Adams v. Wagoner
| Decision Date | 01 October 1919 |
| Docket Number | No. 2389,2389 |
| Citation | 43 Nev. 266,184 P. 814 |
| Parties | MAY A. ADAMS, ALICE E. LUHRS, LULU M. HARRIS, AND WILLIAM T. BIRMINGHAM, RESPONDENTS, v. ELLA E. WAGONER AND ERNEST WAGONER (HER HUSBAND), AND H. BELLE WAGONER AND IRA WAGONER (HER HUSBAND), APPELLANTS. |
| Court | Nevada Supreme Court |
1. DEEDS—EVIDENCE SHOWING INCAPACITY OF GRANTOR.
In action to cancel mother's deed to daughter, executed by mother while in her last illness and a few hours before her death, evidence held to show that mother, at the time of execution of deed, was not possessed of sufficient intelligence to understand fully the nature and effect of the transaction.
2. TRUSTS—EVIDENCE OF CONSULTATION BETWEEN CHILDREN INSUFFICIENT TO ESTABLISH TRUST.
Evidence of consultation between children, without the knowledge or consent of the mother, whereby children agreed that mother, who was lying on deathbed, should convey property to one of the children, who agreed with the other children to pay the debts of the estate and distribute the residue by proper conveyance equally between other heirs, was not admissible as proof that child to whom property was so conveyed held land in trust for the other children.
3. DEEDS—SUFFICIENCY OF EVIDENCE TO SHOW UNDUE INFLUENCE.
Evidence held to show that mother's deed to daughter, with whom mother was living at time of her death, executed while mother was in her last illness and a few hours before her death, was procured by undue influence of daughter.
4. APPEAL AND ERROR—REJECTION OF TESTIMONY HARMLESS ERROR.
In suit to cancel mother's deed to daughter, refusal to permit another daughter, who had been joined with grantee daughter as defendant, to testify to transaction between her and mother with respect to mother's disposition of her property, if error, was harmless, where court permitted her statement that deed had been prepared in accordance with mother's directions to stand, and where it was such fact that was sought to be elicited by the rejected testimony.
5. DEEDS—DEED OF INCOMPETENT GRANTOR HELD VOID.
Mother's deed to daughter, executed while mother was in her last illness, and at a time when she was not capable of comprehending fully and fairly the nature and effect of the transaction, held void.
APPEAL from Eighth Judicial District Court, Lyon County; T. C. Hart, Judge.
Suit by May A. Adams and others against Ella E. Wagoner and others. From a judgment for plaintiffs, and from an order denying a motion for new trial, defendants appeal. Affirmed.
LeRoy F. Pike and Walter M. Kennedy, for Appellants:
In an attempt to defeat a deed with parol evidence, or to establish a trust with parol evidence, the evidence must be clear and attended with no uncertainties, and even then must be received with great caution. Dalton v. Dalton, 14 Nev. 419.
The mental capacity of a person sufficient to execute a deed is the same as that of a person competent to execute a will. Boudin College v. Merritt, 75 Fed. 480.
The burden of proving fraud or undue influence rests upon the contestants of a will. In this case we may consider the deed the same as a will, and therefore the burden of proof rests upon the contestants. In Re Hess's Will, 31 Am. St. Rep. 665.
There is no presumption of fraud or undue influence from the mere fact that the will contains provisions beneficial to the scrivener. Jones on Ev., sec. 191; Carter v. Dixon, 69 Ga. 82; Horah v. Knox, 87 N. C. 483; Critz v. Pierce, 106 Ill. 167.
J. C. Campbell, for Respondents:
Where there is a substantial conflict in the evidence on material issues, it is well settled that the decision of the lower court will not be disturbed, if there is substantial evidence to support it. Palmer v. Culverwell, 24 Nev. 114; Welland v. Williams, 21 Nev. 390; Crawford v. Crawford, 24 Nev. 410; Barnes v. W. U. T. Co., 27 Nev. 438; Ford v. Campbell, 29 Nev. 578; Abel v. Hitt, 30 Nev. 93; Tonopah L. Co. v. Nevada A. Co., 30 Nev. 445; Turley v. Thomas, 31 Nev. 181.
