Landmark Trust (USA), Inc. v. Goodhue

Ladmark Trust (USA), Inc. v. Goodhue (99-381); 172 Vt. 515; 782 A.2d 1219

[Filed 21-Sep-2001]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                No. 1999-381


Landmark Trust (USA), Inc.	                 Supreme Court
Scott Farm, Inc.
                                                 On Appeal from
     v.	                                         Windham Superior Court


John Goodhue	                                 January Term, 2001 
Mary H. Panzera
First Vermont Bank & Trust


John P. Wesley, J.

Peter W. Hall and Mary E. Grady of Reiber, Kenlan, Schwiebert, Hall & 
  Facey, P.C., Rutland, for Plaintiffs-Appellees.

James B. Anderson and John A. Serafino of Ryan Smith & Carbine, Ltd., Rutland, 
  fo Defendant-Appellant Goodhue.

Hanson S. Reynolds of Rackemann, Sawyer & Brewster, Boston, Massachusetts, and 
  Timothy W. Caldwell, Lyme, New Hampshire, for Defendant-Appellant Panzera.


PRESENT:  Dooley, Morse, Johnson and Skoglund, JJ., and Cheever, Supr. J., 
          Specially Assigned


       JOHNSON, J.   This dispute arose from the gift by Fred Holbrook, a
  noted Vermont apple  orchardist, of his farm to plaintiffs Scott Farm,
  Inc., and Landmark Trust (USA), Inc., a land  preservation organization. 
  Defendants John Goodhue, a fourth cousin and guardian for Holbrook,   and
  Mary Panzera, Holbrook's sister, sought to challenge the transfer of Scott
  Farm to plaintiffs on  the ground that Holbrook was not competent at the
  time of the transfer in June, 1995.  Plaintiffs 

 

  brought a declaratory judgment action to determine the validity of the
  transfer.  After a bench trial,  the Windham Superior Court ruled that the
  transfer was valid.  We affirm. 

       Fred Holbrook is a life long bachelor who has lived most of his life
  on Scott Farm in  Dummerston, Vermont.  Holbrook had operated Scott Farm as
  an apple orchard since the early 1950s  and continued to work on the farm
  until the fall of 1995.  Holbrook was the sole shareholder in Scott  Farm,
  Inc., and was keenly interested in preserving the farm as an apple orchard. 
  The Landmark  Trust (USA), Inc. is a non-profit organization dedicated to
  land preservation.  Its headquarters are  also located in Dummerston and
  the president of the organization is David Tansey.  Landmark is a 
  subsidiary of the Landmark Trust, an historical preservation society
  located in Great Britain. 	

       Holbrook was the majority stock holder of the farm, but shared
  ownership with his mother  Anna Holbrook, and sister, Mary Panzera.  Anna
  Holbrook died in 1993 and left the family home to  her two children, Fred
  and Mary.  Fred exchanged his half interest in the house with his sister
  Mary  for the remaining shares of stock.  The transaction made Holbrook the
  sole shareholder in August  1994.  The monetary value of the half interest
  in the house was considerably greater than the value of  the shares, but
  the consolidation of stock allowed Holbrook to carry out his intent to
  preserve the  farm.

       On June 23, 1995, Holbrook executed a deed of gift donating the stock
  of Scott Farm to  Landmark.   The value of the farm was approximately $1.4
  million and the gift to Landmark included  $120,000 operating capital in
  addition to land, buildings and equipment comprising the farm.  As  part of
  the agreement, Holbrook retained the right to use his residence for his
  lifetime, rent free, and  to claim any personal property within one year
  that was stored on the farm.  At the closing, Holbrook  received a $45,000
  dividend from the farm's cash account.

 

       In July 1995, Holbrook completed his estate plan by executing a will
  and inter vivos trust.   Included in this instrument was a $10,000 bequest
  to his sister, Mary Panzera and a residuary clause  that gave the trustees
  the right to decide which charities would receive the remainder of
  Holbrook's  estate.  Holbrook was unsatisfied with these aspects of his
  will and trust as he had repeatedly stated  that he did not want his sister
  to inherit from him.  In August 1995 Holbrook's will and trust were 
  amended to omit any bequest to his sister and redirect the residuary of
  Holbrook's estate to  Landmark.

