| Ark. | Mar 27, 1916
(-after stating the facts). (1) The first question is whether or not William Boyd, at the time of the execution of the deed, and of the alleged transfer of personal property, had sufficient mental capacity to understand the nature and effect of these transactions. This is purely an issue of fact which must be determined by the preponderance of the evidence.
William Boyd, for over a year before his death, had been afflicted with -cancer. This disease gradually preyed upon his vitals until he finally died from exhaustion. The testimony is conflicting, but the finding of the chancellor that Wm. Boyd had sufficient mental -capacity to execute the instrument is not clearly against the preponderance of the evidence.
The next question is whether or not Boyd executed the deed conveying the land and transferring the personal property in controversy' with the intention of vesting absolute title therein to S. J. Boyd, his wife. This is also peculiarly a question of fact, depending upon a preponderance of the evidence.
C. A. Boyd was the only son and the only living child of William Boyd. He had .been living away from his father some fifteen years, in Idaho and Utah. He stated' that during these years he had seen his father only for brief periods some five or six times; that his personal association with his father had not been close for some fifteen years. Appellee Haeo Boyd, whose father was dead, was the grandson of William Boyd. O. A. Boyd was a lawyer, and testified that he had prepared ■ the papers to carry out his father’s wishes; that his father signed all instruments by mark because of his weak physical condition, and requested two or three of those present to sign as witnesses; that his mind was good and he appeared to understand his business and his own condition and the condition in which his mother would be left at his death as well as at any time in former and healthier years. He stated that he never suggested to his father at any time what to do or urged him to make the disposition of the property that he did make; that his father asked him to arrange his property so that if he should die that his mother would have it all. He then suggested a will, but his father stated that he would rather turn it right over to her and that he would know that it •was done. Witness then, prepared all the papers and made the transfers that were made. He suggested to his father that the better way to convey the real estate would be for him and his mother to join in a deed to some third person, with the understanding that such person then make a deed direct to his mother, and that accordingly the instrument was prepared'and executed.
Mrs. S. J. Boyd, the wife of William Boyd, testified on this branch of the case, in part, as follows: “We talked the matter over several times. I don’t know how many times. During his last illness he seemed to be interested in my condition, and wanted me to have a living out of what he had worked and made.” She was asked this question: “Q. You say he wanted you to have a living during your life and after your death, he wanted Berry and Haco to have the property equally divided between them?” “A. It is.” “Q. You were present and saw and heard what took place; isn’t it a fact that what he wanted to do, and attempted to do, was to fix his property so you could have the use of it during your life and at your death Berry and Haco could have the property in equal parts?” “A. Yes, sir.’’
■ On redirect examination she was asked this question: ££Q. Is it, or is it not a fact, that the understanding was that the property was to be deeded to Berry and by Berry to you without any limitations or restrictions, and that you have the property now, both real and personal, in your own name, and in your own right to dispose of it as you see fit?” “A. Yes, sir.” ££Q. Then when you say that it was your husband’s intention that the property should be divided at your death, you mean to say that your husband trusted you with the property under Berry’s management to do right both between Haco and Berry when you die?” ££A. Yes, sir.”
C. A. Boyd testified, and it was undisputed, that in carrying out the intention of his father the deed was executed to>him ('C. A. Boyd), and that he had since executed a warranty deed to his mother. Now it will be seen that Mrs. S. J. Boyd, the beneficiary of these transfers, when testifying as to what the intention of her husband was as to the disposition of his property, stated that he wanted her to have a living out of what he had worked and made. It is true, in answer to a leading question, she stated that the understanding was that the property was to be deeded to Berry and by Berry to her, and that she was to have the property, .both real and personal, without limitation or restriction, and that her husband trusted her with the property, under Ber- • ry’s management, to do right both between Haco and Berry when she died.
No one corroborates the testimony of C. A. Boyd to. ■the effect that it was the intention of his father to transfer the property to S. J. Boyd without restriction. But, on the other hand, there is much testimony tending to show that it was the intention of William Boyd that his wife, S. J. Boyd, -should have a life estate in all of his property, which, at her death, should descend to the soxx, C. A. Boyd, and the grandson, Haco Boyd. Mrs. Boyd-herself stated that her husband’s feelings were in xio way estranged towards Haco’s father or Haco himself, and C. A. Boyd testified that his father was very proud of and very fond of Haco. Haco testified that his grandfather told him the last Thursday before his death that he wanted him (Haco) to share equally with his grandmother and uncle Berry; that the summer before he died he was with him every time he could get a chance, and that his grandfather had great affection for - him. The mother of Haco testified that Haco was a favorite with Ms grandfather Boyd; that she heard the grandfather frequently say that he was goixxg to educate Haco just as he had his own sons. Berry and Roy (Haco’s father), and that he wanted Haco to have the same share in his property as Berry and his grandmother. She stated that, she heard the conversation betweexx Haco and his grandfather on Wednesday before he died, and that grandfather Boyd- ended the conversation by saying, “When graxxdpa dies he wanted him (Haco) to share equally with his grandmother and uncle Berry.”
