Cardinal v. Cardinal

• Decision Date: 03 July 1939
• Docket Number: No. 5050.,5050.
• Citation: 131 S.W.2d 1005
• Parties: CARDINAL v. CARDINAL et al.
• Court: Texas Court of Appeals

Page 1005

131 S.W.2d 1005

CARDINAL v. CARDINAL et al.

No. 5050.

Court of Civil Appeals of Texas. Amarillo.

July 3, 1939.

Rehearing Denied September 11, 1939.

Appeal from District Court, Floyd County; Alton B. Chapman, Judge.

Suit to cancel a deed by R. Cardinal and others against Louis Cardinal. From a judgment for the plaintiffs, defendant appeals.

Reversed and remanded.

Clark M. Mullican, G. H. Nelson, and Chas. D. Mathews, all of Lubbock, and L. G. Mathews, of Floydada, for appellant.

Kenneth Bain, of Floydada, and Griffin & Morehead, of Plainview, for appellees.

STOKES, Justice.

On the 24th of December, 1931, R. Cardinal, who was then 87 years of age, and his wife conveyed to their son, Louis Cardinal, the appellant herein, 492.2 acres of land located in Floyd County, for the expressed consideration of love and affection. The deed was acknowledged before a notary public and was immediately filed in the clerk's office and recorded in the deed records of the county. Mrs. R. Cardinal, the mother, died December 8, 1936, and on the 27th of December, 1937, this suit was filed by R. Cardinal, appearing by next friend, A. R. Cardinal, joined by Nelda Boudreau and her husband, Irene Maxwell and her husband, Ida Comeau and her husband, Emma L'Ecuyer and her husband, daughters of R. Cardinal and his deceased wife, and Peter Cardinal, T. J. Cardinal, A. R. Cardinal, Raphael Cardinal, and Neff Cardinal, sons of R. Cardinal and his deceased wife, and Aurellia Groth, Ida Eickholt and Irene Conley, granddaughters of R. Cardinal and his deceased wife, against Louis Cardinal and A. G. Cardinal. A. G. Cardinal and his wife were made parties defendant to the suit because, it was alleged, they were necessary parties and had refused to join as plaintiffs. They filed a disclaimer and were discharged thereon, hence it will not be necessary further to mention them in connection with the appeal.

It was alleged that R. Cardinal, at the time the petition was filed, was mentally unfit to prosecute the suit; that he had no guardian or legal representative and, for that reason, he was appearing by his next friend, A. R. Cardinal. The petition is lengthy and as there is no controversy over the pleadings, we shall state merely that the purpose of the suit was to cancel the deed of December 24, 1931, on the grounds that at the time of its execution the grantor, R. Cardinal, was of unsound mind and mentally incapable of understanding the transaction involved or the nature and consequences of his act in executing the deed. Appellees prayed for cancellation of the deed and that the children and grandchildren be decreed such interest and title therein as they may be entitled to as the heirs of their deceased ancestor, Mrs. R. Cardinal.

Appellant answered by general denial, plea of not guilty, and other special pleas necessary to answer allegations of the petition, the details of all of which are not material here.

The case was tried before a jury and submitted upon two special issues, in answer to which the jury found, first, that at the time of executing the deed of December 24, 1931, R. Cardinal did not have sufficient mental capacity to understand the nature and effect of his acts in executing the same and, secondly, that such mental condition was continuous from the date of the deed to the filing of this suit. Based upon the verdict, the court, on the 23rd of May, 1938, entered judgment in favor of appellees, plaintiffs below, cancelling the deed; making adjustments of the title in consequence of the death of Mrs. Cardinal and casting appellant in the costs. Appellant duly excepted to the judgment and, his motion for a new trial being overruled, he gave notice of appeal and the case is now before us for review.

Appellant contends that the verdict and judgment are erroneous and should be reversed, first, because the evidence was not sufficient to support the verdict of the jury. Secondly, he assigns material and reversible error of the court in admitting testimony involving opinions and conclusions of some of the witnesses in reference to the mental capacity of R. Cardinal. Thirdly, refusal of the court to make provisions in the judgment reimbursing him for payments of money made by him upon indebtedness and liens on the land, and, fourthly, error in overruling his motion for a new trial based upon the ground of newly discovered evidence.

