Bukkle. v. Abraham

• Citation: 112 W.Va. 257
• Decision Date: 03 May 1932
• Docket Number: (No. 7101)
• Court: Supreme Court of West Virginia
• Parties: Ida Bukkle et al. v. Charles II. Abraham, Err., et al.

112 W.Va. 257

Ida Bukkle et al.

v.Charles II. Abraham, Err., et al.

(No. 7101)

Supreme Court of Appeals of West Virginia.

Submitted March 24, 1932.

Decided May 3, 1932.

Submitted March 24, 1932. Decided May 3, 1932.

1. Deeds

The time of the execution of a deed being the crucial time to be considered in determining the grantor's capacity to make the deed, the testimony of the scrivener, the notary, and subscribing witnesses to the deed is entitled to peculiar weight.

2. Same

Mere age or infirmity of mind and body is not sufficient to overcome the legal presumption of mental capacity of the grantor.

xVppeal from Circuit Court, Ohio County.

Suit by Ida Burkle and others against Charles II. Abraham, executor, and others. Decree in favor of the plaintiffs, and the defendants appeal.

Reversed, and dismissed.

John P. Arbenz, for appellants.

O'Brien & O'Brien and Carl B. Galbraith, for appellees.

Lrrz, Judge:

This suit was brought November 1, 1928, by Ida Burkle and others as heirs at law of Wilhelmina Bach (widow of Bernard Bach) to set aside a deed, dated June 27, 1927, from Mrs. Bach to her son, William J. Bach, conveying to him all her real estate and household goods, on the ground that she was mentally incompetent to execute the instrument. William J. Bach having died testate pending the suit, the cause was revived against his personal representative, Charles Bach Abraham and Loretta Bach Abraham, his wife, as sole beneficiary under the will. From a decree, cancelling the deed, defendants have appealed.

Wilhelmina Bach died July 14, 1927, at the age of 80, after an illness of five or six weeks.

Testimony of witnesses for plaintiffs follows: Dr. John W. Pyles, a young physician, who attended Mrs. Bach almost daily from June 4th, until her death, testified in chief that he was of opinion that she was unfit mentally to transact business during the last week of June; predicating his conclusion on her mental and physical deterioration from old age, her apparent inability at times to remember, when he called in the evening, that he had visited her in the morning, her unreasonable answers to some of his questions, her apparent failure to recognize him sometimes, her unwillingness to remain in bed during the day, and her insistence, at times, that she had spent a restful night, that her appetite was good, and that she had not taken her medicine, when he had reason to disbelieve her statements. He admitted on cross-examination, however, that she would give satisfactory answers to questions repeated to her; that she never discussed business affairs with him; and that he could not recall whether he visited her the day the deed was executed. Mrs. Emma Hack, one of the plaintiffs, testified that she and her three sisters "took turns every day" visiting their mother during her last illness and helped with the house work; that "from May on" her mother would "just stare", and sometimes fail to answer questions, or to realize that she was at home. Mrs. Ida Burkle, another one of the plaintiffs, testified that she was with her mother every evening from six until eleven o'clock for three weeks next preceding the execution of the deed; that Mrs. Bach "wasn't (then) in her right senses" and at times did not recognize the witness; that she was subject to "crying spells" and would call for her "baby" and want "to go home''; that she would go to the front door of the house dressed only in her night clothes; and that witness thought her mother incapable of understanding business transactions at the date of the deed. William T. Burkle, husband of Ida Burkle, testified that he saw Mrs. Bach two or three times a week during her last illness; that she would always eall him the doctor; and that she had "a staring look" and would sometimes fail to answer questions. Marie Garrity, who lived next door to Mrs. Bach, testified in chief that she saw Mrs. Bach occasionally during the last three weeks of her life and sometimes thought her mental condition "was all right and other times it wasn't at all"; that answers made by Mrs. Bach to questions propounded to her were, sometimes, not responsive; and that Mrs. Bach often mistook witness for her (witness') mother. This witness admitted on cross-examination, however, that she merely spoke to Mrs. Bach when she saw her on the porch and never discussed business affairs with her. Agnes Garrity, sister to Marie Garrity, testified that she saw Mrs. Bach occasionally during the last three weeks of her life, at which times Mrs. Bach failed to recognize her or to talk coherently. Mrs. Anna Sprouse, mother of Marie and Agnes Garrity, testified in chief that William Bach lived with Mrs. Bach but that the daughters often came in to help with the house work; that she saw and talked with Mrs. Bach frequently just prior to her death; that Mrs. Bach complained to witness that her daughters never came to see her; and that on June 18, 1927, Mrs. Bach apparently did not know anything or anybody. On cross-examination she admitted there were times when Mrs. Bach would "perk up".

Defendants' witnesses testified as follows: Mrs. Elizabeth Morgan, a friend of Mrs. Bach, testified that she visited her several times during the last week in June, when she appeared to be of sound mind, and thoroughly able to conduct intelligent conversations; and that Mrs. Bach had told her she intended to give her property to her son, William, because he had taken care of her. Mrs. Mary Albinger, a friend of Mrs. Bach since childhood, testified in chief that she saw her the first Sunday in July, 1927, and thought she had a sound mind and was competent to look after her business affairs. Mrs. W. R. Gaul, a neighbor of Mrs. Bach, testified that she talked with Mrs. Bach every day...