Cyrus v. Tharp, 12145

• Decision Date: 19 June 1962
• Docket Number: No. 12145,12145
• Citation: 126 S.E.2d 31,147 W.Va. 110
• Court: West Virginia Supreme Court
• Parties: T. R. CYRUS v. J. C. M. THARP et al.

Page 31

126 S.E.2d 31

147 W.Va. 110

T. R. CYRUS v. J. C. M. THARP et al.

No. 12145.

Supreme Court of Appeals of West Virginia.

Submitted May 1, 1962.

Decided June 19, 1962.

Syllabus by the Court

1. 'A person is mentally competent to make a conveyance of land if he knows the nature, character and effect of his deed.' Point 1 Syllabus, Carrigan v. Davis, 84 W.Va. 473 .

2. 'The presumption of law is in favor of the sanity and mental capacity of a grantor, and the person attacking his conveyance on the ground of his incapacity, or the exertion of undue influence over him in inducing him to make the deed, bears the burden of proof. One who charges fraud and undue influence must prove it.' Point 2 Syllabus, Carrigan v. Davis, 84 W.Va. 473 .

3. '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.' Point 5 Syllabus, Buckey v. Buckey, 38 W.Va. 168 .

4. 'To set aside a deed for undue influence, it must appear that the influence was such as wholly to destroy the free agency of the grantor, and to substitute the will of another for his; and unless such taking away of free agency appears, the showing of a motive and an opportunity to exert such undue influence, together with failing mental powers of the grantor, are not sufficient to overthrow the deed.' Point 5 Syllabus, Woodville v. Woodville, 63 W.Va. 286 .

5. 'The time of the execution of a deed is the material or critical point of time to be considered upon the inquiry as to the grantor's capacity to make the deed.' Point 4 Syllabus, Woodville v. Woodville, 63 W.Va. 286 .

6. The evidence of an officer taking the acknowledgment to a deed, or of a person present at its execution, or of a physician who observed or treated the grantor at or near the time of the execution of the deed, is entitled to peculiar weight in considering the grantor's capacity.

7. 'This Court will reverse a trial chancellor's findings of fact if clearly wrong or against the preponderance of the whole evidence.' Point 3 Syllabus, Tokas v. Arnold Co., 122 W.Va. 613 .

Ferguson, Baer & Ferguson, Charles W. Ferguson, III, Huntington, for appellants.

Chad W. Ketchum, Tom T. Baker, Huntington, for appellee.

CALHOUN, President.

On June 28, 1958, Olive M. Adkins, a widow, executed a deed dated June 24, 1958, conveying a house and lot in Huntington, West Virginia, to J. C. M. Tharp and Pearl Tharp, husband and wife. The grantor in the deed died intestate on July 1, 1958, the fourth day after the day on which the deed was executed. T. R. Cyrus, her brother and sole heir at law, who is referred to herein as the plaintiff, instituted a suit in chancery in the Circuit Court of Cabell County against J. C. M. Tharp and Pearl Tharp, who are referred to herein as defendants or as the Tharps, seeking to set aside such deed and to have it declared null and void on the ground that the grantor lacked the requisite mental capacity at the time the deed was executed and on the ground of fraud and undue influence alleged to have been practiced upon her by the grantees.

The testimony was taken orally at the bar of the court on February 25, 1959. At the conclusion of the testimony, the court took the case under advisement and it was accordingly continued. On February 17, 1961, the court entered a final decree, setting aside the deed in accordance with the prayer of the bill of complaint.

This appeal, granted at the instance of the defendants by this Court on November 27, 1961, involves primarily the question whether the judgment of the trial court is sustained by the evidence when measured by applicable legal principles. A determination of that question requires a review of pertinent proof bearing on the question of the mental capacity of Olive M. Adkins at the time she executed the deed in question. Evidence of fraud and undue influence is so meager as to lack significance when considered apart from the precise question of mental capacity.

Both T. R. Cyrus, the plaintiff, and J. C. M. Tharp, defendant, testified extensively both on direct examination and on cross-examination. No question has been raised on this appeal concerning their competency to testify.

