Doak v. Smith

• Decision Date: 13 February 1923
• Docket Number: No. 4595.,4595.
• Citation: 93 W.Va. 133
• Court: West Virginia Supreme Court
• Parties: J. S. Doak, Admr. oF Charles Doak, v. Victoria E. Smith.

93 W.Va. 133

J. S. Doak, Admr. oF Charles Doak,

v.Victoria E. Smith.

No. 4595.

Supreme Court of Appeals of West Virginia.

Submitted January 23, 1923.

Decided February 13, 1923.

1. Evidence Appellate Court Will Not Take Judicial Notice of Dates of Regular Terms of County Courts.

The appellate court will not take judicial notice of the dates at which a county court holds its regular terms. (p. 185).

2. Insane Persons Appointment of Committee for Non Compos Mentis, Regular on Face, Cannot be Collaterly Attacked.

The appointment of a committee for a non compos mentis, appearing to have been regularly made by the county court in the manner prescribed by law, cannot be attacked collaterally. (p. 135).

3. Same County Court Not Precluded from Appointing Com-mittee for Non Compos Mentis Because Not Pronounced Insane.

Chapter 51, Acts 1915, does not preclude a county court from appointing a committee for a person found to be non compos mentis, until after the commission of lunacy has pronounced him a lunatic or insane. (p. 135).

4. Same Non Compos Mentis May Maintain Suit to Cancel Deed Executed While Mentally Incapacitated. and When He Had No Committee.

The committee of a person insane, or non compos mentis, can maintain a suit to set aside and cancel a deed or other conveyance made by such person while mentally incapacitated and when he had no committee. (p. 136).

5. Deeds Mere Infirmity of Mind and Body Insufficient to Over-come Presumption of Legal Capacity of Grantor in Deed; Test of Mental Capacity of Grantor in Deed Determined as of Its Date; Inability to Understand Nature and Consequences of His Act Must Affirmatively Appear to Set Aside Deed of Grantor; Free Agency of Grantor of Deed Must be Destroyed to Constitute Undue Influence; Mere Motive and Opportunity to Exert Undue Influence Not Sufficient; Burden of Overcoming Presumption of Mental Incapacity to Execute Deed and of Undue Influence Upon Assailing Party; Evidence Held Insufficient to Cancel Deed for Incapacity and Undue Influence.

Tn a suit to cancel a deed on the ground of mental incapacity in the grantor, coupled with undue influence on the part of the grantee or of some one for him, mere age or infirmity of mind and body is not sufficient to overcome the legal presumption of capacity in the grantor; the true test of his mentality is to be determined as of the time the deed was made and acknowledged, and it must affirmatively appear that he did not then have mind sufficient to understand the nature and consequences of his act, the property conveyed and the objects of his bounty. The undue influence must be shown to be such as to wholly destroy the free agency of the grantor and to substitute the will of another for his, and mere motive and opportunity to exert such influence will not be sufficient. The burden of overcoming the presumption of capacity, and of showing undue influence as defined, is upon the one assailing the deed on these grounds, either by direct or circumstantial evidence. A case in which this burden has not been successfully carried by plaintiff. (p. 137).

Appeal from Circuit Court, Doddridge County.

Suit by J. S. Doak, administrator of Charles Doak, against Victoria E. Smith. From a decree for plaintiff, defendant appeals.

Reversed, and bill dismissed.

G. W. Farr and L. W. Chapman, for appellant.

Law & McCue and J. Ramsey, for appellee.

Lively, Judge:

The decree complained of on this appeal cancelled a deed from Charles Doak to Victoria E. Smith, dated December 5, 1919, on the ground that the grantor was mentally incapacitated to make a deed to his property, and that he had been unduly influenced by the grantee.

