143 Ky. 476 | Ky. Ct. App. | 1911
Opinion of the Court by
Reversing.
In this controversy the appellant seeks to set aside upon the grounds of mental incapacity and undue influence a deed made by F. Gr. Banister to the appellees. The lower court dismissed the petition, and she appeals.
' F. G-. Banister, the father of appellant and the father-in-law of appellee Ruth Banister, died in June, 1909, leaving surviving him as his only heirs at law the ap
In 1898 the appellant married John Bozarth, who died in 1909. After the marriage, she left her father’s home and did not thereafter live with him or his family. Her' father was bitterly opposed to the marriage, and was never on friendly terms with Bozarth; but his daughter after her marriage occasionally visited her father, as he did her.
In October, 1906, F. G. Banister and his wife conveyed the home farm, containing 200 acres, and which is the land now in controversy, to the appellee W. H. Banister — the consideration expressed in the deed being—
“That the first parties are now old and very feeble and require the almost constant attention of someone to look after their wants, and their son W. H. Banister has for a number of years been very kind to them, devoting much of his time and means to their welfare, and agrees and binds himself and family to continue said attention and services to them, providing them with the necessaries of life and furnishing them with fuel, clothes, doctors, and medicines during the remainder of their natural life.”
In November, 1908, W. H. Banister and his wife re-conveyed this land to F. G. Banister, and on the same day and at the same time F. G. Banister conveyed -it to Ruth Banister, the wife of W. H. Banister — the consideration expressed in this deed being that—
*478 “Second party- has administered to my comfort in sickness and in health by furnishing me food, medicines and by nursing me in sickness for many years past, and does hereby agree to continue to do so as long as I shall live.”
There is some evidence that F. G. Banister was induced to take a conveyance of the land from his son and reconvey it to his son’s wife by the fear that if the title was left in W. H. Banister the land might be taken from him in a “night rider” suit that had been brought against him.
As in all cases like this, there is much conflict in the evidence — a number of witnesses testifying that in 1908, as well- as in 1906, F. G. Banister had mind and understanding sufficient to make a deed, while others with equal opportunities to know his condition testified that during these years he was weak in body and mind and incapable of entering into a contract. But, we may safely say from the evidence that F. G. Banister, who in 1908 was some eighty-five years old, was quite feeble, had been failing mentally and physically for some years, although not an invalid or unable to go about and attend to the little duties that needed his attention. It is also manifest from the evidence that the appellee W. H. Banister had large influence over his father. This influence commenced in 1895, when he returned to his father’s place and continued until his father’s death— increasing each year until during the last several years of his father’s life he completely dominated and controlled him. Several witnesses testified to statements made by W. H. Banister indicating the influence that he exercised- over his father, and it is apparent all through' the record that he controlled him as he wished. The old man was very much attached to his daughter Nannie, and her death caused him great distress, and soon thereafter he manifested symptoms of mental trouble that continued until his death. He also had a severe spell of sickness about the time of her death, and this contributed to increase his feebleness and mental trouble; and several witnesses say that after her death he was “never like himself.” There is also testimony that' W. H. Banister did not treat his sister, the appellant, as a brother should, and his conduct leaves the impression that instead of regretting the estrangement be
It also appears that the appellees got all the personal property and household goods that were on the farm when they went there and when F. G. Banister and his wife died. True, this personal property was not shown to be worth much, but whatever it was, they got it all.
We have read with care the entire record, and have reached the conclusion that the deed was not only inequitable and unjust, but its execution was procured by undue influence, and so it should be canceled and held for naught.
It is contended by the appellant that the appellee should be required to account for rent, and for the value of the personal estate that he converted to his own use. But, we are disposed to let the care and attention that he gave to the old people offset the personal property and the rent up to the time of F. G. Banister’s death. He must, however, account for one-half of the rent of the place since that time. It also appears that W. II. Banister put some improvements on the place, but he should not be allowed anything on this account; he will get back half the value of these improvements when the land is divided, and the other half may equitably be put in to help offset the income and rents that he received prior to the death of F. G. Banister.
Wherefore the judgment is reversed with directions to set aside the conveyance made in 1908, and for other proceedings in conformity with this opinion.