273 N.W. 25 | Neb. | 1937
This is a suit in equity to cancel a deed to a 160-acre farm in Johnson county, Nebraska, on the grounds of grantor’s incompetency and of duress by grantee and her agent. The district court canceled the deed and defendant appealed.
The appeal requires a trial de novo on the record made in the district court. Plaintiff, May Lena F. Scott, is the adopted daughter of Noah Swank, who was twice married, and his first wife. The Swank family of three, the foster parents and plaintiff, their adopted daughter and only child, formerly resided on the 160-acre farm in Johnson county, but they all moved to Polk county, Arkansas, near Mena, in 1911. Plaintiff was married to George Scott in 1914. Her foster mother died July 22, 1932, and her foster father, Noah Swank, married defendant, Emma Swank, November 16, 1933, and died March 30, 1934. The deed in controversy purported to convey the Johnson county farm from Noah Swank, grantor, who owned it, to his second wife, Emma Swank, grantee, defendant. It was dated March 12, 1934, and recorded in the public records March 30, 1934. It thus appears that the deed to the second wife was signed 3 months and 26 days after the second marriage of grantor and 18 days before his death.
In connection with the facts stated, which are undisputed, the petition contains in detail pleas to the effect that grantor was 79 years old March 12, 1934; that he had been weakened mentally and physically by a paralytic stroke and other infirmities to such an extent as to incapacitate
In addition to a general denial of unadmitted allegations in the petition, defendant alleged in her answer that grant- or conveyed the title to her in consideration of love and affection while in full possession of his mental faculties and fully competent to transact business; that on March 12, 1934, he was of sound mind and under no restraint, influence or compulsion of any kind. There was a prayer for a dismissal of the cause. The reply to the answer is in the nature of a general denial.
With the pleadings as thus outlined, the district court found the issues in favor of plaintiff after a long trial, and canceled the deed.
What does equity require in view of all the facts and circumstances? The solution of the problem depends on the evidence. The principal task is to ascertain the truth from a record full of contradictions in many respects.
The deed from Noah Swank, grantor, to his second wife, Emma Swank, grantee, was dated March 12, 1934. He had a paralytic stroke in January, or February, 1934, and was unconscious for a short time, required constant care and was never again able to be out of his house. He was confined to his bed most of the time and died March 30, 1934.
An expert in mental diseases testified on behalf of plaintiff, in substance, that he had been grantor’s physician for 20 years; treated grantor for Bright’s disease for two years prior to his death; patient had high blood pressure, around 200; hardening of arteries; stroke incapacitated him mentally; witness saw grantor two months before he died and had occasion to note his mental condition while treating him for Bright’s disease and high blood pressure ; mind began to fail about July 1, 1933, and seemed to get weaker; easily influenced; did not have mental capacity to
Another physician testified he attended grantor in January, 1934, and found him unconscious from apoplexy; was unconscious next day when physician again called; saw grantor the day before he died; he was not competent to transact business after he was stricken with apoplexy. In answer to hypothetical questions, other physicians testified to the opinion that grantor was not mentally competent to transact important business or to execute a deed March 12, 1934. Nonexpert witnesses who knew grantor before and after the death of his first wife and after he signed the deed in suit, and who had observed his conduct and condition, expressed opinions to the effect that he changed both mentally and physically after his paralytic stroke and was not mentally competent to execute a deed March 12, 1934. Their testimony contains also statements that Swank, after the death of his first wife, expressed a purpose to leave his property to the Scotts, his daughter and her husband.
Other physicians were produced by defendant, Emma Swank, the grantee. They qualified as experts and testified in her behalf. One of them said, in substance, that he had known grantor about seven years; that he called on him February 15 and 16, 1934, and on March 11, 1934; had conversed with him, but would not say they talked about business; had one little stroke, but was practically over it when witness called; did not think grantor was easily influenced; detected nothing wrong with his mind; mentally same as always — “A-one” every time they met; capable of transacting business when he made his deed. Many non-expert witnesses were also produced by grantee. In effect they testified to long acquaintance with grantor; to conversations with him; to his business transactions; to observations of his conduct and condition before and after his stroke; to utterances by him that he wanted his property to go to his second wife and not to his adopted daughter or to her husband. Each of these witnesses disavowed any interest in the case. On facts to which they testified they
Defendant contends there was no clear, satisfactory and convincing evidence of grantor’s mental incompetency or of duress to overthrow the duly executed deed and properly adduced testimony of the subscribing witnesses that grantor was of sound mind and competent to> transact business, including the making of the deed, March 12, 1934, that date alone being the time for the test of competency or incompetency or of duress.