       In the fall of 1995, Fred Holbrook's mental acuity began to
  deteriorate.  Although several of  Holbrook's advisors and associates had
  previously noticed episodes of confusion, the fall of 1995  marked a
  substantial and rapid decline in Holbrook's condition.  Holbrook began to
  have difficulty  understanding financial matters and the arrangement with
  Landmark.  He also experienced confusion  in performing errands such as
  picking up a prescription at the pharmacy.  Holbrook was unable to 
  recognize his attorney, Ken Fisher, during a chance meeting on the streets
  of Brattleboro.   Additionally, Holbrook began to lose interest in the day
  to day workings of Scott Farm, although in  the middle of harvest season.   

       At the time that Holbrook began experiencing more difficulties with
  his cognitive  functioning, John Goodhue, Holbrook's fourth cousin from
  Peducah, Kentucky arrived at the farm  and began living in Holbrook's
  house.  Goodhue, who did not yet know about the gift to Landmark, 
  expressed an interest in acquiring Scott Farm.  In December 1995, Goodhue
  and Panzera petitioned  the probate court to have Holbrook placed under
  guardianship.  Goodhue was appointed Holbrook's  involuntary guardian in
  March 1996.  Anticipating a challenge to the validity of the transfers, 

 

  Landmark filed a declaratory judgment action against Goodhue and Panzera,
  and defendants counter-claimed. 

       The trial court held a six day trial at which extensive evidence was
  heard on the issue of  Holbrook's competence at the time he executed the
  deed, the trust and will, and the trust  amendments.   The court held that
  all transfers were valid.  The court's findings of fact were  extremely
  thorough, encompassing 240 separate findings over 75 pages of text.  On
  balance, the  court found Landmark's account of the events and of
  Holbrook's mental state credible.  The court  acknowledged that at the time
  of the gifts, Holbrook was displaying some of the effects of  Alzheimer's
  disease, which might call his competence into question, but that Holbrook
  was  sufficiently cognizant to appreciate the nature and effect of his
  gifts.  The court found that giving  Scott Farm to Landmark was consistent
  with the preservation goals that Holbrook had clearly  expressed for years.
  This appeal followed.

       Defendants' principal claim on appeal is that the court erred in
  concluding that Fred Holbrook  was competent at any time relevant to the
  transfer of his interest in Scott Farm.  First, defendants  argue that the
  court applied the wrong standard for competence by which it determined that
  the  transfers were valid.  Second, defendants raise numerous challenges to
  the court's findings of fact.   Defendants allege that the court's findings
  are erroneous because of contrary or modifying evidence.   They argue that
  the court should have weighed certain evidence about Holbrook's mental
  state and  competence more heavily than other evidence on the same issue. 
  According to defendants' view of  the evidence, Holbrook was not competent
  to execute the disputed transfers.  Additionally,  defendants claim that
  the court erred in relying on medical conclusions about the stages of 
  Alzheimer's disease detailed in  O'Brien v. Belsma, 816 P.2d 665 (Or. Ct.
  App. 1991), that were not 

 

  supported in this trial.  Finally, defendants claim that the gifts were the
  result of undue influence by  David Tansey on behalf of his employer,
  Landmark.  

                                     I.

