48 P. 45 | Idaho | 1897
Plaintiffs brought this action in the district court of the third judicial district, in and for Ada county, to set aside a deed made to defendant, Katie A. Perrault, by her father, Milton Kelly, on the ninth day of February, 1892, conveying to said defendant certain lands, on the ground of mental incapacity on the part of said grantor, and fraud on the part of the defendant, Joseph Perrault, husband of said grantee. That portion of the complaint touching the incapacity of the grantor is in the following language, to wit: “That on the said ninth day of April, 1892, the said Milton Kelly was about seventy-two years of age. For about twelve months just prior to his death he had suffered from a stroke of paralysis, and was very feeble, and in consequence thereof his mind was greatly impaired, and he was wholly unfitted and entirely incompetent to transact any business of any kind, and that his conditioh was well known to the defendants at that time.” Those'portions of the complaint relating to fraud on the part of the defendants are paragraphs 5 and 7, as follows: 5. “That on the said ninth day of February, 1892, and for some time prior thereto, the said defendant Joseph Perrault was acting for and managing the business affairs of said Milton Kelly, and had full charge and supervision over all his property of every description.” 7. “That on or about the ninth day of February, 1892, and while the said Milton Kelly was totally incompetent to transact any business, and did not know the effect of any act he might do, the said Joseph Perrault, without the consent of the said Milton Kelly, and while the said Milton Kelly was mentally incapable to consent thereto, caused and procured a deed to be prepared conveying to his wife, Katie A. Perrault, the entire tract of land described herein, and caused the said Milton Kelly to write his name to the said deed; and the said Perrault well knew at the
Three series of questions were submitted to the jury — one prepared by the court, one by plaintiffs and one by the defendants— each series covering to a great extent the ground covered by the other series. Such practice is to be condemned.- The correct practice in such case is to submit only one series of questions, covering the material issues in dispute only. That the special verdict of the jury may be fully understood, we give the three series of questions, with the answers thereto, as shown by the record.
Questions submitted or prepared by the court, to wit: 1. "Was Milton Kelly, at the time of the execution and delivery of the deed in question herein, dated the ninth day of February, 1892, mentally capable of understanding the motive of his act and the
The plaintiffs prepared questions, which were submitted, and which, with the answers, are as follows, to wit: “Q. On the ninth day of April, 1892, and at the time the deed in question was made, what was the age of Milton Kelly ? A. About .seventy-two years. Q. In what place and at whose residence 'did Milton Kelly die? A. Joseph Perrault. Q. What relation ■existed between Milton Kelly and the defendants? A. Father ;and father in law. Q. What connection, if any, did the defendants, or either of them, have with the business affairs of" Milton Kelly on the ninth day of April, 1892? A. Of an advisory nature. Q. Was the deed in question ma'de by Milton Kelly while under the influence, wholly or in part, of the defendants, or either of them ? A. In part. Q. Was Milton Kelly, at any time after being stricken with paralysis, wholly or at all under the influence of the defendants, or either of them; and, if so, when and to what extent ? A. He was, to more or less extent, during his illness and -while in their company. Q. Was the deed in question made at the request of, or at the suggestion of, the defendants, or either of them ? A. In our opinion, the making of the deed was largely suggested or instigated by Mr. Perrault. ■Q. At the time said deed was' made, did confidential business relations exist between Milton Kelly and the defendant, Joseph Perrault? A. Yes. Q. Did the defendants, or either of them, after Milton Kelly was stricken with paralysis, attempt to acquire influence or control over him, or attempt to influence hia actions and business affairs? A. We believe they did. Q. Did the defendants, or either of them, after Milton Kelly was so ¡stricken with paralysis, taire the management or control of the business affairs of said Kelly from the hands of his other children, and attend to such affairs himself. A. Yes. Q. What was the mental capacity of Milton Kelly after .his attack of paralysis? A. Greatly impaired. Q. What was the mental ■capacity of said Milton Kelly after he received said stroke, and until the time of his death? A. Impaired. Q. Was Milton
The defendants prepared questions, which were submitted, and which questions, with the answers of the jury thereto, are as follows, to wit: 1. “Was said Milton Kelly, at the time of the execution and delivery of the deed dated the ninth day of February, 1892, mentally capable of understanding the nature o| his act and the effect of the same? A. We think not.” 2. “Was said deed obtained from said Milton Kelly by the undue influence of the defendants, or either of them? A. To a certain extent.” 3. “Were the defendants, or either of them, present when said deed was executed? A. No.” 4. “Did the defendants, or either of them, or anyone acting on their behalf, solicit or request said Milton Kelly to sign the deed in question at the time he did sign the same ; and, if so, who made the request or solicitation? A. Not at the time of signing.” 5. “Did said Milton Kelly, at the time he executed the deed in question, understand what property said deed conveyed? A. To a certain extent.” 6. “Did said Milton Kelly, at the time he executed and delivered the deed in question, understand to whom he was deeding the same property ? A. Possibly he did.” 7. “Did Milton Kelly, at the time he executed and delivered the deed in question, wish the property therein described to belong thenceforth to Katie A. Perrault? A. Possibly he did.” 8. “Was said Milton Kelly made acquainted with the contents of the deed at the time he executed and acknowledged the same? A. As much as he could comprehend.” 9. “Did he execute the deed in pursuance of his own wishes ? A. He executed the deed through the influence of others.” 10. “Did he deliver the deed in pursuance of his own wishes? A. Through the influence of others.” 11. “If you find that said deed was obtained
The verdict was agreed to by ten of the jury, who signed the same. The court adopted, with some changes, the findings of the jury as findings of fact, the principal change consisting in extending the answer to the second interrogatory propounded by the court to the jury so as to make the court’s finding on this point read as follows: “That the said deed dated the ninth day of February, 1893, was obtained from Milton Kelly by the undue influence of the defendants.”
