162 N.W. 398 | S.D. | 1917
The plaintiffs, children of Henry P. Walsh, Sr., deceased, brought this action -in January, 1914, against their ■brother, the defendant Robert E. Walsh. The mother of defendant was also made party in her own right and as administra-trix of the estate of her husband, but, as no- judgment was taken against her in either capacity, no further attention will be paid to her. The object of the action was to recover for the benefit of the-
Henry P. AValsh, Sr., died in Lyman county in May, .1913, seized of 148 acres of land in Lyman county, which land is not in controversy. The court found in its sixth finding:
That the conveyance of the above-described Deuel county land “was made without payment of the expressed consideration of $3,000 therein mentioned, and was not the free, intelliegnt, and voluntary act of the grantor, and was made under undue influence exercised by Robert E- AValsh over Henry P. AA^alsh, Sr., by reason of his relation and association and by means of persuasion and importunition, so strong as to control the acts and induce the making of said transfer, and said real property herein described is now held- :by Robert E. Walsh as an involuntary trustee for said estate and is part of the said estate of said Henry P. Walsh, Sr., deceased.”
But said expressed consideration included another quarter section of land in said county, which defendant by arrangement with his father conveyed to plaintiff Fred AValsh in October, 1900, for the sum, of $800 paid to the father.
The court found in its seventh finding:
That the said bill of sale “was made without payment of consideration and without intent to transfer said property from Henry P. AValsh, Sr., to Robert E. Walsh, and was not the free, intelligent, and1 voluntary act of Henry P. Walsh, Sr., and was made under undue influence exercised by Robert E. Walsh over Henry P. Walsh, Sr., by reason of his relation and' association and by means of persuasion and importunities and on account of an ascendency and influence over his father’s will and conduct, ■so strong as to control the acts and' will of Henry P. Walsh, 'Sr., at the time said bill of sale was made, and that said property to the amount of the expressed consideration of $10,000, is 'the property of and belongs, to the said estate of Henry P. Walsh, Sr..
The court further found in its ninth finding:
“That Robert E. Walsh has in his possession and under his control property, exclusive of the property covered by the deed 'and bill of sale herein mentioned, of the personal property belonging. to and being a part of the estate of Henry P. Walsh, Sr., deceased, to the amount of $6,816.46.”
Judgment was entered canceling said real estate conveyance and awarding judgment against the defendant in the sum of $16,816.46. From the judgment and an order denying a new trial, defendant appeals.
The Walsh family came from Minnesota to Deuel county in 1878 and took up a preemption and tree, claim. With the exception of John who never lived at home after 1882, and one of the girls, they all worked on the farm until 1890, when Robert and part of the family removed to Lyman county. For several years part of the family spent some time at each place. The boys Fred and Henry P. Walsh, Jr., spent their time mostly in Deuel county. Robert took up land in Lyman county, and in 1904 Plenry P. Walsh, Sr., -made a homestead entry (the land1 not in controversy). Cattle and horses were taken at different times from Deuel county to Lyman county and turned on the range. Part of the stock belonged to Robert and part to Henry P. W'alsh, Sr., and part to the girls. Robert bought the girls’ stock. The girls married and left home, after which the father and mother lived with Robert, who supported them until the father’s death, when Robert afterwards continued to support the mother. Severál payments of money by Robert to Henry P. Walsh, Sr., are disclosed in the record. A great deal of evidence sought to be introduced on both sides was excluded because of the trial court’s ofttime erroneous construction of the provisions of section 486, C. C. P., so that no very satisfactory record of actual facts is presented. It appears from the evidence of a banker of Pierre that Henry P. Walsh, Sr., said the consideration for the deed and bill of sale was the agreement of Robert to support him: and his ■ wife during their life. The advisory verdict of the jury to whom certain questions were
We think these contrary findings of the jury, and the findings of fact made by the trial court in conformity therewith are without substantial support, and are contrary to the clear preponderance of the evidence.'
The judgment and order appealed from are therefore vacated and set aside.