Asher v. Hartlage
| Decision Date | 10 June 1960 |
| Citation | 336 S.W.2d 335 |
| Parties | William H. ASHER, Appellant, v. Gilbert H. HARTLAGE et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Erbon P. Sawyer, Heidenberg & Bossmeyer, Louisville, for appellant.
Daniel B. Boone, Henry A. Triplett, Louisville, for appellees.
The appellant, William H. Asher, a retired lithographer and next door neighbor to the appellees, Mr. and Mrs. Hartlage, became ill with diabetes and other complications. In 1954, because of his inability to properly care for himself, Asher moved into the Hartlage home. It was arranged for Asher to have board, room and care in consideration of regular payments in cash. In August, 1954, while living under this arrangement he executed a will leaving all of his property to the Hartlages. It is not contended that the Hartlages did anything to procure the execution of the will. They did not know the extent of Asher's holdings and he gave them no information on the subject at that time.
After the execution of the will he continued to live with them under the previous arrangement for board, room and care. However, on April 8, 1955, Asher executed a deed conveying and transferring all of his property to the Hartlages.
Asher brought this action in March, 1957, to cancel the deed and restore his property. As grounds for cancellation and restoration he charged that while he was physically ill and mentally incapacitated the grantees by themselves and through a lawyer had procured the deed by fraud, duress, undue influence, coercion, persuasion and misrepresentation.
The trial court found as a matter of fact that the deed was executed in consideration of the Hartlages' agreement to support and care for Asher during the rest of his life. There was sufficient evidence to support this finding. It should be noted that failure of consideration is not claimed here and the trial court found as a matter of fact that there was no breach of contract by the Hartlages. The trial court also found as a matter of fact that Asher was mentally competent and that the deed was not procured by fraud or any kind of undue influence of misrepresentation. Upon these findings he entered a judgment for the Hartlages. Asher appeals.
Examination of the record reveals only one major question to be determined here. Was the evidence sufficient to authorize the trial court's findings of fact? So clear and convincing is the evidence in this case that we shall not undertake to fully detail it.
The record unerringly portrays Asher as a man of strong mind who acted upon his own volition in all of his dealings with Mr. and Mrs. Hartlage. Though he was physically ill this record fails to show any mental incapacity. Asher's own testimony and that of his doctors thoroughly refutes any claim of mental weakness. His own testimony also refutes the charge of fraud and undue influence. His testimony reveals that he wrote his brother in England telling him exactly what he had done and why he had done it. He extolled the virtues of Mr. and Mrs. Hartlage to his brother. There is no claim that these communications with his brother were anything but voluntary. His testimony reveals that he lived in the Hartlage home with a minimum of friction. Though he testified that he did not intend to part with his property, his account of transactions leading up to the conveyance...
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