There are no allegations of fact in the complaint, as we construe it, tending to constitute undue influence on the part of the defendants in the procurement of the deed in question. Where a party seeks to have a deed annulled on the ground of undue influence, he must plead the facts constituting the undue influence, the rule of pleading being the same as in eases of fraud. Undue influence cannot exist where the party acting has not sufficient mental capacity to know what he is doing. He must have sufficient mind to understand what he is doing, and be impelled by artifice or force or fear, from the conduct of other? toward him, to do that which he does not wish or desire to do. As to the nature or character of the acts which will produce this state of mind on the part of a grantor, it depends upon the condition mentally of the grantor, and his surroundings, and influences to which he is subjected. That would be undue in-
The evidence shows that the grantor, M.'ilton Kelly, was, when the deed in question was executed, about seventy-two years of age; that he had lived in Idaho since I860; the most of which time he was a resident of Boise City; that he was a lawyer by profession, and had been on the bench of the supreme court of Idaho; that he was a man of more than average mental abiEty, possessing a strong will, and not easily persuaded or influenced; that during the later years of his Efe he was engaged in mining, publishing and editing a newspaper, and interested in various enterprises; that his business and interests were varied; that in March, 1891, he was stricken with paralysis, and was eonAned to his bed several weeks, but never fully recovered from the effects of such stroke; that after such stroke of paralysis he had great trouble in articulating, being at times unable to talk, and at other times able to talk distinctly; that he did business after
Colonel C. H. Irwin testified: “I got acquainted with Judge Kelly first in 1890. I had business transactions ■ with him, I believe, in February, 1892. It took place in the Capital State Bank. The business was in reference to closing up the negotiations for an option on the Rossi Canal and Payette property. Bush and Perrault were present. There were others, also, but I don’t remember who they were. Judge Kelly had an interest in the transaction. I don’t recollect of seeing him sign any papers, but he must have done so, because they were handed over to Mr. Eoff to keep in escrow. I went up to the Capital State Bank at the time of the transaction, and had the money in my hands to pay for an option. Kelly was there when Bush objected to closing up the transaction. Judge Kelly insisted that Bush was wrong about the matter, and that the thing should be closed up; and it was at Kelly’s instance that Bush closed up the matter so far as he was concerned, and Kelly closed it himself so far as he was concerned. I was very much astonished at his so clearly understanding what there was to be done. I know it was in 1892. It was in February. It was after he had his paralytic stroke.”
T. D. Cahalan testified: “I had known Kelly since 1865. I was well acquainted with him, and knew him after his paralytic stroke in 1891. I saw him frequently after that. The last time I saw him was in February, 1892 — 1 think, a few days before he died. Saw him at the Hot Springs. Saw bim prob
Alfred Eoff testified: 1 have been cashier of the Boise City National Bank for nine years. I knew Judge Kelly from April, 1886, until his death. He had a bank account at our bank in 1891, and up to the thirty-first day of'March, 1892, the date of the last transaction. Only a few days before he died, he continued to check against that account. During the time of his affliction, we always honored his checks when they came in with his signature. Sometimes he would come to the bank and issue checks, and at other times they would come from outside sources. I could understand Judge Kelly’s conversation. I transacted business with him and for him. I was a witness to a will at one time, made by Judge Kelly some time in January, 1892. There were other witnesses — Mr. Kingsley and Edgar Wilson, as I remember. The Hot Springs property was willed to Mrs. Perrault. The will was delivered by Judge Kelly to me for safekeeping. Kelly transacted business at our bank after his paralytic stroke, in the way of signing notes.”