       Defendants first claim that the court erred in applying the standard
  for testamentary capacity  to the inter vivos transfers.  Defendants claim
  the tests are different and that competence to enter a  highly complex
  inter vivos transaction should be different from the competence necessary
  to execute  a will.  In Vermont, the test for testamentary capacity is
  "whether the testator had sufficient mind and  memory at the time of making
  the will to remember who were the natural objects of his bounty,  recall to
  mind his property, and dispose of it understandingly according to some plan
  formed in his  mind."  In re Estate of Burt, 122 Vt. 260, 263, 169 A.2d 32,
  34 (1961).  The trial court based its  standard for donative capacity,
  however, on Estate of Holton v. Ellis, 114 Vt. 471, 49 A.2d 210  (1946),
  which  defendants agree sets forth the standard for inter vivos gifts.  In
  Holton, we held that a  donor has sufficient mental capacity to make a gift
  when the donor understands and comprehends in  a reasonable manner the
  nature and effect of the gift.  Id. at 488, 49 A.2d  at 222.  We need not 
  address the question of whether the standard set forth in Holton is indeed
  different from the standard  for testamentary capacity because we agree
  with the trial court and defendants that Holton sets forth  the proper
  inquiry for capacity to make an inter vivos gift.

       Defendants argue, however, that the trial court should have reached a
  different result when it  applied the Holton standard and that its reliance
  on the facts of that case is misplaced because the gift  in Holton 
  involved a very simple transaction.  In Holton, a donor in her eighties was
  diagnosed with  senile dementia some 21 months after creating a joint bank
  account with a plumber.  The question  for the court was whether the donor
  had sufficient mental capacity at the time she created 

 

  the account.  Although it is true that Holton involved a transaction that
  was less complex than the  one entered by Holbrook, and therefore the
  Holton court may have had no difficulty in finding the  transaction was
  easily understood by the donor, the Holton case does not compel a different
  result  here or the application of a different standard.  The real dispute
  in this case is not over the standard,  but how it was applied by the trial
  court.  This is a mixed question of law and fact that is inextricably 
  entwined with whether the trial court's findings of fact are sound on the
  evidence, and whether those  facts support the trial court's conclusion. 
  Where the trial court applied its factual findings to the  correct legal
  standard, we will not disturb its conclusion if it is supported by the
  findings.  See City  of Burlington v. Davis, 160 Vt. 183, 184, 624 A.2d 872, 873 (1993) (court's conclusions which  addressed mixed questions of
  law and fact, will be upheld if supported by the findings); Gallagher v. 
  McCarthy, 148 Vt. 258, 263, 532 A.2d 557, 559 (1987); Lynch's Adm'r v.
  Murray, 86 Vt. 1, 10, 83 A. 746, 750 (1912).

       We turn, then, to whether the trial court's conclusion  of the law is
  supported by the evidence.  Defendants' theory of the case was that because
  Holbrook's mental condition had significantly  deteriorated in the fall of
  1995, he could not have been competent in the summer of 1995 when he 
  gifted the farm and created the inter vivos trust and amendment to the
  trust.  Plaintiffs' theory was  that, despite Holbrook's condition in the
  fall of 1995, contemporaneous evidence of his mental state  at the time of
  the execution of the documents showed that Holbrook was competent.

       We have repeatedly stated that where there is conflicting testimony on
  such a factual issue,  "we will not set aside a judgment solely because we
  would reach a different conclusion on the facts."  Payrits v. Payrits, __
  Vt. __, __, 757 A.2d 469, 472 (2000) (quoting Price v. Price, 149 Vt. 118, 
  120-21, 541 A.2d 79, 81 (1987)).  Rather, when reviewing the factual
  findings of a trial court, we 

 

  view them in the light most favorable to the prevailing party below,
  disregarding the effect of  modifying evidence, and we will not set aside
  the findings unless they are clearly erroneous.  Brown  v. Whitcomb, 150
  Vt. 106, 109, 550 A.2d 1, 3 (1988); V.R.C.P. 52(a).  Findings of fact will
  not be  disturbed merely because they are contradicted by substantial
  evidence; rather, an appellant must  show there is no credible evidence to
  support them.  Community Feed Store, Inc. v. Northeastern  Culvert Corp.,
  151 Vt. 152, 154-55, 559 A.2d 1068, 1069 (1989).  Necessarily, the trial
  court had to  make a choice about the persuasiveness of the evidence
  presented in support of each theory.  That the  court chose plaintiffs'
  evidence rather than defendants', and credited plaintiffs' theory of the
  case as  more supportable is not grounds for error.