■Several other witnesses who were not x-elatives and who were disinterested, stated that the graxxdfather Boyd manifested great affection for Ms grandson Haco. Several of these stated that he seemed to think as much of Haco as his own child, and they heard him so express himself time and again. Several of these stated that they heard William Boyd say that after Ms death and his wife’s death that he waxxted his son and grandson to share equally.
J. M. Boyd, a brother of William Boyd testified, “I was present Sunday and Sunday night when William Boyd disposed of his property. Well, I heard the conversation, and, as I understood, the property was to be made over to Berry and from him made over to his mother during her lifetime, and then be divided between Berry and Haco, his grandson.” True, in answer to a. leading question, witness stated that he (witness) understood that William was giving to his wife an absolute right and trusting to her to do what was right between Berry and Haco.
In Howe v. Howe, et al, 99 Mass. 88" date_filed="1868-01-15" court="Mass." case_name="Howe v. Howe">99 Mass. 88, it was held:' ‘ ‘ To impeach the validity of a deed, evidence of declarations of the grantor, while of sound mind, prior to the execution of it, as to his intentions concerning the disposal of the granted premises, is admissible when offered ‘among other circumstances tending to prove unsoundness of mind, undue influence and fraud;’ especially if it is a deed of gift disposing of the grantor’s estate among his children and omitting any provision for the issue of a deceased child.”
The justice of the peace who took the acknowledgment testified, among other things, that the deed which C. A. Boyd had first prepared, and which had been read, and the deed which he supposed was being acknowledged by William Boyd, was not complete; that it described only one of the lots and “all other real estate.” None of the witnesses who were present at the time it is alleged that the deed was executed testified that the same was read over to Wm. Boyd and that he stated in their presence that he understood the instrument. The justice of the peace himself, while stating that he took the acknowledgment, does not state that the deed was read over to Boyd and that Boyd stated that he understood it. On the contrary, as before stated, the testimony of the justice tends to show that the deed which he thought was being acknowledged, was incomplete in that it failed to describe the real estate.
As we view the record, there is no testimony, except the testimony of C. A. Boyd, which tends to prove that William F. Boyd knew and undertook at the time he executed the deed and made the transfers, that he was making an absolute conveyance of the real estate and transfer of the personal property to C. A. Boyd. The preponderance of the evidence shows that it was not his intention to make such a disposition of his property, and therefore it must be held that these deeds and transfers were not the acts of Wm. F. Boyd.
Now the testimony shows that Mrs. Boyd and C. A. Boyd were dealing with the property as if the absolute title was vested in Mrs. S. J. Boyd. C. A. Boyd, it appears from her testimony, “has the absolute management and control” of her money, property and financial affairs. She stated, “He is taking care of it for me and handling it for me.” The chancellor found, and the testimony shows, that C. A. Boyd had taken the personal property, amounting to nearly $8,000, outside of the State and invested the same. It thus appears that Mrs. S. J. Boyd, through -C. A. Boyd, was exercising absolute dominion over the property.
The doctor testified that he had been kept alive for several days on strychnine and-caffeine; that his mind was weak in proportion as his body was weak.
A deed executed under such conditions, when challenged, -should be scrutinized with the greatest care. Mr. Pomeroy says: ‘ ‘ Finally, in a case of real mental weakness, a presumption arises against the validity of the transaction, and the burden of proof rests upon the party claiming the benefit of the conveyance or contract to show its perfect fairness and the capacity of the other party.” 2 Pomeroy Eq. Jur. sec. 947. See Graves v. White, 63 Tenn. 38" date_filed="1874-12-15" court="Tenn." case_name="Graves v. White">63 Tenn. 38.
The judgment will therefore be reversed and remanded, with directions to enter a decree cancelling the deed and transfers of personal property, and for such other and further proceedings as may be necessary according to law and not inconsistent with this opinion.