W. S. Bruce testified: “Have been assistant cashier at the Boise City National Bank for seven years. I knew Judge Kelly during his lifetime — almost from the time I came to the city until his death. Knew him after his alleged paralytic stroke. He had
Mrs. Thomas Clark, who lived at the Hot Springs, and who nursed Judge Kelly and looked after him after the paralytic stroke, testified: “Judge Kelly informed himself of the current news by talking with other gentlemen and asking us to read to him. I would read'quite a little out of the “Statesman” to him every day, or have my sister to do so. Judge Kelly told me before I went to California that he intended to’ deed his property to Katie A. Perrault. Some time after I came back, the last of February or first of May, I said, ‘Judge, I heard you made a deed to this property.' He said, ‘Yes/ and I said, ‘Who did you deed it to ?’ And he said, ‘I deeded it to Katie.’ He said he had deeded his property to Mrs. Perrault. I had a business transaction with him [Kelly] after I came back from California, with reference to the amount I should pay as rent for the springs.He wanted $100 per month, but finally came down to seventy-five. It was about February, 1893, that I leased the springs from him again.
Edgar Wilson, an attorney, and one of the subscribing wit-messes to the deed in question, and who, as notary public, took
C. S. Kingsley, one of the subscribing witnesses to the deed in question, and who is clerk of the district court, testified: “I was acquainted with Judge Kelly in his lifetime. His name is associated with my earliest recollections.I was present at the making of the will of Judge Kelly. It was in Wood & Wilson’s office, and I think the only ones present were Edgar Wilson, Judge Kelly, Mr. Eoff, and myself.After my arrival the will was read. Mr. Eoff and Judge Kelly had a conversation in regard to the terms of the will, but what it was I do not remember exactly.I made myself as sure as I could that the terms of the will were understood by Judge Kelly, by asking him if he understood the will and if it was his will. He answered that it was and that he did. He signed the will, and Mr. Eoff and myself afterward signed as witnesses. In my opinion, Judge Kelly fully understood the contents of the will. I believe that he understood the nature and consequences of his act. I have no doubt about it. I was present afterward at the execution of the deed by Judge Kelly. These persons were Mr. Wilson, Mr. Bruce, Judge Kelly, and myself. Neither Mr. nor Mrs. Perrault was there. There was a map» used there on that occasion in regard to the description of the lands. I identify this as the map. That map was made by me. . . . . I went to Wood & Wilson’s office. I found there Mr. Kelly and Mr. Wilson. Mr. Bruce came shortly afterward.
R. Z. Johnson, an attorney, who was a witness for the plaintiffs, testified: “I dictated the deed. It was at Mr. Perrault’s request. He had some time prior to that requested me to make it. I can’t remember whether it was the same day or before. Some time shortly before. He undoubtedly gave me the description. I do not remember the act or fact of his giving it to me, but I had no other way of getting it. I had no person-', i .knowledge of the matter.Mr. Kelly came in after i
Dr. Fairchild, who testified as an expert witness for the-plaintiffs, in his cross-examination said: “It is admitted that our profession and the legal profession differ as to man’s responsibility in the commission of crimes and everything else_ Medical men claim that a man may take a gun and kill a man,,, •and know that he is doing wrong, and not be responsible for-that crime.I agree with Professor Maudsley in the rule-he lays down as to legal responsibility. He lays down the proposition, I believe, in his work on Insanity and Mental Diseases,., that the legal profession is two centuries behind the times, and-that is my theory. I think he says something to the effect thafc the proper rule for legal responsibility has never been incorporated in medical jurisprudence. We physicians claim that is-true now, as regards insanity and mental responsibility. There-is a wide diversion between our idea of mental competency, as-a member of my profession, and the rule of my profession,.