       Nevertheless, we have reviewed each of defendant's numerous challenges
  to the findings  against the record and have determined that the court's
  factual findings are supported by ample  evidence despite the existence of
  contrary evidence in certain instances.  The basis for each of the 
  challenged factual findings rests solidly in the transcripts, with each
  finding typically grounded in the  testimony of two or three separate
  witness.  Defendants are unable to identify any finding that fails  our
  deferential standard of review under V.R.C.P. 52. (FN1)

       Not only are the court's findings not clearly erroneous, but they are
  based on a rational and  sensible approach to digesting the evidence in
  this particular case, such that we cannot agree with 

 

  defendants that the Holton standard was improperly applied.  In sorting
  through the days of detailed  testimony in which each side presented its
  view of events,  the court credited evidence of Holbrook's  competence that
  was based on contemporaneous recollections rather than retrospective
  opinions.   That is, the court's findings are based on the testimony of
  those numerous advisers who were with  Holbrook before, during and shortly
  after the time that he formulated the gift to Landmark, agreed to  the
  estate plan, and executed the various documents, rather than the testimony
  of those who observed  Holbrook well after the events in question and
  formed retrospective opinions as to Holbrook's likely  condition on an
  earlier date.

       For instance, defendants rely heavily on the testimony of Drs. Thomas
  Coffey and David  Oxman to bolster the claim that Holbrook was incompetent. 
  The two doctors are neurologists who  first examined Holbrook after the
  challenged transactions, in late 1995 and 1996.  They administered  the
  MMSE as well as other tests of cognitive functioning.  Dr. Oxman's initial
  assessment was that  Holbrook was competent at the time of the transfers. 
  That opinion, however, was subsequently  revised when Dr. Oxman was
  presented with additional information from Dr. Coffey's later  examination
  as well as information generated during the litigation that was presented
  by Goodhue's  attorney.  Similarly, Dr. Coffey's initial assessment was
  that he could not offer an opinion as to  Holbrook's competency.  After
  later examinations and further case history provided by Mary  Panzera, Dr.
  Coffey revised that conclusion.  At trial, both doctors concluded that
  Holbrook could  not have been competent at the time of the relevant
  transactions.  The court discounted Dr. Oxman  and Dr. Coffey's assessments
  as "equivocal and speculative."  The court found that even though Drs. 
  Coffey and Oxman offered their opinions in good faith, "uncertainties . . .
  plague any retrospective  conclusion about the extent of a progressive
  dementia."

 

       More persuasive to the court was the testimony concerning Holbrook's
  functioning during  1995 when the transactions occurred.  The court found
  there was considerable evidence attesting to  Holbrook's ongoing
  capabilities in the summer and fall of 1995 of  which the doctors were
  unaware.   For example, Holbrook's long time physician, Dr. Tortolani,
  raised no alarms following an exam in  June 1995 about Holbrook's ability
  "to drive himself home from the office, to continue to operate a  motor
  vehicle, or to continue to safely maintain himself alone in his home." 
  Likewise, Tom Meyers,  the trust officer at First Vermont Bank testified
  that Holbrook regularly stopped by the bank in the  summer of 1995 to
  discuss his financial matters.  Meyers indicated that Holbrook understood
  the  nature of the transactions that occurred, and was able to pay his own
  bills on these visits to the bank.  In particular, the court credited the
  testimony of Roy Mark, an orchardist who was hired to manage  the Scott
  Farm in 1995.  Mark had extensive interactions with Holbrook before and
  during the 1995  apple harvest.  Mark specifically testified that Holbrook
  mentioned that he had given the farm to  Landmark.  Mark also testified
  that Holbrook was very comfortable operating a full size forklift, and  was
  able to easily fix a controlled atmosphere machine that Mark himself was
  unable to fix.  The  court found that Mark's detailed testimony was "not
  easily reconciled with the suggestions by the  physicians that cognitive
  deficiencies must have been pervasive and profound as early as May and 
  June of [1995]."

