Burt v. Quisenberry

• Decision Date: 31 March 1890
• Citation: 24 N.E. 622,132 Ill. 385
• Parties: BURT et al. v. QUISENBERRY et al.
• Court: Illinois Supreme Court

132 Ill. 385

24 N.E. 622

BURT et al.

v.QUISENBERRY et al.¹

Supreme Court of Illinois.

March 31, 1890.

Appeal from circuit court, Logan county; GEORGE W. HERDMAN, Judge.

Bill by Polly Quisenberry and Elizabeth Quisenberry against James W. Burt, Louisa Bowles, Sallie Britt, and John Burt, to cancel two deeds given by William Burt, since deceased, the father of all the parties, to defendant James W. Burt. The court decreed the deeds to be void, and the defendants appeal.

Wm. Don Maus and Stevenson & Ewing, for appellants.

Beach & Hodnet and Blinn & Hoblit, for appellees.

SCHOLFIELD, J.

The burden was upon the appellees to satisfactorily prove, either (1) that William Burt, at the time that he executed the deeds in controversy, did not have sufficient mental capacity to execute a deed; or (2) that the execution of the deeds was because of the undue influence of James W. Burt or John H. Burt, or of both, over the mind of William Burt. The court below found the last proposition proved, and thereforedecreed that the deeds be set aside; but, if either proposition was proved, the decree was right. Since, however, we are unable to agree with the conclusion reached by the court below, we must necessarily pass upon both propositions.

1. The evidence is too voluminous to attempt to state it at large. Many witnesses testified that, in their opinion, William Burt did not have sufficient mental capacity to execute a deed, at the time these deeds were executed; and many witnesses testified that, in their opinion, he did, at that time, have sufficient mental capacity to execute a deed. It was proved that his memory was not as good as it had been; that he remembered events that occurred many years ago much more vividly than recent occurrences; and that sometimes, in conversation, he would forget himself, and not be entirely intelligible. These are frequent concomitants of old age, and, while they tend to prove an impaired or weakened mind, do not prove disease, and are not irreconcilable with sufficient mental capacity to control and dispose of property by will or deed. It was also proved that he spent a considerable part of his time with machinery, endeavoring to produce perpetual motion, under the belief that he could succeed, and thereby obtain a large premium from the government. There is other evidence tending to show that this was done as an amusement merely, and with no firm belief in obtaining success. In any view, however, it only goes to his intelligence. It may be inexcusable ignorance not to know that it has been demonstrated that perpetual motion is impossible; but the fact that very great minds have deemed it necessary to make such demonstrations is conclusive that the impossibility of perpetual motion is not so apparent to the uneducated mind that to believe in it is evidence of idiocy or imbecility. Such ignorance has no perceptible tendency to disqualify for the control and disposition of property.

The evidence shows that William Burt was in his eighty-first year when these deeds were executed. A year or so beforetheir execution he had become blind in one eye, and there was a sore upon the eyelid of the other eye, which kept it so far closed that he was compelled to lift the eyelid up with his hand in order to see with any distinctness. He was hard of hearing, and was in feeble general health; and it is evident that to these circumstances are attributed many of the unfavorable impressions testified to in regard to his mental condition. We have frequently said that the circumstance that the grantor or testator is of very advanced age, very infirm physically, and somewhat enfeebled in mind, is not conclusive of his incapacity to dispose of his property; that if he has capacity to comprehend and act rationally in the transaction in which he is engaged it is sufficient. Miller v. Craig, 36 Ill. 109;Myatt v. Walker, 44 Ill. 485;Lindsey v. Lindsey, 50 Ill. 79;Baldwin v. Dunton, 40 Ill. 188;Stone v. Nilbern, 83 Ill. 105.

The evidence is ample that William Burt fully comprehended what he was doing, and the effect of his acts, when he executed these deeds. They were drawn by a justie of the peace named Asher. He is apparently disinterested, and he is uncontradicted as to what occurred at the time, and he is unimpeached. He testified that he had no deeds or papers from which to obtain the numbers; that William Burt gave him the numbers from memory, correcting witness once in writing them down, when witness was making a mistake as to a fractional piece. There is no evidence tending to show that he had forgotten who his children were, or any material matter affecting his other relatives, and Asher testified that the clause in the deed expressing the undertaking of James W. Burt was written from the dictation of William Burt alone. There is evidence that William Burt was, after the execution of these deeds, in the habit of loaning money in considerable sums, and that he acted with judgment and caution in doing so. He made no mistakes, he exacted sufficient security, kept his business in his mind accurately, and could compute interest in his head rapidly and correctly. A year after these deeds were executed he purchased lots in Armington,-some improved and others unimproved; he caused some repairs and improvements to be made upon them; and he conducted the negotiations unaided, and with satisfactory prudence and care. He made purchases of his own necessaries at groceries and stores, and it does not appear that, in any business transaction in which he was engaged near the time when these deeds were executed or subsequent thereto, he evinced a want of perception or comprehension adequate to the occasion. When the evidence of these transactions is considered, in connection with the testimony of the witnesses who express the opinion that, at the time these deeds were executed, he had sufficient mental capacity to make a deed, the preponderance is clearly on that side.

2. In considering the evidence relating to the question of undue influence, it is to be noted that it clearly appears that William Burt was under no delusion as to the location, quantity, and quality of his lands, and of the value of the improvements thereon; and there is no evidence tending to prove that he was, by any act for which James W. is responsible, placed under a delusion as to their value. There is evidence that when he fixed the amount that James W. was to pay he fixed it at $10,000, and that James W. then said, in substance, that he was charging him more than he could pay; but this plainly had reference to James W.'s ability to raise the money by the time required, and not to the actual value of the lands. The evidence shows that William Burt, and his wife, in her lifetime, had wished that James W. should have this farm; but that he did not intend to give it all to him. He did not want the farm divided, but he wished to tax James with some amount, which he could pay, and give him the residue, and he had some difficulty in determining what this amount should be. John H. Burt, the oldest son of William Burt, testifies: ‘The first time my father spoke to me about conveying this farm to my brother James was in 1879. There had been some trouble with some of the estates in the neighborhood, and I remarked to my father if he had arranged his business as he wished it to be, and he said he had not. We talked about it some little, and he said the only thing that was troubling him was to know how much to tax my brother for it. He said he intended the place for him, but he did not intend to give it all to him,-that was the home place. I made the remark, why not cut off a piece, if he did not give it all to him? He said he did not want to divide it. He intended the farm for my brother, but he did not intend to give it all to him, nor to divide the place.’ And so, when it came to making the deeds, he first proposed to charge James W. with $10,000, but, upon James W. objecting his inability to pay that amount, he fixed the amount at $8,500, $6,000 of which was to be paid to William Burt in person, and $2,500 to his other children, 5 in number, in equal amounts, within 12 months after his death. The evidence totally fails to prove that John H. Burt influenced William to make these deeds. He expressly denies that he ever requested him or advised him to do so. He is not contradicted or impeached, and it is not apparent that he will gain by having James succeed in this suit. There is evidence that he once spoke to one of the complainants before the deeds were executed, and inquired whether she would take $1,000 for her interest in their father's homestead; that upon another occasion, when it was rumored that William was going to donate $10,000 for some church purpose, he went to one of the complainants, requesting her to talk to their father, and prevent his making the donation, saying, in effect, that he was incompetent to manage his property; and upon another occasion that he claimed that one of his brothers-in-law had said that the children of William Burt had agreed that these deeds be executed, which statement...