Present: Carrico, C.J., Compton, Stephenson,1

 Lacy, Hassell, 

 Keenan, and Koontz, JJ. 

MAZIE SOWARDS BRANHAM 

 BY LARRY DON BRANHAM, 

 GUARDIAN AND SUBSTITUTED 

 PARTY 

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR. 

v. Record No. 962398 September 12, 1997 

JOSEPH W. BRANHAM 

FROM THE CIRCUIT COURT OF WISE COUNTY 

J. Robert Stump, Judge 

 This is an appeal of an order overruling the report of a 

special commissioner in chancery recommending that a deed be set 

aside based upon the commissioner's finding that clear and 

convincing evidence established that the deed had been procured 

by fraud. 

 On August 15, 1988, Joseph William Branham took Mazie 

Sowards Branham, his mother, to the office of a notary public to 

execute a deed. According to Mazie Branham, Joseph Branham had 

advised her that the document she would sign would provide her 

with a life estate in her home in Wise County, with the remainder 

interest vesting in her daughter Deborah Kay Branham. The deed 

Mazie Branham actually executed transferred the property to 

Joseph Branham subject to her life estate. The deed was recorded 

in the land records of Wise County on the same day. 

 On February 7, 1991, Mazie Branham filed a bill of complaint 

against Joseph Branham seeking to have the deed set aside on the 

ground that it was procured by fraud. A guardian ad litem was 

 

 1Justice Stephenson participated in the hearing and decision 

of this case prior to the effective date of his retirement on 

July 1, 1997. 
appointed to represent Joseph Branham, who was at that time 

incarcerated in the Bland Correctional Center. Joseph Branham 

filed a pro se answer asserting that his mother had freely 

transferred the property with full knowledge of the import of the 

deed, but was now subject to influence of other family members 

who wished to deprive him of his rights in the property because 

of his incarceration. 

 The trial court referred the matter to a special 

commissioner in chancery by decree of reference dated March 15, 

1991. Thereafter, on April 26, 1991, the commissioner held an 

ore tenus hearing, receiving testimony from Mazie Branham, her 

son Larry Don Branham, and the notary who witnessed the deed. 

Joseph Branham was represented by his guardian ad litem, who was 

an attorney, but did not appear or have counsel present at the 

hearing. 

 The notary testified that she did not read the deed or 

inform Mazie Branham of its content before the deed was executed. 

 She further testified that she recalled either Mazie Branham or 

Joseph Branham saying that the deed was intended to convey an 

interest in the property to Joseph because "he was the only one 

[of several children] taking care of [Mazie Branham] and that she 

wanted him to have the property." The notary believed it was 

probably Joseph Branham who had said this, but could not recall 

whether Mazie Branham indicated she had heard him. 

 Mazie Branham testified that at the time of the hearing she 

was 81 years old, legally blind, and hard of hearing. She 

further testified that she learned that the remainder interest in 
her property had been deeded to her son from her 1990 tax notice. 

 At that time she realized that she had "made a bad mistake" 

because she had intended the remainder interest to go to Deborah 

Kay Branham. Although she conceded that her signature appeared 

on the deed, she stated that she would not have signed the deed 

had she known that it conveyed the remainder interest to Joseph 

Branham. In response to questions from the guardian ad litem and 

the commissioner, Mazie Branham conceded that Joseph Branham had 

taken care of her for two years prior to his incarceration. 

Although occasionally asking that questions be repeated, she 

indicated that she understood the nature of her complaint and the 

purpose of the commissioner's hearing. 

 Larry Don Branham testified that Joseph Branham had assisted 

his mother while living with her, and that Deborah Kay Branham 

had also lived with their mother for a part of that time and 

assisted in taking care of her. He further testified that it was 

the family's understanding that Deborah Kay Branham would receive 

the property at her mother's death if she remained with her 

mother, but that Deborah had subsequently moved away.2

 Sometime after the commissioner's hearing, Joseph Branham 

was released from prison and retained counsel to represent him in 

the suit. The record indicates that Joseph Branham sought and 

 

 2Additional evidence suggested that Joseph Branham had 

indicated in a letter to his criminal defense attorney that he 

did not wish to contest the proceeding to set aside the deed. 

Although the commissioner indicated that a subpoena duces tecum 

would be issued to obtain the letter and a deposition of the 

attorney was noticed, the letter does not appear in the record 

and it does not appear that the deposition of the attorney was 

ever taken. 
was given additional time to supplement the record before the 

commissioner, but no further evidence was offered. 