       Given the conflicting testimony between the physicians who examined
  Holbrook after the fall  of 1995 and those persons who spent time with
  Holbrook during the summer and fall of 1995, it was  well within the
  court's discretion to weigh certain testimony more heavily than other
  testimony or  evidence.  "As the trier of fact, it was the province of the
  trial court to determine the credibility of the  witnesses and weigh the
  persuasiveness of the evidence."  Cabot v. Cabot, 166 Vt. 

 

  485, 497, 697 A.2d 644, 652 (1997); see also Kanaan v. Kanaan, 163 Vt. 402,
  405, 659 A.2d 128,  131 (1995) (trial court's findings accorded "wide
  deference on review" because court is "in unique  position to assess"
  credibility of witnesses and weight of evidence); Mullin v. Phelps, 162 Vt.
  250,  261, 647 A.2d 714, 720 (1994) (role of Supreme Court in reviewing
  findings of fact is not to reweigh  evidence or to make findings of
  credibility de novo).

       Defendants also place great emphasis on the videotape of a Folstein
  Mini Mental State Exam  (MMSE) administered to Holbrook in May 1996, almost
  a year after the Holbrook executed the first  document.  The MMSE is a
  screening device to determine whether more comprehensive testing of 
  cognitive function is necessary.  The test does not permit conclusive
  assessment of cognitive  capabilities.  It requires the patient to perform
  simple tasks such as remembering three words in  sequence, knowing the time
  and location, following instructions, repeating a few sentences, etc.  In 
  that video, Holbrook is significantly impaired in his efforts to
  communicate matters that he appears  to comprehend.  Holbrook's long-time
  physician, Dr. Robert Tortolani, testified that the videotape  accurately
  represents Holbrook's performance on another MMSE administered on June 9,
  1995,  before the deed of gift was executed.  Defendants would have us
  conclude, based on this statement,  that the video is enough evidence to
  prove that Holbrook was incompetent at the time of the  transfers.  At
  trial, however, there was undisputed testimony that the MMSE cannot provide
  a  comprehensive assessment of cognitive functioning.  Dr. Paul Newhouse is
  a geriatric psychiatrist  who testified as to the reliability and
  limitations of the various assessment measures used on  Holbrook.  Dr.
  Newhouse discounted the value of an MMSE administered alone, as it was by
  Dr.  Tortolani.  Some of the factors that limit the test's usefulness are:
  the test is language based and thus  penalizes patients who are language
  impaired but not otherwise as limited in their cognitive 

 

  functioning, the test cannot identify areas of strength in cognitive
  capabilities, and the testing  environment can be highly stressful,
  humiliating and embarrassing, which produces artificially low  scores.  In
  his testimony, Dr. Tortolani admitted that Holbrook did not like tests. 
  Further, almost  everyone who knew Holbrook mentioned that he usually spoke
  in short sentences or monosyllables,  as demonstrated on the video.  Based
  on the limited reliability of the MMSE, the court found the ten  minute
  clinical procedure less indicative of Holbrook's mental state in 1995 than
  the testimony of  numerous, contemporaneous observers of Holbrook's
  behaviors.  Again, such a judgment is within  the purview of the trier of
  fact.  See Bruntaeger v. Zeller, 147 Vt. 247, 252, 515 A.2d 123, 126 
  (1986) ("[D]etermination by the trier of fact must stand if supported by
  credible evidence, even if  inconsistencies or contrary evidence exists.").

