Ellison v. Lockard, (No. 9653)

• Court: Supreme Court of West Virginia
• Writing for the Court: RILEY.
• Citation: 127 W.Va. 611
• Parties: W. M. Ellison, Admr., et al. v. Edna Lockard
• Decision Date: 01 May 1945
• Docket Number: (No. 9653)

127 W.Va. 611

W. M. Ellison, Admr., et al.
v.
Edna Lockard

(No. 9653)

Supreme Court of Appeals of West Virginia.

Submitted April 3, 1945.
Decided May 1, 1945.

[127 W.Va. 611]

1. Deeds

"The presumption of law is that the grantor in a deed was sane and competent to execute it at the time of its execution." Pt. 1, Syl., Delaplain v. Grubb, 44 W. Va. 612.

[127 W.Va. 612]

2. Deeds

"Mere age or infirmity of mind and body is not sufficient to overcome the legal presumption of mental capacity of the grantor." Pt. 2, Syl., Burkle v. Abraham, 112 W. Va. 257.

3. Deeds

The burden of proving that a grantor was not sane or competent at time of execution of an agreement conveying property is on the one attacking its validity. In judging a grantor's capacity to execute such an agreement, the point of time to be considered is the time of its execution.

4. Deeds

The testimony of a subscribing witness to the execution of a writing is entitled to peculiar weight in considering the capacity of the party executing it.

Appeal from Circuit Court, Calhoun County.

Suit by W. M. Ellison, administrator, and others, against Edna Lockard to cancel an agreement executed by W. A. Ellison, deceased, conveying property to defendant. From a decree cancelling the agreement, defendant appeals.

Reversed, bill dismissed.

E. L. Eakle, for appellant.

A. G. Mathews and Lorentz C. Hamilton, for appellees. Riley, Judge:

This is a suit in equity by W. M. Ellison, both as administrator and as distributee of the estate of W. A. Ellison, deceased, and others, to cancel an agreement purported to have been executed by W. A. Ellison and defendant, Edna Lockard, during the former's lifetime, conveying all of decedent's property to defendant in consideration of past and future services, on the grounds: (1) That the agreement was not executed by W. A. Ellison; and, if signed by him, (2) that it was at a time when he was mentally incompetent to do so. The trial court (as the final decree recites) found "that at the time when the paper writing

[127 W.Va. 613]

and agreement * * * was purported to be signed and executed * * * W. A. Ellison was of unsound mind and not competent to execute said writing and agreement, and did not possess sufficient memory, understanding and mind to know and appreciate the nature, character and effect of signing and delivering the same and was incapable of entering into said agreement"; and decreed that the same "is hereby set aside, cancelled and held for naught". From this decree defendant prosecutes this appeal.

W. A. Ellison died intestate August 4, 1943, at the age of fifty-two, survived by W. M. Ellison, his father, Rebecca Ellison, wife of Ray Ellison, and Lavina Wesson, his sisters, and J. M. Ellison and R. F. Ellison, his brothers. His mother had predeceased him in 1938. He had always lived in the home occupied by his father and mother. He had been totally blind for ten or eleven years prior to death. In 1934 his mother took the defendant, Edna Lockard, a girl of sixteen, into the home as a domestic, and the latter remained there until August 7, 1943, the Saturday following decedent's death. In addition to other duties defendant attended to decedent's wants, and assisted him in his business transactions, especially during his last years. So far as the record discloses she had never received any remuneration for her services other than board, room and some clothes.

Decedent suffered a paralytic stroke on December 13, 1942. Initially he was rendered unconscious, but regained consciousness after his removal to the hospital at Spencer, where he remained seventeen days. Dr. Gordon, the owner of the hospital in active charge thereof, stated that when admitted to the hospital, decedent "seemed to be confused and clouded" and that "he was sane when he left"; that only the motor not the mind center of his brain was affected. Between the time of leaving the hospital and August 4, when he suffered a second stroke resulting in death, decedent had improved to such an extent physically that he could walk about the house and in the yard; and with the aid of Edna he had continued to transact matters of business. He sold a haystack for fifteen dol-

[127 W.Va. 614]

lars, ten dollars by check and five dollars in work; made a deal to have the grass cut on the shares; renewed a lease with Hope Natural Gas Company on certain property; and shortly prior to death advised Edna against selling certain cattle on an offer of fifty dollars per head, stating that the cattle would bring over a hundred dollars per head at Spencer. On those occasions, he seemed to know what he was doing.

On various occasions both before and after the stroke on December 13, 1942, and in the presence of others, he had indicated that he desired defendant, the only person who seems to have attended to his needs, to have whatever property he possessed.

The paper writing, the execution of which is the basis of this suit, bore date July 20, 1943, and purported to convey to Edna Lockard all of the property, real, personal and mixed, then owned by decedent, in return for past and future services rendered and to be rendered by defendant. This paper was executed on July 31, 1943. On two previous occasions decedent attempted to transfer property to defendant, but at the time of the execution of the last paper remarked that the former memorandums had not been "strong enough."

S. M. Matheney, Roy Metheney and Henry Nicholas were at the house at the time of the execution of the writing. They had been engaged in cutting grass for decedent and had come to the house for the purpose of grinding certain implements. Nicholas having declined the request to be a witness, decedent then called Roy Metheney, and the latter witnessed the execution of the writing. He held the end of the pen while decedent made his mark, and then signed as witness thereto. Defendant then signed, and when the paper was returned to decedent, the latter handed it to defendant. Roy Metheney was of opinion decedent was in his right mind. Although...