| Ark. | Jan 22, 1923
The law is well settled in this State that, in the absence of fraud or undue influence, mere weakness of mind resulting from old age is no ground for setting aside a deed, provided the grantor was able to understand the nature and effect of the particular act in which he participated. McCulloch v. Campbell, 49 Ark. 367" date_filed="1887-05-15" court="Ark." case_name="McCulloch v. Campbell">49 Ark. 367; Taylor v. McClintock, 87 Ark. 243" date_filed="1908-06-22" court="Ark." case_name="Taylor v. McClintock">87 Ark. 243, and Rogers v. Cunningham, 119 Ark. 466" date_filed="1915-06-28" court="Ark." case_name="Rogers v. Cunningham">119 Ark. 466.
There is no evidence of fraud or undue influence in the record. .The deed is sought to be set aside solely on the ground of the mental incapacity of the grantor. Chancery cases are tried de novo on appeal, and the burden rested upon appellees in the court below (and rests upon them here) to establish the mental incapacity of Gibson to make the deed in question, by a preponderance of the evidence. This they have failed to do. The depositions of seventeen witnesses on each side were read before the chancellor and are- contained in the record.
Intelligent and reputable citizens and neighbors of H. H. Gibson, who had known him well for many years, testified on both sides of the case. Each side also had two or three skilled physicians who had known Gibson for a long time. The physicians who testified at the instance of appellees were of the opinion that Gibson had suffered- for many years with paranoia and was under the delusion that he was being persecuted by his children. They considered him mentally incompetent to make the deed in question. ■ The other witnesses for appellees also testified that they had known Gibson for many years, and did not consider that he was mentally capable of making the deed in question.
On the other hand, witnesses who had equal opportunities of knowing the mental condition of JI. IT. Gibson for many years prior to his death testified that he was mentally competent to execute the deed. They said that, while he had some peculiarities and possessed a quick temper, he fully understood what he was doing, and was capable of attending to his own affairs. They said that he had become estranged from his children on account of their taking their mother’s part at the time she was divorced from him. This estrangement finally led to extreme bitterness 'between Gibson and two of his children..
A physician who attended Gibson during the last year of his life several times, and who had known him well for many years, testified that he was mentally competent to make the deed.
It is fairly inferable from the testimony of Dr. Arkebauer, taken in connection with the short time that Gibson remained in the asylum during the latter part of 1914 and the first part of 1915, that Gibson had fully recovered from any mental incompetency from which he suffered when he was confined in the asylum.
A judgment of the court was rendered in May, 1915, releasing him from the asylum, and it recites that Gibson had fully recovered from his illness.
It will be remembered that Gibson was out on parole at the time the judgment was rendered, and that the court not only based its finding upon the testimony of witnesses, but on the fact that Gibson was at home on parole.
Appellant testified that, at the time she married Gibson, in November, 1915, he agreed to convey all of his property to her, and she agreed to marry him and take care of him during the rest of his life. In March the next year Gibson made a trip to Russellville, and directed Judge R. B. Wilson to prepare his will. His wife was not with him, and no one else was there to advise Judge Wilson of the disposition he wanted to make of his property. Gibson directed Judge Wilson to prepare his will bequeathing $25 each to his three children, who were named in the will, and the rest of his property was devised and bequeathed to appellant, who was called his beloved wife. So far as the -record discloses, this was done without the prompting of any one. This shows that Gibson recognized the agreement he had made with his wife at the time of their marriage to leave her all of his property, or at least tends to show’ that at that time he intended that she should have all of his property at his death, except a small sum bequeathed to each of his children. The fact that he specifically mentioned his children in the will tended to show that he recollected them and intended that they should not have any of his property.
His first wife had alreády been given one-third of all his property at the time she obtained a divorce from him. When Gibson directed the deed in question to be prepared in November, 1920, he stated to the attorney who prepared the deed that he did not intend for his children to have any of his property, and that he wanted his wife to have all of it. He stated further that he felt under obligations to his wife and wanted her to have all of his property, in recognition of their marriage agreement. He told his attorney that he had agreed to convey all of his property to her if she would marry him and take care of him.
The deed recites the consideration that appellant had agreed to live with and care for her husband during his natural life. This agreement had been made at the time of their marriage in November, 1915, and the appellant had carried out this agreement on her part for five years before the deed in question was executed. It will also be noted that the deed contains this clause: “It is agreed and understood that H. II. Gibson shall have the land for and during his natural life.” The insertion of this clause in the deed by Gibson tends to show that he understood what he was doing, and that, while he was executing the deed to carry out the agreement he made with his wife at the time of their marriage,- still lie desired to retain control, of his land until he died. This was an act of prudence on his part negativing the idea that he did not understand what he was doing when he executed the deed. His wife was not present, and it is not shown that the deed was made at her suggestion.
It is true that Gibson did not live long afterwards, but it must be remembered that he had agreed to make the deed to his wife at the time of their marriage, five years before, in consideration that she would take care of him, and this agreement she had faithfully carried out, so far as the record discloses.
No good purpose could be accomplished 'by setting out in detail the testimony of the various witnesses in the case and discussing and analyzing their testimony at length. We deem it sufficient to say that we have carefully read and considered the evidence in the record, and are of the opinion that the finding of the chancellor that Gibson ivas mentally incompetent at the time he executed the will and deed in question is against the preponderance of the evidence.
As above stated, the burden of proof was upon appellees to show this fact, and, having failed to do so, the learned chancellor erred in setting aside and annulling the will and deed.
It follows that the decree must be reversed, and the cause will be remanded, with, directions to dismiss the complaint for want of equity.