90 W. Va. 303 | W. Va. | 1922
The question certified is whether the circuit court rightfully overruled defendants’ demurrer to the bill-.
The plaintiffs are the children by his first wife of G. W. Harman, and defendants are the said G. W. Harman, Margaret L. Harman, his present wife, and certain of her children by him.
The main purpose of the bill is to have canceled and declared null and void two certain deeds dated December 8;
The prin'cipal ground for the relief sought is that at the time of the making and execution of said deeds, the-said G. W. Harman, then about seventy-five years of age, was irrecoverably insane, and was adjudged insane in December, 1919, and is now confined in the hospital for the insane at Huntington, West Virginia; that plaintiffs were informed and believe that he made no will; and that upon his death his estate,
Assuming the facts which are well pleaded to he as alleged, the controlling question is, can plaintiffs as prospective heirs, during the life of their father and the grantor, maintain this suit against him and the trustee and beneficiaries in said deeds, to vacate and set them aside, or have any relief thereon ?
Whether a deed executed by a lunatic before inquisition of insanity is void or only voidable is a question on which there is much conflict. In a recent ease we decided that in the absence of fraud and where good faith and ignorance of the beneficiaries of such deed are shown, such deed will be regarded as voidable only. Morris v. Hall, 89 W. Va. 460, 109 S. E. 493, and cases cited. In Gerling v. Agricultural Insurance Co., 39 W. Va. 689, we decided that a deed of conveyance made by the insured during the life of a policy and before loss, but void because of the grantor’s mental incapacity to make it, did not constitute such a change or transfer of title as would forfeit the policy. In Towner v. Towner, 65 W. Va. 476, we held that after one has been adjudged insane, his mental incapacity is presumed in respect to a deed executed by him, and before his discharge from the hospital in which he was confined, although at the time of the execution of the deed he was at home by permission or furlough given him by the hospital authorities. The bill in this case does not make it clear whether the said G. W. Harman was adjudged insane before or after the making of the deeds in question.
But whether the deed of the grantor was made before or after the 'adjudication of lunacy is a fact not important in the, decision of this case. For whether the deed be void or only voidable, the controlling question presented is whether the plaintiffs have any present or prospective rights or interests which they can vindicate by their present bill. They are prospective heirs of their father. But one can hot in law be said to be the heir of a living person. An heir has no power over, the inheritance during the life of his ancestor. 4 Bacon’s Abridgement, 606-7. He may die before his an
But may the bill be sustained as one to remove the committee, of whom it is complained he will not proceed to reclaim or recover the property deeded away while the grantor was insane? The committee was appointed by the county court, and gave bond and qualified in that court. In Dickel v. Smith, 38 W. Va. 635, we decided that it was not only the
Moreover, if not protected by the committee during the life of his ward, the rights of the plaintiffs in the. estate of their ancestor, if any, may be hereafter vindicated when they shall have matured by the death of the ancestor, by their own suit. 1 Lewis’s Blackstone, p. 749, side page 292; 9 R. C. L. 91.
For the foregoing reasons we are of opinion that the bill presents no case entitling the plaintiffs to any present relief, and that the demurrer thereto should have been sustained. We will so certify our conclusion to the circuit court.
Reversed; demurrer sustained.