The undisputed testimony of these witnesses establishes beyond peradventure the following facts: The grantor, at the time he made the deed in question, was competent to transact ordinary business. He knew what he was doing. He knew what property he was conveying, to whom it was being conveyed, the effect of the conveyance, and it was his desire and wish to convey it to the grantee, his daughter, Mrs. Perrault. From the existence- of these facts the law concludes that the grantor was, when he made the deed in question, competent to make it; and we cannot hold otherwise without ignoring the evidence, as well as all legal authorities touching on this question. The first finding of the jury and the fifteenth finding of fact by the court are not supported by, but are contrary to, the evidence in the ease. Indeed, there is no material conflict of evidence on the point of the capacity of said grantor to make the deed in question at the time it was made. If he was competent at that time, the deed cannot be held void for want of capacity. (See Trimbo v. Trimbo, 47 Minn. 389, 50 N. W. 350; Buckey v. Buckey, 38 W. Va. 168, 18 S. E. 384; Freeman v. Easley, 117 Ill. 317, 7 N. E. 656; Trish v. Newell, 62 Ill. 196, 14 Am. Rep. 79; 1 Jarman on Wills, 51; McClintock v. Curd, 32 Mo. 419; Carpenter v. Calvert, 83 Ill. 62; Pickerell v. Morss, 97 Ill. 220; Stone v. Wilburn, 83 Ill. 105; English v. Porter, 109 Ill. 285; Rutherford v. Morris, 77 Ill. 397; Hix v. Wittemore, 4 Met. (Mass.) 545; Hall v. Unger, 4 Saw. 672, Fed. Cas. No. 5949; Richardson v. Smart, 65 Mo. App. 14; Aiman v. Stout, 42 Pa. St. 114; Bishop on Contracts, see. 962.) Mental incapacity which results from accident or violent disease is not presumed to continue. Such
Numerous witnesses testify to acts of the grantor occurring prior to the making of the deed in question which tend slightly to show that prior to the time of the execution of said deed the grantor was mentally incompetent. Evidence of such acts may
The findings of the jury were inconsistent, and to some extent contradictory. Those relating to the question of undue influence show on their face that the jury -were in doubt as to the extent of undue influence on the part of the defendants. The findings of the jury do not support the sixteenth finding of fact by the court, that “said deed dated the ninth day of February, 1892, was obtained from Milton Kelly by the undue influence of the defendants,” and said finding is not supported by the evidence in the case. To justify a court in setting aside a deed on the ground of undue influence, such influence must exist at the time of the factum, and be a controlling influence in impelling the execution of such deed. (Guild v. Hull, 127 Ill. 523, 20 N. E. 665; Francis v. Wilkinson, 147 Ill. 370, 35 N. E. 150; Reichenbach v. Ruddach, 127 Pa. St. 564, 18 Atl. 432; Rutherford v. Morris, supra; Trimbo v. Trimbo, supra.) There is absolutely no evidence in the record before us which shows that at the time the* deed in question was executed the grantor was under undue influence, but, on the other hand, the evidence of the subscribing witnesses to the deed, and of the witnesses to its delivery, as well as that of other witnesses, shows conclusively that the execution and delivery of the said deed was the free and voluntary act of the grantor, and made by him in pursuance of his preconceived determination to give the property conve}^ by it to the grantee. Continued im-
The evidence tending to show that the defendant Joseph Perrault was indebted to the estate of Milton Kelly on a note, and that he acted unfairly in regard to the possession of such note, was not pertinent to the issues, and threw no light on the issues involved, and the objection of the defendants to the introduction of such evidence should have been sustained. Such evidence was liable.to, and we think did, prejudice the minds of the jury, and its admission was error. It was also error to permit witnesses to testify to their opinion that the grantor was incompetent to transact important, or his important business matters. If the grantor was capable of understanding-ordinary business transactions, and understood what he was doing when he made the deed in question, the law regards him as competent to make said deed, although perchance he might then have been incompetent to transact a more important or complicated business transaction.
Numerous errors are assigned relative to the action of the lower court in giving and refusing to give instructions to the jury. In Hewlett v. Pilcher, 85 Cal. 542, 24 Pac. 781, the supreme court of California say: “Certain special issues were submitted to the jury, but the court finally adopted the findings of the jury, and found on all of the issues. This being so, the refusal to give instructions is not cause for a reversal of the ease. If the findings are not sustained by the evidence, they may be tested by the evidence. If erroneous conclusions are drawn from them, the question may be presented in this court, and in either event the question whether the court erred in giving or refusing instructions becomes immaterial.” A diversity of opinion once existed as to the correct manner of presenting issues of fact in cases in chancery to the jury, but the rule is now well established that the correct method is by interrogatories. As before suggested in this opinion, the inter-logatories should cover the material questions in dispute. In this case the verdict of the jury was merely advisory, and the jury was called to assist the court in finding facts only. We doubt the propriety, in cases like the one at bar, of giving instructions to the jury. The case is unlike that of an action wherein the jury must apply the law and find the facts and where the court must instruct the jury as to the law applicable to the opposing views of the controversy which the jury is to fully determine. In the case at bar we are of the opinion that the instructions given were of no assistance to the jury, and would not aid in a correct solution of the issues which they were called to decide.
Inasmuch as the judgment of the lower court must be, for the reasons stated, reversed, we suggest that it will be proper