Curtis S. v. Curtis S.

• Decision Date: 28 October 1919
• Court: West Virginia Supreme Court
• Parties: Clinton A. Curtis et als. v. I. R. Curtis et als.

85 W.Va. 37

Clinton A. Curtis et als.

v.I. R. Curtis et als.

Supreme Court of Appeals of West Virginia.

Submitted October 21, 1919.

Decided October 28, 1919.

1. Witnesses Heir Incompetent to Testify as to Mental Capac-

ity of Grantor.

One who would inherit an interest in land, in case a deed, which is attacked upon the ground of lack of capacity of the grantor, is set aside, is incompetent to testify as to the mental capacity of the grantor in such deed, and this disqualification extends to the wife or husband of such person. (P. 40).

2. Same Where Grantee Testifies as to Competency of Grantor

Adverse Parties Can Testify.

Where, however, the grantee in such deed testifies as to the mental capacity of the grantor therein, those seeking to overthrow the same become competent witnesses upon that question under the exception contained in section 23 of chapter 130 of the Code. (p. 40).

3. Deeds Prima Facie Proof of Undue Influence.

Proof that the grantor in a deed was feeble, both in body and mind, reposed great confidence and trust in her son, the grantee therein, who acted as her agent under a power of attorney giving him full authority to manage, dispose of and convey her estate, that he procured his attorney to prepare the deed conveying all of the grantor's estate to him for an insubstantial consideration to the exclusion of another son and a daughter who were left entirely unprovided for, and which deed was executed while the grantor was living with the grantee in his home, without any independent advice being obtained by the grantor or any opportunity for obtaining such advice, establishes prima facie the charge of undue influence by the son, and where such prima facie case is not overthrown by clear evidence that the grantor was of sound mind and acted independently and upon her own judgment in executing such deed, the same will be set aside. (p. 41).

Appeal from Circuit Court, Upshur County.

Suit by Clinton A. Curtis and Mollie E. McNemar against I. R. Curtis and others, to cancel a deed. Decree for plaintiffs, and the named defendant appeals.

Affirmed.

C. N. Pew and II. Roy Waugh, for appellant.

Young & McWhorter, for appellees,

Ritz, Judge:

The plaintiffs Clinton A. Curtis and Mollie E. McNemar, and the defendant I. R. Curtis are children of Katherine E. Smith, who was twice married, her first husband being Tsom Curtis, the father of the plaintiffs and the above named defendant. After the marriage of Mrs. Smith to her last husband she resided with him on a farm in Upshur county until the spring of 1912, when their house was destroyed by fire. They then for something like a year lived with various of the children of Mr. Smith by his first wife. Early in the year 1913 they acquired a house in the town of Buckhannon in what is known as the Liggett Addition, which was conveyed to Mrs, Smith, although paid for by her husband, in consideration that she release her contingent right of dower in some other lands owned by him. The Smiths continued to reside at this place until the death of the husband in the latter part of July, 1915. At that time it is conceded by all parties that Mrs. Smith was in a very feeble physical condition, and it is contended by the plaintiffs that her mental faculties were very much impaired, if not entirely destroyed. After thy funeral of Mr. Smith, and on the same day, the plaintiffs say that at the instance of their brother I, R. Curtis they entered into an arrangement for taking care of their mother. According to their contention it was agreed among them that her mental and physical condition was such that she was not able to take care of herself or of her property, and they agreed that she should live with that one of her children that she might select, and that such one should receive reasonable compensation for caring for her out of her property, and at her death what remained should be divided equally among them. She was allowed to remain at her home for a few days after her husband's death in charge of Mr. and Mrs. Queen, who were employed for the purpose of caring for her. She was then removed to the home of her daughter Mrs. MclNemar in Lewis county, where she remained until about the 25th of September, 1915. At that time she was taken back to Buckhannon and placed in the home of Mr. and Mrs. Queen, where she remained until about the third of October, when she was taken to the home of I. B. Curtis, also in the town of Buckhannon, where she remained until her death on the 19th of December, 1915. On the 30th day of July, 1915, the defendant 1. B. Curtis procured from his mother a power of attorney authorizing him to transact her business, sue for and recover any monies that might be due her from anyone, collect the same, to compound or compromise for the same and give discharges therefor, make settlement of her interest in the estate of her late husband Phillip Smith, and also of her interest in the estate of her deceased father, Eandolph Jackson, to sign any bond, deed, obligation, contract or other paper, to endorse promissory notes and renew the same from time to time, to draw any money she might have out of any banks, to sell or lease any part or parts of her real estate, and to make all necessary deeds of conveyance, with all necessary covenants of warranty and assurances of title, and sign, seal and acknowledged the same, and to do all other acts and things-in relation to all or any part of her affairs that she might do herself. This power of attorney he had recorded in the office of the clerk of the county court of Upshur county. On the 17th day of November, 1915, a deed was executed by Mrs. Smith conveying to I. B. Curtis all of her real estate, consisting of her house and lot in the town of Buckhannon, and her interest in her father's farm in Lewis county. This deed was also placed upon the record on the same day that it was executed and acknowledged, but the plaintiffs say that they had no actual knowledge of it until after the deatn of their mother in December. Shortly after their mother's death they instituted this suit for the purpose of setting aside and cancelling said deed, upon the ground that it was in violation of the agreement had between the plaintiffs and the defendant I. R. Curtis in regard to taking care of their mother, and the division of the property, and upon the further ground that she was without capacity to make such deed at the time she made the same, and that it was procured from her by undue and fraudulent influence. Much evidence was taken upon the question of the capacity of the grantor to make this deed, and to show the relationship of the various parties to the transaction. The circuit court entered a decree cancelling the deed, holding that Mrs. Smith did not have capacity to execute the same, and that it was procured from her by the undue influence of the grantee. From this decree this appeal is prosecuted.

