Present: All the Justices 

CLAUDE A. AYERS, ET AL. 

 OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 972356 September 18, 1998 

GARLAND E. MOSBY 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 In this chancery suit, there is an effort to rescind a deed 

upon the grounds of mutual mistake of fact or coercion. On 

appeal, we consider whether the chancellor erred in sustaining 

defendant's motion to strike the evidence following presentation 

of the plaintiffs' case-in-chief during an ore tenus hearing. 

 The facts are virtually undisputed; the controversy is over 

the inferences to be drawn from the facts. The chronology is 

important, as is the identity of the players in this narrative. 

 The ownership of residential property located in Henrico 

County is at issue. Warner M. Mosby and Mary M. Mosby, his 

wife, had acquired the property in 1968 and resided there. 

 In 1990, the Mosbys executed mutual wills. Each will 

devised the property "in equal shares" to William Wray Matthews 

and appellee Garland Eugeen Mosby, if they survived the 

testators. Matthews is Mary Mosby's son and has suffered from 

many health problems all his life. Mosby, the defendant below, 

is her stepson. The wills nominated defendant as executor. 
 Warner Mosby died in November 1994 and fee simple title to 

the property vested in his widow. In January 1995, the widow 

executed the instrument in question. By "Deed of Gift," she 

conveyed the property in fee simple to defendant. 

 In September 1995, Mary Mosby executed another will. She 

purported to devise a life estate in the property to her son, if 

he survived her, with remainder to Sidney Alvis Matthews, her 

brother, and his wife. She nominated her brother as executor of 

this will. 

 In August 1996, Mary Mosby executed yet another will. She 

purported to devise the property "fifty percent . . . in fee 

simple absolute" to her son and "the remaining fifty percent 

. . . in equal shares and in fee simple absolute" to appellants 

Claude A. Ayers, Jr., and Rebecca P. Ayers. She nominated the 

Ayerses, who were her neighbors, as executors of this will. 

 In October 1996, Mary Mosby died at age 73. The Ayerses 

qualified as executors of the decedent's estate, and filed the 

present suit in their representative capacity against defendant. 

 In a bill of complaint, the plaintiffs alleged decedent 

"discovered" prior to her death "that a Deed of Gift bearing her 

signature," and "ostensibly" conveying the fee simple interest 

in her property to defendant, had been recorded. They asserted 

that the alleged conveyance "was the result of the Defendant's 

coercion" and that the deed was executed "by mistake." The 

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plaintiffs sought rescission of the deed, reconveyance of the 

property, attorney's fees, and costs. Answering the bill of 

complaint, defendant filed a general denial that plaintiffs were 

entitled to the relief sought. 

 Following discovery, the ore tenus hearing was held in May 

1997, at which the plaintiffs' case-in-chief consisted of 

testimony by an attorney who drew the decedent's second will and 

by decedent's brother. The plaintiffs also presented 

defendant's answers to interrogatories, defendant's responses to 

requests for admissions, and excerpts from defendant's March 

1997 discovery deposition. 

 At the conclusion of this evidence, the chancellor 

sustained defendant's motion to strike. The court ruled 

plaintiffs failed to establish by clear and convincing evidence 

they were entitled to rescission of the deed. We awarded 

plaintiffs an appeal from the August 1997 final decree 

dismissing the bill of complaint. 

 Summarized in the light most favorable to the plaintiffs, 

their evidence showed that during Warner Mosby's 1994 "final 

illness," when he was hospitalized in the Richmond area, a 

question arose whether he could remain in the hospital for 

necessary treatment because the federal Medicare program would 

no longer fund the hospitalization. "[F]earing the worst," a 

hospital administrator "arranged a meeting between Mary Mosby 

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and a social worker to discuss the pros and cons of [a] nursing 

home alternative." The decedent asked defendant to attend the 

meeting. 

 Upon defendant's arrival at the hospital from his Urbanna 

home, decedent advised him she already had met with the social 

worker. The decedent had learned, according to the evidence, 

that the Medicare program would fund only a small portion of 

nursing home charges and that a patient could become eligible 

for substantial funding under the federal Medicaid program only 

after the patient's assets had been "exhausted." 

 The decedent then asked defendant "to transfer the house," 

which "was her single largest asset," and a certificate of 

deposit to his "name" so that defendant could "look out for her 

needs in the event she should be confined to a nursing home 

later in life." Defendant, a partner in a firm "which manages 

medical practices," advised decedent, who was in "bad health," 

to arrange for her son, William Matthews, to "move in with her" 

to reduce the living expenses of both. 