The controlling issue in the case is made by appellant's first contention which is presented under the 1st to 6th assignments of error in which he attacks the sufficiency of the evidence to support the finding of the jury to the effect that the grantor, R. Cardinal, did not have sufficient mental capacity to know and understand the nature and consequences of his act in executing the deed of December 24, 1931, in which the tract of land was conveyed to him. The record shows that all of the parties to the litigation except the three granddaughters were the children of R. Cardinal and his deceased wife, Louise, and that the deceased mother of the three grandchildren was their daughter. All of the children had reached maturity, married and left the parental home except appellant, who remained at home with his parents, and had reached, or slightly passed, middle age. It is shown that during all of the time up to the year 1931, R. Cardinal managed and controlled his affairs, including the farm, and all business transactions that arose in connection with it; that his wife died in 1936 at the age of 79 years and he was 87 years of age when the deed was executed. The record further shows that he was a man of strong will but that during the years immediately preceding the execution of the deed, his mind had begun to fail and his physical strength had perceptibly weakened. The principal part of the testimony concerning his mental capacity at the time he executed the deed was given by two witnesses. Mrs. John W. Maxwell, one of the appellees, testified she had lived in Floyd County since 1915 and lived with her parents until she married in 1921. Her husband died in 1922 and she returned and lived with them until 1929, when she again married and has since lived in the town of Floydada. Her parents lived on the farm but she saw them at least once a week. She said that in 1930 she noticed her father was not normal; that he would ask about her children, such questions as "Whose children are these?" and "Are these your children?"; "Is that your baby?"; "Are these little girls yours?". She said that her father was easily lost; that in 1930 he was at her house and started to town; that after a short time he was back at the house and she remarked to him that she thought he had gone to town. She said he became somewhat confused and that she had her little girl go with him a portion of the distance and, after being directed a short distance, he then knew the way and went to town alone. Upon being asked, from her observations and knowledge of her father's actions and conduct, to state to the jury whether or not in 1931 her father had sufficient mental capacity to appreciate the nature and consequence of his act in making the deed, she said she did not think he did because he had an awful poor memory; that his memory had been getting worse and that it had continued to get worse until the day of the trial. Some objections were made to the nature of the questions asked and the answers given by the witness, after which she was again asked if, in her opinion, her father was capable of knowing the consequences of his acts in 1930, which was the year prior to the time the deed was executed. Her answer was: "Why, he was too forgetful." She said that her father was not insane; that neither she nor anyone else had ever said he was; that she was just getting at the conclusion that he was very forgetful.

Mrs. E. J. Baudreau, another one of appellees and a daughter of R. Cardinal, testified that she had lived in Oklahoma since 1911; that she visited her parents in 1929 and that her father, at that time, was nervous and would sleep a great deal of the time; that he would sleep all morning, get up for dinner, and then go back and sleep until about four o'clock in the afternoon. She said he did that almost every day during the three weeks visit which she made with her parents in that year. This witness said she returned for another visit in October, 1931, and that when her father first saw her he did not know her and did not know her children from one time to another; that when he would go out of the house and return he would ask whose children they were. She testified further that her father had been living at her home in Oklahoma during the year immediately preceding the trial and that he had executed and delivered to her a deed to fifty acres of land in Oklahoma owned by him and which she was claiming as her property because her father had conveyed it to her. She said she supposed he knew what he was doing when he conveyed it to her.

Mrs. A. R. Cardinal, wife of one of the appellees and a daughter-in-law of R. Cardinal, testified that she lived at Floydada and had visited in her father-in-law's home a great deal during the years 1929, 1930 and 1931. She said that when she would go out there R. Cardinal would be asleep and would sleep until noon; that after the noon meal he would go back to sleep and they would awaken him about four o'clock in the afternoon. She said that when they would awaken him he would start walking with a fly swatter in his hand and when he would go out into the yard he would take the fly swatter with him and that he was continually killing flies, bugs and insects with the fly swatter. She said he was nervous and seemed unable to remain quiet; that he was forgetful and would not know her children when she would visit at the home, but would ask them: "Whose girl are you?" and "What is your name?" and "Is that your child?". She testified further that a friend of R. Cardinal lived just across the...