Boggianna v. Anderson

• Decision Date: 16 April 1906
• Citation: 94 S.W. 51,78 Ark. 420
• Parties: BOGGIANNA v. ANDERSON
• Court: Arkansas Supreme Court

94 S.W. 51

78 Ark. 420

BOGGIANNA v. ANDERSON

Supreme Court of Arkansas

April 16, 1906

Appeal from Lee Chancery Court; Edward D. Robertson Chancellor affirmed.

Decree affirmed.

P. D McCulloch, for appellants.

The undisputed facts, Raggio's age, his weakened physical and mental condition, defendant's daily and constant intimate attendance upon and association with him, and her supervision over him and every detail of his business affairs, remove the prima facie presumption that the deed was his voluntary act free from undue influence, and impose upon her the burden of establishing the legal integrity of the conveyance. 29 Am. & Eng. Enc. Law, 120, 121 and cases cited; 67 Ala. 368; 62 Ala 347; 3 Baxter (Tenn.), 283; 4 Ib. 41; 63 N.J.Eq. 245; 201 Ill. 70; 92 Cal. 632; 32 Minn. 25; 141 Mo. 466; 56 S.W. 512; 8 Humph. (Tenn.), 145; 1 Cold. 290.

Extreme weakness will raise an almost necessary presumption of imposition, even when it stops short of legal incapacity. 2 Mason, 378. It is not necessary, in order to secure the aid of equity, to prove that the deceased was at the time insane, or in such a state of mental imbecility as to render him entirely incapable of executing a valid deed. It is sufficient to show that, from sickness and infirmities, he was at the time in a condition of great mental weakness, and that there was gross inadequacy of consideration. From these circumstances imposition or undue influence will be inferred. 94 U.S. 506; 11 Wheat. 125; 2 Pom. Eq. § 947; 15 Ark. 555.

W. A. Compton, for appellee.

The mental capacity of Raggio to execute the deed is established, and hence the chancellor's finding to that effect, and his decree dismissing the complaint for want of equity, should stand. The evidence discloses no undue influence exerted by the appellee, and none will be presumed. Absolute soundness of mind is not necessary to enable one to make a valid conveyance. It is sufficient if the grantor fully comprehended the import of the particular act. 4 Ind. 443; 36 Ill. 109; 44 N.H. 541; 55 Me. 256; 4 Bush. 239. To avoid the conveyance, the undue influence exerted, if any, must be such as to destroy the free agency of the party. 4 Metc. (N. Y.), 163; 27 Am. & Eng. Enc. Law, 497, note 2; 77 Ill. 397; 49 Ark. 371. Old age, physical infirmities and even partial eclipse of the mind will not prevent making a valid conveyance. 29 Ark. 159; 49 Ark., supra.

HILL, C. J. WOOD, J., dissents. MCCULLOCH, J., disqualified and nonparticipating.

OPINION

HILL, C. J.

Dominic Raggio left his native village of Borzonasca, Italy, in 1851, and came to the United States. He served as a soldier in the civil war, and not a great while after the close of the war he settled in Lee County, Arkansas, where he resided until his death on the 8th of January, 1901, at the age of 78 years. He was of more than average intelligence, and through industry and frugality gathered an estate yielding an income of about $ 1,600 per annum, estimated to be worth from $ 12,000 to $ 15,000. His estate consisted of 371 acres of land, of which 160 or 170 were in cultivation, and upon it was situated the village of Raggio, the rents therefrom amounting to about $ 800 per annum; and he had a home nearby the village on the same tract. He had a friend in Memphis named Nick Malatesta, and he had a warm friendship for him and for his (Malatesta's) family. A few years before his death a young Italian named Bruno represented himself as his nephew, and Raggio accepted him as such for a time, but later learned he was an imposter. Raggio at some time in his life had a wife and child, and they were buried in a Catholic cemetery in Memphis, but the exact location of their graves was unknown to him, and he had requested Miss Malatesta to see that he was buried in this country, as he wanted his body to lie near his loved ones. For the last five or six years of his life Raggio was grievously afflicted with a cancer, which gradually extended its ravages from lip to eye, exposing the teeth and nearly destroying the vision. Death came, however, not from this encroaching disease, but from pneumonia, and he was confined to his bed only a few days, in his last sickness. Up to this sickness he was more or less active and healthy, according to varying views; remarkably so, considering his age and affliction. Over five years before his death, the appellee, Mrs. Anderson, was employed as housekeeper, cook and nurse for Mr. Raggio. She did all the cooking and household work, bathed and dressed his sores, and attended to his business affairs in a limited way under his directions. He never learned to speak English fluently, and it was always difficult to understand his broken speech, and this difficulty greatly increased as the disease destroyed lip and nostrils. Mrs. Anderson was constantly called upon to interpret his conversations. Mrs. Anderson's moral character, before going to Raggio's, was a subject of neighborhood gossip. She was once divorced and thrice married. But her character, be it good or bad, is not an issue in this case. There is not even an insinuation that her relations with Raggio were meretricious. The evidence from all sides establishes without doubt that she faithfully ministered unto the manifold necessities and afflictions of this aged man. That he became attached to her and dependent upon her services is natural and evident, for she was the only person who stayed with him and cared for him when he became an object of horror and repulsion. His condition was hardly less pitiable than the lepers of Judea, driven without the gates of the cities and compelled to cry out "Unclean! Unclean!" whenever a fellow being approached.

In 1890 Raggio made a will, in which he appointed his friend, Nick Malatesta, executor and trustee, and gave him 25 per cent. of his estate for his compensation as such executor and trustee. The estate was to be sold by the executor, and the residue "distributed among my nephews and nieces in the Kingdom of Italy that may be living at my death, per capita." In 1893 he added a codicil, providing that, in case his nephews and nieces did not claim their respective shares within two years from his death, all of the estate should go to Nick Malatesta. In 1895 Nick...