Davis v. Dean

• Decision Date: 02 February 1886
• Citation: 66 Wis. 100,26 N.W. 737
• Parties: DAVIS AND OTHERS v. DEAN AND OTHERS.
• Court: Wisconsin Supreme Court

66 Wis. 100

26 N.W. 737

DAVIS AND OTHERS

v.DEAN AND OTHERS.

Supreme Court of Wisconsin.

Filed February 2, 1886.

Appeal from circuit court, Rock county.

Hannah W. Sparrowk, late of the county of Rock, died intestate November 29, 1883. The plaintiffs and the defendant Alice C. Dean are her only heirs at law. The defendant John Sparrowk was her husband. On November 23 of that year she executed to the defendant George E. Dean conveyances of certain real estate in that county owned by her. The land so conveyed was worth between $4,000 and $5,000, and constituted substantially the whole of her estate. Her conveyances to Dean were made without consideration. Her husband, John Sparrowk, signed the conveyances, but is not named therein as a grantor. This action was brought to procure the rescission and cancellation of such conveyances on the grounds that Mrs. Sparrowk, when she executed them, was not of sound and disposing mind and memory; and if she was, that they were obtained by means of the fraud of the grantee, and the exercise by him of undue influence upon the grantor. The cause was tried in the circuit court, and resulted in findings that Mrs. Sparrowk, when she executed the conveyances, was mentally competent to make valid conveyances of her land, and that the same were executed by her voluntarily, and of her own free will, without fraud or undue influence on the part of her grantee, and consequently that such conveyances were valid. Judgment was thereupon entered dismissing the action, with costs. The case is further stated in the opinion. The plaintiffs appeal from the judgment.John M. Whitehead, for appellants.

B. F. Dunnwiddie and O. H. Fethers, for respondents.

LYON, J.

It may be well at the outset to state the relation of the parties to each other and to this controversy. For many years previous to 1863 or 1864, John Sparrowk owned, and with his wife and family lived upon, a farm of 80 acres in the town of La Prairie, in Rock county, and continued to reside there until the death of Mrs. Sparrowk, in 1883. He also owned a wood lot in the town of Bradford, in the same county, containing 14 2/3 acres. In 1863 or 1864, he conveyed all his said land to his wife, through the intervention of a trustee, and the title thereto remained in her until she executed the deeds to Dean. Mr. and Mrs. Sparrowk were married in 1832, and had six or seven children. Of these only the plaintiff Mary Melissa Davis (who is a married woman) survived in 1883. One of the deceased children, a daughter, was the wife of Henry Davis. She left eight children, who are still living. One of these is the defendant Alice C. Dean, wife of the defendant George E. Dean. The other seven, together with Mary Melissa, are the plaintiffs in this suit. Four of the Davis children are minors, and appear herein by their duly-appointed guardian ad litem, Henry Davis, their father.

The defendant George E. Dean went to live with Mr. and Mrs. Sparrowk when he was seven years old, and continued to live with them most of the time until his marriage with their granddaughter, Alice C. Davis, and afterwards until the spring of 1883, when they removed to another house about one-fourth of a mile distant. Mr. and Mrs. Sparrowk always treated him as a son, and he called them father and mother. They had no living son when he went to them, or afterwards, and although they never formally adopted him, they regarded him as their child, and each stood in loco parentis to him. During the year 1883 the strength of Mrs. Sparrowk, then in her eightieth year, materially failed, as did also her intellectual faculties, especially her memory. This was not the result of disease, but of old age. She had been a strong active woman, but at the time above mentioned was very feeble, could scarcely walk at times, and required assistance to rise from her chair. It frequently happened that after she had related something she would repeat it many times, forgetting that she had told it before. It is probable, however, that she retained sufficient mental capacity to transact any ordinary business, yet it cannot be doubted that as her bodily and mental infirmities progressed with her advancing age she was liable to be more easily controlled or influenced by those about her, particularly members of her own family, upon whose kindly offices she was obliged to rely more and more for her comfort and welfare.

