86 Neb. 744 | Neb. | 1910
This is an action in equity to cancel a deed made by John Ward, the plaintiffs father, to the defendant William Ward, another son of the deceased. The defendant prevailed, and the plaintiff appeals.
John Ward, the litigants’ common ancestor, was a parsimonious, quick-tempered, odd-appearing, eccentric, illiterate old man. He was a firm believer in the efficacy of outspoken prayer, but prone "to lapse into profanity if ir
1. The plaintiff contends that his father in 1899, the year the deed in question was executed, was of unsound mind and mentally incompetent to execute a deed. During the trial of this case two witnesses testified that John Ward Avould become bewildered and unable to find his residence in Dunlap. His widow, her relatives, and other Avitnesses of evident intelligence, testified that in 1899, and up to the time of his death, he was insane. A much greater array of witnesses, including physicians who had treated John Ward for minor infirmities, his comrades in a Gr. A. R. post, merchants with whom he dealt, members of his church, and intimate acquaintances who had known him and observed his conduct for from
From this evidence it appears that John Ward said on one occasion that he made the deed to “beat” his wife, and now Will was trying to “beat” his father; that he intended to recover his land if he had to shoot his son to secure it. Other witnesses testify to the grantor’s repeated statements that Will had been a good boy, liad given his earnings to and had cared for his father, was prudent in money matters, and he intended William should have the farm because he would care for it, whereas Frank was dissipated and would squander it. The court refused to permit William to testify concerning money paid or other consideration moving from him to his father, but there are many facts and circumstances testified to by other witnesses tending strongly to prove that William had contributed to his father’s support both before and after the deed Avas made. The plaintiff challenges the competency of two physicians to testify for the defendant, but, excluding their testimony, there is sufficient evidence in the record to satisfy us that John Ward, in 1899, kneAV and understood the nature and quality of, and Avas competent to make, the instrument assailed. After said deed was executed the defendant William Ward, for a consideration satisfactory to Mrs. Ward, secured a deed from her for the land in dispute, and she is not complaining because her husband conveyed the real estate to his son.
2. The contention that the evidence does not establish a delivery of the deed is not well taken. The plaintiff’s witness, Cane, states that John Ward told him he had
3. It is further argued that the deed was the result of undue influence exerted by the grantee upon his father. The record is barren of any evidence tending to show that William Ward coerced his father to execute the deed. The proof will not sustain a finding of undue influence within the meaning of the law. Latham v. Schaal, 25 Neb. 535; Boggs v. Boggs, 62 Neb. 274.
4. Finally it is urged, with great learning and force, that since the conveyance was voluntary, unfair to the grantor and to the plaintiff, and was made under suspicious circumstances, it ought not to be permitted to stand. In Gibson v. Hammang, 63 Neb. 349, we held the mere relation of parent and child in a deed wherein the parent was grantor did not raise a presumption of fraud or undue influence. See, also, Chambers v. Brady, 100 Ia. 622; Mallow v. Walker, 115 Ia. 238; Millican v. Millican, 24 Tex. 426. In Gibson v. Hammang, supra, we further held that where a voluntary conveyance of property from a parent to a child is unjust to the other children, is an unreasonable disposition of the donor’s property, and the circumstances surrounding the execution of the instrument suggest fraud and undue influence, the transaction should be closely scrutinized; that the donee in such a case should assume the burden of proving that the conveyance was the result of the grantor’s deliberate,unhampered judgment free from all improper influences on the part of the grantee. In the cited case, the grantee importuned her mother to make the deed, insisted upon its execution, and the suit to annul the conveyance was prosecuted by the grantor. In the case at bar, the grantor upon his own motion, without any suggestion from the grantee, while the latter was thousands of miles distant, conceived the idea of making the deed, and the conveyance was prepared by one of John Ward’s disinterested personal friends. Doubtless John Ward was im
The judgment of the district court, therefore, is
Affirmed.