Buuck v. Kruckeberg, 18008

• Decision Date: 07 December 1950
• Docket Number: No. 18008,18008
• Citation: 121 Ind.App. 262,95 N.E.2d 304
• Parties: , 22 A.L.R.2d 1145 BUUCK v. KRUCKEBERG.
• Court: Indiana Appellate Court

Page 304

95 N.E.2d 304

121 Ind.App. 262, 22 A.L.R.2d 1145

BUUCK v. KRUCKEBERG.

No. 18008.

Appellate Court of Indiana, in Banc.

Dec. 7, 1950.

Flanagan & Miller, Ft. Wayne, for appellant.

Clarence R. McNabb, Robert Parrish, and Thomas A. Gallmeyer, all of Ft. Wayne, for appellee.

CRUMPACKER, Judge.

On January 31, 1947, one Carrie Blume and her son Walter C. Buuck, the appellant herein, were the owners, as joint tenants with right of survivorship, of certain real estate in the city of Fort Wayne, Indiana, and on said day the said Carrie Blume conveyed by deed her interest therein to the appellee Arthur C. Kruckeberg. Carrie Blume died on February 14, 1948, and shortly thereafter the appellee brought this suit against the appellant, his alleged co-tenant, to partition said real estate. The appellant, by way of counter-claim sought the cancellation of the deed of January 31, 1947, which is the foundation of the appellee's right to partition, on the theory that: (1) it was procured through the exercise of undue influence; and (2) that at the time of its execution said Carrie Blume was a person of unsound mind. At a pre-trial conference it was agreed that the appellee was entitled to the partition of the real estate involved if the deed in question was valid as against the attack made upon it through the appellant's counter-claim. The court found the deed valid and decreed partition and such judgment is now challenged on the grounds that it is not sustained by sufficient evidence, that it is contrary to law and that it was arrived at through error of the court in excluding the entire testimony of a competent witness and permitting certain witnesses to testify in violation of privilege.

In support of his contention that the deed in suit was procured through the exercise of undue influence the appellant relies upon the fact that he is the only son and heir of Carrie Blume, that the appellee was a stranger to her fireside and paid no consideration for the property conveyed to him although it had a reasonable market value of $18,000 to $20,000 and that at the time said deed was executed Carrie Blume was seriously ill in mind and body. Such a situation, the appellant asserts, shocks the conscience of the court and imposition or undue influence must be inferred. If these facts presented the entire picture disclosed by the evidence we believe there would be merit in the appellant's contention, Stayner v. Nye, 1949, 227 Ind. 231, 85 N.E.2d 496, but there appears to be more to the story than above indicated. The property involved consists of a 30 room house, and the lot upon which it stands, in which the appellant and his mother conducted a nursing home for elderly people. The appellee was a blood nephew of Carrie Blume and for some time did odd jobs about said home and in connection therewith performed occasional acts of kindness and consideration for his aunt's comfort and welfare. Prior to the execution of the deed in controversy the appellant had instituted an inquest into his mother's sanity the purpose of which was to commit her to an asylum and had also caused a receiver to be appointed for the business under which receiver he acted as manager to the exclusion of his mother. Whether this conduct on the part of the appellant toward his mother was necessary or justified we are not called upon to say. The circumstances, however, are such that in our opinion the question of undue influence was one of fact for the trial court and not one of law for us.

The appellant's position in reference to his mother's mental condition at the time she executed the disputed deed may be summarized as follows: All the medical experts who testified agree that at such time Carrie Blume was mentally sick; that her trouble was a form of insanity known as paranoia which is characterized by seemingly normal conduct and conversation by one so afflicted; that the only evidence in the case tending to prove her of sound mind is the opinions of lay witnesses based on what they saw her do and what they heard her say and therefore such evidence is of no probative value and leaves the proof of her insanity undisputed.

Whatever merit there may be in this argument, we do not believe that the premise upon which it is based is wholly supported by the record. When the appellant instituted proceedings seeking an inquest concerning his mother's mental condition the court appointed a Dr. Dunstone to examine her and report as provided by law. His report is in the record and in substance states that he found Carrie Blume mentally alert. She showed no signs of delusions, hallucinations or aberrant behavior. Her memory was sound and her thinking clear. However, he found her, on the whole, basically irritable and unreasonable, potentially difficult to get along with and therefore concluded that she was 'mentally ill.' The test of mental capacity to make a deed is that the grantor shall have sufficient mind and memory to comprehend the nature and extent of his act and to understand the nature of the business in which he is engaged and to exercise his own will in reference thereto. Keplinger v. Ward, 1946, 116 Ind.App. 517, 64 N.E.2d 307, 65 N.E.2d 644. Even a paranoiac, says Dr. Welty, another member of the panel of physicians who examined Mrs. Blume at the inquest above mentioned, at times is perfectly normal. This evidence together with the testimony of the lay witnesses who considered her sane, is sufficient, in our opinion, to make the question of her mental capacity to meet the test above indicated on January 31, 1947, one of fact for the trial court and its finding in respect thereto is final.

During the course of the trial the appellant called one William L. Hofius as a witness. He testified that he is a minister and institutional chaplain of the Lutheran Church and as such has been conducting religious services and administering to the spiritual needs of institutional patients in Fort Wayne since 1941. During 1943 he made regular calls upon a member of the Lutheran Church who was confined in Carrie Blume's nursing home and thereby became well acquainted with her. In 1944 she asked him to conduct a service there, consisting of a short message and a prayer, which he did and has been doing regularly ever since on each Thursday morning. Necessarily his contacts with Mrs. Blume were frequent and in 1946 he observed an emotional change in her. Her feeling toward the appellant, whom he had theretofore considered an ideal son and praised constantly, completely reversed itself and she never spoke of or referred to him unless compelled to do so by the nature of the conversation. He was the subject of violent tirades on her part and she quieted down only when he, the witness, spoke to her in German of her early childhood training. On this testimony the witness was asked to express his opinion as to the soundness of mind of Carrie Blume on the 31st day of January, 1947. The appellee objected to the question and upon the objection being sustained moved to strike out the entire testimony of the witness which motion was also...