Findings supported by any substantial evidence cannot be disturbed on appeal. Burns v. Loftus, 32 Nev. 55.
The trial court is the exclusive judge of the credibility of the witnesses. Anderson v. Feutsch, 31 Nev. 501.
"In some instances, the relation of the parties is such, as where an attorney receives a gift from a client, or a guardian from a ward, that the law itself takes notice of the inequality of their situations, and demands of the donee of a gift affirmative proof of the fairness and good faith of the transaction." Whitely v. Whitely, 78 N. W. 1009. "Clear evidence is required that the transaction was understood, and that there was no fraud, mistake, or undue influence." Ten Eyck v. Whitback, 50 N. E. 963; Gibson v. Hammang, 88 N. W. 500; Brummond v. Krause, 80 N. W. 686; Todd v. Sykes, 33 S. E. 517; Cole v. Getsinger, 71 N. W. 75.
The striking out of the testimony of one of the defendants was not error; but even if it was, it was harmless and not prejudicial to the defendants. Jones on Ev., sec. 773.
"When the evidence shows that a judgment is so clearly right that it should not be reversed for error in admitting or excluding evidence or giving instructions, such error will not be considered on appeal." Yori v. Cohn, 26 Nev. 206.
This suit was brought by certain heirs of Annie Hofheins, late of Yerington, Nevada, against other heirs of said Annie Hofheins (all being her children), to cancel a conveyance of lands and personal property alleged to have been obtained from her a few hours before her death by the defendant children, when, from her condition, she was incapacitated of understanding the nature and effect of the transaction, or, in case such should not be found to be the fact, that the grantee in said conveyance, Ella E. Wagoner, be declared to hold all the property described in said conveyance in trust for all of the children of Annie Hofheins; that she be required to account, and that she be enjoined from disposing of any of the property specified in the alleged conveyance.
With the exception of certain admissions, all the allegations of the complaint were denied by the answer, and for an affirmative defense the defendants allege: For many years prior to the death of Annie Hofheins, the defendant Ella E. Wagoner lived with her mother at her home in Yerington, Nevada, nursed and cared for her mother, and in consideration of the services rendered and to be rendered by said Ella E. Wagoner, and the agreement on the part of her, the said Ella E. Wagoner, to pay the debts of said Annie Hofheins, the latter sold and delivered to Ella E. Wagoner all of the property described in the deed exhibited with the complaint and sought by the plaintiffs' action to be canceled and annulled; that Annie Hofheins, at the time of the execution and delivery of said deed was of clear and sound mind; that she freely and voluntarily acknowledged the conveyance to be her act and deed; that no trust was created or intended by her to be created by said instrument. The plaintiffs replied, and for reply denied the new matter contained in the answer.
The action being purely equitable in its nature, the issues were tried by the court without a jury. The court found, in part, as follows:
"That at the time Annie Hofheins's name was signed to said purported deed she was in her last illness, from which her death was then imminently impending, and from which she died on the day following the signing of said purported deed; that owing to said illness her mind was weakened and was lacking in understanding; that she was not at the time of signing said deed, nor thereafter, and for several hours prior thereto had not been, in mental condition competent to transact business, or to discuss understandingly any business transaction whatever; that because of her said illness and her consequent mental condition, as aforesaid, and her impending death from said illness, when her name was signed to said purported deed, she was not in mental condition to know or understand its contents, and did not then and there, nor thereafter, know or understand its contents nor apparent legal affect; that the said conveyance was not signed by any person for her, acting under her conscious direction and authority, while she, the said Annie Hofheins, understood the meaning of said purported deed, or comprehended the amount or nature of the property mentioned therein."
As a conclusion of law the court found that said purported deed should be by judgment and decree canceled and declared to be wholly null and void and of no legal force nor effect whatever. Upon this finding and conclusion the court rendered and caused to...
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