Dickey v. Clarke

• Decision Date: 26 October 1943
• Docket Number: 7112
• Citation: 142 P.2d 597,65 Idaho 247
• Parties: FREDERICK BRUCE DICKEY, Executor of the Last Will and Testament of Bruce Dickey, deceased, Appellant, v. ROBERT E. CLARKE and BRUCE ROBERT DICKEY, Respondents
• Court: Idaho Supreme Court

142 P.2d 597

65 Idaho 247

FREDERICK BRUCE DICKEY, Executor of the Last Will and Testament of Bruce Dickey, deceased, Appellant, v. ROBERT E. CLARKE and BRUCE ROBERT DICKEY, Respondents

No. 7112

Supreme Court of Idaho

October 26, 1943

1. Appeal and error

Trial court's findings supported by substantial evidence are controlling on appeal, and where there is sufficient uncontradicted evidence to support the findings, they will not be disturbed.

2. Deeds

A confidential relationship between a grantor and a grantee is not alone sufficient to cast upon the grantee the burden to show an absence of undue influence by proving that the transaction was in good faith on his part and was equitable and just.

3. Deeds

"Undue influence", to vitiate a deed, must amount to force and coercion, destroying free agency, and must not be the influence of affection and attachment, or the mere desire of gratifying the wish of another, and it must be proved that the deed was obtained by coercion or by importunity which could not be resisted and that it was done merely for the sake of peace so that the motive was tantamount to force or fear.

4. Deeds

Evidence sustained decree quieting title under deed to grantor's son-in-law and grandson whom grantor had adopted and refusing to quiet title in favor of grantor's executor on ground son and grandson had not exercised undue influence over grantor.

5. Deeds

Where deceased grantor understood the nature and effect of his deed and was fully competent and capable of executing the deed which was not executed at the suggestion or request of grantees, and grantees did not exert over grantor any undue fraudulent, or unlawful influence, but execution of deed was grantor's free and voluntary act, confidential relationship between the parties did not invalidate deed.

6. Deeds

A grantor who has mental capacity sufficient to understand ordinary business transactions at the time of execution of the deed, and understands the motive and effect of his deed knows what property he is conveying and to whom it is being conveyed, is competent to make such deed.

7. Trial

Generally findings of fact are to be liberally construed in support of the judgment and will receive the most liberal construction the language used will permit in order to sustain a judgment founded thereon.

Appeal from the District Court of the Seventh Judicial District for the State of Idaho, in and for the County of Canyon. Hon. Thomas E. Buckner, Judge. Suit and cross suit to quiet title. Decree for defendants and respondents.

Affirmed.

Geo. Donart, for appellant.

In an action to set aside a deed where one party claims under a conveyance executed by a person to whom he stood in a relation of trust and confidence, such party must assume the burden of proving that said deed was executed and delivered without the exertion of any undue influence upon the grantor by the grantee. (Cox v. Schnerr, 172 Cal. 371, 156 P. 509; Wilbur v. Wilbur, 197 Cal. 1, 239 P. 332; Nobles v. Hutton, 7 Cal.App. 14, 93 P. 289; Payne v. Payne, 12 Cal.App. 251, 107 P. 148.).

Where the court fails to make a finding of fact on all material issues made by the pleadings, the judgment must be reversed unless a finding on such issue would not affect the judgment entered. This rule applies with equal force with respect to findings on issues raised as an affirmative defense in an answer. (Lorenzi v. Star Market Co., 19 Idaho 574, 19 Ida. 674, 115 P. 490; Berlin Machine Works v. Dehlbom Lumber Co., 29 Ida. 494, 160 P. 746.).

Walter Griffiths and Richards & Haga, for respondents.

The facts constituting undue influence like those constituting fraud must be pleaded and the mere averment of undue influence is the statement of a legal conclusion and of no avail unless the facts are set forth. (Kelly v. Perrault, 5 Ida. 221, 48 P. 45; Bancroft on Pleading, vol. 1, p. 99; Turner v. Gumbert, 19 Ida. 339, 114 P. 33.).

Where appellant's contention is that execution of a deed was not the free and voluntary act of grantor, a finding of ultimate fact negativing such contention is sufficient. (Stewart v. Stewart, 32 Ida. 180, 180 P. 165; Mine etc. Co. v. Idaho etc. Mines Co., 20 Ida. 300, 118 P. 301.).

Opportunity of exercising undue influence is not sufficient. It must appear that undue influence was actually exercised at the time the act was done. (Turner v. Gumbert, 19 Ida. 339, 114 P. 33; In re Burke's Will, 86 Misc. 151, 149 N.Y.S. 142, 12 Mills 239; Wilcoxon v. Wilcoxon, 46 N.E. 369 (Ill.) .).