On Friday, November 16, 1883, Mrs. Sparrowk, in attempting to seat herself in a chair, fell to the floor and fractured the neck of her left thigh bone (the femur) within the capsular ligament. Of course such an injury is a very serious one, and when suffered by a person of her age, and in her condition, is almost necessarily fatal. Dr. Seeber was called and reduced the fracture, but had little or no hope of her recovery. He administered to her morphine and Dover's powders on the day she was injured. On the next day, Saturday, November 17th, he added quinine and whisky to the treatment, because he found her nervous and prostrated from the effects of the injury. The same treatment was continued until the following Wednesday, when the quantity of the tonic was increased somewhat. On Thursday the doctor put her upon bromide of potassium to quiet her nerves, and she seems to have been kept upon that treatment for some days. She took but very little food after she was injured. She constantly weakened, and her voice became so weak that it was difficult to hear what she said.

Mrs. Sparrowk suffered most intense and agonizing pains from her injury, at times, for nearly a week. She often groaned and screamed with pain. She had a high, nervous fever nearly all the time, except a few hours in the early morning of each day, when it seemed to abate. She would frequently wring the bed clothes with her hands, and would throw them off, exposing her person. She took no notice of the calls of nature, and it did not seem to disturb her when she had involuntarily responded to them without preparation therefor. She was also afflicted with bed sores. In a word, her condition was most deplorable. On Thursday night, November 22d, she was peculiarly restless and in great pain until about 1 o'clock on Friday morning, when she sank into a sound sleep and slept until daylight. Up to this time bromide of potassium had been administered very freely to her; sometimes as often as once an hour. From this time there seems to have been a marked change in her condition. She does not appear to have suffered, or, at least, to have been conscious of such intense pain. She was awake during the forenoon of Friday about two hours, and seemed unusually bright. During this time she disposed of her personal effects, or some of them, by directing her husband to whom they should be given,--principally to her grandchildren.

During the forenoon of Friday she again fell asleep and slept soundly most of the day. She was evidently in a partially comatose condition a portion of the time, for her brother went there during the afternoon and tried to awaken her by shaking her, but failed.

The evidence leaves no reasonable doubt that from Saturday morning, November 24th, until her death, which occurred on Thursday, the 29th, she was entirely incompetent to transact any business whatever. She was very weak and exhausted, and failed rapidly. Although she would occasionally make an intelligent remark, she was for most of the time stupid or unconscious. Her daughter came to her on that Saturday forenoon, at about 11 o'clock, and remained with her until she died. When she first came her mother seemed to recognize her, but for a moment only, after which she gave no sign that she knew her daughter was with her. Her brother and his wife came to see her during the same Saturday forenoon, and tried to talk with her, but could obtain from her no response or recognition. There was no improvement thereafter at any time in her physical or mental condition, but the reverse. Dr. Seeber made his last professional visit to her on Tuesday, the 27th. He testified that she died of nervous prostration.

Most of the facts above stated are established by uncontradicted and most credible testimony; the remainder of them by an overwhelming preponderence of evidence. They are verities in the case, and no finding to the contrary can be upheld. The deeds in controversy were executed by Mrs. Sparrowk during the evening of Friday, November 23d, some time between 9 o'clock and midnight. Besides Mr. and Mrs. Sparrowk, there were present at the time only Dr. Seeber, A. E. Joiner, who was a justice of the peace of Rock county, and Mr. and Mrs. Dean. The only witnesses who testify to what occurred at that time are Dr. Seeber, Mr. Joiner, and John Sparrowk. Their testimony in that behalf details minutely the transactions of that evening. We shall not attempt here to state those transactions. It is conceded that such testimony, standing alone, is sufficient to support the finding of the circuit court that Mrs. Sparrowk then had sufficient mental capacity to make a valid conveyance of her property. But the testimony does...