English v. Porter

• Decision Date: 26 March 1884
• Citation: 1884 WL 9791,109 Ill. 285
• Parties: JOSEPH G. ENGLISH, Conservator,v.ANN N. PORTER.
• Court: Illinois Supreme Court

109 Ill. 285

1884 WL 9791 (Ill.)

JOSEPH G. ENGLISH, Conservator,

v.ANN N. PORTER.

Supreme Court of Illinois.

Filed at Springfield Mar. 26, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Vermilion county; the Hon. J. W. WILKIN, Judge, presiding.

Mr. J. C. BLACK, and Mr. E. R. E. KIMBROUGH, for the appellant:

In determining the question of capacity of R. L. Porter to convey his property on the 7th and 15th days of April, 1881, the court will look beyond the few facts of the actual signing, and consider all competent evidence as to the life and mental habits and condition of the alleged insane person. Hopps v. People, 37 Ill. 385; Haviland v. Hayes, 37 N. Y. 25; Bitner v. Bitner, 65 Pa. 347; Robinson v. Adams, 62 Maine, 369.

If insanity be once established, its continuation is presumed. Menkins v. Lightner, 18 Ill. 282; Rust v. Megee, 36 Ind. 69; Cadwell v. King, 4 Cow. 207; Haviland v. Hayes, 37 N. Y. 25.

The court will, on the question of insanity, consider not only proof of former insanity, but also proof of subsequent insanity. If Porter was insane before and after signing the deeds, the defendant must show, by a preponderance of evidence, that he was sane at the time of executing the deeds. Dumond v. Kiff, 7 Lans. 465; Emery v. Hoyt, 46 Ill. 258; Haviland v. Hayes, 37 N. Y. 25.

The influence of a woman who sustains illicit relations to a man, of the character and duration shown in this case, is an undue influence. Kessenger v. Kessenger, 37 Ind. 341; 1 Redfield on Wills, 520; Mountain v. Bennett, 1 Cox, 355; Dean v. Negley, 41 Pa. St. 312.

When the sexual relations of a man and woman are for a time openly adulterous, no presumption will be indulged of marriage from long cohabitation. To interrupt the adulterous relation and make it pure, there must be proof of marriage. Port v. Port, 70 Ill. 473; McDeed v. McDeed, 67 Id. 546.

Mr. F. BOOKWALTER, and Messrs. MANN, CALHOUN & FRAZIER, for the appellee:

As to the degree of mental weakness or of mental capacity to avoid or sustain a contract, see Pickerell v. Morss, 97 Ill. 220; Brown et al. v. Riggin et al. 94 Id. 560; Carpenter v. Calvert, 83 Id. 62; Rutherford v. Morris, 77 Id. 397; Meeker et al. v. Meeker, 75 Id. 266; Lilly v. Waggoner, 27 Id. 395; Titcomb v. Vantyle, 84 Id. 371; Willemin v. Dunn et al. 93 Id. 511; Wiley v. Ewalt, 66 Id. 26; Lindsey v. Lindsey, 50 Id. 79; McCarty v. Kearnan, 86 Id. 291; Trish v. Newell, 62 Id. 196; Miller v. Craig, 36 Id. 109.

On a bill filed by a conservator to set aside a conveyance, the burden is on him to establish his bill. Pickerell v. Morss, 97 Ill. 220.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was a bill in equity, by Joseph G. English, as conservator of Robert L. Porter, to set aside certain conveyances of real estate to Ann N. Porter, on the grounds of the insanity of the grantor and the undue influence of the grantee over him. The circuit court decreed that the bill be dismissed, and the question to be determined on this appeal is, whether that decree is sustained by the evidence.

The burden was upon the complainant to prove one or both of these allegations of his bill by a preponderance of evidence. ( Lilly v. Waggoner, 27 Ill. 395; Willemin v. Dunn et al. 93 Id. 511.) We are not satisfied that this has been done. Appellant proved that the conveyances were executed on the 7th and 15th of April, 1881; that on the 12th of May, 1881, Porter was duly adjudged insane, and appellant was appointed his conservator, in a proper proceeding for that purpose in the county court of Vermilion county; and several witnesses testified, on his behalf, that in their opinion Porter was, by reason of his insanity, incapable of transacting business at the date of the execution of the conveyances. More numerous witnesses, however, on the other hand, and apparently equally entitled to credit, testified, that in their opinion he was at that time capable of transacting business.

We think the fair conclusion, from the evidence, is, Porter's mind was affected by a form of dementia, slightly, for several months (perhaps longer) before the execution of the conveyances. This gradually increased, and some time after the appointment of the conservator it became such that he was incapable of self-control and the transaction of business. It may be, too, that the rate of mental impairment was accelerated towards the last; but Porter had a considerable amount of business, somewhat varied in character, of which he had the charge and direction until some time after the appointment of the conservator, and this he managed and directed with care and diligence, and at the dates of the execution of the deeds his mind was sufficiently strong and self-poised to enable him to comprehend all the details of what he was doing, and the effect of his acts, and to exercise his own volition with reference thereto. Drs. Lemon, Barton and Morehouse fix the period of their first observation of a marked decline in the mental powers of Porter, in the month of October, 1880, during the illness of one Peter Walsh, a foster-son of Porter, to whom he was warmly attached. Walsh died on the 9th of November following, and thereafter, in their opinion, Porter declined in mental power pretty rapidly. They noticed it, chiefly, as manifested by his grief for the death of Walsh, in incoherence in speech, and in apparent difficulty in continuity of thought upon any given subject. They give no instance of inability to rationally manage and dispose of property, and they show that he had the charge of his business,--which, as already observed, was pretty extensive, and which included a medical practice,--until after the appointment of the conservator. It is true, towards the last the practice of medicine is not shown to have been extensive, but it is shown to have been carried on until the appointment of the conservator, and one apparently very intelligent witness, Dr. Woodbury, testifies that he regarded him capable of properly handling so dangerous a drug as morphine, even after the appointment of the conservator. Porter was the owner of a farm of eight hundred acres, and of other real estate, and some personal property, all of which, it is shown, he managed intelligently and carefully, even after the appointment of the conservator.

There were four witnesses present when the deeds were executed,-- Norvell, (the scrivener,) Forbes, Alles and Terry. They were all intimately acquainted with Porter, and had long known him, and they unite in the opinion that he was then competent to transact business. Norvell says, about a week before the deeds were made Porter came to his office alone, and told witness he wanted him to prepare some deeds from him (Porter) to Mrs. Porter, as he had used some of her money; that Porter had spoken about this several times before; that at the time of making the deeds Porter again came alone to him, and indicated on the plat what lands he wished to convey to appellee; that his capacity for transacting business was good, and he appeared to the witness as rational as he ever had since he had first known him, in 1867. He further says that Porter assented to the indorsement of the price of the lands as a credit upon the notes which appellee held against him.

Judge E. S. Terry says, that he had known Porter for twenty-five years, and that he was present when the deeds were made; that at that time Porter took him aside and told him that he had been receiving from his wife divers sums of money, and that he was then conveying to her real estate, and showed the witness the lands on the plat. Judge Terry further says that he had discovered some impairment of Dr. Porter's mental powers previous to that time, but that such impairment was not, in his opinion, of such a character as to render him incompetent to do a valid act, either as to the disposition of his property, or otherwise. He says that Porter asked him if he did not think he was doing right in making the conveyances, and that ...