Elcessor v. Elcessor

• Decision Date: 04 January 1892
• Docket Number: 80
• Citation: 23 A. 230,146 Pa. 359
• Parties: C. C. ELCESSOR ET AL. v. MARY ELCESSOR
• Court: Pennsylvania Supreme Court

23 A. 230

146 Pa. 359

C. C. ELCESSOR ET AL. v. MARY ELCESSOR

No. 80

Supreme Court of Pennsylvania

January 4, 1892

Argued October 27, 1891

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY.

No. 80 October Term 1891, Sup. Ct.; court below, No. 362 July Term 1889, C.P. No. 2.

Returnable to the first Monday of July, 1889, C. C. Elcessor and others brought ejectment against Mary Elcessor, for a lot of ground in Allegheny City. Issue.

At the trial, on October 6, 1889, the plaintiffs showed title to the lot in controversy in Lewis Elcessor, who died intestate on May 7, 1889, leaving to survive him his widow, Mary Elcessor the defendant, and the plaintiffs, who were his children by two former marriages. There was no issue of the decedent's last marriage. The plaintiffs having rested the defendant gave in evidence a deed for the property in dispute from Lewis Elcessor and his wife, the defendant, to J. W. Keffer, dated March 12, 1889, duly recorded; and a deed for the same property, dated the same day, from J. W. Keffer and wife to Mary Elcessor, the defendant, duly recorded.

The defendant having rested, the plaintiffs, with other testimony to show the mental incapacity of Lewis Elcessor at the time of the foregoing deeds, called Reuben Logan, who testified that he had been aquainted with Lewis Elcessor for over forty years; that he was a boss plasterer, and fifteen or twenty years ago had the name of being a very shrewd dealer; that for the last few years of his life he was not doing any business, unless in dealing a little in pork or grain; that the witness went with him to "places" on two or three occasions, but Mr. Elcessor never invested; that in the latter years of his life he "looked very different from the former part of his life;" and that the witness had seen him crying, dozens of times.

"Q. In your judgment, the last year of his life was he of sound or unsound mind?"

Objected to, that the witness had disclosed no facts to justify him in expressing an opinion.

By the court: Objection overruled; exception.

"A. You mean in business? Q. Yes, sir. A. I think not, sir. Q. Why was he not fit to do business? A. Well, from the fact that he would ask the same question over three or four different times on the same subject; he would ask you a question and get the answer, and then ask the same question over again afterwards repeatedly; that is why I think he was not fit to do business."

John Alston, called for the plaintiffs, testified that he went to work for Lewis Elcessor, had lived with him for eight or nine years, and had known him for eighteen years:

"Q. Did you see him in the latter years of his life? A. Yes, sir I passed him frequently on the street. I think the last time I spoke to him was about the first of March, or the last part of February. I was going up along Dawson street; and at the park I caught up with him, and walked up to him and stuck my arm in his and walked the same way he was going; and he turned around and spoke to me and asked me how I was getting along. He was very slow in talking and was walking very slow and I suppose it took us ten minutes to walk up to Webster street; and he asked me how much work I was doing and how I was getting along; and when we got within three or four doors of Irwin Avenue, he asked me where I was going, and I said, down to the barn there, and he turned around to me and he says 'Who are you?' and I says 'Johnny Alston;' and he turned around and shook hands with me and asked me the same things over again; how I was getting along and whether I was doing as much[Illegible Word] he did before, and I walked along and he kept up the street. I met him in the street frequently and spoke to him, and he would speak to me and call me by name; other times he would be looking right at me and wouldn't answer when I spoke, and walk along. Q. Did you ever have any conversation with him? A. I don't think I did, any more than to give him the time of day. I spoke to him once in the Diamond, and asked him how he was getting along; and another gentleman came up and spoke to him and he went off with him. Q. Can you recall any subject of conversation you had with him during the last year or two of his life? A. Only this one, when he asked me how I was getting along and I thought -- Q. How did he go along the street the last year of his life? A. Very stupid, very slow. It used to be, when I walked with him on the street, when I learned my trade with him, it would keep me running to keep up with him; and that day he was going along stoop-shouldered, and weak and trembling like. Q. From your observation of this man and his conversation, was he of sound or unsound mind and fit to do business the last year of his life?"

Defendant objected, on the ground that the witness had not testified to sufficient facts to warrant an opinion.

By the court, to plaintiff's "I do not think it would be safe, if there should be a verdict for you.'

By Mr. Marshall: "We will risk it."

By the court: Objection overruled; exception. 5

"Q. At the time you saw him and talked to him, in the latter part of February or the first part of March, 1889, from his appearance and conversation, in your judgment was he fit to do business; of sound or unsound mind? A. My opinion of him at that time when I saw him, his memory, from what he had been when I had a great deal of dealings with him, had failed wonderful, and he was about as great a changed man as ever I knew, because he would come right at me with the same question over and over. Q. Was he fit to do business, in your judgment? A. In my judgment at that time, I don't think he was."

There was testimony that the property in dispute was worth six or seven thousand dollars, but was mortgaged for two thousand dollars; and that Lewis Elcessor died seised of other real estate in Allegheny City.

At the close of the testimony, the court, EWING, P.J., charged the jury in part as follows:

In determining a question about which there has been a great deal of testimony, and a great deal of it that is probably of not very much importance in the case, it is important to exclude from consideration things that are not in the case.

Now first, you and I are not to make a will for Lewis Elcessor; we are not to distribute his property. That is not to be considered; and whether or not it is a just distribution -- too much or too little for this woman -- you and I have nothing to do with; because, from the admitted testimony it is not a case of a man divesting himself of his...