       Indeed, there is ample testimony that Holbrook was competent at the
  time he executed the  various transfers, and that those transfers were in
  keeping with his long standing desire to preserve  the farm from
  development, which was expressed many times before any question of his
  competency  arose.  Each of the attorneys and accountants who were with
  Holbrook at the time he executed the  various transactions testified that
  they believed that Holbrook was competent and understood the  transactions. 
  For instance, Ken Fisher testified that Holbrook "exercised sound judgment
  and I felt  that he was very competent in August of '95 to execute these 2
  documents.  If he wasn't I never  would have let him sign them." 
  Similarly, Tom Meyers testified that he "didn't have any doubts  about his
  [Holbrook's] capacity to do the estate planning documents."  As with Roy
  Mark's  testimony, the court found Meyers' testimony "strikingly
  inconsistent with the claimed level of  incapacity."  At trial, Charles
  Cummings admitted that he had concerns about Holbrook's  competency because
  of his memory problems.  Nevertheless, when asked whether Holbrook did 

 

  "anything that raised concerns with you about whether he understood what he
  was doing in this  process," Cummings answered no.  Cummings further
  testified that Holbrook "was consistent in  saying what he wanted to do as
  far as Scott Farm was concerned and that was that he didn't want it 
  developed."  It was not unreasonable for the court to conclude, on the
  basis of the testimony of  Holbrook's attorneys and  bank trust officer,
  all of whom have experience with the execution of legal  documents,  that
  they would not have executed the documents had they believed Holbrook was
  not  competent.  In view of the evidence credited by the trial court, we
  cannot say the trial court erred in  concluding that Holbrook was competent
  to enter into the transactions because he reasonably  understood the nature
  and effect of the transactions he was undertaking.

       Additionally, defendants argue that the court erred in finding that
  Holbrook was suffering  from early stage Alzheimer's as defined by O'Brien
  v. Belsma, 816 P.2d 665 (Or. Ct. App. 1991).   O'Brien involved similar
  circumstances in which an inter vivos gift by a donor suffering from 
  Alzheimer's was challenged.  In that case, the court heard medical
  testimony that divided the  progression of Alzheimer's into three stages. 
  Id. at 667.  There is no merit to defendants' claim  because the court
  simply made no such finding.  The court used O'Brien as an instructive
  example,  not as controlling authority.  The court's finding that in the
  summer and early fall of 1995 Holbrook  was suffering from the early stages
  of Alzheimer's is a description of Holbrook's condition as  presented by
  the testimony heard at trial, not a medical conclusion based on the O'Brien
  stages.

                                     II.

       Finally, defendants contend that Holbrook's transactions are invalid
  because they were the  result of undue influence exercised on him by those
  around him, particularly David Tansey, the  President of Landmark Trust
  (USA), Inc.  "Undue influence occurs when the donor no longer 

 

  exercises free will," tainting resulting transactions.  In re Estate of
  Roche, 169 Vt. 596, 597, 736 A.2d 777, 779 (1999) (mem.).  "Any species of
  coercion, whether physical, mental, or moral, which  subverts the sound
  judgment and genuine desire of the individual, is enough to constitute
  undue  influence."  In re Everett's Will, 105 Vt. 291, 315, 166 A. 827, 836
  (1933).  Undue influence vitiates  a devise or gift because of the concern
  that the testator or donor has "done something contrary to his  'true'
  desires."  In re Estate of Rotax, 139 Vt. 390, 392, 429 A.2d 1304, 1305
  (1981); see In re Estate  of Bradshaw, 24 P.2d 211, 214 (Mont. 2001)
  (applying undue influence standard for inter vivos gift  very similar to
  Vermont standard for undue influence in a testamentary devise); see also In
  re  Zaborski, No. 209055, 2000 WL 33418068, at *1 (Mich. Ct. App. June 30,
  2000) (same); Modie v.  Andrews, No. 19543, 2000 WL 1026682, at *3 (Ohio
  App. Ct. July 26, 2000) (same).

       Ordinarily, the party claiming undue influence bears the burden of
  proof.  Estate of Raedel,  152 Vt. 478, 481, 568 A.2d 331, 333 (1989). 
  Vermont, however, recognizes an exception to this  general rule that
  applies when there are suspicious circumstances surrounding the execution
  of the  relevant documents.  When there are suspicious circumstances, the
  burden shifts to the proponent  of  the document to show affirmatively that
  the will was not procured by undue influence.  Rotax, 139  Vt. at 392, 429 A.2d  at 1305.  Suspicious circumstances typically arise when a testator's
  or donor's  fiduciary benefits from the document at issue.  We have stated
  that"

    [U]ndue influence may be presumed when relations between testator
    and beneficiary  are suspect, such as those of guardian and ward,
    attorney and client, spiritual advisers  and persons looking to
    them for advice-in fact all relations of trust and confidence in 
    which the temptation and opportunity for abuse would be [] great.