Plaintiff was duly appointed and qualified as committee of Charles Doak on June 15, 1920, and his right to maintain the suit is challenged, because it is asserted in the brief that the appointment was made at a special term of the county court without proper notice duly posted that such business would be transacted at the special term, and Mayer v. Adams, 27 W. Va. 245, and Kirtley v. Co. Ct., 69 W. Va. are cited to sustain that proposition. The right to sue is also challenged, because it is asserted that under chap. 51 Acts 1915, the county court had no authority to make such appointment until the lunacy commission had first determined that he was insane. We find nothing in the record to the effect that the appointment was made at a special term of the county court, and the bill avers that he was appointed and qualified and is the legal committee, and a certificate of the appointment is exhibited. We do not take judicial notice of the regular terms of county courts, which are held at such times as may be fixed upon and entered of record by the county court. Chapter 39 see. 6 Code. The appointment of a committee cannot be collaterally attacked. Lance v. McCoy, 34 W. Va. 416; Tomblin v. Peck, 73 W. Va. 336. Under the constitution. Art, VIII, sec. 21, county courts have jurisdiction in all matters relating to the appointment and quali- fication of committees, and that jurisdiction cannot be taken away from them by requiring the lunacy commission to first pass upon the alleged insanity of a person. Chap. 51, Acts 1915 (Chap. 58 Code) does not limit the general jurisdiction of county courts in the appointment of committees for persons found to be non compos mentis, and not mentally capable of intelligently conducting their business affairs and conserving their property. Under section 20 of that act it becomes the duty of the county court to appoint a committee or guardian for a person who is declared to be insane by the commission of lunacy, or who is committed to a state hospital. That act was designed to jealously guard the method of determining the insanity or sanity of a person suspected of being insane, and his consequent incarceration in one of the eleemosynary institutions. The appointment of a committee or guardian was only incidental to the main purpose and does not repeal by implication the general jurisdiction of the county court to appoint committees for those persons found to be non compos mentis. Miller v. Sterringer, 66 W. Ya. 169; Leatherman v. Leatherman, 82 W. Va. 748. The appointment is regular on its face, and, even if it were voidable, cannot be attacked collaterally. Colley v. Calhoun, 89 W. Va. 399, 109 S. E. 484.

Defendant also challenges the right of the committee to maintain the suit at all, and at any event, because the deed was made before the committee was appointed. The committee's right to sue to set aside the conveyance is fully sustained by reason as well as the authorities cited by his counsel. Bird v. Bird, 21 Grat, 712; Hinchman v. Ballard, 7 W. Va. 152; Straight v. Ice, 56 W. Va. 60; Knight v. Watts, 26 W. Va. 175; Burnett v. Greathouse, 77 W. Va. 516, 88 S. E. 1013.

The bill charges that Charles Doak was mentally incapacitated to make the deed to defendant, Victoria E. Smith, his daughter, and that he was induced to do so by undue influence upon her part. These are the gravamen of the charges in the bill around which all of the pleadings and evidence is grouped and upon the decision of which the equities of the cause are to be determined.

From the pleadings and proof it appears that Charles Doak was a strong, healthy man until the last few years of his life, unlearned, not being able to read or write or sign his name, and was a shrewd trader, frugal in his habits, and by industry had accumulated considerable property both real and personal. He married in early life, and there were born to him eight sons and three daughters, all of whom, with the exception of one son, were living at the time of making the deed in question, December 5, 1919, and were living at the time of his death a year or so later. Several years before his death he had conveyed to each of his sons 50 acres of land, in which conveyance it was provided that the real estate conveyed should be in full of the share of such sons in the real estate of their father. Possibly in two of these conveyances he provided that the land conveyed was in full of the distributive share of the grantees in his estate. About this time he made certain gifts or advancements in money or property to his three daughters. He was a soldier in the Civil war and was drawing a pension of $40 per month from the Federal government. In 1918 his wife died, and after that time, he being then 83 years old, it became noticeable that he was in failing health and memory. It was provided in the deeds of real estate to his sons as a part of the consideration, that each son should take part care of him and his wife in their old age. After the death of his wife he went to live with his sons, visiting them and staying with each a portion of the time. About November 16, 1919, he went to visit his daughter, Victoria E. Smith, the wife of Fenton Smith, who lived on Doe Run in a suburb of the town of West Union in Doddridge county. At that time it appears he owned the fee in 23 acres of land on the waters of Brush Run in Grant District of that county, and also one-sixteenth of the oil within and under about 56 acres of land near New Milton; and also the royalty in oil and gas in and under 190 acres of land on Knight's Fork in said county. The deed in question conveyed the 23 acres of land in consideration of $1.00 and love and affection, to Ross Doak, his son; and conveyed, for a like consideration to Victoria Smith, all of the remainder of his proprety, real, personal and mixed, in said county, excluding therefrom his horse and pension, and which included all his royalty interests in the two tracts of land above described, the 56 acre and the 190 acre tract. As a further consideration of the conveyance to Victoria she was required to pay to her sister Margaret Spencer, a daughter of the grantor, the sum of $200 within one year from the date of the deed, should she receive that amount out of the property conveyed. There was a producing oil well drilled in on the 56 acre...