 The week following Warner Mosby's funeral, defendant had 

the deed of gift drawn by a Saluda attorney. During the first 

week of January 1995, defendant accompanied the decedent to a 

Richmond-area bank. There, the certificate of deposit was 

transferred to defendant and the deed that decedent had executed 

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was acknowledged before a notary public. On February 7, 1995, 

defendant recorded the deed. 

 Defendant's "understanding of the transfer that took place" 

was that he "was care taker of those assets to take care [of] 

Mary, and once she was gone that I would divide those equally 

with Billy," decedent's son. Defendant stated he would decide 

at decedent's death "what to do with the property" by referring 

to the 1990 mutual will. 

 The decedent continued to live in the home on the property. 

Her brother, a North Carolina resident, furnished her with 

financial advice. Even though defendant was executor of his 

father's estate, the decedent "kept herself busy attending to 

the settlement of [Warner Mosby's] affairs," advising defendant 

frequently "as to where things stood." 

 In July 1995, decedent had a "heat stroke," followed later 

by "ministrokes," which caused her to be "confused" at times. 

In September 1995, the brother accompanied the decedent to the 

office of an attorney to draw a will that omitted defendant as a 

beneficiary. When asked why she was "deleting" defendant from 

her will, she told her brother that defendant "doesn't do a damn 

thing for me . . . I can't get him on the phone." Other 

evidence offered by the plaintiffs showed decedent told 

defendant during the Fall of 1995 that "you don't have to visit 

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me. You have your mother in the nursing home, you live in 

Urbanna now." 

 Following execution of this second will, decedent asked her 

brother to "look through my papers" to determine if they "are in 

order." Among the documents, the brother found the deed in 

question. According to the brother, "I asked her when did she 

give away her house. She said, I haven't given away my house. 

I said, well, this paper here says you have. I said, that would 

make all these Wills void and null." The brother notified the 

attorney who had drawn the second will of discovery of the deed. 

 In January 1996, the attorney prepared and filed a bill of 

complaint styled "Mary M. Mosby vs. Garland E. Mosby" alleging 

fraud, misrepresentation, failure of consideration, and unjust 

enrichment. The subpoena in chancery never was served. Counsel 

testified that during discussions with his client, she 

"confirmed" the signature on the deed was hers, although "she 

never remembered signing the deed," and told him she "never had 

any intention of transferring her property." 

 In awarding this appeal, the Court framed the issue to be 

debated. It is whether the trial court erred in finding 

plaintiffs failed to present clear and convincing evidence that 

decedent signed the deed as the result of mutual mistake of fact 

or coercion. Arguing the affirmative, plaintiffs contend the 

"heart" of their appeal is that the evidence clearly established 

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decedent did not intend to transfer fee simple ownership of the 

property to defendant. Plaintiffs point out that "at every 

significant point in the course of this lawsuit, the Defendant 

himself admits that he was not the fee simple owner of the 

Property and that it was not his stepmother's intent to transfer 

fee simple ownership of her home." 

 Elaborating, plaintiffs say their allegation of mistake was 

established by the following evidence: The deed was prepared by 

defendant's attorney; the decedent never had possession of the 

deed until after defendant recorded it; the decedent continued 

to pay the home mortgage, real estate taxes, and insurance on 

the property; the decedent remained in possession of the 

property; she continued to devise the property as part of her 

estate planning; and decedent, upon learning of the deed's 

existence, not only denied "giving" the property to defendant, 

but also filed suit during her lifetime to have the deed 

rescinded. This evidence, coupled with defendant's testimony 

that he was only a "care taker" of the property, shows, 

according to plaintiffs, there was no present intent when the 

deed was executed to transfer fee simple ownership to defendant. 

They say: "The deed of gift, by Defendant's own sworn 

testimony, therefore, contains a mistake." 

 In support of their charge that defendant coerced decedent 

to sign the deed, plaintiffs argue defendant acted in a 

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fiduciary capacity to his stepmother. Thus, according to 

plaintiffs, the very nature of the transaction furnishes the 

most satisfactory proof of "fraud" and outweighs evidence to the 

contrary. Plaintiffs exclaim: "It simply defies rational 

explanation that the Decedent would convey her single largest 

asset solely to a step-son and not provide at all for her own 

natural son, especially when the decedent's estate planning 

evidenced a consistent intent to provide for her natural son." 