 During the interim between the commissioner's hearing and 

the filing of his report on January 19, 1993, in a separate court 

proceeding on January 14, 1992, Larry Don Branham was named as 

guardian for Mazie Branham who was at that time declared 

"mentally and physically unable to care for herself or her 

property because of her mental and physical condition" resulting 

from organic brain syndrome. The trial court entered an order 

amending the style of the suit to reflect the guardianship and to 

permit the guardian to act in Mazie Branham's name. 

 In his report, the commissioner found that the deed in 

question was procured by fraud and misrepresentation and 

recommended that the deed be declared void; that Joseph Branham 

be required to convey his interest to Mazie Branham; or that a 

special commissioner be appointed to do so. 

 Subsequently, numerous letters from counsel and ex parte

communications from the parties were received by the trial court. 

 Several letters from counsel for Mazie Branham urged the trial 

court to enter a final disposition in the matter. One such 

letter indicated that, on June 15, 1993, Joseph Branham executed 

a deed of gift transferring his remainder interest in the 

property to Georgia K. Gruszka and supplied the trial court with 

a copy of that deed. 

 On July 15, 1994, the chancellor sent a letter opinion to 

counsel expressing his intent to overrule the commissioner's 

report and to dismiss the bill of complaint. The express basis 
for the chancellor's determination was that, by reference to the 

separate 1992 proceeding in which Mazie Branham had been declared 

"incompetent," he did not accept her testimony from the 1991 

commissioner's hearing or in a subsequent deposition as credible. 

 Mazie Branham filed a motion to reconsider with supporting 

evidence to show that at the time of the commissioner's hearing 

she did not exhibit any signs or symptoms of her subsequent 

dementia. This motion and a subsequent motion to reconsider were 

overruled, and a final order overruling the report of the 

commissioner and dismissing the bill of complaint was entered on 

August 27, 1996. We awarded Mazie Branham this appeal. 

 We have repeatedly defined the standard of review for such 

matters as follows: 

 While the report of a commissioner in chancery does not 

carry the weight of a jury's verdict, Code § 8.01-610, 

it should be sustained unless the trial court concludes 

that the commissioner's findings are not supported by 

the evidence. . . . [W]here the chancellor has 

disapproved the commissioner's findings, this Court 

must review the evidence and ascertain whether, under a 

correct application of the law, the evidence supports 

the findings of the commissioner or the conclusions of 

the trial court. Even where the commissioner's 

findings of fact have been disapproved, an appellate 

court must give due regard to the commissioner's 

ability, not shared by the chancellor, to see, hear, 

and evaluate the witnesses at first hand. 

Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296-97 (1984) 

(citations omitted); accord Yeskolski v. Crosby, 253 Va. 148, 

152-53, 480 S.E.2d 474, 476 (1997). 

 Here, the chancellor's basis for disapproving the 

commissioner's findings depended upon "facts" not in the record 

of this case. Moreover, even if the evidence of Mazie Branham's 
mental condition from the separate and unrelated hearing was a 

permissible subject of judicial notice, the chancellor's opinion 

letter clearly indicates that she was not judicially declared 

"incompetent" until more than eight months after the 

commissioner's hearing. 

 During the lengthy delays following the commissioner's 

hearing, Joseph Branham made no effort to rebut the evidence 

taken at the commissioner's hearing despite being afforded an 

opportunity to do so. Nor did he offer any evidence of his 

mother's incapacity at the time of the commissioner's hearing. 

Thus, the evidence before the commissioner was entirely 

unrebutted. 

 Mazie Branham testified that she did not intend to convey an 

interest in her property to Joseph Branham and that she would not 

have signed the deed in question if she had known the deed would 

do so. But, it is unrefuted that Mazie Branham was led to sign 

the deed as a result of the fraud perpetrated by Joseph Branham. 

 The commissioner accepted the testimony of the witnesses as 

credible. Accordingly, upon this record, the commissioner's 

findings are supported by the evidence, and his opportunity to 

see and hear the witnesses should be afforded appropriate 

deference. 

 For these reasons, we will reverse the judgment of the 

circuit court, will declare the deed in question void, and will 

remand the matter to the circuit court with directions that 

forthwith a special commissioner be appointed to effect transfer 

of the property back to Mazie Branham. 
Reversed and remanded.