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
     1
      Justice 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
                                                        2
mother, but that Deborah had subsequently moved away.
     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
       2
        Additional 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.
