Ct Al. v. Grubb
| Decision Date | 06 April 1898 |
| Citation | 44 W.Va. 612 |
| Parties | Delaplain ct al. v. Grubb et al(English, Judge, dissenting.) |
| Court | West Virginia Supreme Court |
Deed Prestimption of Law Grantor's Competency.
The presumption of law is that the grantor in a deed was sane and competent to execute it at the time of its execution.
Deed Old Age Incapacity.
Old age is not of itself sufficient evidence of incapacity to make a deed.
Deed Evidence Gratitor's Capacity.
The evidence of an officer taking-the acknowledgment to a deed, or of a person present at its execution, is entitled to peculiar weight, in considering the grantor's capacity.
4. Deed Time of Execution Grantor's Capacity.
The time of the execution of the deed is the material or critical point of time to be considered upon the inquiry as to the grantor's capacity.
5. Deed Grantor's Capacity Old Age.
A grantor in a deed may be extremely old, his understanding, memory, and mind enfeebled and weakened by age, and his action occasionally strange and eccentric, and he may not be able to transact many affairs of life, yet, if age has not rendered him imbecile, so that he does not know the nature and effect of the deed, this does not invalidate the deed. If he be capable at the time to know the nature, character, and effect of the particular act, that is sufficient to sustain it.
6. Deed Setting Aside Deed Undue Infltience Free Will In Vincults.
To set iside a deed for undue influence, it must be shown to the satisfaction of the court that the party had no free will, but stood in vinculis. Conley v. Nailor, 118 U.S. 127.
7. Deed Setting Aside Deed Undue Influence Free Will.
To annul a deed for undue influence, it must appear that it was such as to destroy free agency, and substitute the will of another for that of the person nominally acting.
8. Deed Undue Influence Suggestion and Advice Gratitude.
Suggestion and advice, addressed to the judgment, are not undue influence. Nor is a deed induced by an appeal on the score of gratitude, past kindness, or love or esteem the result of undue influence.
9. Deed Delivery of Deed-Intent of Parties.
Delivery of a deed depends on the intent of parties, and, though not in formal words, may be shown by circumstances. If its parties meet to make it, and read, sign, and acknowledge it without reservation, this amounts to delivery.
Appeal from Circuit Court, Ohio county.
Suit by Mary H. and Lewis S. Delaplain against Jacob W. Grubb and others to set aside certain conveyances. There was a decree for defendants, and plaintiffs appeal.
A firmed.
Hubbard & Hubbard, for appellants.
Caldwkll & Russell, for appellees.
Br anno n, President:
By a deed of November 13, 1892, L. S. Delaplain convey- ed to his wife a house and lot and furniture, valued at sixteen thousand dollars, in the city of Wheeling-, and, by check, g*ave her six thousand dollars in bank. Delaplain died the 27th of November, 1893, leaving a daughter and children of a deceased son. He was worth some three hundred thousand dollars to three hundred and fifty thousand dollars, mostly personalty Mrs. Delaplain later willed said real estate to her daughter Elizabeth Grubb. This was followed by a suit by the children of the deceased son to set aside the said deed, but the circuit court refused to do so and the plaintiffs appealed.
Delaplain was seventy-eight years of age at his death. He had for many years been the chief member of a large wholesale dry-goods firm in Wheeling, and by his fine sense, industry, and frugality amassed a fortune. Senile dementia is the ground on which we are asked to nullify the said transfers. Until a few weeks before his death this man was strong and vigorous, physically and mentally. At the outset, I state that old age will not, alone, affect his act, and that the presumption of law is that he was sane, and competent to make such transfers. Buckey v. Buckey, 38 W. Va. 168, (18 S. E. 476). We must find something else than old age, to cancel this deed. What is the basis on which that relief is asked? On several occasions he shed tears, saying that the little children would be left in poverty; supposedly referring to the children of Mrs. Grubb. He told his wife that the sheriff would come in, and sell them out of house and home. He expressed great apprehension of losing all his property, and at one time said that he had lost it all. He supposed everythingwas gone, and often talked about the little children beingleft in poverty. At the same time he was of large estate, and individually out of debt. This is regarded, I may say, as the chief weapon with which to overthrow" the deed.