The fact that the grantor was aged, feeble, diseased or physically weak is insufficient to show undue influence. (Kelly v. Perrault, 5 Ida. 221, 48 P. 45; Black on Recission of Contracts, vol. 1, p. 654; Curtis v. Kirkpatrick, 9 Ida. 629, 75 P. 760; Boyer v. Berryman, 24 N.E. 249 (Ind.) ; Harris v. Walmsley, 41 Iowa 671.).

HOLDEN, C.J. Ailshie and Givens, JJ., and Winstead, D.J., concur. Budge, J., did not sit at the hearing or participate in the decision. Dunlap, J., considered himself disqualified and did not sit at the hearing or participate in the decision.

OPINION

HOLDEN, C.J.

June 14, 1940, at San Marino, California, Bruce Dickey, now deceased, then and at the time of his death a resident of the State of Idaho, executed his last will and testament. By his will, the deceased devised and bequeathed all his property to his son, Frederick Bruce Dickey, in trust, stating that:

"It is the express provision of this trust that should BRUCE ROBERT DICKEY (minor grandson of the testator) not have attained his majority at the time of my death and should one-half (1/2) of the net income from this trust in the discretion of my Trustee, be not sufficient to provide said BRUCE ROBERT DICKEY with a reasonable education, and if BRUCE ROBERT DICKEY is not financially able to pay for said education, then my Trustee shall hold such portion of all net income as in his discretion is necessary, and if that be not sufficient, said Trustee may pay to, apply or expend, so much of the principal as said Trustee may deem necessary and advisable for the purpose. Providing the one-half of the net income shall be sufficient to provide the education as above, then the remaining one-half or any portion thereof unused for the above purpose, shall be distributed to FREDERICK BRUCE DICKEY, or to his issue."

The will further provided that:

"When BRUCE ROBERT DICKEY, has attained majority, I direct my Trustee to distribute the trust estate as follows:

"One-half (1/2) thereof to FREDERICK BRUCE DICKEY, or to his issue;

"One-fourth (1/4) thereof to BRUCE ROBERT DICKEY, or to his issue;

"The remaining one-fourth (1/4) shall be retained and administered by the Trustee until BRUCE ROBERT DICKEY shall have attained the age of twenty-five (25) years, at which time my Trustee shall deliver the entire principal and accumulated income, to BRUCE ROBERT DICKEY, or his issue.

"Should BRUCE ROBERT DICKEY die during the administration of this estate or during the time of operation of this trust, without issue, then this trust shall terminate and my trustee is directed to pay all expenses for a proper funeral and burial and the entire estate shall go and be transferred and delivered in fee to FREDERICK BRUCE DICKEY, or to his issue."

March 2, 1942, Bruce Dickey, deceased, signed a lease to the 120 acre farm, owned by him, located in Canyon County, Idaho (the farm involved in this controversy), on a share-the-crops basis, to Robert E. Clarke, for a term of three years. On that date Bruce Dickey acknowledged the execution of the lease by him before M. C. Baldridge, notary public. March 10, 1942, Bruce Dickey (then and for some time prior thereto a widower) executed to Robert E. Clarke (a former son-in-law, the wife, a daughter of Bruce Dickey, being deceased) and to Bruce R. Clarke (seventeen year old minor grandson, as well as adopted child), a deed to the said 120 acres of farm land, for a recited consideration of $ 1.00. March 12, 1942, the execution of the deed was acknowledged before M. C. Baldridge, notary public.

March 14, 1942, Bruce Dickey and Robert E. Clarke (R. E. Clarke and Robert E. Clarke being one and the same person), leased to one E. A. Wyatt, for a term of a year, a five room house, barn and chicken house standing on the land described in the above mentioned deed, at a rental of $ 20.00 per month. March 16, 1942, the execution of this lease was acknowledged before M. C. Baldridge, notary public, by Bruce Dickey, R. E. Clarke and E. A. Wyatt, being all of the parties to the lease.

March 18, 1942, Bruce Dickey died on the farm in litigation here.

April 3, 1942, the said will was admitted to probate in the Probate Court of Canyon County, Idaho, as the last will and testament of the said Bruce Dickey, deceased, and thereupon the said Frederick Bruce Dickey, named by the deceased and appointed by the court, executor, duly qualified as the executor of said last will and testament, and entered upon the discharge of his duties.

May 19, 1942, Frederick Bruce Dickey, executor of the last will and testament of Bruce Dickey, deceased, filed a complaint against defendants and respondents Robert E. Clarke and Bruce Robert Dickey (Bruce R. Clarke and Bruce Robert Dickey being one and the same person), a minor, in the District Court in and for Canyon County, to quiet title to the property described in the deed executed by Bruce Dickey to Robert E. Clarke and Bruce Robert Clarke, as above stated.

June 6, 1942, defendants and respondents answered the executor's complaint and also filed a cross-complaint. By their cross-complaint defendants and respondents sought to quiet title in themselves to the tract of land described in the said deed executed by Bruce Dickey March 10, 1942.

July 28,...