 We reject plaintiffs' contentions. In order to withstand a 

motion to strike, the plaintiffs had the burden of establishing 

prima facie by clear and convincing evidence that the decedent 

executed the deed as a result of mutual mistake of fact or 

coercion. See Langman v. Alumni Ass'n of the Univ. of Virginia, 

247 Va. 491, 502-04, 442 S.E.2d 669, 676-77 (1994); Carter v. 

Carter, 223 Va. 505, 509, 291 S.E.2d 218, 221 (1982). 

 As pertinent here, the rule is that a trial court under its 

equitable jurisdiction may give relief on the ground of mistake 

in connection with a written instrument if "there has been an 

innocent omission or insertion of a material stipulation, 

contrary to the intention of both parties, and under a mutual 

mistake." Wilkinson v. Dorsey, 112 Va. 859, 869, 72 S.E. 676, 

680 (1911). 

 In the present case, there has been no mutual mistake 

warranting rescission of the deed. To carry out her plan to 

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dispose of her assets in order to qualify for Medicaid funding, 

the decedent intentionally transferred the fee simple interest 

in her real property to defendant so that he could "take care" 

of her. There was no mistake on her part; she accomplished just 

what she intended, that is, to liquidate her assets but have 

them remain available for support during her life. The 

defendant took delivery of the deed and recorded it, acting upon 

his understanding that he would be "care taker" of the property. 

There was no mistake on his part; he accomplished just what he 

intended, that is, to hold title to the property in trust for 

her life. Thus, paraphrasing Wilkinson, there was no omission 

or insertion, innocent or otherwise, of a material stipulation 

contrary to the intention of the parties under a mutual mistake. 

 Decedent's statements made months after the deed was 

executed that she did not intend to transfer fee simple 

ownership to defendant are belied by her execution, 

acknowledgement, and delivery of the instrument. In the absence 

of fraud, duress, or mutual mistake, a person having the 

capacity to understand a written instrument who reads it, or 

without reading it or having it read to her, signs it, is bound 

by her signature. Metro Realty of Tidewater, Inc. v. Woolard, 

223 Va. 92, 99, 286 S.E.2d 197, 200 (1982). See Ashby v. 

Dumouchelle, 185 Va. 724, 733, 40 S.E.2d 493, 497 (1946). Thus, 

her personal representatives cannot now successfully rely on her 

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oral statements to nullify the deed's provisions and to support 

rescission of the written instrument. 

 Parenthetically, we note that on brief and at the bar 

during argument of the appeal, counsel for defendant stated that 

while the foregoing facts "do not support voiding of the deed," 

nonetheless the facts "may" be the basis for enforcement of a 

"trust created by parol" or the basis for otherwise reforming 

the deed to reflect the intent expressed in the mutual will, 

that is, to benefit the decedent for life, and defendant and 

William Matthews thereafter. See Hanson v. Harding, 245 Va. 

424, 427-28, 429 S.E.2d 20, 22 (1993); Malbon v. Davis, 185 Va. 

748, 757, 40 S.E.2d 183, 188 (1946). This type of relief cannot 

be accomplished in the present suit, however, because 

beneficiary William Matthews is not a party. 

 Finally, there is not even a hint that defendant coerced 

decedent into executing the deed. There is no evidence of 

duress or conduct by defendant that destroyed decedent's free 

agency. See Martin v. Phillips, 235 Va. 523, 527, 369 S.E.2d 

397, 399 (1988). Under these facts, defendant did not stand in 

a fiduciary capacity to his stepmother. See Nuckols v. Nuckols, 

228 Va. 25, 36-37, 320 S.E.2d 734, 740 (1984). Indeed, she 

initiated his involvement in her plan to assure eligibility for 

Medicaid funding and cooperated with its fulfillment by 

voluntarily accompanying him for the signing and acknowledgement 

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of the deed. These events transpired when decedent had the 

capacity to understand the instrument and before she began 

having a series of strokes, which commenced six months after she 

executed the deed, rendering her "confused" at times. 

 Consequently, we hold the chancellor did not err in 

sustaining defendant's motion to strike the plaintiffs' evidence 

and in entering summary judgment for the defendant. Thus, the 

final decree dismissing the bill of complaint will be 

Affirmed. 

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