In determining the issues, the court may resort to material • factors found in circumstances under which the deed was prepared, signed and witnessed; to the agencies that directed what was said and done at the time; to the physical and mental condition of grantor and the natural or unnatural effect of the transaction upon the objects of his bounty; to all other features of the proofs. The agreed value of the Johnson county farm was $4,800 and it was the principal part of his estate. The deed, if valid, left the daughter without a substantial inheritance. There is no evidence of any hostility on the part of grantor toward his daughter before the second wife and the latter’s agent and confidential manager, Grant Oster, appeared on the scene. This agent, who was also attorney in fact for both grantor and grantee, declared his intentions and purposes, after the death of the first wife but before the second marriage and before the making of the deed, to one or more disinterested witnesses, according to their testimony, which may be condensed as follows: The old man did not have mentality enough to transact his own business; “I am going to take charge of what he has got and attend to it for him” and “he is going to pay me for everything I do; he has got the money and I just as well have it as anybody else.” He ought to marry and get somebody to take care of him. “She (adopted daughter) will just get $5 willed to her.” Further: “Was. going to run the business.;” that Swank
“He said Mr. Swank wanted him to write the will and that they ‘had got it wrote’ and probated and put on record, and said May didn’t get anything but would just get $5 willed to her; said ‘she wouldn’t get fat on $57 ”
Oster as a witness denied the truth of this testimony, but other evidence shows clearly that he proceeded to carry out his declared purposes and intentions, as related by witnesses, and that defendant, the second wife, participated directly and actively in his plans. December 23, 1933, 37 days after the second marriage, Oster prepared and Swank and defendant, his second wife, signed what purported to be their joint will, each giving to the survivor all property of every kind belonging to either, naming the survivor as executor or executrix until the death of both and nominating Oster to be sole executor thereafter. The second paragraph of this instrument reads thus:
“After the death of both of us, it is our will, and we do hereby bequeath, devise and give our daughter, May Scott, of Mena, Ark., the sum of Five Dollars to be paid to her out of our estate after the death of both of us; and it is our will, and we bequeath all the remainder of our estate, one-half divided equally to J. B. George and R. G. George, and the other one-half to Mrs. Rebecca Hoover7’
This purported will was drawn by Oster and executed with the same formality and solemnity as the later deed now in controversy, both with practically the same end in view — termination of the rights of the daughter, as legal heir. Defendant had no property to bequeath at the time of joining in this will. She had not contributed anything to her husband’s estate, but plaintiff had been grantor’s daughter from infancy to womanhood and had aided him in his farming operations on this very Johnson county
Swank and his first wife had bound themselves by oath to adopt Lena Ferguson by the name of May Lena F. Swank with the status of a natural heir, including property rights. They procured a decree of adoption containing the same conditions and declaring that the child should have the same legal rights, privileges, immunities and heirship as if bom to her foster parents in lawful wedlock.
It is a proper inference from all evidential facts and circumstances that Swank had the mentality and independence to respect his oath and his properly assumed and natural obligations to his daughter until he was mentally and physically weakened by paralysis and other infirmities and until he fell under the influence of Oster and the second wife. He was not with either of them when procuring his marriage license but went alone and accepted a license to marry “Annie Ferguson” instead of “Emma Ferguson.” The law presumes, in absence of evidence, that the licensing officer performed his duty, but defendant testified that Swank knew her name and she attributed the error to some officer without disclosing personal knowledge of the fact.
Defendant, the second wife, gave her age as 64. She had been married three times before becoming the wife of Swank, whom she had known but three or four months. She admitted her marriage to him occurred in Arkansas about a month after she was divorced from a former husband. On the witness-stand she said that she married Swank to take care of him; that she was married at her brother’s home in Mena where she remained thereafter for three weeks, but that she had a sore foot and could not then do any work; that her new husband had a little spell with his heart but was able to walk from his home in Mena to his little farm — 40' acres just beyond the city limits; that Oster helped her to move her goods from her brother’s
Before controversy arose between Swank and the Scotts, but after the death of his first wife, he entered into a contract with his daughter to convey to her his 40-acre farm near Mena, worth perhaps $350, on terms permitting him to make his home with them there and obligating them to support him and care for him. Oster did not approve this transaction. Swank became dissatisfied and complained that he had been mistreated by the Scotts. After litigation over the contract was commenced, but before trial, the controversy was settled and the daughter reconveyed the property to her father. Animosity between Oster and Scott arose from minor incidents growing out of a public sale of personal property belonging to Swank. Scott objected to what he considered Oster’s interference with his personal affairs. There is nothing in the record, however, to justify the fear of an attempt by Scott to poison Swank or to change the natural attitude of the father toward his daughter. Fear and hostility were obviously created by delusions or by external influences which controlled him.
The deed, like the disinheriting will, was drawn, signed and witnessed without notice to or knowledge of the daughter, who had been turned from her father’s door two or three days before he died. She was not notified of his death but found him later at the morgue. Oster was entrusted with the deed and withheld it from public records until the date of grantor’s death.
No one would attempt to destroy plaintiff’s rights as an heir without intending to use the essential forms of law
“Although mental weakness may fall short of entire incompetency to transact business, if it is taken advantage of to procure a conveyance by inequitable means, the conveyance may be set aside.
“A court of equity will scrutinize jealously a transaction
“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.” Bennett v. Bennett, 65 Neb. 432, 91 N. W. 409.
These rules of equity have been applied in many cases : Gibson v. Hammang, 63 Neb. 349, 88 N. W. 500; Chamberlain v. Frank, 103 Neb. 442, 172 N. W. 354; In re Estate of Noren, 119 Neb. 653, 230 N. W. 495; Holtman v. Lallman, 122 Neb. 183, 239 N. W. 820; Broeker v. Day, 124 Neb. 316, 246 N. W. 490.
Defendant did not maintain her burden of proof. On the contrary, there was sufficient evidence to prove both incompetency and duress, which made the deed voidable.
It was insisted in argument that the petition does not allege fraud and that a decree in favor of plaintiff cannot be based on fraud. Plaintiff pleaded duress which is a species of fraud. The ground upon which a contract is voidable for duress is the same as in the case of fraud. 9 R. C. L. 711, sec. 2.
The failure of the district court to grant a new trial on the ground of newly discovered evidence is presented as a ground for reversing the decree below, but the record does not disclose an abuse of discretion in that particular. The-independent findings on appeal are the same as the findings of the district court.
Affirmed.