31 W. Va. 576 | W. Va. | 1888
Joseph Cole died testate early in the year 1850, in Monon-galia county, leaving a widow, two sons, William and
The widow of Joseph Cole, deceased, died in January, 1871. The two daughters, Elizabeth and Mary, continued to live with their mother on the home-place to the time of her death, and they afterwards lived there until .their deaths, with the exception of about two years, 1878 and 1879, when they lived with Lewis C. Cole on the 190 acre tract of land.
Albert Hale obtained a divorce from his wife, Elizabeth, in August, 1839, in the State of Indiana, and afterwards married another woman in that State, where he continued to reside until December, 1884, when he came to Weston, in this State.
Lewis 0., the son of Mary Cole, was raised in the family of his grandmother and lived on the home-place with her, his aunt Elizabeth and mother, until he was married, a
James B. Cole, a son of Ooverdale Oole, when he was about six years of age, was taken into the family of his grandmother and aunts and continued to live there until the death of his grandmother and for some time thereafter.
By a written agreement dated December 19,1874, executed by Elizabeth and Mary Oole, it was agreed that after the death of either of them the said 190 acres of land should be equally divided, and that Lewis 0., the son of Mary, should have that on the south side of the road, and he was not to be charged with his improvements in an equal division of the land. This agreement was duly acknowledged by the said Elizabeth and Mary, and on April 8,1875, admitted to record in Monongalia county. In 1879 the said Elizabeth and'Mary caused the said 190 acres to be surveyed, and on March 8,1879, they executed and acknowledged a deed, by which “ in consideration of one dollar and of natural love and affection, and also past care and kindness bestowed upon them by the grantee,” they conveyed by metes and bounds to said Lewis 0. Oole, the son of the said Mary, 150 acres of said 190 acres, including therein all the land on the south side of the public road and all on the north side, except about forty acres, subject to the following reservation : “ The said parties of the first part hereby reserve the right to occupy and control during their natural lives, or the natural life of either of them, so much of said land hereby conveyed as they may elect to occupy and control, and to rent out the same, and receive the rent for same, as they may elect, during the same time.” This deed was duly recorded, March 15,1879, in said county.
Subsequently, by deed dated September 10,1879, the said Elizabeth and Mary, “in consideration of one dollar and good will for the grantee, and in the further consideration of the grantee agreeing to furnish the grantors one hall' part of their necessary and comfortable support (jointly) with L. O. Oole, who is held for the residue thereof, during the period of their natural lives or the life of the surviving one of them, also the payment of the sum of five dollars to A. 0. Hale
In January, 1885, the said Abraham 0. Hale brought two separate suits in the Circuit Court of Monongalia county,— the one against Lewis C. Cole and the other against James B. Cole, — to set aside and annul the aforesaid deeds of March 8,1879, and September 10,1879, to the said defendants, respectively. The averments of the two bills are substantially the same, mutaiis mutandis, and seek to invalidate and set aside said deeds upon two alleged grounds: Hr si, because “ the said grantors, and especially the said Elizabeth, were on account of their frailty and imbecility of body and mind wholly incapable of understanding or transacting business, and incompetent to make said deeds or dispose of their property (” and second, “ that said deeds were procured by reason of such want of capacity and the undue influence exercised over them and gross fraud of the defendants, and especially was this so as to the said Elizabeth.”
These bills were promptly answered by the respective defendants, each of them positively denying the said charges of imbecility or want of capacity of the grantors to make said deeds, and any fraud or undue influence in their procurement, and averring that each of said grantors, and especially the said Elizabeth, was fully competent mentally and otherwise to make said deeds or any other contracts in respect to her property real or personal.
A large volume of depositions was taken and filed by the respective parties: and on June 17,1887, the two causes
From this decree the defendants, Lewis O. and James B. Oole, have appealed.
The appellants insist, that the court should have dismissed both of the plaintiff’s bills, and that it manifestly erred in granting any relief whatever to the plaintiff. It may be observed in the outset that the plaintiff could not in any event inherit the interest of Mary Oole in the 190 acres of land. If she had not conveyed her moiety during her life, it would have been inherited by her son, the appellant, Lewis 0. Oole; consequently the acts of Mary, in conveying her interest in said land, which was all she did or could convey by the said deeds of March 8,1879, and September 10,1879, did not in any respect prejudice the rights of the plaintiff, A. 0. Hale; and it necessarily follows, therefore, that whether the said acts of Mary are valid or invalid, is wholly immaterial, so far as the plaintiff is concerned, and he cannot be heard to complain in either event. This makes it unnecessary to consider the competency of Mary to execute said deeds, or whether or not they are as to her valid conveyances.
If the plaintiff has succeeded in showing that the said deeds are invalid as to his mother, the said Elizabeth, he can have the land repartitioned, and his mother’s moiety assigned to him, notwithstanding the validity of said deeds as to Mary. The only inquiries, then, which can be made in these causes, are whether or not Elizabeth, the mother of the plaintiff, had
The only possible theory, it seems to me, on which that decree can be based, is the one advanced by some of the witnesses for the plaintiff, and that is, that a mother, who would disinherit her only child under any circumstances, must of necessity be of unsound mind, and incapable of doing a valid act. However forceable and persuasive this theory may be, it certainly is not the law. Where legal capacity is shown to exist in the grantor, and no fraud or undue influence is shown to control the free exercise of his or her judgment or will, the validity of a deed cannot be impeached however unreasonable, imprudent or unaccountable it may seem to others. Where a grantor or testator has legal capacity to make a deed or will, he has the legal right to make an unequal, unjust or unreasonable disposition of his property. Voluntas stat pro ratione. Jarrett v. Jarrett, 11 W. Va. 584; Couch v. Eastham, 29 W. Va. 784.
