Bade, Adme., v. Feay et at.

• Decision Date: 26 November 1907
• Citation: 63 W.Va. 166
• Court: West Virginia Supreme Court
• Parties: Bade, Adme., v. Feay et at.

63 W.Va. 166

Bade, Adme.,

v.Feay et at.

Supreme Court of Appeals of West Virginia.

Submitted June 15, 1907.

Decided November 26, 1907.

1. Bills and Notes Mental Incapacity Presumption.

Mere infirmity of mind and body is insufficient to overcome the legal presumption of mental capacity in one who has executed a will, deed, contract or other instrument, (p. 168.)

2. Same Undue Influence.

When procurement of the execution of an instrument by the exercise of undue influence is charged, it is important to ascertain the degree of mental impairment, even though the evidence is insufficient to overcome the presumption of competency, since a weak and feeble mind is more easily overcome by undue means than a strong one. (p. 169.)

3. Same Burden of Proof

One who assails a will, deed or contract as having been pro cured by undue influence, bears the burden of proving both mental weakness and undue influence, when both are relied upon. (p. 177.)

4. Same Presumption.

Relationship of aunt and nephew, mistress and servant, patient and nurse, do not all combined raise a legal presumption of undue influence. They are mere circumstances, which, together with other facts, may be sufficient to establish fraudulent procurement, (pp. 178, 180.)

5. Same Consideration.

A promissory note given to a near relative, by a person in declining years, by way of compensation or reward for services rendered and to be rendered, is so much in the nature of a testamentary disposition of property, that, ordinarily, the maker's estimate of the value of the services will not be disturbed on the ground of disparity between the actual value thereof and the amount of the note. (p. 181.)

6. Same.

That such a note, so given, calls for a larger sum than the services were probably worth does not invalidate it on the ground of fraud or failure of consideration, (pp. 181, 182.)

7. Gift Promissory.

A promissory note cannot operate as a gift, for, as such, it would be unexecuted and incomplete, amounting only to a promise to give. (p. 167.)

Appeal from Circuit Court, Ohio County.

Bill by Fred C. Bade, administrator, against Moses Feay and others. Decree for plaintiff, and defendant Benoni Feay appeals.

Reversed. Remanded. John J. Coniff, for appellant.

Caldwell & Caldwell, for appellees, heirs of Rachel Thornburg.

poffenbarger, judge!

In a chancery suit, instituted in the circuit court of Ohio county, by Fred C. Bade, administrator of the estate of Rachel Feay Thornburg, deceased, against the heirs at law of his decedent, for the settlement of her estate, one Benoni Feay, a nephew of plaintiff's intestate, by his answer to the bill, set up a demand against her estate, for the sum of $6,000.00, evidenced by her promissory note, dated May 29, 1901, and payable one year after the date thereof. The commissioner to whom the cause was referred for ascertainment of the property and debts of the decedent disallowed the claim, and the court having confirmed the report, after overruling Feay's exception thereto, and decreed a sale of the real estate, he has appealed from the decree.

As there is some evidence tending to show that the note was presented to Feay as a gift, though he claims it was executed in consideration of services rendered, and endeavors to sustain it on that ground and no other, it may tend to clearness of perception of the issue to observe, at the outset, that the note cannot have effect as a mere gift, it being nothing more than a promise to give money, signifying intention to give, but not amounting to, or evidencing, execution of such intent. It could amount to nothing more than what is called an unperfected gift, which cannot be enforced for the reason that a gift, until completed, is always revocable. This principle is abundantly established by the authorities. Seabright v. Seabright, 28 W. Va. 412, 479; Dillon v. Cotton, 4Myl. & C. 647; Cotteen v. Missing, 1 Madd. 176; Searle v.Zaiv, 15 Sim. 95; Ward v. Audland, 8 Beav. 201; Weale v. Ollive, 17 Beav. 252; Cat- Uhcm v. Gallihan, 8 CI. & F. 374. The law of this subject is thoroughly expounded in Gotteen v. Missing, where it is said: "In general, to entitle a person to a gift, it must be perfected and complete, or a court of equity will not interfere to compel a specific performance. If it rest in fieri, and is incomplete, equity will not interfere. In Tait v. Ilihhert, (2 Ves. jun. Ill), a cheque given as a bounty to a party, payable to bearer, and also a promissory note, were held not to be sufficient gift, sustainable in equity, the donor dying before they were paid. In Antrobns v. Smith (12 Ves. 39,) the Master of the Eolls says (Ibid. p. 46): "He meant a gift. He says he assigns the property. But it was a gift not complete. The property was not transferred by the act. Could he himself have been compelled to give effect to the gift by making an assignment? There is no case in which a {jarty has been compelled to perfect a gift, which in the mode of making it he has left imperfect. There is locus poenitentiae as long as it is incomplete. How is it at law? In Taylor v. Lencley (9 East. 49,) a sum of money voluntarily paid into the hands of A. for the benefit of a third person was held to be a countermandable gift so long as it remained in A.'s hands." All gifts, to be effective, must be complete, fully executed. Seabright v. Sealright, 28 W. Va. 412, 479.

