86 Neb. 46 | Neb. | 1910
This is an action in equity brought for the purpose of procuring the cancelation and setting aside of a deed of conveyance made by one Horace M. Wickham shortly before his death to his son, Prank P. Wickham. The action was begun by Clarissa M. Nelson, one of the children of the deceased, but during its pendency she died. Revivor was had in the name of James Nelson, as her administrator, and as father and next friend of Horace Nelson, their only child.
Horace M. Wickham, the deceased, lived in Gage county. The petition alleges in substance that Horace M. Wickham died on the 5th day of September, 1906, leaving surviving him a son, Prank P. Wickham, and a daughter, Clarissa M. Nelson. At the time of his death he owned 120 acres of land in Gage county, upon which he resided; that on the 11th of August, 1906, Prank P. Wickham and Mattie W]cjihapi, hi,s wife, the defendants, procured Hop
The answer substantially is to the effect that Prank P. Wickham is 35 years of age; that he has always from the time he has been able to work, with, the exception of 18 months when his father was absent from Gage county, remained upon his father’s farm and worked continuously without salary or compensation, except his clothing and maintenance; that about the year 1900 the deceased ceased doing manual labor, and to induce the defendant to remain with him and care for him during his life lie promised and agreed that, if Prank P. Wickham would assume all indebtedness contracted by Horace M. Wickham, pay all his bills and expenses thereafter, and release him from any claim for labor and services due and owing by him to the said Prank P. Wickham, and for his faithful conduct theretofore, he would convey, transfer and turn over all of his property free of rent to these defendants to farm and manage as their own. Defendants say that they faithfully complied with these stipulations and agreements, and that while Horace M. Wickham was of sound mind and memory he executed and delivered the deed in controversy in satisfaction of the aforesaid agreement and promise. They deny that the deed Avas obtained fraudulently; that the deceased was of unsound mind; that he did not knoAV and understand what he was doing; and deny that he Avas possessed of any personal property at the
The district court found generally for the defendants; and found further that the deceased was mentally competent to make the deed; that no undue influence was exerted; that he made and executed the same voluntarily, understanding fully the purpose thereof, and without being influenced by any one, and rendered judgment of dismissal, from which judgment plaintiffs have appealed.
The evidence shows that the deceased had lived with his son Frank upon the home farm since the year 1900, when he returned from an absence of 18 months in Merrick county. In the early summer of 1906 he had in some way injured his right hand by a scratch or bruise, and blood poisoning resulted. On June 25 he called at the office of Dr. Roe, a practicing physician in Beatrice, for the purpose of having the doctor examine his hand and arm. The doctor at once took him to a sanitarium in that city, and attended him there from that time until he was removed home to the farm. The arm became much inflamed and swollen, open sores developed, and he was unable to use his right hand or arm. The arm was kept bandaged, and his fingers were swollen and stiff. After a week or two Bright’s disease set in, and his feet and lower limbs became swollen. He seemed to improve, and in the latter part of July he was removed home, but soon began to fail again. On August 10 Dr. Roe received a telephone message from Frank P. Wickham, saying that his father wanted to make a deed, and asking him to bring a lawyer or notary with him when he came. The doctor asked him whom he should bring, and he said he did not care. The next day he took Mr. Beaver, who was an insurance agent and notary public, to the farm with him. Beaver testifies that when they reached the farm he went into the room where the deceased was lying on the bed; that Mrs. Wickham said, “Here is Mr. Beaver and Dr, Roe”;
A large number of witnesses were examined with reference to the deceased’s mental condition, and there is absolutely no evidence of any weight or value whatever to show that in any respect the intellect of the deceased was in anywise impaired at the time of the execution of the deed, or, in fact, at any time, except immediately before his death, which occurred on September 5, and the weakness at that time appeared to be due more to actual physical disability than to a direct affection of the brain. The testimony further shows that his daughter, Clarissa M. Nelson, was a patient in the sanitarium for a portion of the time that her father was there; that her bed had been in the same room or ward for a short time, and had been removed to another room at his request, and that the old gentleman had complained of being worried by her. He also told his stepdaughter of Clarissa speaking
The plaintiff contends that the circumstances show conclusively that the deed was the result of undue influence exerted upon the failing mind and will of the deceased, was without consideration, was never delivered, and is presumptively void. The principles of equity jurisdiction Avith relation to such transactions are plain and well settled, and have often been announced by this court. In Bennett v. Bennett, 65 Neb. 432, we said: “A court of equity will scrutinize jealously a transaction as to which there is ground for holding that influence has been acquired over a person of weak mind, and has been abused. Smith v. Kay, 7 H. L. Cas. (Eng.) *750, *759. The circumstances under which a conveyance was made, the condition of the grantor at the time, and the injustice to him and his heirs if it is upheld, may be such as to cast upon the grantee the burden of showing that it is untainted with undue influence, imposition, or fraud, but is the intelligent and deliberate act of the grantor.” In Gibson v.
We are unable to find any evidence in the record to sustain the allegations of the petition that the deceased was pf unsound mind to such an extent as to be incapable of
The plaintiff contends that there is no proof of the delivery of the deed. It is true that the notary does not state what was done with the deed after the grantor made his mark and acknowledged it, except to say that it was witnessed by himself and Dr. Roe. It is an established principle that the possession of a deed by the grantee is ordinarily prima facie evidence of delivery, and that the burden of proof is upon Mm who disputes this presumption. Wilson v. Wilson, 85 Neb. 167; Roberts v. Swearingen, 8 Neb. 363; Brittain v. Work, 13 Neb. 347. The deed was recorded about 2 o’clock in the afternoon of the same day. While there is no evidence as to this fact, it was probably taken to Beatrice by the notary. The fact, however, that in the evening the deceased called for his will and destroyed it is a circumstance tending to show that he had previously made another disposition of his property, and, when taken in connection with the circumstances attending the making and signing of. the deed, indicates that he was of the opinion that the changed disposition had been made effective. We think the circum
The case is very near the border line, but the failure to show any mental weakness carries great weight. The trial judge had the witnesses before him, and the case seems to have been carefully tried, and with painstaking discrimination as to the exclusion of incompetent evidence on the part of the defendants. After according plaintiff all the presumptions which the law affords, we are convinced that the conclusion of the trial court should he sustained.
The judgment of the district court therefore is
Affirmed.