Olive M. Adkins was more than eighty years of age, and perhaps eighty-five, when the deed in question was executed. For many years she kept roomers and boarders for compensation at the home which she conveyed to the defendants. About two years prior to her death, her son died, and thereupon her brother, the plaintiff, moved to her home and continued to live there until her death. The evidence fails to disclose affirmatively a very close relationship between the sister and brother meantime. He was seventy-five years of age at the time of the trial. After the death of her son, Mrs. Adkins continued to keep roomers but discontinued keeping boarders.

In June, 1958, Mrs. Adkins developed a severe infection following the extraction of two teeth. A doctor visited her and treated her at her home for about a week and thereafter had her entered as a patient in the Cabell-Huntington Hospital on June 24, 1958. As stated earlier herein, her death occurred on July 1, 1958.

Apparently the defendants became acquainted with each other and were married at Mrs. Adkins' home. There can be no question from the evidence of the fact that a close and cordial relationship existed between Mrs. Adkins on one hand and the Tharps on the other over a considerable period of years, extending down to the date of her final illness and death.

The close and cordial relationship between Mrs. Adkins and the Tharps, particularly Mr. Tharp, who is referred to by witnesses as 'Monty,' was manifested in many ways. This appears from various witnesses on both sides of the case. Lawrence Pauley, an attorney of Huntington since 1958, at one time lived in the home of Mrs. Adkins for two years while gainfully employed and while attending Marshall University. From his testimony it is apparent that he also developed a very cordial relationship with Mrs. Adkins which continued until her final illness. He testified that the Tharps visited Mrs. Adkins quite frequently; that she called upon Mr. Tharp from time to time to take her to her doctor and that he paid the doctor bills; that his employees from his place of business painted her house 'from top to bottom' and repaired the front porch; that he 'took care of' the funeral arrangements for her son; that Mr. Tharp was her best friend; that she was 'always referring to Monty. Monty this and Monty that'; that Mrs. Adkins had stated to the witness that her brother, the plaintiff, merely went into and out of his room and was 'not a bit of comfort in the world to me'; that she stated also that her brother paid no bills except utility bills and did not bring home anything from his store; that the Tharps from time to time took her to their home and to their cottage on the river; that both he and Mrs. Adkins were once at the Tharp home for Christmas; and that Mrs. Adkins 'told me on many occasions that Monty had been keeping her for years.'

Dove Rader, a former wife of the plaintiff, testified that she stayed at the home of Mrs. Adkins during her final illness immediately before she entered the hospital; and that on that occasion Mrs. Rader called Monty and he procured a doctor to treat Mrs. Adkins. The plaintiff himself testified that Mr. Tharp paid $100 to have Mrs. Adkins entered as a patient in the hospital. He did not know who paid the additional hospital and doctor bills, but he testified that in any event he did not receive any such bills. He testified that it was Mr. Tharp who first notified him that his sister had entered the hospital. The plaintiff was away from his sister's home and in another part of the city at the time. Apparently Mr. Tharp notified the plaintiff of his sister's death.

Testimony of various witnesses on both sides discloses clearly that the Tharps desired and urged Mrs. Adkins from time to time to come to live with them in their home, but she preferred to continue to live in her own home, the one involved in this suit. Phyllis Dean, a housewife and an intimate friend of Mrs. Adkins for about twenty-five years, testified that Mrs. Adkins regarded Monty as a son. She said he bought medicine for her and took her to various places. This witness testified further that, on two different occasions, Mrs. Adkins, referring to Monty and work he had done about her home, stated: 'Well, he can do what he wants, because it is his house.' Carmen Abele, a close friend of Mrs. Adkins for thirty years, testified that Mrs. Adkins considered Monty as a son because he had done so much for her, and she 'always' said she wanted the Tharps to have her home, because 'they had been closer to her than anyone else.'

In brief, the testimony is overwhelming to the effect that a cordial relationship and one of mutual affection existed between Mrs. Adkins and the Tharps. Evidence to the contrary is quiet meager. We do not, of course, mean to imply that a proper decision of this case depends on the existence or nonexistence of such cordial relationship, but such relationship has a pertinent bearing on the question of the reason or inducement for the making of the deed.

The deed in question recites that it was made 'in consideration of the sum of Ten ($10.00) Dollars, cash in hand paid, and other good and valuable considerations.' At the time Mr. Tharp arranged with an attorney to prepare the deed, he instructed the attorney to prepare also a written contract for the protection of Mrs. Adkins. The deed and contract bear the...