This peculiarity is capable of explanation short of his incompetency. On the 6th of August, 1893, the disastrous business panic which appalled the hearts of the stoutest business men was at its climax. Like a clap of thunder from a clear sky on that day came the failure of the Exchange Bank of Wheeling, producing wide business consternation there. Mr. Delaplain was its president.
He deeply felt the sting of this failure, and was very greatly depressed by it. He expressed great sympathy for the poor depositors, saying that he did not care for his own losses so much as for theirs. The effect of this bank trouble was that of deep depression upon him. He drank heavily from that up until three or four weeks of his death. His apprehension of financial ruin is a thing that might infest the mind of many persons, especially ag-ed persons. There was his large investment in a wholesale business house, and the panic paralyzed business. This house owed thirty thousand dollars. A young-member of the firm went to New York to procure money, but reported that he could get none for any security. He expected to lose from the bank's failure. He had large investments in banks, manufacturing stocks, and in a ranch in Texas. Property in stocks, especially, was withering under the force of the depression of panic, and no man could well say what would be the ultimate outcome. The stoutest, strongest men quaked and trembled in that disastrous crisis. Why should not this old man fear the wolf at the door? It is very common, we know, from human nature, for men in age, who have been the stay and support of a family, to have excessive fear about those near and dear to them, after they shall have passed away. So that I do not see a controlling force in the circumstance which is spoken of. On one occasion Mr. Delaplain got out of his bay window, three and one-half feet from the ground, into the adjoining lot of the Presbyterian Church, with only his underwear on; but he seemingly recalled himself, and returned to his house. He was likely then thirsting for drink. The front door was kept locked so that he could not go out into the city to get drink, and likely this incident happened from that cause. On another occasion lie came down into the hall, wearing only his underclothes, while the Reverend Dr. Swope was sitting there; but, seeing him, Mr. Delaplain was embarrassed, and returned upstairs. This is unimportant. On the day before his death he walked into Mrs. Delaplain's room, where a lady was present, without his outerclothing on, and asked if that was Chapline street. On one occasion he talked to Dr. Wilson, his attending physician, several minutes, and then seemed to lose sight of who the doctor was, and said, "Why, that is you, Dr. Wilson, isn't it?" On another occasion his daughter-in-law sat down beside him in a car for some time without his recognizing her, but she did not at first recognize him, though much younger; and, when she said that she recently had a letter from her son, he asked her if it was not very hot where he was, he being absent as a consul at Demarara. A very natural question. He recalled his grandson's whereabouts. This substantially covers the strange and eccentric conduct of Delaplain, given to support the bill. Strange conduct, to a certain extent, it was; but many cases show, as stated in Buckcy v. Buckcy, supra, that it will not invalidate a deed or will.
Old men, especially when troubled, are very forgetful, very absent-minded; but that does not show that when they come down to the actual act of making a transfer, and have that subject specially and definitely upon the mind, they are incapable of that act. Judge Carr said in Burton v. Scott, 3 Rand. (Va.) 406: That eccentric action was stronger than any eccentricity of Delaplain in this case, and yet it was held not to affect a will, when it was correlated to the evidence of sanity. So I say in this case that those incidents can by no means offset the strong evidence of capacity of Delaplain, and the presumption of law that he was sane. Now let us turn to the opinion evidence. Dr. Wilson, the attending physician, expressed the opinion that Mr. Delaplain was incompetent to transact business, and his evidence is certainly not without weight, from his professional relations with Mr. Delaplain, and his capacity to judge of his sanity; but we must not let that evidence countervail the strong volume to the contrary. We must be very cautious how we overthrow the solemn deed of this man, who during a long life had evinced so much intelligence and force of character as a leading, successful business man. The Reverend Dr. Swope, a witness for the plaintiff, while relating the incidents above spoken of, sustains the competency of Delaplain, from the fact that, when asked for his judgment as to Delaplain's ability to attend to important matters of business, he responded that he...
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