In support of the allegations of their bill that their mother did not have capacity to make the deed sought to be overthrown, both of the plaintiffs, as well as their respective spouses, testify as to the mental capacity of Mrs. Smith. There was no objection made to their testimony in this regard at the time it was introduced, nor was it objected to for this reason at any time in the lower court, but it is now for the first time suggested that they were not competent to testify as to the mental capacity of the grantor in that deed, for the reason that it would be in effect testifying to personal communications with the deceased grantor. It is well settled in this jurisdiction that the one claiming under a deceased person cannot, in a suit affecting his estate, give his opinion as to the mental capacity of such deceased person, as such opinion must be based upon communications had with the deceased. Impressions or conclusions reached by the witness as to the sanity or insanity of a deceased party must be arrived at from observations of the conduct of, or from communications had with, such deceased person, and in either event they fall within the inhibition of the statute. Trowbridge v. Stone, 42 W. Va. 454; Freeman v. Freeman, 71 W. Va. 303. And it is likewise true that where a witness is disqualified to testify as to such personal communications, his spouse is under like disability." Freeman v. Freeman, supra; Kilgore v. Harriey, 27 W. Ya. 451.

But the plaintiffs say that while these witnesses were not competent to testify at the time their evidence was taken, they became competent before any objection was made thereto, or before their evidence was ever read by the chancellor, because the defendant and his wife, who were under the same disability, testified as to the mental condition of Mrs. Smith. It is quite true that the defendant and his wife both testify at length as to the mental capacity of the grantor in the deed, and give their opinions in regard thereto. It is insisted that this was testifying in regard to the same communications or transactions to which the testimony of the plaintiffs was directed. It may be said that the observations of the grantor by the witnesses extend practically over the same period of time, they were of the same general character, and the opinions formed are conclusions reached from the same communications or transactions with the deceased party, and if one of the parties testifies in regard to such communications or transactions, under the exception contained in section 23 of chapter 130 of the Code, the other interested party is authorized to give his version of the transactions or communications. This was the conclusion reached by this Court in the case of Wooldridge v. Wooldridge, 69 W Va 554-8. Our conclusion, therefore, is that while the plaintiffs and their spouses were not competent witnesses at the time their testimony was taken, still by the action of the defendant in introducing himself and his wife to testify in regard to the mental condition of his mother he made this evidence...