Whether it can be sustained as a contract, founded on a valuable consideration, involves inquiries as to the existence of consideration and its sufficiency, the mental competency of Mrs. Thornburg to make a contract and the procurement of the note by the exercise of undue influence over her, she having been an aged lady and not in the enjoyment of good health or her original mental vigor and strength.

The evidence wholly fails to establish mental incompetency. Mrs. Thornburg was a lady about 83 years old at the time of her death, October 7, 1901, and had been in bad health for some time, which facts account, in part, for the impairment of mental power, disclosed by incidents and circumstances detailed in the testimony of the witnesses. In the fall of 1900, she had a severe spell of sickness from which she had partially or wholly recovered in the early spring of 1901, but, in April of that year, she had an attack of cold or " Grip," which confined her to her room and bed for several days-From this she had rallied and gained sufficient strength to go about her house and grounds, visit the neighbors and do shopping in the city of Wheeling, distant from Triadelphia, where she lived, several miles, but accessible by trolley cars, and converse with her friends and neighbors, in the month of May, 1901, when the note was executed. A stranger, in whose presence she signed it, testifies to her having been in Wheeling on that day, and a merchant from whom she bought goods testifies to her having been there on June 3. 1901. She continued to go about during the summer and until a few days before her death. As is usual in all such cases, there is conflict in the evidence as to her mental condition, many of the witnesses being of the opinion that she was wholly incapable of transacting business, and others of contrary belief. Assuming it to be true, however, that her conversation was, at times, somewhat disconnected and that persons who knew her, even a physician, were of the opinion that she did not possess the mental strength and capacity, obtaining ordinarily in the transaction of business, in other words, average business capacity, the facts disclosed, concerning her conduct and powers, having greater probative value than mere opinions, and the burden of proof being on the party alleging incompetency, we have no hesitancy in saying the evidence fails to establish it. Old age, sickness, abatement of mental vigor and impairment of memory does not, under our decisions, rebut the legal presumption of mental competency to transact business. Teter v. Teter, 59 W. Va. 449; Farnsworth v. Noffsinger, 46 W. Va. 410; Eakins v. Hawkins, 52 W. Va. 124; Delaplain v. Grubb, 44 W. Va. 612; Buckey v. Bucket/, 38 W. Va. 168. As was intimated in Teter v. Teter, mental competency does not require the sagacity, analytical powers, astuteness and soundness of judgment, requisite to the making of just such a contract in every instance as an experienced, skillful and shrewd man would make. It suffices that a person in making a will or executing an instrument to operate as one, knows what property he has and what he wants to do with it.

The introduction of evidence to prove procurement of the note by the exercise of nndne influence necessitates a fuller and more critical examination of the evidence bearing on the exact state of the decedent's mind at the time of the execution thereof than would otherwise be required, for the obvious reason that a feeble mind can be more easily overcome and subordinated to the will of a designing person than a strong one. The evidence relied upon to prove extreme mental weakness is substantially as follows: Declarations of Benoni Feay to whom the note was executed, made a short time before the execution thereof, to the effect that she was crazy and that he was staying at her house and taking care of her for that reason, were proved. Mrs. Rankin, a niece of the decedent, living several miles away, testified that about the first of May, 1901, she had visited her and extended an invitation to return the visit, which was accepted, and, a few minutes afterwards, Feay told the witness, in the absence of Mrs. Thornburg, that she would not come and that she did not know what she was talking about. Mrs. Neff, a niece of the decedent, who also resided several miles away, testified that she, in company with Mrs, Rankin, visited her about the first of May, 1901, and found her both mentally and physically weak, and that she heard the statement made by Feay to which Mrs. Rankin testified. Both of these witnesses say she was suffering from a heavy cold and had...