84 Neb. 169 | Neb. | 1909
Henry West, a resident of Dawson county, Nebraska, died intestate January 28, 1907. Some time previous to
The only assignment of error insisted upon is that the judgment is not supported by the evidence. There is no direct evidence that either of the defendants exercised any undue influence upon Henry West to procure the execution of the deeds. The defendant Harriet Schilling, formerly Harriet West, was the widow .of Robert West, a deceased son of Henry West, and Daniel West is a son of said Henry West. Harriet West was the only person residing with and in the home of Henry West at the time the deeds were made. Henry West relied very largely upon Daniel West, who was a favorite son, for assistance and guidance in the management of his affairs. Grantor was 76 years of age when one of the deeds was made, and 79 when the other was made. He apparently never possessed any great mental caliber and was illiterate, being scarcely able to read, and could no more than write his own name. The land in controversy, was practically all the property owned by him. He left surviving him three children, all of whom are parties to this action. January 13, 1900, he conveyed
Under these circumstances, plaintiffs contend that the burden was upon the defendants to prove that the deeds were not procured by undue influence. In Gibson v. Hammang, 63 Neb. 349, it is said: “But where a conveyance from a parent to one of several children by way of gift, prima facie, is not a just or reasonable disposition of the parent’s property, and the age and physical condition of the parent, the proportion of the property conveyed to the whole estate, and the circumstances surrounding the gift suggest fraud and undue influence, the transaction should be closely scrutinized, and the burden is upon the donee to overcome the presumption of fact arising from such circumstances.” The ruling in that case went no further than to hold that the facts therein stated were sufficient to raise a presumption of undue influence, and the burden then rested upon defendants to overcome the presumption raised by the facts and circumstances proved. In the instant case the evidence discloses that Henry West had previously given 80 acres of land to one of the plaintiffs, and there is sufficient in the record from which it may be inferred that a farm had been given the other plaintiff, the evidence also shows that the deeds in question were not without consideration. Harriet West had taken care of Henry West’s home and cared for his wife the last two years of her life, and agreed to remain in his home and take care of him during the remainder of his life, and, in consideration thereof, he promised to convey to her the west half of said quarter section. It further appears that, at the time of the conveyance to his son, Henry West was in debt to a considerable extent, and his inability to discharge his obligations was a source of anxiety and annoyance to him. He conveyed the entire quarter section to Daniel, with the understanding that the latter would
The next question for consideration is: Does the evi-, dence establish that Henry West was incompetent to make the deed? That he became of unsound mind prior to his death in 1907 is conceded, and that he was childish, and failing mentally for two years previous to his death is established. There is, however, but little evidence to show that he was of unsound mind at the time of the making of the deed. It is disclosed that, when his wife was dying, he was called from his bed; that he looked at his dying wife for a moment, and returned to his bed; that he did not exhibit any grief at the death of his wife. Whether he and his wife were friendly and affectionate is
The rule is well recognized in this state that, to set aside a deed on the ground of the want of mental capacity on the part of the grantor to make the same, such want of mental capacity must be established by clear and satisfactory evidence. It must be established that the mind of the grantor was so weak and unbalanced at the time of the executing of the deed that he could not understand and comprehend the purport and effect of what he was then doing. Schley v. Horan, 82 Neb. 704. See, also, Brown v. Cole, 126 Ia. 711; Ross v. Ross, 117 N. W. (Ia.) 1105. Devlin in his work on Deeds says: “A deed may be avoided on the ground of insanity, when the grantor did not possess sufficient strength of mind and reason to understand the nature and consequences of his act in executing it. And by its execution he does not make it his deed, if at the time he was, from weakness of mind, incapable of understanding it if explained to him. But, although it may be uncertain that the mind of the grantor was in all respects sound, still, if he has sufficient ability to execute and deliver a deed, understanding the consideration that he is to receive, and the nature of the transaction’ in transferring his title to another, it is considered that his mind is sufficiently sound to render his deed valid. ‘Weakness of understanding is not of itself any objection to the validity of a contract, if the capacity remains to see things in their true relations, and to form correct conclusions.’ ” 1 Devlin, Deeds (2d ed.), sec. 68. If a grantor has sufficient mental ability to comprehend what he is doing and to understand the nature of his act, he is deemed competent to make a deed.
We therefore recommend that the judgment of the district court be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.