All the witnesses, both those for the plaintiff and those for the defendants, who make any discrimination, accord in their testimony, that the mental and business capacity of Elizabeth was better than that of Mary. Even in reference to the latter the testimony in my judgment fails to show that degree of mental incapacity, which would disqualify her from transacting business. The most that it does show is, that she was a diffident, retiring, uneducated woman with mental capacity somewhat below the average of persons of her class; while in respect to Elizabeth the whole testimony taken together clearly shows, that she was above the average both as to mental and business capacity. It is true, some of the plaintiff’s non-expert witnesses give it as their opinion, that she wa.s deficient in mental capacity, but none of them state any acts or circumstances to justify their opinions.
One of the witnesses who attempts to give the grounds of her opinion, says that Elizabeth was sickly, and that she would take awful funny spells; and, when asked what she
Dr. Casselberry, the only physician who testified in behalf of the plaintiff, says: “ They were both frail old ladies at that time, [in 1875.] As to their mental condition I would say this: I think they were parties that would be easily influenced by a person they had confidence in. Of course, I saw but little of these people, but from what I did see they were parties of strong prejudices when they did take a stand.”
On behalf of the defendants, in addition to a number of witnesses who had known these two women many years, and testified that Elizabeth was a cautious and shrewd business woman, — above the average, — two exx>erts who had been her attending physicians were examined, and testified that they were both of sound mind. Dr. MacLain, who attended Elizabeth in her last illness, says that she had mind and memory sufficient to transact business and dispose of her real estate rationally and understanding^ up to the time of her death.
It seems to me therefore without further reviewing the testimony, that according to thefacts and the great preponderance of .the evidence it is not shown, that Elizabeth was incompetent mentally or otherwise to execute the deeds in question in these causes. In regard to the charge of fraud or undue influence, there is little or no testimony to sustain it.
It is further shown that Lewis was very kind to his aunt, and by that means acquired her confidence, and it is claimed that by reason of the confidence thus acquired he could and did influence her to give him a part of her land. If this were true, as it probably is, and Elizabeth was thus influenced to give Lewis a part or the whole of her estate, it would not invalidate the conveyance. Influence obtained by acts of kindness and attention is not an undue influence; and, if a grantor or testator is by such acts influenced to convey his property or bestow a bounty, the transaction will not be invalid for that reason. Nicholas v. Kershner, 20 W. Va. 252.
It is not, as I understand it, contended that there was either such mental incapacity or undue influence or fraud in these conveyances as would be sufficient, of itself to invalidate them, but that these matters, taken in connection with the fact, that this old lady has wholly disinherited her only child are sufficient to satisfy a court of conscience, that these deeds were not the voluntary acts of a free will and competent
The facts and circumstances here fully and satisfactorily explain the conduct of the grantor. In the first place, the mother had been, without any apparent justification, deserted by the father before the plaintiff was born. When but six months old the plaintiff was by the father cruelly and unnaturally stolen from the mother, the name she had given him taken from him, and neither the plaintiff nor the father ever after lived with or cared for the mother. It is true the plaintiff, after he became nineteen or twenty years of age, occasionally visited her, and made her some trifling presents; but though for twenty-five years he lived within easy distance from her he never provided for her, or offered to live with her, or asked her to live with him. She was left alone, imbecile, weak and decrepit, as he now claims she was, to take care of herself, so far as he was concerned, among her other relations, whom he now characterizes as sordid and rapacious. She was never given the opportunity to treat him as a son during her whole life, nor did he ever attempt to act the part of a son, or treat her as a mother, until he brought these suits to get her estate.
On the other hand, the defendants were the nephews, and both of them virtually raised in the family of their aunts; they had lived with and near them all their lives; provided and cared for their wants and comfort so far as necessary up to the time of the making of the deeds complained of, and afterwards during their whole lives. There is not a particle of evidence in this whole record to show, or which tends to show, that either of the defendants ever said an unkind word, or did an unkind or ungenerous act, towards either of these old ladies; but, on the contrary, the plaintiff has attempted to show that by their kindness and faithful attention they acquired an undue influence over them. In all their conduct and communication it seems to me these two nephews acted and were treated more like the children of Elizabeth than did her own fugitive and
An additional reason, if one were needed, why the plaintiff is not entitled to any relief in these causes, is his laches and great delay in asserting his alleged rights. He was fully informed of the execution of both of these conveyances before the death of his mother, yet he did not bring these suits until nearly five years after her death. No explanation whatever is given of this long delay. This of itself, unexplained, ought to be sufficient in a court of equity to defeat his demand. Trader v. Jarvis, 28 W. Va. 100; Doggett v. Helm, 17 Gratt. 96.
For these reasons the decree of the Circuit Court must be reversed, and the plaintiff’s bills dismissed/
REVERSED.