Mullis, who was 83 years old as of the
trial, was married to Wilbon Mullis in 1933. They bought approximately
fifty acres of land, and Mr. Mullis deeded three-quarters of an acre to
his brother, R. M. Mullis. The couple had no children. Mrs. Mullis
testified that Wilbon died on February 1, 1997, although he actually
died on February 1, 1998. He left all his property to his wife. Ten
days after her husband died, R. M. and Anna Mullis took Doris Mullis to
her bank, where she put their names on her checking account, and twice
to a lawyer’s office, where she deeded to them the 46.51 acres she had
inherited, along with a car, a truck, and a riding lawnmower. She also
gave R. M. Mullis, who was 66 years old, a general power of attorney.
R. M. Mullis bought a new car for $22,000 and a new air conditioner for
almost $6,000, using funds from Doris Mullis’s bank account. She
subsequently approved those expenditures, but then removed their names
from her bank account.

Doris Mullis testified that she did not recall having gone to the
lawyer’s office, did not give the defendants her house or vehicles, and
did not know what it meant to probate a will or what a power of
attorney was. When asked if she told the lawyer she wanted to give her
house to the defendants, she replied, "No, ma’am. I’d been crazy to
have done something like that." The defendants did not testify,
although they called as witnesses the lawyer who prepared the probate
papers, deeds, and power of attorney, and the customer service employee
at Doris Mullis’s bank who added and then removed them from Doris
Mullis’s checking account. Both defense witnesses testified that R. M.
and Anna Mullis brought Doris Mullis to the appointments and were
present during the entire time. The bank employee noted that Doris
Mullis was upset and cried when she talked of her husband’s recent

1. The appellants contend that the trial court erred in charging the jury under OCGA 23-2-2
as follows: "I charge you that great inadequacy of consideration joined
with great disparity of mental ability in contracting a bargain may
justify equity in setting aside a deed or conveyance." They argue that
Doris Mullis presented no evidence showing a "disparity of mental
ability," and that a difference in age was insufficient, citing Godwin
v. Godwin, 265 Ga. 891 (463 SE2d 685) (1995). In Godwin, the Supreme Court reversed a jury verdict setting aside a mother’s deed of property to a son, holding that
evidence regarding the mother’s mental ability indicated that she was
alert and competent to contract. In fact, when the attorney who drafted
the 1986 deed testified as to her good health and mental alertness
during that year, her counsel responded "she still is, isn’t she?"
Id. at 892 (1).

Unlike the situation in Godwin, however, evidence exists in this case
showing a disparity in the mental ability of Doris Mullis, whose
husband of 65 years had just died, and the mental ability of the
appellants, who made the appointment with and took her to see the
attorney who drafted the deed. While the attorney testified that he
"felt like" he had his instructions from Doris Mullis about what she
wanted done, his testimony revealed that he never spoke with his client
alone. The bank employee who knew Doris Mullis testified that the widow
was upset and crying about her husband’s death when she came to the
bank around the same time she visited the lawyer. Mullis also testified
that she had no recollection of having gone to the lawyer’s office or
to the probate court, testimony the jury was entitled to consider in
determining her mental ability when she deeded her entire estate to her
brother-in-law and his wife.

Even slight evidence is sufficient to justify a charge. "The evidence
necessary to justify a jury charge need only be enough to enable the
trier of fact to carry on a legitimate process of reasoning." Koritta
v. State, 263 Ga. 703, 704-705 (438 SE2d 68) (1994). The trial court did not err in giving this charge.

2. The appellants also contend that the evidence "wholly fails to support the verdict rendered," citing Dobbs v. Burnette, 250 Ga. 47 (295 SE2d 836) (1982), for support. However, the holding in Dobbs, as in Kendrick-Owens v. Clanton, 271 Ga. 731 (524 SE2d 237) (1999),
also cited by appellants, is inapplicable to this case. Both of those
cases involved the caveator to a will who presented no evidence that
the beneficiary exerted undue influence on the testator at the time the
will was made.

Harrison & Wall, Milton Harrison, Sarah F. Wall, for appellee.

W. Dennis Mullis, for appellants.

DECIDED SEPTEMBER 11, 2000. Georgia Caselaw


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