 
  Raedel, 152 Vt. at 483, 568 A.2d  at 334 (internal quotations omitted).

       Defendants contend they produced sufficient evidence to prove
  suspicious circumstances, 

 

  such that the burden of proof on undue influence shifted to the donees, as
  the proponents of the legal  documents, to show that such documents were
  not procured improperly.  They claim the trial court  erred in not
  recognizing that the bar for proving undue influence is much lower when the
  donor is  enfeebled, easily influenced or swayed.

       Again, defendants predicate their argument for suspicious
  circumstances on their view of the  evidence, which is that Holbrook was
  not competent, or if competent, was seriously compromised at  the time he
  executed the documents effecting the transfer of the farm.  Because the
  trial court  rejected that view of the facts and defendants' theory of the
  case, defendants' claim on this point must  fail.  Defendants retained the
  burden to prove undue influence by a preponderance of the evidence.   There
  is little evidence to support the claim.

       Nothing in the history of the relationship between Holbrook and Tansey
  indicates the  transaction was not made at arm's length.  Holbrook's
  relationship with Tansey began in 1992 when  Scott Farm, Inc. sold a small
  property located on Scott Farm to Landmark, which was the former  Rudyard
  Kipling house called "Naulakha."  Naulakha was Landmark U.S.A.'s first
  historical renovation project and Tansey moved to Scott farm, renting space
  from Holbrook, to complete the  project.  In early 1994, Holbrook's
  accountant approached Tansey to inquire whether Landmark  would be
  interested in Scott Farm because Holbrook was pleased with the work on
  Naulakha.   Although other donees were approached, none would accept the
  property without an endowment to  offset the cost of the farm's operation. 
  Therefore, negotiations continued with Landmark through  various attorneys
  and representatives who testified as to Holbrook's favorable view of
  Landmark as  the donee.  Under these circumstances, the fact that Tansey
  and Holbrook spent time together at the 

 

  farm and discussed how the farm was to be transferred after Holbrook had
  chosen Landmark as the  likely donee, does not, without more, compel a
  finding of undue influence. 


       In considering the claim below, the trial court found that none of the
  other hallmarks of  undue influence was present.  No evidence suggested
  that Landmark or Tansey will profit financially  from the operation of
  Scott Farm.  Nor was Tansey acting in a fidicuiary capacity to Holbrook,
  since  both Landmark and Holbrook were represented by independent financial
  and legal counsel before the  transactions were consummated.  Moreover, the
  gift is entirely consistent with Holbrook's wish that  the farm be
  preserved from development.  In other words, there is nothing on the face
  of the  transaction to raise even the suspicion of undue influence.  In
  fact, the conclusion to be drawn from  these facts is rather that Landmark,
  Tansey and Holbrook shared a common interest in land  preservation, and
  that Holbrook believed that Landmark was the only entity that could carry
  out his  intent to preserve Scott Farm.  

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  Defendants make a brief argument that we should apply a
  non-deferential standard of review to  the trial court's findings, citing
  In re Nash, 158 Vt. 458, 614 A.2d 367 (1992).  The issue in Nash was 
  whether the V.R.C.P. 52 clearly erroneous standard applied to testimony
  presented to the court solely  through transcripts.  We held, contrary to
  defendants' position, that the appellate standard of review was  the same,
  regardless of whether the trial court made findings on the basis of live
  testimony or transcripts.   Id. at 464, 614 A.2d  at 369.  Moreover, the
  instant case does not present the issue in Nash because here  the trial
  court heard live testimony.  Therefore, the clearly erroneous standard,
  which is highly deferential  to the trial court, applies.